United States v. Gordon

United States Court of Appeals
For the First Circuit

No. 16-1896

UNITED STATES OF AMERICA,

Appellee,

v.

ANDREW GORDON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Barron, Selya and Lipez,
Circuit Judges.

Robert L. Sheketoff for appellant.
Rachel Y. Hemani, Assistant United States Attorney, with whom
William D. Weinbreb, Acting United States Attorney, was on brief,
for appellee.

November 7, 2017
 SELYA, Circuit Judge. After attempting unsuccessfully

to hire a hit man to murder his wife (the person whom he asked to

facilitate the matter tipped off the authorities and the hired gun

turned out to be an undercover state trooper), defendant-appellant

Andrew Gordon then sought to procure the services of a second hit

man to kill both the tipster and the imposter. That attempt, too,

came to naught. This time, though, federal authorities charged

the defendant with five counts of using facilities of interstate

commerce in connection with the hiring of a person to commit a

murder. See 18 U.S.C. § 1958(a).

The defendant was tried and convicted on all counts, and

the district court sentenced him to what amounted to twenty years'

imprisonment. He now appeals, raising both an evidentiary issue

and a question of first impression in this circuit concerning the

appropriate unit of prosecution under the statute of conviction.

After careful consideration, we hold that the district court did

not commit reversible error with respect to the challenged

evidentiary ruling and, thus, we affirm the defendant's

conviction. We further hold, however, that the appropriate unit

of prosecution under 18 U.S.C. § 1958(a) is a single plot to murder

a single individual, not the number of times that the facilities

of interstate commerce were used. Because the government charged

the defendant in separate counts for separate uses of the

facilities of interstate commerce without regard to the number of

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plots or the number of intended victims, we direct that the counts

be merged, vacate the defendant's sentence, and remand for

resentencing.

I. BACKGROUND

We briefly rehearse the facts and travel of the case.

Because the defendant does not challenge the sufficiency of the

evidence, we present the facts in a balanced manner. See United

States v. Cox, 851 F.3d 113, 118 n.1 (1st Cir. 2017).

In late 2014, the defendant was being detained at the

Billerica House of Corrections while awaiting trial in state court

for the solicitation of his wife's attempted murder. While there,

he met a fellow inmate, whom we shall call CW (an acronym for

"cooperating witness"). CW had a lurid history of prior

convictions for violent crimes and was himself awaiting trial on

charges of aggravated rape and assault with a dangerous weapon.

The defendant asked if CW knew anyone who "had the balls

to kill." CW replied that he had a cousin who would be willing to

kill in exchange for money. Over the course of several ensuing

conversations, the defendant disclosed that he wanted two

individuals murdered: the state trooper who had posed as a hit man

in the defendant's botched attempt to rid himself of his wife and

the person who had reported the defendant's scheme to the

authorities. These persons, if not eliminated, would likely be

key witnesses for the prosecution in the defendant's forthcoming

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criminal trial, and the defendant gave CW written information

concerning both of them.

Lightning sometimes does strike twice, and the defendant

was betrayed a second time. CW squealed and coordinated with law

enforcement personnel as they recruited an undercover agent to

pose as CW's cousin (the erstwhile hired gun). The government

equipped its ersatz hit man with a post office box and a telephone

number in New Hampshire, which were designed to serve as channels

of communication with the defendant.

At that juncture, CW introduced the defendant to the

undercover agent masquerading as CW's fictional cousin/hit man.

During a period of nearly four months, the defendant engaged in

numerous mail exchanges with the fake hit man and used

intermediaries to relay messages to the hit man by telephone. In

these communications, the men discussed the logistics of the

planned slayings. The government gathered footage of the defendant

receiving and responding to letters from the phony hit man and

recordings of the defendant speaking on the telephone in connection

with the plot. When the trap was sprung and the defendant was

charged with violating section 1958(a) (known colloquially as the

"murder-for-hire" statute), two of these mailings and three of the

telephone calls comprised the building blocks for the five counts

of the indictment: each count represented a discrete use of the

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facilities of interstate commerce in furtherance of the plot to

carry out the anticipated killings.

