Opposition Brief — Garcia Cisneros v. United States

JUN SD 00;

Nos. 00-1526 and 00-9419 |

In the Supreme Court of the Giniey Sae=

DORA GARCIA CISNEROS, PETITIONER

Vv.

UNITED STATES OF AMERICA

BETTY LOUISE MAREK, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

MICHAEL CHERTOFF

Assistant Attorney General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530-0101

(202) 514-2217

‘

o

t

|

QUESTIONS PRESENTED

1. Whether petitioner Marek’s use of Western Union to

send $500 to the “hit man” she hired satisfies 18 U.S.C.

1958(a)’s requirement that the defendant “use[] or cause[]

another * * * touse * * * any facility in interstate * * *

commerce.” Pet. 00-9419.

2. Whether the court of appeals properly applied the

plain error standard to petitioner Marek’s claim that the

district court failed to determine the factual basis for her

plea, in violation of Federal Rule of Criminal Procedure

11(f). Pet. 00-9419.

8. Whether the district court properly instructed the

jury on the elements of murder for hire in violation of

18 U.S.C. 1958. Pet. 00-1526.

4. Whether petitioner Cisneros’s conviction under 18

U.S.C. 1958 was barred by the statute of limitations. Pet.

00-1526.

(I)

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction 2

jatement 2

Argument 10

Conclusion ; 30

TABLE OF AUTHORITIES

Cases:

Almendarez-Torres v. United States, 523 U.S. 224

(1998) + 14

Apprendi v. New Jersey, 1208S. Ct. 2348 (2000) .............. 29

Aquionics Acceptance Corp. v. Kollar, 503 F.2d

cs sscnneninaan 18

Barnes v. United States, 412 U.S. 837 (1978) ..............00 24

Caminetti v. United States, 242 U.S. 470 (1917) .............. 15

Chapman v. United States, 500 U.S. 453 (1991) ............. 14

Dunn v. United States, 442 U.S. 100 (1979) ...........c.ccece0ee- 15

Dupuy v. Dupuy, 511 F.2d 641 (5th Cir. 1975) ............000 18

Loveridge v. Dreagoux, 678 F.2d 870 (10th Cir.

1982) 18

Mead Corp. v. Tilley, 490 U.S. 714 (1989) .........csssscssssssvees 14

Muscarello v. United States, 524 U.S. 125

(1998) 14

Myzel v. Fields, 386 F.2d 718 (8th Cir. 1967), cert.

Ga, SD TT, Bk CRI acsecccssccccscesesacscsesecsnsenccssvccccees 18

New York v. United States, 505 U.S. 144 (1992) .............. 18

Rewis v. United States, 401 U.S. 808 (1971) ..............00000 26

Spilker v. Shayne Labs., Inc., 520 F.2d 523

(9th Cir. 1975) 18

Toussie v. United States, 397 U.S. 112 (1970) .................. 28

United States v. Auerbach, 913 F.2d 407 (7th Cir.

1990) 23, 26-27

(III)

IV

Cases—Continued: Page

United States v. Bailey, 444 U.S. 394 (1980) ........scssessee 28

United States v. Baker, 82 F.3d 278 (8th Cir.), cert.

denied, 519 U.S. 1020 (1996) 12, 26

United States v. Barry, 888 F.2d 1092 (6th Cir.

1989) 12, 18

United States v. Brockdorff, 992 F. Supp. 22 (D.D.C.

1997) 27-28

United States v. Clark, 646 F.2d 1259 (8th Cir.

1981) 23

United States v. Davidson, 122 F.3d 531 (8th Cir.),

cert. denied, 522 U.S. 1034 (1997) 27

United States v. Delpit, 94 F.3d 1134 (8th Cir. 1996) ...... 27

United States v. Edelman, 878 F.2d 791 (5th Cir.

1989) 22

United States v. Feola, 420 U.S. 671 (1975) .........000 15, 23, 24

United States v. Finley, 175 F.3d 645 (8th Cir. 1999),

cert. denied, 528 U.S. 1094 (2000) 27

United States v. Garrett, 716 F.2d 257 (5th Cir.

1983), cert. denied, 466 U.S. 937 (1984) .. s 27

United States v. Gilbert, 181 F.3d 152 (1st Cir.

1999) 17

United States v. Gooding, 473 F.2d 425 (5th Cir.),

cert. denied, 412 U.S. 928 (1978) 25

United States v. Herrera, 584 F.2d 1187 (2d Cir.

1978) 23, 25

United States v. Houlihan, 92 F.3d 1271 (Ist Cir.

1996) 22, 25

United States v. LeFaivre, 507 F.2d 1288 (4th Cir.

1974), cert. denied, 420 U.S. 1004 (1975) 23

United States v. Lopez, 514 U.S. 549 (19985) ............. 15, 17, 19

United States v. Paredes, 950 F. Supp. 584

(S.D.N.Y. 1996) 20

United States v. Perrin, 580 F.2d 780 (5th Cir.

1978), aff’d on other grounds, 444 U.S. 37 (1979) ............ 23

United States v. Presley, 478 F.2d 163 (5th Cir. 1973) ... 25

Cases—Continued: Page

United States v. Razo-Leora, 961 F.2d 1140

(5th Cir. 1992) 23

United States v. Roselli, 482 F.2d 879 (9th Cir.

1970), cert. denied, 401 U.S. 924 (1971) 23

United States v. Smith, 232 F.3d 650 (8th Cir.

2000) 29

United States v. Stevens, 842 F. Supp. 96 (S.D.N.Y.

1994) 20

United States v. Superson, No. 95 CR 564, 1997

WL 223072 (N.D. Ill. Apr. 24, 1997) 27

United States v. Villano, 529 F.2d 1046 (10th Cir),

cert. denied, 426 U.S. 953 (1976) 23

United States v. Vonn, cert. granted, 121S. Ct.

1185 (2001) 20

United States v. Weathers, 169 F.3d 336 (6th Cir.),

cert. denied, 528 U.S. 838 (1999) 18, 19, 26

United States v. Winters, 33 F.3d 720 (6th Cir.

1994), cert. denied, 513 U.S. 1172 (1995) 22

United States v. Yashar, 166 F.3d 873 (7th Cir. 1999) .... 28

United States v. Yermian, 468 U.S. 63 (1984) .............000 23

United States v. Zizzo, 338 F.2d 577 (7th Cir. 1964),

cert. denied, 381 U.S. 915 (1965) 26

Western Union Tel. Co. v. Lenroot, 323 U.S.

490 (1945) 13-14

Constitution, statutes and rules:

USS. ‘Donst.:

Art. I, § 8, Cl. 3 (Commerce Clause) 17, 18

Amend. X 18

Gun-F ree School Zones Act of 1990, 18 U.S.C. 922(q)

(1994) 17

Securities Exchange Act of 1934 § 10, 15 U.S.C.

78j 17

VI

Statutes and rules—Continued: Page

Travel Act, 18 U.S.C. 1952 12, 16, 23, 26

Violent Crime Control and Law Enforcement Act of

1994, Pub. L. No. 103-322, § 60003(a)(11), 108 Stat.

