concurring specially:
I agree with the majority that appellant Carl M. Drury’s convictions should be affirmed, and accordingly I join in the result reached by my colleagues. I also agree that none of the district court’s evidentiary rulings challenged by Drury constituted an abuse of discretion, and I join in sections D and E of the majority opinion. Moreover, the majority correctly concludes that the district court did not err in refusing to charge the jury as requested by appellant, and accordingly I join section F of its opinion as well.
However, I strongly disagree with the majority’s conclusion that 18 U.S.C. § 1958’s jurisdictional element can be sat*1111isfied only by a showing that the action taken in furtherance of a murder-for-hire scheme involved the actual crossing of state lines. Instead, I have little doubt that the purely intrastate use of an instrumentality of interstate commerce is sufficient to confer jurisdiction under § 1958. As such, I am unable to join in section A of the majority opinion.1 As a corollary, I also respectfully disagree with the majority’s determination in section C of its opinion that the district court erred under United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), by instructing the jury that a telephone is per se a facility in interstate commerce.
In United States v. Lopez, the Supreme Court reaffirmed that there are “three broad categories of activity that Congress may regulate under its commerce power.” 514 U.S. 549, 558, 115 S.Ct. 1624, 1629, 131 L.Ed.2d 626 (1995). “First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the in-strumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce!,] i-&, those activities that substantially affect interstate commerce.” Id. at 558-59, 115 S.Ct. at 1629-30 (citations omitted) (emphasis added). Of particular interest in this case is the second type of regulation that may legitimately be undertaken pursuant to the commerce power, the regulation of the instrumentalities of interstate commerce.
There can be little doubt that where Congress chooses to exercise the full extent of its commerce power it can proscribe the purely intrastate use of an instrumentality of interstate commerce. Indeed, almost without exception, the courts of appeals have upheld that power of Congress to proscribe wholly intrastate activities using the instrumentalities of interstate commerce. See, e.g., United States v. Hasner, 340 F.3d 1261, 2003 WL 21852386 (11th Cir.2003) (holding that the jurisdictional requirement of the federal mail fraud statute, 18 U.S.C. § 1341, was satisfied by the intrastate delivery of a letter by Federal Express, concluding specifically that “Congress properly exercised its power under the Commerce Clause!,] U.S. Const, art. I, § 8, cl. 3[,] by regulating private and commercial carriers as instrumentalities of interstate commerce — even though the conduct took place entirely intrastate”); United States v. Gil, 297 F.3d 93, 100 (2d Cir.2002) (upholding the defendant’s mail fraud conviction against a Commerce Clause challenge, reasoning that “private and commercial interstate carriers, which carry mailings between and among states and countries, are instrumentalities of interstate commerce, notwithstanding the fact that they also deliver mailings intrastate”); United States v. Photogrammetric Data Servs., Inc., 259 F.3d 229, 249-52 (4th Cir.2001) (upholding the constitutionality of the mail fraud statute, 18 U.S.C. § 1341, as applied to intrastate mailing placed with private or commercial interstate carriers), cert. denied, 535 U.S. 926, 122 S.Ct. 1295, 152 L.Ed.2d 208 (2002); United States v. Baker, 82 F.3d 273, 275-76 (8th Cir.1996) (upholding a *1112conviction under the Travel Act, 18 U.S.C. § 1952(a) (2000), based on an extortion victim’s use of an automatic teller machine ... that “triggered an entirely intrastate electronic transfer” between two local banks, because an interstate network of ATMs is an instrumentality of interstate commerce).