At trial, the defendant did not testify. His counsel

argued, though, that the defendant had been putting on a show: he

had only been pretending to need the services of CW's cousin in

order to curry favor with CW. He had been afraid of CW, and this

fear motivated him to feign participation in the murder-for-hire

plot.

The jury proved unreceptive to this tall tale. After a

week-long trial, it found the defendant guilty on each of the five

counts charged in the indictment. The district court sentenced

the defendant to what amounted to twenty years' imprisonment, to

run concurrently with a state-court sentence for the attempted

murder of his wife that he had already begun serving. This timely

appeal followed.

II. ANALYSIS

Ably represented, the defendant advances two claims of

error. We start with his assertion that the district court erred

in admitting impermissible character evidence. We then mull his

assertion that the government employed the wrong unit of

prosecution in its charging document. Finding this second claim

of error to have merit, we conclude by discussing the appropriate

remedy.

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 A. The Challenged Evidentiary Ruling.

The Billerica House of Corrections (where the defendant

was detained) is operated under the aegis of the Middlesex County

Sheriff's Department. The defendant argues that the district court

should not have allowed the following testimony from George

Karelis, a Sheriff's Department employee responsible for

investigations within the House of Corrections:

Prosecutor: And in that capacity, did you

become familiar with the troublemakers that

were inmates at the jail?

Karelis: Yes.

Prosecutor: Did the name of [CW] ever cross

your desk?

Defense Counsel: Objection, your honor.

The Court: Overruled.

Karelis: As a troublemaker?

Prosecutor: Yes.

Karelis: No, sir.

In the defendant's view, this testimony offended Federal Rule of

Evidence 404(a)(1), which generally proscribes the admission of

character evidence for the purpose of showing "that on a particular

occasion the person acted in accordance with the character or

trait."

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 When claims of error are preserved, rulings admitting or

excluding evidence are ordinarily reviewed for abuse of

discretion.1 See United States v. Iwuala, 789 F.3d 1, 5 (1st Cir.

2015); United States v. Gobbi, 471 F.3d 302, 311 (1st Cir. 2006).

When claims of error are not preserved, though, such rulings are

reviewed only for plain error. See United States v. Bailey, 270

F.3d 83, 87-88 (1st Cir. 2001).

We repeatedly have held, consistent with the express

command of Federal Rule of Evidence 103(a)(1)(B), that "objections

to evidentiary proffers must be reasonably specific in order to

preserve a right to appellate review." United States v. Holmquist,

36 F.3d 154, 168 (1st Cir. 1994); see Bailey, 270 F.3d at 87-88.

The defendant's bald objection could not have been less specific:

no attempt was made to state the grounds for the objection. Nor

does the context suffice to rescue the objection. Although

surrounding circumstances sometimes may dress an otherwise bare

objection and make the reason for the objection obvious, see Fed.

R. Evid. 103(a)(1)(B), that principle does not apply where, as

here, the record suggests a multitude of possible grounds for the

objection. For example, the objection could have been predicated

1 We say "ordinarily" because, if a preserved claim of error
challenges the district court's interpretation of one of the
Federal Rules of Evidence, de novo review may be appropriate. See
United States v. Zarauskas, 814 F.3d 509, 519 (1st Cir. 2016).
That does not appear to be the case here: the defendant's challenge
is directed at the court's application of such a rule.

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on concerns about relevancy, concerns about the form of the

question, concerns about the ambiguity inherent in the term

"troublemaker," concerns about the balance between probative value

and unfair prejudicial effect, or concerns about something

entirely different. Rule 103(a)(1)(B) is intended to shield a

trial judge from the need to engage in such guesswork, see United

States v. Vargas, 471 F.3d 255, 262-63 (1st Cir. 2006), and the

rule should have been complied with in this instance.

Consequently, we hold that the objection was not duly preserved

and, thus, review is for plain error.