1969 29

18 U.S.C. 247(b) (1994) 14

18 U.S.C. 751(a) 28

18 U.S.C. 1001 23

18 U.S.C. 1708 24

18 U.S.C. 1958 (1994 & Supp. V 1999) passim

18 U.S.C. 1958(a) (1988) 29

18 U.S.C. 1958(a) (1994 & Supp. V 1999)... 9, 10, 12, 14, 15, 28

18 U.S.C. 1958(b) 12, 13

18 U.S.C. 1958(b)(2) 12,13

18 U.S.C. 1959 13

Fed. R. Crim. P.:

Rule 11 10, 20

Rule 11(f) 11, 19, 20

Miscellaneous:

S. Rep. No. 225, 98th Cong., Ist Sess. (1983) ...........-.ss+ 13, 16

In the Supreme Court of the Gnited States

No. 00-1526

DORA GARCIA CISNEROS, PETITIONER

v.

UNITED STATES OF AMERICA

No. 00-9419

BETTY LOUISE MAREK, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals sitting en banc (Pet.

App. 66-103)’ is reported at 238 F.3d 310. Earlier opinions of

the panel in Cisneros, No. 00-1526 (Pet. App. 1-30, 31-63) are

reported at 194 F.3d 626 and 203 F.3d 333. The opinion of

1 “Pet. App.” refers to the appendix to the petition in No. 00-1526

(Cisneros). Unless otherwise indicated, all references to the appendix will

be to that appendix.

2

the panel in Marek, No. 00-9419 (00-9419 Pet. App. 47-52) is

reported at 198 F.3d 532. /

JURISDICTION

The judgment of the court of appeals sitting en banc was

entered on January 4, 2001. A petition for rehearing in No.

00-1526 (Cisneros) was denied on February 2, 2001. Pet.

App. 104-105. The petition for a writ of certiorari in No. 00-

1526 (Cisneros) was filed on April 4, 2001, and in No. 00-9419

(Marek) on March 29, 2001. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Southern District of Texas, petitioner Cisneros was

convicted on a federal murder-for-hire charge, in violation of

18 U.S.C. 1958. She was sentenced to life imprisonment, to

be followed by a five-year term of supervised release. The

court of appeals affirmed. Pet. App. 31-63.

Following the entry of a guilty plea in the United States

District Court for the Southern District of Texas, petitioner

Marek was convicted of murder for hire, in violation of 18

U.S.C. 1958. She was sentenced to 87 months’ imprison-

ment, to be followed by a three-year term of supervised

release. The court of appeals affirmed. 00-9419 Pet. App.

47-52.

On February 24, 2000, the court of appeals, on its own

motion, determined to rehear petitioner Cisneros’s case en

banc, and ordered that it be consolidated with petitioner

Marek’s case for purposes of briefing and argument. Pet.

App. 64-65. On January 4, 2001, the en banc court affirmed

the convictions of both Cisneros and Marek. Id. at 66-103.

1. Petitioner Cisneros.

a. In the spring of 1992, petitioner Cisneros’s daughter

began dating high schoo] classmate Joey Fischer in Browns-

ville, Texas. When Fischer ended the courtship several

weeks later, Cisneros unsuccessfully tried to get Fischer to

change his mind. Cisneros then went to fortune teller Maria

Martinez, who advised that the relationship would not lead

to marriage. Cisneros asked Martinez to put a curse on

Fischer, and later asked her to find someone to beat Fischer

up. Accordingly, in October 1992, Martinez asked a client,

Daniel Garza, to find someone to rough up Fischer. Garza

had come to Martinez seeking advice on his failed rela-

tionship with his wife. Pet. App. 32.

In early 1993, Cisneros told Maxtinez that she wanted

Fischer murdered. Martinez relayed that request to Garza,

who assured her that he would find someone for the job.

During the ensuing weeks, Garza frequently called Martinez

to discuss his love life. Martinez, however, was under daily

pressure from Cisneros for news on the murder scheme;

accordingly, she would interrupt Garza during their con-

versations to ascertain whether he had found someone to kill

Fischer. Garza lied several times by stating that he had

found someone to commit the crime; he and Martinez would

then discuss the murder before returning to the subject of

Garza’a relationship with his wife. Garza placed at least four

of those telephone calls to Martinez from telephone booths in

Mexico. Pet. App. 32-33.”

In early February 1993, Garza found two men, Israel

Olivarez and Heriberto “Eddie” Pizana, to kill Fischer.

2 At trial, Garza testified that he made at least four calls from tele-

phone booths in the Mexican towns of San Fernando and Matamoros,

paying for the calls after making them. On cross-examination, when

confronted with an interview report of FBI Agent David Church stating

that Garza had made the calls collect, Garza testified that the agent was

mistaken, and explained that collect calls from Mexico were difficult to

make. To support Cisneros’s claim that no calls were made from Mexico,

the defense called Agent Church, who testified that Garza had told him

that the calls from Mexico were collect, but that Martinez’s phone records

did not reflect any such calls. Pet. App. 33.

Olivarez and Pizana were both hit men and car thieves

working for a drug smuggling and car theft ring operated by

Rudy Cuellar. Olivarez told Garza that they would commit

the crime the next time they were in Brownsville. Garza

gave the two men a photo of Fischer and a map to his house.

Pet. App. 34. On the afternoon of March 2, 1993, Garza

stopped at the La Quinta Inn in Brownsville, where he met

Olivarez. Olivarez told him that “he was ready to do the

job.” That evening, at 6:39 p.m., a car with Mexican license

plate number “821 THE7” crossed into the United States

from Mexico at the Brownsville point of entry. A vehicle

with that plate had crossed the border 18 times between

August 1992 and March 1993. At 8:26 p.m., Pizana and

another Cuellar hit man, Ramon Palomares, checked into the

La Quinta Inn. The receptionist registered their car as a

white Grand Marquis with Mexican plates; her handwriting

made it difficult to decipher whether the plate number was

“821 TWEX” or “821 THE7.” Ibid.

Around 7:00 a.m. on March 3, 1998, Fischer was shot and

killed in his driveway. Handwriting on the back of a bail

bondsman’s business card found at the scene matched

Cuellar’s handwriting. A four-door white car with Mexican

plates, driven by a young Hispanic man with a short beard,

was seen in the vicinity of Fischer’s house near the time of

the murder. Within an hour of the murder, Olivarez told

Garza that Fischer was dead; Garza told Martinez; and

Martinez paid Garza for the murder. Garza gave the money

to Olivarez. Pet. App. 35-36.

Garza agreed to cooperate with the authorities. Wearing

a wire, he twice called Martinez and told her that the

gunmen wanted more money; each time, Martinez gave it to

him. Police arrested Martinez, who agreed to arrange a

meeting with Cisneros. The police arrested Cisneros in her

car as she was giving Martinez $500. Pet. App. 36.

b. Cisneros was charged with and convicted of violating

the federal murder-for-hire statute, 18 U.S.C. 1958. Section

1958 provides in relevant part:

(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 * * * as consideration for the

receipt of, or as consideration for a promise or agree-

ment 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; * * *

(b) As used in this section and section 1959—

* * * * *

(2) “facility of interstate commerce” includes means

of transportation and communication.

18 U.S.C. 1958 (1994 & Supp. V 1999) (footnotes omitted).

At trial, the district court instructed the jury:

It is a crime for anyone to cause another to travel in

foreign commerce or cause another to use a facility in

foreign commerce, with the intent that a murder be

committed * * * as consideration for the receipt of, or

as consideration for a promise or agreement to pay,

anything of pecuniary value. Pecuniary value is money.

