Trying to Hire a Hit Man? Don’t Answer Your Cell Phone

A new Seventh Circuit decision underscores the jurisdictional breadth of the federal murder-for-hire statute, 18 U.S.C. § 1958(a). Although solicitation to commit murder would seem a prototypical state offense, it can be prosecuted federally if money was involved and a “facility of interstate commerce” was used. And it takes very little indeed to satisfy the latter element.

For instance, in the new Seventh Circuit case, United States v. Mandel (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 § 1958(a). In four, the “use of a facility of interstate commerce” was a cell phone conversation with the c.i. (three of which were actually initiated by the c.i.). In the other two, the “use of a facility of interstate commerce” was driving around in a car with the c.i. while the hit was discussed.

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’s 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’s 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’s interest in maintaining some sort of principled limitations on federal criminal jurisdiction in this interesting case from last term.)

Mandel contested the jurisdictional issues on appeal, but to no avail.

With respect to the cell-phone counts, Mandel’s 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’s assertion that he was not predisposed to use the cell phone:

Whether the defendant is predisposed to commit the charged crime depends on a number of factors, see, e.g., United States v. Orr, 622 F.3d 864, 870 (7th Cir. 2010), cert. denied, 131 S. Ct. 2889 (2011), “the most important of which is ‘whether the defendant evidenced reluctance to engage in criminal activity which was overcome by repeated Government inducement.’” King, 627 F.3d at 650 (quoting United States v. Blassingame, 197 F.3d 271, 281 (7th Cir. 1999)).

. . .

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’s own phone, and although use of such telephones was rare thirty years ago, it is commonplace today—in both law-abiding and criminal domains. Second, Mandel took Dwyer’s 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’s 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’s 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’s prompting. Finally, to the extent that Dwyer’s calls to Mandel’s 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)

Mandel relied on an old Second Circuit case, United States v. Archer, 486 F.2d 670 (2d Cir. 1973), which, in the words of the Seventh Circuit, “presupposes 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 Archer, the defendant himself willingly reciprocates the agent’s interstate action.” (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 “manufactured jurisdiction.”

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’s use of something in interstate commerce, but the defendant’s use of something that counts as a “facility of interstate commerce.” That requirement seems satisfied on a per se basis by the use of an automobile: “Automobiles are designed to move people and goods over distances both long and short, and as such they play a crucial role in interstate commerce.” (23)

So, the statute was satisfied.  But, so interpreted and applied, was the statute constitutional? The Seventh Circuit seemed at least a little sympathetic to Mandel’s arguments on this score:

Mandel’s 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 Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242, 1249-50 (11th Cir. 2008), declined to sustain the Graves Amendment, 49 U.S.C. § 30106, which shields car rental and leasing firms from vicarious liability for injuries to persons or property arising from their customers’ use of the lent vehicles, as a valid regulation of instrumentalities of interstate commerce. The court was concerned that if a car’s 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. “If 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” including “such quintessentially state law matters as traffic rules and licensing drivers.” Id. at 1250. (24-25)

Despite some apparent constitutional concern, the Seventh Circuit rejected Mandel’s 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’s favor in a later case.

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