Wednesday, July 13th, 2005

Did the Circuit Overlook a Controlling Decision by Judge Friendly in Ruling that Purely Intra-State Phone Calls Are Sufficient under § 1958?

United States v. Perez, Docket No. 03-1445(L) (2d Cir. July 11, 2005) (Calabresi, Katzmann, Parker) (per curiam): In this very short per curiam opinion, the Circuit rules that even wholly intra-state phone calls (here, phone calls from one location in Connecticut to another) are sufficient to trigger federal jurisdiction under the federal “murder-for-hire” statute, 18 U.S.C. § 1958(a). This is so despite the fact that the relevant language in § 1958(a) states that “whoever … uses … any facility in interstate … commerce …” The Court ruled — after noting a circuit split on this question — that this language was trumped by § 1958(b), the “definitional subsection” of the statute, which describes (and then defines) a “facility of interstate commerce.” Op. 6. And since the phone used by the defendant was part of an inter-state network (i.e., he could make long distance calls on it), even if the calls he actually made were purely intra-state, the jurisdictional element had been met.

Shockingly to this reader, the opinion describes this as an issue of “first impression” in the Circuit. Op. at 1. Not so — or not nearly so. In United States v. Archer, 486 F.2d 670 (2d Cir. 1973), not mentioned anywhere in the per curiam opinion, Judge Friendly ruled in a bribery prosecution under the Travel Act, § 1952 — § 1958’s predecessor statute, and which contains the identical phrase “facility in interstate commerce,” see infra — that the evidence was insufficient to support the defendants’ convictions because the sole inter-state phone call was one manufactured by Government investigators. Although the facts are somewhat convoluted, essentially what happened is that, after a series of purely intra-state phone calls, the federal prosecutor instructed the undercover agent to travel to a hotel in New Jersey to call one of the defendants in New York, “for the sole purpose of having [the defendant] talk in an interstate phone call.” Id. at 674.

As Judge Friendly explained, the question before the Court was “whether the defendants here have used a facility in interstate or foreign commerce, for the purposes listed in § 1952(a)(3), in a sufficiently meaningful way to subject themselves to liability under the statute.” 486 F.2d at 680. Looking to legislative history, case law, as well as the rule of lenity, Judge Friendly concluded that the manufactured inter-state call did not suffice to satisfy the interstate element of the Travel Act. As he wrote for the Court:

“Whatever Congress may have meant by § 1952(a)(3), it certainly did not intend to include a telephone call manufactured by the Government for the precise purpose of transforming a local bribery offense into a federal crime. . . . [I]t is immaterial that Klein returned the call rather than receiving it as the Government had plotted.”

Id. at 681 (emphasis added). The Court continued, explaining that

“When Congress responded to the Attorney General’s request to lend the aid of federal law enforcement to local officials in the prosecution of certain crimes, primarily of local concern, where the participants were engaging in interstate activity, it did not mean to include cases where the federal officers themselves supplied the interstate element and acted to ensure that an interstate element would be present.”

Id. at 682 (emphasis added).

Archer‘s holding obviously assumes that purely intra-state calls are insufficient to establish jurisdiction under § 1952: If a manufactured inter-state call is insufficient, surely purely intra-state calls are also insuffient. Archer has not been overruled and remains binding law in the Second Circuit.

Section 1958 — the murder-for-hire statute at issue in Perez — is “modeled after the Travel Act, 18 U.S.C. § 1952, and the legislative history indicates that Travel Act precedent should be considered relevant to interpretation of this provision.” 3 Leonard B. Sand et al., Modern Federal Jury Instructions at 60-37 (2002). Indeed, the present § 1958 was originally enacted as part of the Comprehensive Crime Control Act of 1984 as new § 1952A. (Congress re-designated § 1952A as the present § 1958 in the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7053(a), 102 Stat. 4181 (1988)). And as the House Report accompanying the statute stated,

“Section 1952A follows the format of present section 1952. Section 1952A reaches travel in interstate or foreign commerce or use of the mails or of a facility in interstate or foreign commerce with intent that a murder be committed in violation of State or Federal law.”

H. Rep. No. 1030, 98th Cong., 2d Sess. 306, reprinted in 1984 U.S.C.C.A.N. 3182, 3485; see United States v. Riccardelli, 729 F.2d 829, 833 (2d Cir. 1986) (using murder-for-hire statute to interpret Travel Act). As the Fifth Circuit explained, Travel Act jurisprudence is a proper referent for the interpretation of § 1958 because “the obvious purpose” of the murder-for-hire statute is “to supplement” the Travel Act. United States v. Edelman, 873 F.2d 791, 794 (5th Cir. 1989); see United States v. Houlihan, 92 F.3d 1271, 1292 (1st Cir. 1996) (“In interpreting 18 U.S.C. § 1958, it is entirely appropriate to look at case law construing the Travel Act.”) (emphasis added). Archer’s definition of the interstate element of the Travel Act is therefore directly applicable to the interstate element of § 1958.

Indeed, at least one other Circuit — the Fourth — explicitly relied on Archer and its interpretation of § 1952 to reverse a § 1958 conviction on precisely the same ground. United States v. Coates, 949 F.2d 104 (4th Cir. 1991). In Coates — also not mentioned in the per curiam opinion in Perez — defendant Coates “wanted to have his step-brother killed” and “called York to arrange a murder-for-hire.” Id. at 105. Both parties resided in Maryland.

York was a police informant and eventually introduced Coates to an undercover officer posing as a hit man who would do the actual killing. The three men met and discussed the killing on numerous occasions. They settled upon using a bomb to kill Coates’s brother in law. Id. All of the meetings occurred in Maryland.

The undercover, needing to be absent for some time to conduct an unrelated investigation, falsely told Coates that he had to go to Kentucky. The court’s opinion describes what next occurred:

“The Kentucky trip, however, was just a ruse and the agent never went there. Instead, he made a much shorter trip in order to place an interstate phone call.
Knowing that they needed a jurisdictional basis in which to prosecute Coates for a federal crime, [the informer and the undercover] agent went just over the Maryland line into Virginia, concededly for the sole purpose of making an interstate telephone call to Coates. Once in Virginia, the agent called Coates in Maryland and discussed with him the details of the bomb and the murder scheme.”

Id. at 105. Coates was eventually arrested and charged with violating 18 U.S.C. § 1958.

The Fourth Circuit reversed Coates’s conviction. It relied primarily upon Archer and began by noting that “the Travel Act is directly analogous to § 1958.” Id. at 106 (emphasis added). The court then held that because “the government agent drove to Virginia for the sole purpose of making a telephone call across state lines in order to induce Coates to ‘use’ that interstate facility to discuss the scheme,” such “‘manufactured jurisdiction’ cannot form the basis for a federal prosecution.” Id. at 105-06. As it concluded, the count charging Coates with violating the federal murder-for-hire statute “was not based upon cognizable federal jurisdiction and should have been dismissed.” Id. at 106.

Coates, like Archer, obviously assumes that purely intra-state phone calls are insufficient to satisfy § 1958’s jurisdictional predicate. Yet neither case is mentioned in the per curiam opinion in Perez.

Inquiring minds would like to know why. Are we missing something?

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