For you to find [Cisneros] guilty, you must be satis-

fied * * * that all of the following matters have been

proven to your satisfaction by proof beyond a reasonable

om. *:**

Number one, that she caused another to travel in

foreign commerce or caused another to use a facility in

foreign commerce.

Now, “facility in foreign commerce” includes means of

transportation and communication. Now, as part of the

burden of proof, the Government does not have to prove

that [Cisneros] intended that foreign travel occur, or

that foreign commerce facilities be used in connection

with the murder, or even that [Cisneros] knew that

foreign travel occurred or would occur, or that foreign

commerce facilities were or would be used. But the

Government must prove that somebody, you know,

involved in the venture, itself, traveled in foreign com-

merce or caused another to use a facility in foreign

commerce.

In addition to that, that she did that with the intent

that the murder of Albert Joseph “Joey” Fischer be

committed in violation of the laws of the State of Texas.

Tr. 1515-1517. The jury found Cisneros guilty.

c. The court of appeals affirmed. Pet. App. 31-63. The

court first addressed the jurisdictional element of 18 U.S.C.

1958, which in relevant part requires that the defendant

“use” or cause another to “use” a “facility in interstate or

foreign commerce.” To satisfy that jurisdictional element,

the court held, it is not sufficient that the defendant use or

cause another to use an interstate facility. Instead, the court

held, the use of the facility must be interstate in nature, 2.e.,

it must cross state lines. Pet. App. 38-45. In the case before

it, the court concluded that there was an interstate or

foreign use of a facility of commerce. In particular, the court

concluded that the jury could have found that Martinez had

participated in international telephone calls as Cisneros’s

8 The court had affirmed Cisneros’s conviction in an earlier opinion

(Pet. App. 1-30), dated October 28, 1999, but vacated that opinion when it

granted Cisneros’s petition for panel rehearing.

agent, and that those calls facilitated the murder-for-hire

scheme. Id. at 47-50.

The court also found that there was “a sufficient nexus

between the use of the facility in foreign commerce and the

murder scheme because the telephone calls unquestionably

facilitated in arranging the murder.” Pet. App. 49. The

court reasoned that, “[w]ithout Martinez’s incessant remind-

ers during those calls, it is reasonable for a jury to have

believed that Garza would not have made as serious an effort

to find a hit man.” Jbid. The court rejected Cisneros’s claim

that the district court erred in refusing to instruct the jury

that the use of the facility in foreign commerce had to have

been initiated “in furtherance” of the murder for hire. Id. at

53. “Garza’s calls need not have been made for the purpose

of furthering the murder-for-hire,” the court stated. Ibid.

“It is enough that those calls facilitated the scheme.” I[bid.

The court further explained:

Here, it may well be true that Garza did not place the

calls “in furtherance” of the murder for hire scheme. He

called Martinez for marital advice. Martinez was the one

who would bring up the subject of the Fischer murder.

But those international calls gave Martinez the opportu-

nity to pursue her earlier requests that Garza arrange

the murder. In that sense, they facilitated the murder,

even though the use of the telephone across national

boundaries was purely incidental.

Id. at 58-54. The court also rejected Cisneros’s claim that

the district court should have required proof that she knew,

intended, or could have foreseen that she would cause

another to travel in foreign commerce or use facilities in

foreign commerce. Id. at 46, 56.

Finally, the court rejected Cisneros’s claim that the

district court should have instructed the jury on the statute

of limitations. The statute of limitations begins to run, the

court stated, once the crime is complete. Pet. App. 57. In

this case, one of the elements of the murder-for-hire offense

is receipt of pecuniary value or a promise or agreement to

pay, and the indictment charged Cisneros with “caus[ing]

another to . . . use a facility in foreign commerce . . . with

the intent that the murder of [Fischer] be committed .. .

as consideration for a promise and agreement to pay, and the

receipt of, $3,000.” Ibid. The crime as charged and tried by

the government in this case, the court reasoned, was com-

plete upon the receipt of the $3000 payment on March 3,

1993. Consequently, the court held, the indictment on

February 23, 1998, fell within the five-year limitation period.

Ibid.

2. Petitioner Marek.

Petitioner Marek arranged to have her boyfriend’s para-

mour murdered in exchange for a $500 payment. Unbe-

knownst to Marek, however, the purported hit man was an

undercover FBI agent. On November 19, 1997, Marek

delivered $500 to Western Union in Houston, Texas, and the

wire transfer was received by the undercover agent in

Harlingen, Texas. Marek was indicted on a charge of

murder for hire, in violation of 18 U.S.C. 1958. She pleaded

guilty to the charge, and was sentenced to 87 months’

imprisonment. 3

Marek appealed her guilty plea, and the court of appeals

affirmed. The court found that the intrastate electronic

transfer of funds by petitioner via Western Union, an inter-

state commerce facility, satisfied the jurisdictional require-

ment of the federal murder-for-hire statute. 00-9419 Pet.

App. 48-52. Judge Jolly, who had authored the Cisneros

opinion, dissented, based on his view that the murder-for-

hire statute “should be limited to uses of facilities being used

‘in’ interstate or foreign commerce as part of the commission

of the crime.” Id. at 52.

3. En bance proceedings.

The court of appeals sua sponte reheard both cases en

banc. To resolve Marek’s case, the court stated, it was

necessary to decide “whether, for purposes of satisfying the

jurisdictional element of the federal murder-for-hire

statute,” 18 U.S.C. 1958(a), “it is sufficient that the

defendant used an interstate commerce facility in an intra

state fashion” or whether, instead, the “defendant’s use of

that facility” must itself be interstate. Pet. App. 74.

Resolution of that question, the court further concluded,

depended on a basic question of grammar: whether “the

phrase ‘in interstate or foreign commerce’” in the statute

“modifies ‘use,’” such that the wse must be interstate or

foreign in nature, or whether the phrase instead “modifies

‘facility,’” such that the facility must be in interstate or

foreign commerce. Id. at 76. The court of appeals deter-

mined that the latter construction was correct, and that

Section 1958 does not require the individual defendant’s use

of the facility to be interstate in nature. “Purely from a

structural viewpoint, we must conclude that ‘in interstate or

foreign commerce’ is an adjective phrase that modifies

‘facility,’ the noun that immediately precedes it—mot an

adverbial phrase that modifies the syntactically more remote

verb, [to] use.” Jbid. The court found further support for

that construction in other provisions of the statute, id. at 85-

86, in its legislative history, id. at 86-87, and in Section 1958’s

title, which is “Use of interstate commerce facilities in the

commission of murder-for-hire,” id. at 87. Accordingly, the

court held that “§ 1958’s use of a ‘facility in interstate

commerce’ is synonymous with the use of an ‘interstate

commerce facility’ and satisfies the jurisdictional element of

that federal murder-for-hire statute, irrespective of whether

the particular transaction in question is itself inter state or

wholly intra state.” Id. at 68.