To prevail on plain error review, the defendant must

show: "(1) that an error occurred (2) which was clear or obvious

and which not only (3) affected the defendant's substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001). The party asserting that an error

was plain must carry the burden of establishing that the claimed

error satisfies each element of this standard. See United States

v. Bramley, 847 F.3d 1, 5 (1st Cir. 2017); United States v. Vega

Molina, 407 F.3d 511, 521 (1st Cir. 2005). Since the defendant's

claim so readily fails on the third element of the analysis, we

need not discuss the other elements.

As we have explained, erroneously admitted evidence may

be said to have affected a defendant's substantial rights only if

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the admission of that evidence was likely to have influenced the

outcome of the trial. See Bramley, 847 F.3d at 7; United States

v. Padilla, 415 F.3d 211, 221 (1st Cir. 2005) (en banc). Here,

the contested exchange is but a pebble in the avalanche of

compelling evidence introduced against the defendant at trial.

Although CW was an important participant in the government's

evidence-gathering process, the bulk of the government's proof was

captured by either video or audio recordings in which the defendant

could be seen or heard engaging (independent of CW) in an active

effort to arrange a pair of murders for hire with an individual

represented to be a hit man. Indeed, a substantial portion of

this evidence was generated while the defendant and CW were

billeted in separate dormitories at the House of Corrections and

not permitted to communicate with each other. It follows, we

think, that even if there were a clear and obvious error in

admitting the challenged testimony — a matter on which we take no

view — that error was not likely either to have influenced the

outcome of the trial or to have affected the defendant's

substantial rights. Plain error was plainly absent.

In an effort to blunt the force of this mass of evidence,

the defendant argues that he was merely pretending to enter into

a scheme with CW so that the latter would befriend him. The

defendant suggests that the contested exchange significantly

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bolstered CW's credibility and, thus, undermined the defendant's

"play-acting" line of defense.

This suggestion does not withstand scrutiny. The jurors

were exposed to plenty of troubling information about CW's lurid

past, yet this information did not lead them to find the

defendant's fear of CW credible. The bare fact that CW's name had

never been brought to Karelis's attention as a "troublemaker" seems

unlikely to have impacted the jurors' assessment of the defendant's

purported fear to any meaningful extent. It was, therefore,

unlikely to have influenced the outcome of the trial.

That ends this aspect of the matter. Viewing the record

as a whole, we deem speculative at best the defendant's claim that

allowing Karelis to answer the single question to which an

objection had been interposed somehow affected the defendant's

substantial rights. That claim is too weak to clear the high bar

imposed by plain error review. Given the powerful evidence of his

guilt, the defendant has not shown a reasonable probability that,

but for the admission of the challenged testimony, the outcome of

the trial likely would have been different. See Jones v. United

States, 527 U.S. 373, 394-95 (1999) ("Where the effect of an

alleged error is so uncertain, a defendant cannot meet his burden

of showing that the error actually affected his substantial

rights.").

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 B. The Unit of Prosecution.

Next, the defendant asseverates that the indictment used

the wrong unit of prosecution and, thus, was multiplicitous.

Although the district court twice rejected this asseveration, we

are less sanguine.

The statute of conviction reads in relevant part:

Whoever travels in or causes another
(including the intended victim) to travel in
interstate or foreign commerce, or uses or
causes another (including the intended victim)
to use the mail or any facility of interstate
or foreign commerce, with intent that a murder
be committed in violation of the laws of any
State or the United States as consideration
for the receipt of, or as consideration for a
promise or agreement to pay, anything of
pecuniary value, or who conspires to do so,
shall be fined under this title or imprisoned
for not more than ten years, or both; and if
personal injury results, shall be fined under
this title or imprisoned for not more than
twenty years, or both; and if death results,
shall be punished by death or life
imprisonment, or shall be fined not more than
$250,000, or both.

18 U.S.C. § 1958(a). The government argues that the appropriate

unit of prosecution is each separate use of the facilities of

interstate commerce.2 On that basis, it charged the defendant with

five distinct violations of the statute. The defendant counters

2 To be precise, section 1958(a) speaks in terms of the
facilities of "interstate or foreign commerce." Foreign commerce
is not involved in this case, so we use "interstate commerce"
throughout as a shorthand.

