{"id":14247,"date":"2011-07-29T22:03:37","date_gmt":"2011-07-30T03:03:37","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=14247"},"modified":"2011-07-31T18:11:13","modified_gmt":"2011-07-31T23:11:13","slug":"trying-to-hire-a-hit-man-don%e2%80%99t-answer-your-cell-phone","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/07\/trying-to-hire-a-hit-man-don%e2%80%99t-answer-your-cell-phone\/","title":{"rendered":"Trying to Hire a Hit Man? Don\u2019t Answer Your Cell Phone"},"content":{"rendered":"

\"\"<\/a>A new Seventh Circuit decision underscores the jurisdictional breadth of the federal murder-for-hire statute, 18 U.S.C. \u00a7\u00a01958(a). Although solicitation to commit murder would seem a prototypical state offense, it can be prosecuted federally if money was involved and a \u201cfacility of interstate commerce\u201d was used. And it takes very little indeed to satisfy the latter element.<\/p>\n

For instance, in the new Seventh Circuit case,\u00a0United States v. Mandel<\/a> <\/em>(No. 09-4116), the defendant planned a hit on his business partner with one of his employees, who turned out to be a confidential informant. A jury convicted Mandel on six counts of violating \u00a7\u00a01958(a). In four, the \u201cuse of a facility of interstate commerce\u201d was a cell phone conversation with the c.i. (three of which were actually initiated by the c.i.). In the other two, the \u201cuse of a facility of interstate commerce\u201d was driving around in a car with the c.i. while the hit was discussed.<\/p>\n

In all of these counts, what triggers federal jurisdiction seems only incidental to the offense; it is not the use of a cell phone or a car that made the defendant\u2019s conduct dangerous and his intentions blameworthy. Mandel would merit no less punishment if he had communicated with the c.i. by sign language or smoke signals, or if he had gotten around by roller-skating. It is this lack of a meaningful connection between the jurisdictional element and the wrongfulness of the defendant\u2019s conduct that gives federal prosecution such an arbitrary character in so many cases. But, for better or worse, that is where we are in the modern world of Commerce Clause jurisprudence. (Note, though, the Supreme Court\u2019s efforts to maintain some sort of principled limitations on federal criminal jurisdiction in its interesting decision last term in Fowler v. United States<\/em><\/a>.)<\/p>\n

Mandel contested the jurisdictional issues on appeal, but to no avail.<\/p>\n

<\/p>\n

With respect to the cell-phone counts, Mandel\u2019s argument sounded in entrapment, since it was the c.i. who initiated the calls. (Mandel did not challenge his conviction based on the one call he had initiated.) However, the court did not buy Mandel\u2019s assertion that he was not predisposed to use the cell phone:<\/p>\n

Whether the defendant is predisposed to commit the charged crime depends on a number of factors,\u00a0see, e.g., United States v. Orr<\/em>, 622 F.3d 864, 870 (7th Cir. 2010),\u00a0cert. denied<\/em>, 131 S. Ct. 2889 (2011), \u201cthe most important of which is \u2018whether the defendant evidenced reluctance to engage in criminal activity which was overcome by repeated Government inducement.\u2019\u201d\u00a0King<\/em>, 627 F.3d at 650 (quoting\u00a0United States v. Blassingame<\/em>, 197 F.3d 271, 281 (7th Cir. 1999)).<\/p><\/blockquote>\n

. . .<\/p><\/blockquote>\n

Mandel posits that he would not have discussed the murder scheme on a cell phone but for Dwyer taking the initiative in contacting him on his cell, but the evidence suggests otherwise. First, the cell phone was Mandel\u2019s own phone, and although use of such telephones was rare thirty years ago, it is commonplace today\u2014in both law-abiding and criminal domains. Second, Mandel took Dwyer\u2019s calls (and, as the call underlying Count Three demonstrates, returned them) and readily discussed the scheme to kill Antoniou without any apparent reluctance or hesitation. Third, Mandel was not simply a passive recipient of the calls. The call underlying Count Five is one that Mandel himself placed to someone other than Dwyer in order to determine when Antoniou\u2019s visitation with his son would be ending and Antoniou would be returning to his usual abode, so that an appropriate date for the hit could be determined. Mandel\u2019s self-initiated use of his cell phone in that instance puts the lie to the notion that he would not have used the phone in furtherance of the scheme but for Dwyer\u2019s prompting. Finally, to the extent that Dwyer\u2019s calls to Mandel\u2019s cell phone could be characterized as inducement to use that phone to discuss the scheme, they were hardly the sort of extraordinary inducement that is necessary to show entrapment. (13, 15-16)<\/p><\/blockquote>\n