10

The court therefore’ rejected petitioner Marek’s claim,

made for the first time on appeal, that the district court had

violated Rule 11 of the Federal Rules of Criminal Procedure

by failing to determine whether Marek’s use of Western

Union was interstate in nature. Because Marek admitted

using Western Union, and Western Union is an interstate

commerce facility, the court concluded that Section 1958’s

jurisdictional element had been met. The court of appeals

thus found that the district court did not commit error, much

less plain error, in accepting Marek’s guilty plea. Pet. App.

71-74, 98. As to petitioner Cisneros, the court held that,

even if Section 1958 were given the narrowest interpretation

possible, affirmance of her conviction was proper based on

the international telephone calls used to facilitate the

murder-for-hire scheme. Id. at 71, 93.

Judges Jolly, Jones, Smith, Barksdale, and DeMoss dis-

sented. Pet. App. 93-103. In their view, Section “1958

requires that the use of the facility be in interstate or foreign

commerce.” Id. at 93.

ARGUMENT

A. Petitioner Marek contends (00-9419 Pet. 9-25) that her

use of Western Union to make an intrastate payment did not

constitute the use of “any facility in interstate * * *

commerce” within the meaning of the murder-for-hire

statute, 18 U.S.C. 1958(a). The court of appeals correctly

rejected that argument, and its decision does not conflict

with any decision of this Court or of any other court of

appeals. Accordingly, further review is not warranted.

1. Marek asks this Court to grant the petition to address

the meaning of the clause “uses * * * any facility in

interstate or foreign commerce” in 18 U.S.C. 1958(a). In

particular, she argues (00-9419 Pet. 13-14) that the phrase

“in interstate * * * commerce” in Section 1958(a) modifies

the word “uses”; consequently, she maintains, the jurisdic-

11

tional requirement of 18 U.S.C. 1958(a) is not met unless the

government shows that the wse of the facility was interstate

commerce, 1.¢., that the use itself was interstate. Petitioner

Marek thus disagrees with the en banc court’s conclusion

that the phrase “in interstate * * * commerce” modifies

the word it immediately follows, “facility,” and that the

government as a result need only prove that the facility

itself (but not necessarily the defendant’s use of it) was in

interstate commerce.

a. As an initial matter, at the time she pleaded guilty to

the offense, Marek did not contend that the statute required

that her wse of Western Union be interstate in nature;

instead, she raised that issue for the first time on appeal by

challenging the adequacy of the factual basis for the plea.

See Pet. App. 72. But Marek nowhere argues that, if the

district court had inquired into whether her use of Western

Union was interstate in nature before accepting her plea, the

result in this case would have been different. The indictment

identified Western Union as the facility of interstate

commerce; Marek admitted using Western Union to transfer

money to further the murder for hire; and it never has been

disputed that the use of Western Union was in fact

interstate in nature. As the court of appeals observed, “the

Western Union procedure for wiring money from one Texas

city to another * * * required Western Union agents in

both cities to call the company’s main computer in Bridgeton,

Missouri.” Jd. at 69 n.8. As a result, even under the con-

struction of the statute Marek now posits, the further

inquiry under Rule 11(f) Marek claims was required would

merely have shown that her guilty plea was supported by an

adequate factual basis.‘

4 Marek raises no issue of voluntariness. Nor does she anywhere

suggest that further inquiry under Rule 11(f) would have caused her to

refuse the plea.

12

b. In any event, Marek’s construction of the statute is

erroneous. Marek principally relies (00-9419 Pet. 12-14) ona

distinction between statutes that use the phrase “facility in

interstate * * * commerce” on the one hand, and those that

use the phrase “facility of interstate commerce” on the other.

In particular, Marek contends that, if the statute requires

the use of a “facility in interstate” commerce, the govern-

ment must show that the charged wse itself was interstate in

nature and constituted interstate commerce. In contrast,

where the statute requires use of a “facility of interstate”

commerce, Marek argues, the government need only show

that the facility ordinarily may be used for interstate com-

merce, and need not demonstrate that the actual use charged

was interstate in nature. See, eg., Pet. App. 99 n.5 (dis-

senting opinion).

In some contexts, that distinction may be relevant. Com-

pare United States v. Barry, 888 F.2d 1092, 1095 (6th Cir.

1989) (concluding, in the context of the Travel Act, 18 U.S.C.

1952, that “a statute that speaks in terms of an instru-

mentality in interstate commerce rather than an instru-

mentality of interstate commerce is intended to apply to

interstate activities only”), with United States v. Baker, 82

F.3d 273 (8th Cir.) (requirements of the Travel Act satisfied

where defendant caused extortion victim to withdraw money

from an ATM that was part of an interstate network), cert.

denied, 519 U.S. 1020 (1996). But it has no application in the

context of the murder-for-hire statute, 18 U.S.C. 1958,

because the murder-for-hire statute uses the phrases

“facility in interstate * * * commerce” and “facility of

interstate commerce” interchangeably. See 18 U.S.C.

1958(a) (1994 & Supp. V 1999); 18 U.S.C. 1958(b)(2). The

substantive prohibition provided by Section 1958 uses the

phrase “facility in interstate * * * commerce.” 18 U.S.C.

1958(a) (1994 & Supp. V 1999). But Section 1958(b), which

provides relevant definitions, uses the phrase “facility of

13

interstate commerce,” and defir<; that phrase as including

any “means of transportation and communication.” The

definition in Section 1958(b) must be intended to apply to

Section 1958(a). Neither the phrase “facility of interstate

commerce” nor the phrase “facility in interstate commerce”

appears in any other provision to which the definition

provided by Section 1958(b) applies.’ Accordingly, it is plain

that Congress perceived no difference between the terms

“facility in interstate commerce” and “facility of interstate

commerce.” The legislative history confirms that conclusion.

As the court of appeals observed:

In a discussion of the murder-for-hire portion of the bill

extending over three pages, the Senate report uses the

phrase “facility [or facilities] of interstate commerce”

four times and “facility in interstate commerce” only

once, drawing no apparent distinction between the two.

We find inescapable the conclusion that “of” and “in”

were considered and used by Congress as synonyms in

regards to this particular statute.

Pet. App. 87.° Because Western Union’s network clearly is

an interstate “means of * * * communication,” Western

5 The definitions in Section 1958(b) also apply to 18 U.S.C. 1959

(violent crimes in aid of racketeering activity). But Section 1959 does not

refer to facilities either in or of interstate commerce. Thus, Section

1958(b\(2), defining “facility of interstate commerce,” must be intended to

shed light on Section 1958(a).

6 See S. Rep. No. 225, 98th Cong., Ist Sess. 304 (1983) (murder-for-

hire statute “punishes * * * the use of the facilities of interstate or

foreign commerce or of the mails”); id. at 305 (option of federal prosecution

“should be available when a murder is committed or planned as con-

sideration for something of pecuniary value and the proper [flederal

nexus, such as interstate travel, use of the facilities of interstate

commerce, or use of the mails, is present”); id. at 306 (“[tJhe 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”).

14

Union Tel. Co. v. Lenroot, 323 U.S. 490, 502 (1945), evidence

that such a facility was used in a murder-for-hire scheme

establishes the jurisdictional element of Section 1958.

Marek’s construction of Section 1958, moreover, is at odds

with basic principles of grammar and statutory construction.

As the court of appeals observed, the words “in interstate or

foreign commerce” immediately follow the word “facility”; it

is thus most natural to read them as modifying the word

“facility” rather than the more distant verb “[to] use.” Pet.