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that the appropriate unit of prosecution is each plot to hire

someone to commit a murder. On that basis, he argues that the

indictment is multiplicitous because he should have been charged

in only a single count.3 These divergent views have real-world

consequences: if only a single count was appropriate, the

defendant's sentence would be limited by the ten-year statutory

maximum. See id. If, however, the government were free to employ

each use of the facilities of interstate commerce as the unit of

prosecution, the defendant would be exposed to multiple

punishments that could total substantially more than ten years.

This issue is fully preserved. The defendant raised it

below both by a pretrial motion to dismiss and at the close of all

the evidence. The district court rejected the defendant's

importunings on both occasions and explicated its reasoning in a

post-trial opinion. See United States v. Gordon, 169 F. Supp. 3d

301, 303-04 (D. Mass. 2016). Since the issue turns on a question

of statutory interpretation, our review is plenary. See United

States v. Marquez, 280 F.3d 19, 22 (1st Cir. 2002).

The prohibition against multiplicitous prosecution

derives from the Double Jeopardy Clause. See United States v.

3While the defendant concedes that the government might have
charged two counts (one for each of the two targets), he
nevertheless points out that because the government opted to charge
both attempted murders in each of the five counts, the indictment
was multiplicitous.

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Pires, 642 F.3d 1, 15 (1st Cir. 2011) (quoting Illinois v. Vitale,

447 U.S. 410, 415 (1980)); see also U.S. Const. amend. V. As

relevant here, "multiplicity" means that a single crime (or "unit

of prosecution") has been charged as multiple crimes, each of which

is to be punished separately. See United States v. Chiaradio, 684

F.3d 265, 272 (1st Cir. 2012). We have illustrated the way in

which this branch of the multiplicity doctrine works through the

following example: "when a felon has violated 18 U.S.C. § 922(g)

by possessing a firearm, it would be multiplicitous to charge the

felon with two counts simply because he had it yesterday and

today." Id.

In general terms, when "a claim of multiplicity is

premised on an indictment alleging several violations of a single

statutory provision, an inquiring court must determine whether

there is a sufficient factual basis to treat each count as

separate." United States v. Stefanidakis, 678 F.3d 96, 100-01

(1st Cir. 2012) (citing Pires, 642 F.3d at 15). Here, this

determination depends on whether Congress intended to punish

separately each of the alleged violations. See Jeffers v. United

States, 432 U.S. 137, 155 (1977) (plurality opinion).

The problem, then, is easily defined — but less easily

solved. The combination of a clumsily drafted statute, enigmatic

legislative history, and sparse precedent presents a quandary.

The key to unlocking that quandary is congressional intent. See

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Chiaradio, 684 F.3d at 272 (explaining that, in identifying

appropriate unit of prosecution, "Congress's intent is

paramount").

In ascertaining congressional intent, we employ "the

traditional tools of statutory construction, including a

consideration of the language, structure, purpose, and history of

the statute." McKenna v. First Horizon Home Loan Corp., 475 F.3d

418, 423 (1st Cir. 2007) (quoting Estey v. Comm'r, Me. Dep't of

Human Servs., 21 F.3d 1198, 1201 (1st Cir. 1994)). Our starting

point is the text of the statute itself. See United States v.

Charles George Trucking Co., 823 F.2d 685, 688 (1st Cir. 1987).

To the extent that Congress chose words that it did not define, we

assume those words "carry their plain and ordinary meaning."

Stornawaye Fin. Corp. v. Hill (In re Hill), 562 F.3d 29, 32 (1st

Cir. 2009).

If a statute's plain meaning supplies a plausible

interpretation, the inquiry is often at an end. See id. Here,

however, the plain meaning of the words that Congress used in

framing the description of the offense suggests two possible units

of prosecution. Those words can be read (as the government posits)

to criminalize each act of travel or each use of the facilities of

interstate commerce in service of a murder-for-hire scheme. But

those words also can be read (as the defendant posits) to

criminalize each plot or scheme to murder an individual for which

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something of value is promised in consideration for the solicited

murder. Since this text is sufficiently malleable to accommodate

either of the proposed units of prosecution, we must undertake the

judicial equivalent of an archeological dig to ascertain

Congress's intent.