Consonant with this nearly uniform view of Congress’s power to proscribe the intrastate use of the instrumentalities of interstate commerce, the courts of appeals, including the old Fifth Circuit,2 routinely have held the interstate commerce requirement of various federal criminal statutes to be satisfied by the defendant’s use of a telephone, because telephones — even when used to communicate with another person in the same state — are instrumen-talities of interstate commerce. See, e.g., United States v. Gilbert, 181 F.3d 152, 159 (1st Cir.1999) (upholding a conviction under 18 U.S.C. § 844(e) against a Commerce Clause challenge, reasoning that “[t]he use of the telephone in this case to make a bomb-threat was, without more, sufficient to sustain jurisdiction under the interstate commerce clause”); United States v. Clayton, 108 F.3d 1114, 1117 (9th Cir.1997) (holding that because cellular telephones and cellphone ID numbers are instrumentalities of interstate commerce, protectable under the second category of Lopez, no further inquiry was necessary to sustain a conviction under 18 U.S.C. § 1029(a)); United States v. Kunzman, 54 F.3d 1522, 1526-27 (10th Cir.1995) (upholding the sufficiency of the indictment for money laundering where it alleged the use of a telephone to accomplish the scheme in question, saying specifically that “[t]he indictment ... specifically alleges an effect on interstate commerce through the use of interstate highways, the use of telephone and mails, and transactions involving banks and financial institutions engaged in interstate commerce .... [t]his is sufficient to allege an effect on interstate commerce”) (emphasis added); Loveridge v. Dreagoux, 678 F.2d 870, 874 (10th Cir.1982) (“[Pjroof of intrastate telephonic messages in connection with the employment of deceptive devices or contrivances is sufficient to confer jurisdiction in a § 10(b) and Rule 10b-5 action.”); Alley v. Miramon, 614 F.2d 1372, 1379 (5th Cir.1980) (“This Court has consistently held that the intrastate use of the telephone may confer jurisdiction over a private action under Section 10(b) and Rule 10b — 5.”); Dupuy v. Dupuy, 511 F.2d 641, 641 (5th Cir.1975) (“This appeal presents a narrow question of law — Does the making of intrastate telephone calls satisfy the jurisdictional requirement of ‘use of any means or instrumentality of interstate commerce’ found in § 10 of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78j, and Securities and Exchange Commission Rule lob-5, 17 C.F.R. 240.10b-5. The district court held that it did not, and granted the defendant’s motion for summary judgment on a complaint which alleged intrastate calls as the only basis for federal jurisdiction. We reverse....”); McGregor Boulevard Church of Christ v. Walling, 428 F.2d 401, 404 (5th Cir.1970) (referring to a telephone as an instrumentality of interstate commerce).
Since it is almost axiomatic that Congress can prohibit the purely intrastate use of facilities of interstate commerce (e.g., telephones) to commit certain prohibited actions, the only question here is *1113whether it did so in enacting § 1958.3 Two of the three circuit courts to address this issue have answered this question affirmatively, concluding that § 1958(a) confers jurisdiction over the purely intrastate use of an instrumentality of interstate commerce in furtherance of a murder-for-hire scheme. See United States v. Richeson, 338 F.3d 653 (7th Cir.2003) (holding that the defendant’s making of intrastate telephone calls, standing alone, satisfied § 1958’s jurisdictional requirement because “when Congress elects to regulate under the second prong of Lopez, ‘federal jurisdiction is supplied by the nature of the instrumentality or facility used, not by separate proof of interstate movement’ ” (quoting United States v. Marek, 238 F.3d 310, 317 (5th Cir.) (en banc), cert. denied, 534 U.S. 813, 122 S.Ct. 37, 151 L.Ed.2d 11 (2001))); Marek, 238 F.3d at 320 (“[W]hen a facility employed to advance murder-for-hire is in interstate or foreign commerce generally, the jurisdictional element of § 1958 is satisfied even though the particular use of the facility on the specific occasion in question is only intra state.”) (emphasis in original).
However, the majority in this case, like the only other circuit court decision addressing § 1958(a)’s “facility in interstate commerce” requirement, United States v. Weathers, 169 F.3d 336, 341-42 (6th Cir.), cert. denied, 528 U.S. 838, 120 S.Ct. 101, 145 L.Ed.2d 85 (1999), concludes otherwise. My colleagues begin their analysis by accurately noting that there is a discrepancy between the language of § 1958(a), which speaks of “facilit[ies] in interstate commerce,” and the language used in § 1958(b)(2), which defines “facil-it[ies] of interstate commerce.” They then reconcile this inconsistency by holding that the phrase “facility in interstate commerce” refers solely to facilities that are used to actually cross state lines, while “facility of interstate commerce” merely provides examples of facilities that “must be used in interstate commerce to satisfy § 1958(a).” The majority concludes that because § 1958’s operative — i.e., jurisdiction-conferring — language is that found in § 1958(a), only the actual crossing of state lines in furtherance of a murder-for-hire scheme is actionable under this section. Thus, under the majority’s view, the use of an instrumentality of interstate commerce (such as a telephone) in an intrastate manner is insufficient to confer federal jurisdiction under § 1958(a). My colleagues attempt to bolster this conclusion by invoking various canons of statutory construc*1114tion, including the unremarkable maxim that all words in a statute must, to the extent possible, be afforded independent meaning, the clear statement rule, and the rule of lenity. They also find support for their construction in § 1958’s legislative history.