App. 76. Where Congress has sought to require that the

“yse” itself be interstate in nature, it has found clear means

of expressing that concept. See id. at 77 n.22 (citing former

18 U.S.C. 247(b)). That Section 1958(a) is designed to reach

any use of interstate facilities in furtherance of a murder for

hire (and not merely interstate uses of such facilities) is

confirmed by its title, “Use of interstate commerce facilities

in the commission of murder-for-hire.” “The title is

unambiguous and clearly employs ‘interstate commerce’ to

modify ‘facility,’ not ‘use.’” Id. at 87. Marek offers no reason

why Section 1958 should be interpreted to create a conflict in

meaning between its text and its title. See Almendarez-

Torres v. United States, 523 U.S. 224, 234 (1998) (“[Tyhe title

of a statute and the heading of a section are tools available

for the resolution of a doubt about the meaning of a

statute.”) (internal quotation marks omitted); Mead Corp. v.

Tilley, 490 U.S. 714, 723 (1989) (similar).’

7 For that reason, Marek’s reliance on the rule of lenity (00-9419 Pet.

23-25) is misplaced. The rule of lenity applies only where “grievous

ambiguity or uncertainty in the language and structure of the Act”

remains after the Court has “seize[d] everything from which aid can be

derived.” Chapman v. United States, 500 U.S. 453, 463 (1991) (internal

quotation marks omitted). It does not apply simply because a statutory

phrase requires interpretation. Muscarello v. United States, 524 U.S. 125,

138 (1998) (“The simple existence of some statutory ambiguity * * * is

not sufficient to warrant application of that rule, for most statutes are

15

Contrary to Marek’s contention (00-9419 Pet. 16-19), that

conclusion is consistent with Congress’s intent. The national

government has a strong interest in ensuring that facilities

of interstate commerce are not threatened or employed for

improper purposes, even when the particular use or threat is

intrastate in nature. As this Court has explained, “the

authority of Congress to keep the channels of interstate

commerce free from immoral and injurious uses has been fre-

quently sustained,” Caminetti v. United States, 242 U.S. 470,

491 (1917), as has Congress’s authority “to regulate and

protect the instrumentalities of interstate commerce,” even

where “the threat” or abuse “may come only from intrastate

activities,” United States v. Lopez, 514 U.S. 549, 558 (1995).

Here, the legislative history upon which Marek relies

demonstrates that Congress broadly intended to protect

interstate facilities of commerce from abuse, even if the

threat might be from purely intrastate activity. As the

Senate Report explains:

ambiguous to some degree.”). Moreover, the rule of lenity “is rooted in

fundamental principles of due process, which mandate that no individual

be forced to speculate, at peril of indictment, whether his conduct is

prohibited.” Dunn v. United States, 442 U.S. 100, 112 (1979). Application

of the rule would not serve that purpose here, since the interstate nexus is

the jurisdictional element of the murder-for-hire statute, and the gov-

ernment need not prove that the defendant intended that foreign com-

merce facilities be used, or even that he knew that such facilities would be

used. See pp. 24-26, infra. Accordingly, petitioner was not “forced to

speculate” as to the illegal nature of her conduct. See United States v.

Feola, 420 U.S. 671, 676-677 n.9 (1975) (“The significance of labeling a

statutory requirement as ‘jurisdictional’ is not that the requirement is

viewed as outside the scope of the evil Congress intended to forestall, but

merely that the existence of the fact that confers federal jurisdiction need

not be one in the mind of the actor at the time he perpetrates the act made

criminal by the federal statute.”). As the decision below aptly observed

(Pet. App. 90), “{i}t would be absurd to say that Marek did not know that

her conduct—hiring an assassin commit murder—was prohibited.”

16

With respect to the [murder-for-hire] offense, the

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. However, 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

* * * use of the facilities of interstate commerce, or use

of the mails, is present.

See S. Rep. No. 225, 98th Cong., Ist Sess. 304 (1983)

(emphasis added; footnote omitted). While the Report

voiced the expectation that federal prosecutors would exer-

cise discretion and coordinate with state officials to ensure

appropriate use of the statute, id. at 305, that passage cannot

be read (see 00-9419 Pet. 17-19) to limit Section 1958 to

murders that involve interstate travel or communications

that cross state lines. Instead, the Senate Report evidences

Congress’s understanding that Section 1958 creates broad

federal jurisdiction over murder-for-hire schemes that

involve use of the mails or other facilities of interstate

commerce.®

8 In support of her argument that the murder-for-hire statute

requires interstate use, Marek also points (00-9419 Pet. 18) to the Senate

Report’s observation (S. Rep. No. 225, supra, at 306) that “an interstate

telephone call is sufficient to trigger Federal jurisdiction, as it is under the

{Travel Act, 18 U.S.C. 1952).” That observation, however, does not

establish that an interstate call is necessary to create such jurisdiction

under the murder-for-hire statute. Rather, immediately following the

observation on which Marek relies, the Senate Report declares that “[tJhe

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.”

S. Rep. No. 225, supra, at 306 (emphasis added).

17

c. For the same reasons, interpreting Section 1958 to

cover intrastate use of an interstate facility does not (00-9419

Pet. 21-23) run afoul of this Court’s decision in United States

v. Lopez, 514 U.S. 549 (1995). In Lopez, the Court held that

the Gun-Free School Zones Act of 1990, 18 U.S.C. 922(q)

(1994), which made it a federal crime “for any individual

knowingly to possess a firearm” in a school zone, exceeded

Congress’s powers under the Commerce Clause. 514 U.S. at

551. In that case, however, there was no claim that the

relevant prohibition was “a regulation of the use of the

channels of interstate commerce” or an effort “to protect an

instrumentality of interstate commerce.” Id. at 559. The

prohibition of Section 1958, in contrast, is such a regulation;

it proscribes the misuse of interstate commerce facilities in

connection with murder-for-hire schemes.’ In Lopez itself,

this Court emphasized that “Congress is empowered to

regulate and protect the instrumentalities of interstate

commerce * * * even though the threat may come only

from intrastate activities.” Jd. at 558. Because Section 1958

represents an effort to prevent the misuse of channels and

instrumentalities of interstate commerce, Lopez casts no

doubt on Section 1958’s validity, even when it is applied to

activities that are themselves intrastate in nature. See

United States v. Gilbert, 181 F.3d 152, 157-159 (1st Cir. 1999)

$ Moreover, in Lopez the Court emphasized that tue statute there did

not have “anything to do with ‘commerce’ or any sort of economic

enterprise”; instead, it barred possession of a gun near a school, without

any nexus to economic activity. 514 U.S. at 561. Section 1958, in contrast,

is addressed exclusively to a particular >urt of economic enterprise: it bars

murders for hire, i.e., murders performed in exchange for payment or a

promise to pay something of pecuniary value. Congress has the power to

regulate illegal, as well as legal, commerce.