In some cases, Congress's will can be divined from an

examination of the statute as a whole. See Sturgeon v. Frost, 136

S. Ct. 1061, 1070 (2016). Perlustration of the sentencing scheme

embedded in section 1958(a) illuminates Congress's thinking and —

at the same time — highlights the odd results that would flow from

adopting the government's proposed unit of prosecution. The

statute provides for a maximum of ten years' imprisonment for a

violation that does not result in personal injury, a maximum of

twenty years' imprisonment for a violation that does result in

personal injury, and a maximum of death or life imprisonment if

murder results. See 18 U.S.C. § 1958(a). This taxonomy comprises

a graduated sentencing scheme and, as such, conveys a clear

indication of Congress's apparent belief that the greater the harm

to the victim, the harsher the punishment should be for the

offender.

The government's proposed unit of prosecution would

frustrate this congressional aim: it would, for example, expose a

person who made ten telephone calls in service of a failed plot

that caused no injury to anyone to a much steeper maximum sentence

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than a person who, as a result of a single telephone call, caused

substantial personal injury to a victim. Such a result seems

irrational when considered in light of the evident purpose of the

statute's sentencing scheme. The unit of prosecution advocated by

the defendant (which focuses on the number of plots) is much more

consistent with the victim-centric sentencing scheme formulated by

Congress.

Statutory history and legislative context furnish

additional sources of insight that a court may inspect when

attempting to discern congressional purpose. See Greenwood Tr.

Co. v. Massachusetts, 971 F.2d 818, 824 (1st Cir. 1992). This

analysis, too, supports a plot-focused unit of prosecution. Though

the Senate Report explaining the adoption of section 1958 gives

some comfort to both sides of this debate (it is replete with

statements that may arguably support either proposed unit of

prosecution), the discussion that focuses on the overlap between

state and federal jurisdiction is especially instructive. At the

time of enactment, murder prosecutions had "been the almost

exclusive responsibility of state and local authorities." S. Rep.

No. 98-225, at 304 (1984), as reprinted in 1984 U.S.C.C.A.N. 3182,

3484. The Report, though, reflected the Senate's determination

that the "option of federal investigation and prosecution should

be available when a murder is committed or planned as consideration

for something of pecuniary value and the proper federal nexus

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. . . is present." Id. at 304-05. The drafters nonetheless

cautioned that:

[f]ederal jurisdiction should be asserted
selectively based on such factors as the type
of defendants reasonably believed to be
involved and the relative ability of the
federal and state authorities to investigate
and prosecute. For example, the apparent
involvement of organized crime figures or the
lack of effective local investigation because
of the interstate features of the crime could
indicate that federal action was appropriate.

Id. at 305. In pursuance of this theme, the Report makes pellucid

that the crime Congress thought it was penalizing was similar to

existing state murder crimes (for example, solicitation of murder)

but also included certain specified features warranting federal

intervention. The focal point of the newly added offense was a

murder plot that had a federal nexus, not the federal nexus itself.

The government's thesis concerning the appropriate unit of

prosecution turns this rationale on its head and, in effect, makes

the federal nexus the substantive offense.4

4The government places great emphasis on a passage in the
Report, which states that the "gist of the offense is the travel
in interstate commerce or the use of the facilities of interstate
commerce or of the mails with the requisite intent and the offense
is complete whether or not the murder is carried out or even
attempted." S. Rep. No. 98-225, at 306 (1984) as reprinted in
1984 U.S.C.C.A.N. 3182, 3484. This passage, the government says,
supports its argument that the offense was intended to punish each
use of the facilities of interstate commerce. But the government's
emphasis is misplaced: the passage does not indicate whether
multiple uses constitute serial violations of the statute and,
thus, furnishes little guidance as to the appropriate unit of
prosecution.

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 The history of the statute's enactment reinforces the

centrality of the murder-for-hire plot. Section 1958 became law

as part of the Comprehensive Crime Control Act of 1984, Pub. L.