Simply stated, I believe that the majority’s attempted reconciliation of § 1958(a) and (b)(2) does violence to § 1958’s basic language and its overarching statutory scheme. I also find unpersuasive its reliance on the interpretive canons mentioned above and § 1958’s legislative history. More particularly, there are four distinct reasons why I disagree with my colleagues’ interpretation of this section. First, their reading of § 1958 is linguistically implausible. In this vein, I find persuasive the textual analysis of the Fifth Circuit in Marek. See 238 F.3d at 316. The Marek defendant4 had tried to effect his murder-for-hire scheme by transferring funds between points within the State of Texas using Western Union, which uncontroversially is an instrumentality of interstate commerce. See id. at 313. In determining whether this entirely intrastate use of an instrumentality of interstate commerce satisfied § 1958(a)’s jurisdictional requirement, the court began by observing that “[t]he key question of statutory construction presented ... is whether, under the use prong of § 1958, the phrase ‘in interstate or foreign commerce’ modifies ‘use’ or modifies ‘facility.’ ”5 238 F.3d at 316. The court held that:
Purely from a structural viewpoint, ... “in interstate or foreign commerce” is an adjective phrase that modifies “facility,” the noun that immediately precedes it— not an adverbial phrase that modifies the syntactically more remote verb, “[to] use.” We see the former conclusion as the more natural and sensible reading of the relevant portion of the statute. Primarily because of the proximity of “in interstate or foreign commerce” to “facility,” the word which that phrase modifies is facility and not use. A contrary conclusion- — -that “in interstate or foreign commerce” modifies “use” — would require a strained structural interpretation of the statute.
Id.
Notably, the Seventh Circuit recently expressed its agreement with Marek’s parsing of § 1958(a), holding that:
We believe there is only one way to read the plain language of the murder-for-hire statute, and that is to require that the facility, and not its use, be in interstate or foreign commerce. We wholly agree with the Fifth Circuit that § 1958’s construction, plain language, context in the realm of commerce clause jurisprudence, and legislative history all lead to the conclusion that “it is sufficient [under § 1958] that the defendant used an interstate commerce facility in an intra state fashion.” Marek, 238 F.3d at 315. This reading of the statute makes sense from both a logical and legal standpoint; as noted in Marek, even the title of the statute, “Use of interstate commerce facilities in the commission of murder-for-hire,” shows *1115that Congress intended “interstate commerce” to modify “facility” and not “use.” M[] at 321.
Richeson, 338 F.3d at 659. Indeed, it makes far more sense as a linguistic matter for the phrase “in interstate commerce” to modify the noun “facility.” Had it been so inclined, Congress could easily have drafted § 1958(a) to prohibit “the use in interstate commerce of [certain] facilities.” But that is not the way § 1958(a) reads. Thus, in my view, the plain language of this section indicates that so long as the facility in question is one in interstate commerce, i.e., is an instrumentality of interstate commerce, even its purely intrastate use confers jurisdiction under § 1958(a).6
Second, by straining to afford the words “in” and “of’ distinct meanings, the majority has read the preface to § 1958(b) and an entire subsection— § 1958(b)(2) — out of the statute completely. The preface to § 1958(b) reads: “[a]s used in this section ... — .”7 By holding that the phrase “facility in interstate commerce,” as used in § 1958(a), is meaningfully different from the phrase “facility of interstate commerce,” as used in 1958(b)(2), the majority has rendered nugatory the language “[a]s used in this section.” Indeed, the only way to plausibly interpret Congress’s express statement that the phrase “facility of interstate commerce” is used in § 1958(a) is to construe that phrase as synonymous with the phrase “facility in interstate commerce,” which is the language actually contained in § 1958(a).
As for § 1958(b)(2), again, this subsection provides that “‘facility of interstate commerce’ includes means of transportation and communication.” However, if “facilities of interstate commerce” are not the same as “facilities in interstate commerce,” § 1958(b)(2) defines a non-existent term and as such is a functional nullity. Thus, in espousing this reading, the majority has egregiously contravened an important canon of statutory interpretation to which it claims to adhere, i.e., that all words in a statute must, to the extent possible, be afforded independent meaning and significance.
My colleagues attempt to avoid this basic problem simply by saying that the phrase “facility of interstate commerce,” as set forth in § 1958(b)(2), merely provides examples of facilities “that must be used in interstate commerce to satisfy § 1958(a).” However, this argument is implausible. If the phrase “in interstate commerce,” as used in § 1958(a), modifies the verb “uses,” as the majority says it does, the noun “facility” is unmodified. Any facility — whether or. not it is one typically deemed an instrumentality of interstate commerce, such as a telephone — is sufficient to confer jurisdiction under § 1958(a) so long as it is used to actually cross state lines.
*1116I agree that the physical crossing of state borders, whether by the defendant personally or some process that he sets in motion (like a telephone call or the mailing of a letter), plainly satisfies § 1958(a)’s jurisdictional requirement. However, if the actual crossing of state borders is the only way to confer jurisdiction under this section, then in listing 2 types of facilities that, if used to cross state borders, will satisfy § 1958(a)’s jurisdictional requirement, § 1958(b)(2) does absolutely no work. Put differently, the majority reads § 1958(a) to say that any8 (and only the) actual' crossing of state borders is sufficient to invoke § 1958(a). This broad, general proposition necessarily subsumes within it the idea that any particular interstate movement, for example, the interstate use of a means of communication or transportation, is sufficient to invoke § 1958(a). Thus, under the majority’s reading, the language of § 1958(b)(2) accomplishes absolutely nothing.