18

(rejecting Lopez chailenge to bomb threat conviction based

on intrastate phone calls).”°

Marek’s Tenth Amendment argument (00-9419 Pet. 21-23)

is unsupported for the same reason. In New York v. United

States, 505 U.S. 144, 156 (1992), this Court explained that, in

cases “involving the division of authority between federal

and state governments, the two inquiries are mirror images

of each other. If a power is delegated to Congress in the

Constitution, the Tenth Amendment expressly disclaims any

reservation of that power to the States; if a power is an

attribute of state sovereignty reserved by the Tenth

Amendment, it is necessarily a power the Constitution has

not conferred on Congress.” Because the murder-for-hire

statute is within Congress’s power under the Commerce

Clause—it regulates the use of interstate commerce

facilities—it invades no prerogative reserved to the States.

d. Finally, Marek argues (00-9419 Pet. 9-10) that the

decision below conflicts with the Sixth Circuit’s decision in

United States v. Weathers, 169 F.3d 336, cert. denied, 528

U.S. 838 (1999). As Marek notes, the Weathers opinion

stated that the federal murder-for-hire statute “is intended

to apply to interstate activities only.” Id. at 341 (quoting

United States v. Barry, 888 F.2d at 1095). The discussion in

Weathers upon which petitioner relies, however, was not

necessary to the judgment. In that case, the court affirmed

the defendant’s conviction, finding that, when the defendant

10 Many existing federal statutes permit federal jurisdiction based on

intrastate activities that use interstate commerce facilities. Section 10 of

the Securities Exchange Act of 1934, 15 U.S.C. 78j, for example, may be

invoked based on purely local telephone calls. See Loveridge v. Dreagouz,

678 F.2d 870, 873-874 (10th Cir. 1982); Spilker v. Shayne Labs., Inc., 520

F.2d 523, 524-525 (9th Cir. 1975); Dupuy v. Dupuy, 511 ¥'.2d 641, 642-644

& n.3 (5th Cir. 1975); Aquionics Acceptance Corp. v. Kollar, 503 F.2d 1225,

1228 (6th Cir. 1974); Myzel v. Fields, 386 F.2d 718, 728 (8th Cir. 1967), cert.

denied, 390 U.S. 951 (1968).

19

used a cellular phone to call another person within the same

State, an electronic signal was sent to communications

equipment in another State; that interstate signal, the court

concluded, was sufficient to establish Section 1958's

jurisdictional element. Id. at 342 (telephone company was

“required to engage in interstate activities by sending a

search signal to communications equipment in another state

to locate [the defendant’s] cellular telephone”). Marek cites

no decision of any court of appeals reversing a murder for

hire conviction where, as here, the defendant used an

interstate communications network to facilitate the murder

for hire.

In any event, the question does not appear likely to recur.

Although the federal murder-for-hire statute is decades old,

the issue Marek raises—whether the statute requires

interstate use or merely use of an interstate facility—has

been addressed in only two published court of appeals de-

cisions, Weathers and the decision below. Furthermore, in

both of those cases, the issue was largely academic, because

the uses of the interstate networks at issue were both

interstate in nature. As noted above, in Weathers, the court

of appeals addressed the issue in dictum; the use at issue

there was interstate, since interstate signaling was involved.

Similarly, in this case the issue arose only because Marek

failed to press her demand for an inquiry into additional facts

when the district court conducted its Rule 11(f) inquiry. In

point of fact, no one has ever disputed that, because the

Western Union transfer Marek initiated required phone calls

between two Texas cities and Western Union’s computer in

Bridgeton, Missouri, an actual interstate use of the Western

Union facility occurred. See p. 11, supra. In any event,

because the issue thus far has been addressed by only two

20

circuits (one of them in dictum), review by this Court at the

present time would be premature.”

2. Petitioner Marek also urges (00-9419 Pet. 26-29) this

Court to grant her petition because the courts of appeals are

divided on the standard of review applicable on appeal when

a district court fails to determine that there is a factual basis

for a defendant’s guilty plea, as required by Federal Rule of

Criminal Procedure 11(f), but the defendant makes no

objection to that deviation from Rule 11 in the trial court.

The proper standard of review of a related Rule 11 issue is

currently pending before the Court. United States v. Vonn,

cert. granted, 121 S. Ct. 1185 (2001) (No. 00-973). As ex-

plained above, however, Marek’s conviction was properly

affirmed because the factual basis was adequate. While

Marek’s claim might fail on plain-error review even if her

statutory argument were correct, application of a harmless

error standard would not assist her. Accordingly, there is no

need to hold this case pending the Court’s decision in Vonn.

B. Petitioner Cisneros does not dispute that one of the

participants in her murder-for-hire scheme used a facility of

foreign commerce. Nor does she deny that the use itself was

in foreign commerce. Instead, she raises a variety of largely

case-specific challenges (00-1526 Pet. 13-25) to the jury

instructions on, and the government’s proof of, the jurisdic-

11 Marek also relies (00-9419 Pet. 9-11) on a pair of district court

decisions, United States v. Stevens, 842 F. Supp. 96, 98 (S.D.N.Y. 1994),

and United States v. Paredes, 950 F. Supp. 584, 590 (S.D.N.Y. 1996). In

Stevens, however, there was an interstate use: the court found that pager

messages used in the murder-for-hire scheme were routed across state

lines. 842 F. Supp. at 97-98. There were interstate pager-search signals in

Paredes as well. 950 F. Supp. at 586-587 & n.4. The district court in

Paredes, however, concluded that such interstate signaling is insufficient

to satisfy the jurisdictional element. Jd. at 589-590. No court of appeais

has accepted that conclusion (and the Weathers decision on which Marek

relies rejects it).

21

tional element. The court of appeals correctly rejected those

claims, and no further review is warranted.”

1. Cisneros first contends (00-1526 Pet. 17) that the

district court’s jury instructions permitted the jury to find

her guilty without making any finding that she used

interstate or foreign commerce facilities or caused another to

do so. That fact-bound claim of instructional error is without

merit. The district court specifically told the jury that, “to

find [Cisneros] guilty, you must be satisfied * * * by proof

beyond a reasonable joubt” that “[Cisneros] caused another

to travel in foreign commerce or caused another to use a

facility in foreign commerce.” Tr. 1516 (emphasis added).

Cisneros bases her contrary contention on the district

court’s later statement that “(t]he Government must prove

that somebody, you know, involved in the venture, itself,

traveled in foreign commerce or caused another to use a

facility in foreign commerce”; that statement, she argues,

omits the requirement that she cause another to use an

interstate facility. 00-1526 Pet. 10 n.6, 17. Because Cisneros

did not object to the instruction on that ground at the time it

was given, her claim is reviewable only for plain error. Once

the instruction is read in context, it is apparent that the

instruction was not error at all, much less plain error. After

12 Cisneros also argues (00-1526 Pet. 13-17) that the court of appeals’

en banc opinion erroneously failed to reinstate portions of the panel

opinion, all of which had rejected Cisneros’s claims on appeal. The

asserted error is entirely case-specific and does not meaningfully aggrieve

Cisneros in any event. Insofar as there are differences in the facts recited

by the vacated panel opinions and the en banc opinion (00-1526 Pet. 16),

the differences are not material; each opinion concludes that her conviction

should be affirmed. To the extent that Cisneros is concerned that she

lacks a final court of appeals judgment from which to seek this Court’s

review, that concern is misplaced. Even if the en banc opinion does not

address all of Cisneros’s myriad claims in as much detail as the earlier

(now vacated) panel opinions, the en banc court entered a final judgment

of affirmance that is reviewable by this Court.