No. 98-473, 98 Stat 1837. It was enacted along with a companion

provision, 18 U.S.C. § 1959, which criminalized violent crimes in

aid of racketeering activity. Both provisions were added as part

of a congressional effort to "proscribe[] murder and other violent

crimes committed for money or other valuable consideration or as

an integral aspect of membership in an enterprise engaged in

racketeering." S. Rep. No. 98-225, at 304. A unit of prosecution

focused on the murder-for-hire plot seems more in keeping with

this legislative history than one focused on the use of the

facilities of interstate commerce.

It is an age-old tenet of statutory interpretation that

"plain meaning sometimes must yield if its application would bring

about results that are . . . antithetical to Congress's discernible

intent." Hill, 562 F.3d at 32; see Church of the Holy Trinity v.

United States, 143 U.S. 457, 459 (1892). Extrapolating from this

tenet, it follows logically that when the plain meaning of a

statute can feasibly suggest two results — one which appears

consistent with Congress's intent and the other not — the

consistent result should carry the day. This is such an instance.

Although both interpretations offered here may seem plausible at

a glance, closer examination reveals that the government's

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interpretation is suspect because it is "antithetical to

Congress's discernible intent" as made manifest by the statute's

graduated sentencing scheme and its legislative history. Hill,

562 F.3d at 32.

As we already have explained, under the government's

theory, a person who makes ten telephone calls to a hit man in

service of a failed murder-for-hire plot commits ten separate

crimes; yet a person who unsuccessfully makes arrangements to

procure the murder of ten individuals in a single uninterrupted

telephone call commits but one crime. The first of these

malefactors would, therefore, be subject to ten times the maximum

punishment to which the second malefactor would be exposed. Given

the congressional objectives we have identified, we think it

obvious that Congress could not have intended the statute to

operate in so curious a fashion.

In reaching the conclusion that the correct unit of

prosecution is plot-centric, we echo the only other published

circuit court decision squarely on point. The Sixth Circuit so

held in United States v. Wynn, 987 F.2d 354, 359 (6th Cir. 1993),

ruling that the appropriate unit of prosecution under section

1958(a) is the number of plots to murder a single victim.5 In

5 To be sure, there is an unpublished Sixth Circuit opinion
that takes a different view. See United States v. Ng, 26 F. App'x
452 (6th Cir. 2001) (per curiam). That opinion, however, is bereft

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Wynn, as in this case, the government had argued that each

telephone call made by the defendant in support of his scheme "was

a separate offense." Id. at 358-59. The court rejected this

argument, explaining that "separate phone calls which relate to

one plan to murder one individual constitute only one violation of

18 U.S.C. § 1958." Id. at 359.

We add, moreover, that the case law that interprets other

aspects of section 1958(a) is somewhat inhospitable to a unit of

prosecution that penalizes each use of interstate facilities. For

instance, in United States v. Edelman, 873 F.2d 791 (5th Cir.

1989), the Fifth Circuit held that, for a defendant to violate

section 1958(a), he need neither intend nor be aware that any

facility of interstate commerce would be used in connection with

the murder-for-hire plot. See id. at 794-95. It is enough if the

government can show, say, that "the mails were in fact used in the

commission of [the] offense" and that the defendant "had knowledge

of the nature of the substantive offense which he promoted." Id.

Given the holding in Edelman, incorporating the

government's proposed unit of prosecution into existing doctrine

would yield a regime in which a defendant could be charged with a

separate count each time a hit man he had hired opted (unbeknownst

to the defendant) to make a telephone call, send an e-mail, or

of precedential value even in the circuit that spawned it. See
6th Cir. R. 32.1(b).

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post a letter. See id. Such an arbitrary relationship between a

defendant's conduct and the maximum penalty to which he is exposed

offers scant redemption for the government's view.6

Heedless of these authorities, the government invites us

to read the statute woodenly. We decline the invitation. When

faced with a wooden reading of a statute that would produce a

result that conflicts with the clear congressional purpose

animating that statute, a reviewing court ought to be open to

adopting a textually plausible alternative reading that would

produce a more sensible result. See Dynamic Image Techs., Inc. v.