Moreover, I find it evident that § 1958(b)(2) is structurally housed in a definitional — not an exemplary — subsection of the statute, i.e., § 1958(b). Indeed, § 1958(b)(1) unquestionably defines the phrase “anything of pecuniary value,” and, equally plainly, § 1958(b)(3) defines the term “State.” The fact that § 1958(b)(3) does so by using the term “includes” instead of “means” — compare § 1958(b)(1) (“ ‘anything of pecuniary value’ means anything of value in the form of money, a negotiable instrument, a commercial interest, or anything else the primary significance of which is economic advantage”) with § 1958(b)(3) (“ ‘State’ includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States”)— does not render it any less definitional. Thus, the fact that § 1958(b)(2) also uses the term “includes” does not render that subsection exemplary.
Not surprisingly, the majority cites no authority for its reconciliation of § 1958(a) and (b)(2). This is not to dispute my colleagues’ recognition that § 1958(a) and (b)(2) use different language, or to say that these subsections need not be reconciled. Rather, it is merely to say that the reconciliation that does the least damage to the language enacted by Congress — and affords the maximum amount of credence to the canon that all words in a statute should be given effect — is to read “facilities of interstate commerce” as being synonymous with “facilities in interstate commerce.” Although this may deprive the word “of’ of some independent significance, this reading is far less damaging to § 1958’s statutory scheme than is the reading endorsed by the majority, and the attendant nullification of § 1958(b)(2) in its entirety.
Third, as the Marek court noted, in 1990 Congress enacted an amendment to the Travel Act, 18 U.S.C. § 1952 — of which section 1958’s murder-for-hire prohibition originally was a part — clarifying that the purely intrastate use of an instrumentality of' interstate commerce is sufficient to satisfy that section’s jurisdictional requirement. See, e.g., United States v. Baker, 82 F.3d 273, 275-76 (8th Cir.1996) (upholding a conviction under § 1952(a) based on an extortion victim’s use of an automatic teller machine that “triggered an entirely in*1117trastate electronic transfer” between two local banks, because interstate network of ATMs is a facility in interstate commerce); United States v. Heacock, 31 F.3d 249, 255 (5th Cir.1994) (holding that “whenever a person uses the United States Post Office to deposit, to transport, and to deliver parcels, money, or other material by means of the mail, that person clearly and unmistakably has used a ‘facility in interstate commerce,’ irrespective of the intrastate destination of the item mailed,” and that such intrastate use satisfies the jurisdictional requirement of the Travel Act). Notably, to accomplish this clarification Congress changed the language of § 1952 to mirror the language now found in § 1958(a), targeting “[wjhoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce.” 18 U.S.C. § 1952(a) (emphasis added). Based on this history, the Marek court concluded that “[a]s Congress thus expressly made clear that § 1952 applies to intrastate mailings, and did so by importing § 1958’s. wording into § 1952, logic dictates that precisely the same wording in § 1958 must apply equally to intrastate use of other interstate facilities, such as Western Union.” 238 F.3d at 317. I agree fully with this reasoning; Congress’s clarification that the purely intrastate use of an instrumentality of interstate commerce falls within the ambit of § 1952(a) by adopting the precise wording used in § 1958(a) strongly counsels in favor of reading § 1958(a) to reach such purely intrastate activities as well.
Finally, to hold that § 1958(a) confers jurisdiction over only murder-for-hire cases involving the actual crossing of state lines is inconsistent with Congress’s desire to provide broad, concurrent federal jurisdiction over cases of this type. See Marek, 238 F.3d at 323. The Senate report that accompanied the enactment of § 1958 explicitly sets forth this legislative purpose:
[T]he committee is aware of the concerns of local prosecutors with respect to the creation of concurrent federal jurisdiction in an area, namely murder cases, which has heretofore been the almost exclusive responsibility of state and local authorities. [Hjowever, the committee believes 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, such as interstate travel, use of the facilities of interstate commerce, or use of the mails, is present. . ,
S. Rep. 98-225, pt. 7, at 304-05 (1983), 1984 U.S.C.C.A.N. 3182, 3484. To say that concurrent jurisdiction does not exist unless the scheme in question actually crosses state lines, and thus that Congress opted not to exercise the full extent of its Commerce power — indeed, even the majority does not say that Congress lacked the authority to include within § 1958(a)’s scope the intrastate use of the instrumen-talities of interstate commerce — is facially inconsistent with the legislature’s desire to provide the option of federal prosecution whenever “the proper federal nexus” is present. Moreover, as we discuss more fully infra, § 1958’s legislative history strongly suggests that Congress recognized -three distinct “proper federal nexus[es],” namely, “interstate travel, use of the facilities of interstate commerce, or use of the mails.” Id. (emphasis added).