22

explaining that the government does not have to prove that

Cisneros knew or intended that a foreign commerce facility

be used in the murder-for-hire scheme, the court merely

emphasized that the jury still had to find that a facility of

foreign commerce in fact was used; the government, the

court reminded the jury, “must prove that somebody * * *

caused another to use a facility in foreign commerce.” Tr.

1516. Indeed, immediately after that, the court clarified,

“{iJn addition to that, that she did that with the intent that

the murder of Albert Joseph ‘Joey’ Fischer be committed.”

Tr. 1516-1517.

2. Cisneros’s challenge to the district court’s decision not

to give her proposed causation instruction (00-1526 Pet. 19-

20) similarly does not warrant review. Cisneros claims that

the district court should have told the jury that she could

have “caused” another to use facilities in foreign commerce

only if she knew or could have foreseen that use of foreign

commerce facilities would occur. As the court of appeals

observed (Pet. App. 56), that instruction “confuses intent

with causation.” Moreover, as the court correctly found,

ibid., the causation element in the murder-for-hire statute

does not require that the specific use of the interstate or

foreign commerce facility be foreseen or even known. See

United States v. Houlihan, 92 F.3d 1271, 1292 (1st Cir. 1996)

(“(Tjhere is no requirement that each accused * * * intend

{a facility in interstate comimerce] to be used, or even that

each accused know that such a facility probably will be

used.”); United States v. Winters, 33 F.3d 720, 721 (6th Cir.

1994) (“{T]here is no intent requirement with respect to the

use of the mails [under 18 U.S.C. 1958], and

* * * this element of the crime is jurisdictional in nature.”),

cert. denied, 513 U.S. 1172 (1995); United States v. Edelman,

873 F.2d 791, 795 (5th Cir. 1989) (“government need not

establish that [defendant] intended that the mail be used or

that he even knew the mail was used”; government need

23

only prove specific intent to commit the underlying offense);

United States v. Razo-Leora, 961 F.2d 1140, 1148 (5th Cir.

1992) (same).”

That interpretation of the murder-for-hire statute is

consistent with this Court’s decisions on knowledge of juris-

dictional elements. For instance, in United States v. Yer-

mian, 468 U.S. 63, 68 (1984), the Court held that 18 U.S.C.

1001 does not require the government to prove that a

defendant has made false statements “with actual knowledge

of federal agency jurisdiction.” The Court explained (“68

U.S. at 68-70):

18 The courts have reached the same conclusion with respect to the

similarly worded Travel Act, 18 U.S.C. 1952. United States v. Auerbach,

913 F.2d 407, 410 (7th Cir. 1990); United States v. Clark, 646 F.2d 1259,

1268 n.16 (8th Cir. 1981); United States v. Herrera, 584 F.2d 1187, 1150 (2d

Cir. 1978); United States v. Perrin, 580 F.2d 730, 737 (5th Cir. 1978), aff’d

on other grounds, 444 U.S. 37 (1979); United States v. Villano, 529 F.2d

1046, 1054 (10th Cir.), cert. denied, 426 U.S. 953 (1976); United States v.

LeFaivre, 507 F.2d 1288, 1297-1299 & n.14 (4th Cir. 1974), cert. denied, 420

U.S. 1004 (1975); United States v. Roselli, 432 F.2d 879, 891 (9th Cir. 1970),

cert. denied, 401 U.S. 924 (1971). Since knowledge of one’s own interstate

travel is not an element of a violation of the Act by a principal, those

courts have held that a defendant may be convicted of aiding and abetting

a violation of the Act—or conspiracy to violate its terms—without a

showing that the defendant knew or intended that another individual

would engage in interstate travel. See, ¢.g., United States v. LeFaivre, 507

F.2d at 1298 (aiding and abetting); United States v. Herrera, 584 F.2d at

1150 (conspiracy); United States v. Roselli, 482 F.2d at 891-892 (con-

spiracy). See United States v. Feola, 420 U.S. 671, 696 (1975) (“(Wyhere

knowledge of the facts giving rise to federal jurisdiction is not necessary

for conviction of a substantive offense embodying a mens rea requirement,

such knowledge is equally irrelevant to questions of responsibility for

conspiracy to commit that offense.”). The cases cited by Cisneros (00-1526

Pet. 20) are not to the contrary. Those are cases where the defendant

knew of the interstate nexus; but none of those cases reversed a conviction

on the ground that knowledge of the nexus is required.

24

The statutory language requiring that knowingly false

statements be made “in any matter within the juris-

diction of any department or agency of the United

States” is a jurisdictional requirement. Its primary

purpose is to identify the factor that makes the false

statement an appropriate subject for federal concern.

Jurisdictional language need not contain the same culpa-

bility requirement as other elements of the offense.

* * * On its face,* * * § 1001 requires that the

Government prove that false statements were made

knowingly and willfully, and it unambiguously dispenses

with any requirement that the Government also prove

that those statements were made with actual knowledge

of federal agency jurisdiction.

Similarly, in United States v. Feola, 420 U.S. 671, 676-677 n.9

(1975), the Court observed that “[tJhe significance of labeling

a statutory requirement as ‘jurisdictional’ is * * * that the

existence of the fact that confers federal jurisdiction need

not be one in the mind of the actor at the time he perpetrates

the act made criminal by the federal statute.” Accord

Barnes v. United States, 412 U.S. 837, 847 (1973) (knowledge

that checks were stolen from the United States mails, as

opposed to knowledge that they were stolen, not required

under 18 U.S.C. 1708).

3. Alternatively, Cisneros claims that the government

had to prove that interstate facilities were used “in further-

ance of” or “facilitated” the underlying offense. See 00-1526

Pet. 22-23. As the court of appeals explained, however, the

government met that burden. Cisneros’s constant importun-

ings for news of the planned murder, that court explained,

caused Martinez to interrupt Garza during their inter-

national telephone conversations to press the earlier request

that Garza find someone to commit the murder. Pet. App.

49. Martinez’s use of international telephone lines to com-

25

municate about a planned murder did facilitate the scheme.

Absent the “incessant reminders during those calls,” the

court of appeals explained, “Garza [might] not have made as

serious an effort to find a hit man.” [bid.

Cisneros’s proposed instruction, moreover, was fatally

defective. Cisneros proposed that the government be re-

quired to prove that Cisneros “caused Daniel Garza to use a

facility of foreign commerce to call Maria Martinez in

Brownsville from [Mexico] * * * in furtherance of the

alleged murder-for-hire.” 00-1526 Pet. 9 n.4 (emphasis

added). But the government was not required to prove that

Cisneros caused Garza to initiate a phone call in furtherance

of the murder for hire. The government instead was

required to prove that Cisneros caused someone to use a

foreign or interstate commerce facility in furtherance of the

scheme. In this case, the government showed that Cisneros

caused Martinez to use a facility of foreign commerce to

facilitate the scheme. In particular, even though Garza may

have initiated the international calls with Martinez to discuss

other matters, Cisneros’s constant pressure caused Martinez

to communicate over facilities of foreign commerce to

promote the murder-for-hire scheme. Pet. App. 49, 53-54."

14 Cisneros’s claim (00-1526 Pet. 23) of conflict between the (vacated)

panel opinion on rehearing (Pet. App. 48-49) and the First Circuit’s

decision in United States v. Houlihan, 92 F.3d at 1292, is without merit.