United States, 221 F.3d 34, 40 (1st Cir. 2000).

We do not gainsay that identifying the proper unit of

prosecution under section 1958(a) presents a challenging question.

There are two sides to the story, and the government has done its

level best to marshal arguments in support of its position. On

the surface, its most persuasive argument is that the Travel Act,

18 U.S.C. § 1952 (which penalizes each act of travel or use of the

mail or other facility of interstate commerce), was the model for

section 1958(a), so that the unit of prosecution for section

1958(a) should match that of the Travel Act. See 18 U.S.C. § 1952;

6 Adopting the government's suggested unit of prosecution
would be particularly problematic in cases, like this one, in which
the government uses an undercover agent who, by controlling contact
with a defendant, can easily manipulate the number of chargeable
counts. Here, for example, the government could, on its theory,
have elected to charge the defendant with many more counts.

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see also S. Rep. No. 98-225, at 305. With a little probing,

however, this comparison crumbles. The government's attempted

analogy ignores salient differences between the anatomy of the

Travel Act and the anatomy of the murder-for-hire statute. The

two are more like cousins than they are like twins. We explain

briefly.

Like the counterpart language in section 1958(a), a

conviction under the Travel Act requires that a defendant "travel[]

in interstate or foreign commerce or use[] the mail or any facility

in interstate or foreign commerce, with intent to" engage in a

prohibited activity. 18 U.S.C. § 1952. To complete an offense

under the Travel Act, though, the defendant must also "thereafter

perform[] or attempt[] to perform" a prohibited activity. Id. In

contrast, section 1958(a) includes no requirement of an act

subsequent to the use of interstate facilities in order to complete

the offense. This missing element — the requirement of a

subsequent act — makes it surpassingly difficult to believe that

Congress intended for the units of prosecution under these two

laws to be the same. In the end, we conclude that the government

is comparing plums to pomegranates.

The government also points to cases distinguishing

between statutes that criminalize the means of committing a

substantive offense and those that criminalize the offense itself.

See, e.g., United States v. Lilly, 983 F.2d 300, 304 (1st Cir.

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1992). Specifically, courts have found that the mail and wire

fraud statutes, see 18 U.S.C. §§ 1341, 1343, are in the former

category, criminalizing each use of the facilities of interstate

commerce in the service of a crime. The government argues — without

meaningful analysis — that the murder-for-hire statute should be

interpreted in the same way. For several reasons, though, any

similarity between the murder-for-hire statute and the mail and

wire fraud statutes proves too little.

To begin, while references to the facilities of

interstate commerce are ubiquitous in our nation's laws, the

significance of such language necessarily varies based on context.

Some statutes, such as the Securities Act, 15 U.S.C. § 77q(a),

feature the familiar "interstate commerce" language, yet have

units of prosecution that are distinct from those embodied in the

mail and wire fraud statutes. See United States v. Waldman, 579

F.2d 649, 654 (1st Cir. 1978) (establishing appropriate unit of

prosecution for securities fraud under section 77q(a) as each

"separate transaction[] accompanied by use of the mails"). Thus,

the simple attempt to compare section 1958(a) to other statutes

invoking the channels of interstate commerce brings us no closer

to an answer than when we began. Further mining is required to

ascertain whether a particular statute criminalizes the means of

committing a substantive offense or the offense itself.

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 Such an excavation is revealing with respect to the mail

and wire fraud statutes. From a textual perspective, neither of

those statutes contains strong indicators that Congress intended

the unit of prosecution to be something other than each use of the

relevant facilities of interstate commerce. Indeed, the

description of a "scheme or artifice to defraud" is ensconced in

those statutes by parenthetical commas and followed by a discussion

of the relevant facilities of interstate commerce. 18 U.S.C. §§

1341, 1343. Thus, the grammatical structure of the statute

suggests the supremacy of the "means" element — the use of the

mails or wires — and the correspondingly subordinate nature of the

"substantive offense" element — the scheme or artifice to defraud.

The murder-for-hire statute does not share this architecture.