Thus, I believe that the phrase “ in interstate commerce,” as used in § 1958(a), should be read to modify the noun “facility” as opposed to the verb “uses,”- and is synonymous with the phrase “of interstate commerce,” as used in § 1958(b)(2). The product of this reading is that, the purely, intrastate use of a facility in (i.e., instrumentality of) interstate *1118commerce confers jurisdiction under § 1958(a). Indeed, § 1958 provides a classic example of Congress regulating the instrumentalities of interstate commerce. As the Marek court put it, “[w]hen Congress regulates and protects under the second Lopez category ... federal jurisdiction is supplied by the nature of the instrumentality or facility used, not by separate proof of interstate movement.” 238 F.3d at 317. Here, the proofs introduced at trial establish that Drury used a cellular telephone to contact a person whom he believed to be a hitman in an attempt to arrange the murder of his wife. This, standing alone, is sufficient to confer federal jurisdiction under § 1958(a).
None of the arguments raised by my colleagues in support of their contrary holding are persuasive. First, as explained above, the majority’s linguistic parsing of § l958(a)’s phrase “uses ... any facility in interstate commerce” — and specifically its conclusion that the phrase “in interstate commerce” modifies the verb “uses” — misses the mark. Second, I find especially unpersuasive the majority’s reliance on the maxim that all words in a statute must, to the extent possible, be given independent meaning. Although I fully agree with this rule as a canon of statutory interpretation, the majority, as I have explained, has directly undermined this maxim by reading the preface to § 1958(b) and § 1958(b)(2) out of the statute completely.
Third, the majority attempts to support its reading of § 1958 by invoking the clear statement rule, i.e., the principle that Congress must clearly indicate its desire to deprive the states of dominion over matters traditionally within their legislative purview. See Hilton v. S.C. Pub. Rys. Comm’n, 502 U.S. 197, 209, 112 S.Ct. 560, 567-68, 116 L.Ed.2d 560 (1991) (“[W]e have been wary of extending the effect of congressional enactments into areas traditionally governed by the States, unless Congress has directed us to do so by an unmistakably clear statement. Indeed, in the cases in which we have employed the clear statement rule outside the Eleventh Amendment context, we have recognized the rule’s constitutional dimensions.” (citing Gregory v. Ashcroft, 501 U.S. 452, 461, 111 S.Ct. 2395, 2401, 115 L.Ed.2d 410 (1991) and Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989) and United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971))). The simple response is that Congress has not truly deprived the states of anything. There is not a single murder-for-hire case that is removed from the jurisdiction of the states by § 1958. Instead, this section merely provides concurrent federal jurisdiction over murder-for-hire schemes that can be brought to bear in cases where the resources of the federal government may be needed. As indicated in the legislative history cited by the majority, Congress did not intend that
all or even most [murders-for-hire] should become matters of federal responsibility. Rather, federal 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 .... Cooperation and coordination between federal and state officials should be utilized to ensure that the new murder-for-hire statute is used in appropriate cases to assist the states rather than to allow the usurpation of significant cases by federal authorities that could be handled as well or better at the local level.
S. Rep. 98-225, pt. 7, at 305 (1983), 1984 U.S.C.C.A.N. 3182, 3484. Accordingly, the *1119federalism-based concerns of my colleagues are largely unfounded.
Similarly unpersuasive is the majority’s invocation of the rule of lenity. As my colleagues recognize, one of the important principles undergirding this rule is that fairness, equity and due process dictate that a criminal law must put the defendant on notice that a given action is prohibited. If a defendant cannot determine with some measure of certainty that statute X prohibits act Y, the statute should not be construed to encompass act Y. Here, the majority says that “[ajpplied to § 1958, this rule instructs that § 1958(a)’s jurisdictional element should be interpreted to include only the use of facilities that are actually engaged in interstate commerce,” i.e., facilities that are used to cross state lines. Yet under the majority’s interpretation of § 1958, to know whether his actions were prohibited under the federal murder-for-hire statute, Drury would have to know the precise route of the signal from the cellular telephone calls he made in furtherance of his homicidal scheme. Not only is there no evidence in the record that Drury knew that his calls were routed through a switching station in Florida, but more generally, this plainly is not a matter of which most defendants who are not telecommunications experts are likely to be aware. Thus, as is vividly illustrated by the facts of this case, the majority’s reading of § 1958 undermines the fairness principle underpinning the rule of lenity. More fundamentally, it is difficult to accept the majority’s implication that Drury could possibly have believed that the retention of a hitman to murder his wife was not legally prohibited.