Mandel relied on an old Second Circuit case,\u00a0United States v. Archer<\/em>, 486 F.2d 670 (2d Cir. 1973), which, in the words of the Seventh Circuit, \u201cpresupposes that it is improper for a government agent to initiate some action in interstate commerce for the sole purpose of ginning up federal jurisdiction over an offense, even if, as in\u00a0Archer<\/em>, the defendant himself willingly reciprocates the agent\u2019s interstate action.\u201d (17) However, the Seventh Circuit noted the lack of subsequent support, even in the Second Circuit, for this broad proposition. Thus, the court indicated that standard entrapment analysis of predisposition should govern claims that the United States has \u201cmanufactured jurisdiction.\u201d<\/p>\n

With respect to the driving counts, Mandel argued that purely intrastate use of an automobile should not suffice for federal jurisdiction. Under the terms of the statute, however, what is important is not the defendant\u2019s use of something in interstate commerce, but the defendant\u2019s use of something that counts as a \u201cfacility of interstate commerce.\u201d That requirement seems satisfied on a per se basis by the use of an automobile: \u201cAutomobiles are designed to move people and goods over distances both long and short, and as such they play a crucial role in interstate commerce.\u201d (23)<\/p>\n

So, the statute was satisfied. \u00a0But, so interpreted and applied, was the statute constitutional? The Seventh Circuit seemed at least a little sympathetic to Mandel\u2019s arguments on this score:<\/p>\n

Mandel\u2019s contrary position, that a private automobile must actually be used in interstate commerce in order for it to come within the scope of the commerce power, is not wholly without support. The Eleventh Circuit, in\u00a0Garcia v. Vanguard Car Rental USA, Inc<\/em>., 540 F.3d 1242, 1249-50 (11th Cir. 2008), declined to sustain the Graves Amendment, 49 U.S.C. \u00a7 30106, which shields car rental and leasing firms from vicarious liability for injuries to persons or property arising from their customers\u2019 use of the lent vehicles, as a valid regulation of instrumentalities of interstate commerce. The court was concerned that if a car\u2019s status as an instrumentality of interstate commerce were by itself sufficient to support the exercise of the commerce power, there would be no limit to the aspects of automobile use that Congress could regulate. \u201cIf cars are always instrumentalities of interstate commerce . . . Congress would have plenary power not only over the commercial rental car market, but over many aspects of automobile use\u201d including \u201csuch quintessentially state law matters as traffic rules and licensing drivers.\u201d\u00a0Id<\/em>. at 1250. (24-25)<\/p><\/blockquote>\n

Despite some apparent constitutional concern, the Seventh Circuit rejected Mandel\u2019s argument because it was not made below and the issue was not so clear-cut in his favor as to satisfy the requirements for plain error. Defense counsel, take note: if the issue is properly preserved, the Seventh Circuit seems to have left itself some room to rule in a defendant\u2019s favor in a later case.<\/p>\n

Cross posted at Life Sentences Blog<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

A new Seventh Circuit decision underscores the jurisdictional breadth of the federal murder-for-hire statute, 18 U.S.C. \u00a7\u00a01958(a). Although solicitation to commit murder would seem a prototypical state offense, it can be prosecuted federally if money was involved and a \u201cfacility of interstate commerce\u201d was used. And it takes very little indeed to satisfy the latter […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[80,30,28,53,122,23],"tags":[],"class_list":["post-14247","post","type-post","status-publish","format-standard","hentry","category-constitutional-interpretation","category-criminal-justice","category-criminal-law-process","category-federalism","category-public","category-seventh-circuit","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/14247","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=14247"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/14247\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=14247"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=14247"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=14247"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}