Moreover, the murder-for-hire statute contains a graduated

sentencing scheme that readily elucidates a congressional focus on

potential harm to victims.

So, too, legislative history offers a principled basis

for distinguishing the mail and wire fraud statutes from the

murder-for-hire statute, notwithstanding the shared allusion to

interstate commerce. The progenitor to the current mail fraud

statute was enacted in 1872 as "part of a 327-section omnibus act

chiefly intended to revise and recodify the various laws relating

to the post office." Jed S. Rakoff, The Federal Mail Fraud Statute

(Part I), 18 Duq. L. Rev. 771, 779 (1980) (citation omitted). At

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the time, Congress was concerned about misuse of the national

postal system, a federal entity that — due to a quickly developing

national economy and a suddenly muscular federal government — had

an expanded role during the Reconstruction Era. See id. at 779-

80. To safeguard the integrity of the postal system, punishment

under the federal mail fraud statute "was to be based not so much

on the degree of the fraud as on the degree of misuse of the

mails." Id. at 784. The wire fraud statute, enacted in 1952, was

deliberately "patterned on the mail fraud" statute. United States

v. Fermin Castillo, 829 F.2d 1194, 1198 (1st Cir. 1987) (citing S.

Rep. No. 82-44, at 14 (1951)). Except for the means employed, the

"requisite elements" of the mail and wire fraud statutes "are

identical."7 Id.

We believe that this legislative history convincingly

demonstrates that, in enacting the mail and wire fraud statutes,

Congress took aim at the means of conducting a substantive offense,

not at the substantive offense itself. That is not true of the

murder-for-hire statute: rather, in fashioning section 1958(a),

Congress quite plainly chose the latter target.

To say more would be to paint the lily. Where a statute

can be read in two ways, both of which are literally feasible but

only one of which is plausible, common sense dictates that the

7Of course, the "requisite elements" of the murder-for-hire
statute are materially different.

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plausible reading ought to prevail. In this case, the text,

structure, history, and purpose of section 1958(a), taken together

and considered in light of the case law, lead us to hold that the

proper unit of prosecution under the murder-for-hire statute is a

single plot to murder a single individual. Under this statute,

Congress did not intend to punish separately each use of the

facilities of interstate commerce. It follows inexorably that the

indictment is multiplicitous and that the defendant is entitled to

relief.

C. The Remedy.

This brings us to the nature of the relief to which the

defendant is entitled. As we have explained, the five counts of

conviction are premised on an incorrect unit of prosecution. Those

counts, therefore, are multiplicitous. Nor is the error that

resulted in the proliferation of counts harmless: the statute of

conviction carries a ten-year maximum term of immurement for a

thwarted murder for hire. See 18 U.S.C. § 1958(a). Because of

the multiplicitous character of the indictment (that is, the

presence of multiple counts), the district court was able to engage

in "stacking," see USSG §5G1.2(d), and to impose what amounts to

a twenty-year term of immurement.

Viewed against this backdrop, the multiplicity error

requires that we vacate the defendant's sentence. It also requires

that we direct the district court, on remand, to merge the five

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counts into a single count and resentence the defendant.8 We take

no view either of the sentence to be imposed on the merged count

or of how that sentence should interface with the state sentence

that the defendant is currently serving, except to note that the

merged count will be subject to the statutory maximum sentence

adumbrated in 18 U.S.C. § 1958(a).

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we affirm the defendant's conviction but vacate his sentence. We

remand the case to the district court with directions to merge the

five counts of conviction into a single count and to resentence

the defendant consistent with this opinion.

Affirmed in part, Vacated in part, and Remanded.

8
The government argues that, even if we conclude (as we have)
that the correct unit of prosecution is plot-centric, two counts
should survive (one for each of the two intended victims). We do
not agree. After all, the government charged the proposed killing
of both victims in each of the five counts and, in so doing, denied
the jury the opportunity to make independent findings with respect
to the possible existence of more than one murder-for-hire plot.
See supra note 3. That duality distinguishes this case from United
States v. Vasco, 564 F.3d 12, 17, 24 n.9 (1st Cir. 2009), upon
which the government mistakenly relies.

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