Finally, as I view them, neither of the legislative reports cited by my colleagues actually supports their conclusion that only the use of a facility to cross state lines is actionable under this section. The Senate report discussed by the majority says that “[t]he term ‘facility of interstate commerce’ is ... defined to include means of transportation and communication. Thus, an interstate telephone call is sufficient to trigger federal jurisdiction.” S. Rep. 98-225, pt. 7 at 306 (1983), 1984 U.S.C.C.A.N. 3182, 3485 (emphasis added). Under the majority’s reading of § 1958, however, this could not be. The phrase “facility of interstate commerce” appears only in § 1958(b)(2), which is not the substantive, i.e., jurisdictional, portion of the statute. Instead, according to the majority, that section is exemplary only. However, by saying that the language of § 1958(b)(2) is jurisdiction-conferring, this Senate report plainly indicates that § 1958(b)(2) authoritatively defines the substantive prohibition found in § 1958(a), thereby necessarily rendering “facilities in interstate commerce” synonymous with “facilities of interstate commerce.”
In a similar vein, the same Senate report says that “the option of federal investigation and prosecution should be available when a murder is committed or planned ... and the proper federal nexus, such as interstate travel, use of the facilities of interstate commerce, or use of the mails is present.” Id. at 305, 3484 (emphasis added). This says it about as clearly as possible: the use of facilities of interstate commerce was viewed by the drafters of the federal murder-for-hire statute as one wholly independent basis for federal jurisdiction. This also strongly implies that there is no substantive difference between the “facilities of interstate commerce” to which the report refers and “facilities in interstate commerce,” the use of which in furtherance of a murder-for-hire scheme is prohibited under § 1958(a). Notably, the Senate report explicitly distinguishes the use of such facilities from interstate travel, thereby indicating that the purely intrastate use of the facilities, i.e., instrumental-*1120ities, of (or in) interstate commerce is sufficient to confer jurisdiction under § 1958(a).
Similarly, the House report that attended the introduction of the Travel Act explicitly says that “[t]he interstate tentacles of this octopus known as ‘organized crime’ ... can only be cut by making it a Federal offense to use the facilities of interstate commerce in the carrying on of [certain] nefarious activities [including crimes of violence].” H.R.Rep. No. 87-966 (1961), reprinted in 1961 U.S.C.C.A.N. 2664, 2665 (emphasis added). This plainly indicates that the drafters of what became § 1958 wanted to make illegal the use of “facilities of interstate commerce” to commit crimes of violence. That the substantive prohibition in the federal murder-for-hire statute, § 1958(a) contains the language “facilities in interstate commerce” strongly suggests that these phrases were viewed by the Travel Act’s drafters as interchangeable. To conclude otherwise requires not only the assumption that the drafters of the Travel Act viewed these phrases as substantively distinct, but also that following the promulgation of H.R. 87-966, the drafters changed their minds and decided that it was not the use of facilities of interstate commerce, but rather the use of facilities in interstate commerce, that was problematic and should be prohibited under federal law. Unsurprisingly, there is absolutely no support in § 1958’s legislative history for the notion that such a legislative about-face occurred.
The same House report later says that the Travel Act prohibits not only actual interstate travel in furtherance of certain activities, including the commission of a crime of violence, but “[i]t also prohibits the use of other interstate transportation facilities, including the mail, under the same requirements ... with regard to travel.” Id. at 2666 (emphasis added). The report never says that the use of such facilities must be of an interstate nature. Indeed, it says simply that the mere use of the mail to commit a crime of violence is sufficient to confer Travel Act jurisdiction. I cannot see how the majority interprets this report to support the conclusion that the use of the mail (or, by necessary implication, a telephone) is insufficient, standing alone, to confer jurisdiction under § 1958.
As a corollary to my conviction that the intrastate use of an instrumentality of interstate commerce such as a telephone satisfies § 1958’s jurisdictional nexus, I believe that the district court did not err under United States v. Gaudin by instructing the jury that a pay or cellular phone is a per se facility in interstate commerce.
In Gaudin, the Court reaffirmed that the Fifth and Sixth Amendments require that “criminal convictions ... rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” 515 U.S. at 510,115 S.Ct. at 2313. The issue in that case was whether the materiality of a false statement on a federal loan application was an element of a violation of 18 U.S.C. § 1001 that needed to be found by a jury. In holding that it was, the Court said that materiality is a classic mixed question of law and fact, and as such is properly resolved by a jury. See id. at 512-14, 115 S.Ct. at 2314-15.
This, to reiterate, is a “Lopez 2” case, because the government was required to establish that Drury “use[d] ... [a] facility in interstate or foreign commerce” in furtherance of his murder-for-hire scheme. 18 U.S.C. § 1958. By contrast, this is not a “Lopez 3” case, where the requisite connection to interstate commerce is the effect of the defendant’s actions on inter*1121state commerce.9 In my view, this is a distinction that makes a great difference. Whereas the impact of a defendant’s actions on interstate commerce is an element of offenses requiring an effect on interstate commerce, this is not so in cases where the defendant need only use a facility in (or of) interstate commerce. Indeed, the labeling of a given facility as one in (or of) interstate commerce — or, in the terms used by these cases, as an instrumentality of interstate commerce — is one that we and other courts of appeals previously have categorized as purely legal. See Spilker v. Shayne Labs., Inc., 520 F.2d 523, 524 (9th Cir.1975) (“The only issue in this appeal is a simple question of law: Does the fact that the defendants made two intrastate telephone calls connected to a securities transaction satisfy the jurisdictional requirement of ‘use of any means or instrumentality of interstate commerce’.... ”); Dupuy, 511 F.2d at 641 (“This appeal presents a narrow question of law — Does the making of intrastate telephone calls satisfy the jurisdictional requirement of ‘use of any means or instrumentality of interstate commerce’ found in s 10 of the Securities Exchange Act of 1934.... ”); Copp Paving Co. v. Gulf Oil Corp., 487 F.2d 202, 204 (9th Cir.1973) (“[T]he production of asphalt for use in interstate highways rendered the producers ‘instrumentalities’ of interstate commerce and placed them ‘in’ that commerce *1122as a matter of law”), rev’d on other grounds by 419 U.S. 186, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974).
Instead, in cases where the government must establish that the defendant used a facility in (or of) interstate commerce, the element of the offense that must be submitted to the jury is the use of that facility, not whether the element is “in” or “of’ interstate commerce. Thus, for example, where a telephone is concerned, the jury must find beyond a reasonable doubt that the telephone was used, not that the telephone is a facility in interstate commerce. Indeed, to me it is hard to imagine that a jury would be free to find that a telephone is not a facility in (or of) interstate commerce which, for the reasons set forth above, is synonymous with an instrumentality of interstate commerce. Yet the majority opinion effectively would allow one jury to conclude on Monday that a telephone is an instrumentality of interstate commerce and another jury to conclude on Tuesday, in another case, that a telephone is not an instrumentality of interstate commerce. I find it wholly implausible that Congress intended such a result.
Furthermore and quite importantly, in this case there is an even more compelling reason to say that Gaudin does not require the submission to the jury of the question whether Drury used a facility in interstate commerce. In § 1958(b)(2), Congress expressly and unambiguously has defined the phrase “facility of interstate commerce” — which, for the reasons set forth above, must be interpreted as synonymous with “facility in interstate commerce” — to include “means of transportation and communication.” 18 U.S.C. § 1958(b)(2). Accordingly, it is simply untenable to say that the satisfaction of section 1958’s “facility in interstate ... commerce” requirement — as opposed to the requirement that such a facility be used— is an element of the offense that must be submitted to the jury. Chief Justice Rehnquist, concurring in Gaudin, undertook a discussion that bears directly on this point. He wrote:
Nothing in the Court’s decision stands as a barrier to legislatures that wish to define — or that have defined — the elements of their criminal laws in such a way as to remove issues such as materiality from the jury’s consideration. We have noted that “[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute.” Within broad constitutional bounds, legislatures have flexibility in defining the elements of a criminal offense.
515 U.S. at 525, 115 S.Ct. at 2321 (Rehnquist, C.J., concurring) (quoting Staples v. United States, 511 U.S. 600, 604, 114 S.Ct. 1793, 1796, 128 L.Ed.2d 608 (1994)) (other citations omitted). Thus, even were the nature of a particular facility (or instrumentality) — as opposed to the defendant’s use of that facility — an element that in the context of other statutes would have to be submitted to the jury under Gaudin, the satisfaction of this requirement has been legislatively determined here. By expressly defining the phrase “facility in[7of] interstate ... commerce,” Congress may fairly be said to have eliminated this as an element of the murder-for-hire offense under § 1958 and thus removed it from the jury’s consideration.
In short, I believe the majority has read § 1958(a)’s jurisdictional requirement in an overly constrictive manner. It has done so by parsing the language of this subsection and of § 1958(b)(2) in a way that lacks textual foundation and is not supported by — indeed, directly undermines — the canons of statutory interpretation on which it purports to rely or by § 1958’s legislative *1123history. This error also has led my colleagues to find error under Gaudin where none truly exists. Despite these basic analytical flaws, however, the majority’s ultimate resolution of this case is correct because it affirms Drury’s conviction in all respects. Accordingly, I concur in the judgment reached.
. I agree with my colleagues that the actual interstate use of a facility, e.g., the crossing of a cellular telephone signal from Georgia to Florida and back, plainly confers jurisdiction under § 1958(a). However, because I believe that such actual interstate movement is unnecessary to satisfy this section’s jurisdictional requirement, I do not join section B of the majority opinion.
. By "old Fifth Circuit,” I mean simply the Fifth Circuit prior to its division into the Fifth and Eleventh Circuits. Notably, in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981.
. This section provides, in full:
(a) 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 in 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.
(b) As used in this section and section 1959—
(1) "anything of pecuniary value" means anything of value in the form of money, a negotiable instrument, a commercial interest, or anything else the primary significance of which is economic advantage;
(2) "facility of interstate commerce” includes means of transportation and communication; and
(3) “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
18U.S.C. § 1958.
. The en banc Marek decision actually resolved two different appeals in factually analogous cases under the murder-for-hire statute. My discussion will focus on the Fifth Circuit’s evaluation of the Marek case, where the defendant made an intrastate transfer of funds by Western Union.
. To reiterate, the relevant portion of § 1958 reads: "Whoever ... uses or causes another (including the intended victim) to use ... the mail or any facility in interstate or foreign commerce, with intent that a murder be committed ... shall be fined under this title or imprisoned for not more than ten years, or both....” 18U.S.C. § 1958(a).
. I recognize, as did the Marek court, the Fifth Circuit's holding in Dupuy that the "in interstate commerce"/"of interstate commerce” distinction is a meaningful one when comparing the jurisdictional elements of the Securities Act of 1933 and the Securities Exchange Act of 1934. See Marek, 238 F.3d at 319 n. 44 (citing Dupuy, 511 F.2d at 642-43). Indeed, my view regarding the appropriate reconciliation of § 1958(a) and (b)(2) does not imply that "that similarly varying phraseology never can have statutory significance.” Id. Rather, it is only to say that "based on the grammatical structure of § 1958 and the use of both phrases interchangeably in the statute and its legislative history, ... Congress’s particular deployment of these two prepositions in § 1958 is not dispositive of this case.” Id.
. Thus, when read together with its preface, § 1958(b)(2) reads: "As used in this section ... .‘facility of interstate commerce’ includes means of transportation and communication.”
. Indeed, the essentially incidental interstate movement of Drury’s cellular telephone signal was about as minimal as possible. His call originated in Georgia and was received in Georgia as well; it is merely that during the intervening seconds, the signal from Drury’s phone — unbeknownst to appellant — was momentarily routed through a switching station in Jacksonville, Florida. If this interstate movement satisfies § 1958(a), then any movement across state lines will confer jurisdiction under this section.
. In "Lopez 3” cases, the courts of appeals generally (but not always) have found that the requisite effect on interstate commerce is an element of the offense that, under Gaudin, must be submitted to the jury. For example, in United States v. Vasquez, the Second Circuit held that a jury charge that heroin or cocaine trafficking necessarily affects interstate or foreign commerce "may not pass muster” under Gaudin. 267 F.3d 79, 89 (2d Cir.2001). Although the Vasquez court said that prior to Gaudin its jurisprudence deemed jurisdictional questions such as whether the alleged conduct affected interstate commerce as being properly resolved by the court, it recognized that these actually are mixed questions of law and fact that, under Gaudin, must be resolved by a jury. We held similarly in United States v. Castleberry. See 116 F.3d 1384, 1389 (11th Cir.1997) ("Castleberry is correct that Gaudin requires a jury, and not a judge, to determine each element of the crime to which he is charged with. However, Cast-leberry is simply wrong in arguing that the jury in his case did not decide each element of his Hobbs Act convictions. It is clear to us that the jury decided the interstate commerce element.”).
By contrast, in United States v. Gomez, an interstate arson case, the district court instructed the jury that to convict the defendant it had to find "[tjhat on or about the date charged in the indictment, the building named in the indictment was used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” 87 F.3d 1093, 1097 (9th Cir.1996). The district court then defined interstate commerce, saying: "A building is used in interstate commerce, or any activity affecting interstate commerce, if the building itself is used for a business or commercial purpose or if that building purchases, sells, or uses goods that originated or came from out of state. A residential apartment building with multiple rental units is a building in interstate commerce.” Id. The Ninth Circuit affirmed, reasoning that:
We find that these instructions properly encompassed the jury’s fact-finding role. [The first] [instruction ... required the jury to find whether the building damaged or destroyed was used in interstate commerce. [The second] [instruction ... gave the proper legal test for determining whether a building affects interstate commerce. Together these instructions required the jury to determine whether the building was a multi-unit residential building that was in use as a rental property at the time of the charged incident, which is the proper factual inquiry. If they found that it was a rental property, then the instructions required them to find that the interstate commerce element of the offense was satisfied. These instructions correctly delegated the factual determination to the jury, leaving the determination of the legal standard to the court.
Id.