According to Cisneros, the decision below rejected any requirement that

the use of the facility be in “furtherance” of the murder for hire, and

instead required that the use “facilitate” the scheme; the First Circuit and

earlier Fifth Circuit Travel Act cases, she asserts, use a “furtherance”

standard. 00-1526 Pet. 23 (citing Houlihan, supra; United States v.

Presley, 478 F.2d 163, 168 (5th Cir. 1973); and United States v. Gooding,

473 F.2d 425, 427-428 (5th Cir.), cert. denied, 412 U.S. 928 (1973)).

Elsewhere, however, Cisneros concedes that the standard of “further-

ance” employed in Houlihan and earlier Fifth Circuit decisions does not

meaningfully differ from the standard of “facilitation” employed by the

vacated panel decision. In any event, any tensior between the vacated

26

Relying on Rewis v. United States, 401 U.S. 808 (1971),

Cisneros also asserts (00-1526 Pet. 18, 23-25) that the nexus

between the international telephone calls and the murder-

for-hire scheme was too “fortuitous and incidental” to

support a conviction under Section 1958. In Rewis, persons

operating an illegal lottery in Florida were charged with

violating the Travel Act, 18 U.S.C. 1952, based on the

interstate travel of some of their customers. The Court held

that “Congress did not intend that the Travel Act should

apply to criminal activity solely because that activity is at

times patronized by persons from another State.” 401 U.S.

at 812. The Court adverted, however, to “cases in which

federal courts ha{d] correctly applied [the Travel Act] to

those individuals whose agents or employees cross state lines

in furtherance of illegal activity.” Jd. at 813 (emphasis

added). One such case was United States v. Zizzo, 338 F.2d

577 (7th Cir. 1964), cert. denied, 381 U.S. 915 (1965), where

the court upheld the Travel Act conviction of a defendant

who employed out-of-state individuals to work at his

gambling business because “(i]t is clear that the gambling

business operated by [the defendant] caused the interstate

travel by the three employees.” Jd. at 580. In this case too,

Cisneros’s request that Martinez find someone to kill Fischer

caused Martinez, as Cisneros’s agent, to use a foreign

commerce facility (international phone lines) to press Garza

to hire the hit men. Because the international conversations

served to facilitate the murder-for-hire scheme, the evidence

established a legally sufficient nexus between the telephone

use and the illegal scheme. Pet. App. 49. See United States

v. Weathers, 169 F.3d at 343-344; United States v. Baker, 82

F.3d at 275-276; United States v. Auerbach, 913 F.2d at 410-

panel opinion and earlier Fifth Circuit decisions is a matter for the Fifth

27

411; United States v. Garrett, 716 F.2d 257, 264-266 (5th Cir.

1983), cert. denied, 466 U.S. 937 (1984).

4. Finally, Cisneros contends (00-1526 Pet. 25-30) that

she was not prosecuted within the five-year statute of

limitations period. The court of appeals’ (now-vacated) panel

opinion rejected that argument, stating that the statute of

limitations did not begin to run until March 3, 1993, the day

the murder was completed and payment was made. Pet.

App. 57-58. That statement, Cisneros argues, conflicts with

decisions of the Eighth Circuit, United States v. Delpit, 94

F.3d 1134, 1149 (1996); United States v. Finley, 175 F.3d 645,

646 (1999), cert. denied, 528 U.S. 1094 (2000); United States

v. Davidson, 122 F.3d 531, 535, cert. denied, 522 U.S. 1034

(1997). According to Cisneros (00-1526 Pet. 27-28), those

cases hold that a violation of Section 1958 is “complete” once

an interstate or foreign commerce facility is used with the

requisite intent, regardless of when the murder actually

takes place.

The claim of conflict is incorrect. Neither Delpit, Finley

nor Davidson addresses statute of limitations issues.

Instead, those cases merely state that the crime of murder

for hire is complete upon the use of interstate commerce

with the requisite intent, Delpit, 94 F.3d at 1149; Finley, 175

F.3d at 645, or restate the elements of murder for hire in

violation of Section 1958, Davidson, 122 F.3d at 535.

Moreover, none of those cases addresses whether the offense

of murder for hire can be considered a “continuing offense”

for statute of limitations purposes where, as here, the

participants in the scheme continue to pursue their murder-

for-hire goal after the interstate facility is used.” As this

15 Nor do the district court decisions cited by Cisneros (00-1526 Pet. 28)

address that point. United States v. Superson, No. 95 CR 564, 1997 WL

223072, *1 (N.D. Ill. Apr. 24, 1997), declares that the crime is complete

when the elements have al] been committed; and United States v.

28

Court has explained, continuing offenses are an exception to

the general rule that the statute of limitations begins run-

ning once the crime is complete. Toussie v. United States,

897 U.S. 112, 114 (1970). For continuing offenses, “the stat-

ute of limitations does not begin to run when all elements are

first present, but rather begins when the offense expires” as

through abandonment or completion. United States v.

Yashar, 166 F.3d 878, 875 (7th Cir. 1999). A crime is a

continuing offense for statute of limitations purposes when

its “language * * * compels such a conclusion, or the nature

of the crime involved is such that Congress must assuredly

have intended that it be treated as a continuing one.”

Toussie, 397 U.S. at 115; United States v. Bailey, 444 U.S.

394, 413 (1980) (“Given the continuing threat to society posed

by an escaped prisoner, ‘the nature of the crime involved

[escape from federal custody, 18 U.S.C. 751i(a)] is such that

Congress must assuredly have intended that it be treated as

a continuing one.’”) (quoting Toussie, 397 U.S. at 115).

Here, even if the murder-for-hire offense was complete

and thus subject to prosecution once the foreign commerce

facility was used in 1992, the scheme continued—and the

statute of limitations therefore did not begin to run—until

Joey Fischer was murdered and the blood-money was paid

on March 3, 1993, less than five years before Cisneros’s

indictment. That Congress intended Section 1958(a) viola-

tions to be considered “continuing” until such time as the

scheme is completed or otherwise terminated, moreover, is

apparent from Section 1958’s penalty provisions, which pro-

vide enhanced punishment where the murder-for-hire

scheme results in personal injury or death.” It is unlikely

Brockdorff, 992 F. Supp. 2z, 24 (D.D.C. 1997), merely restates the

elements of the crime.

16 At the time petitioner committed the offense in 1993, the statute

provided that anyone who violated its provisions “shall be fined not more

29

that Congress intended the statute of limitations to begin

running before the events necessary to determine punish-

ment had taken place.”” Indeed, under Cisneros’s theory, the

statute of limitations would begin running before the goals of

her illegal scheme—the murder and payment—were even

attempted, and thus before the police and prosecutors would

have had any reason to know of the illegal scheme. There is

no evidence that Congress intended such a counter-intuitive

result. In any event, Cisneros’s argument also ignores

evidence of international travel, in violation of the statute,

that occurred within the 5-year statute of limitations period.

See pp. 3-4, supra; Pet. App. 7, 18, 34. Although Cisneros

challenges the sufficiency of that evidence, that question of

sufficiency is fact-bound and does not warrant this Court’s

review.

than $10,000 or imprisoned for not more than ten years, or both; and if

personal injury results, shall be fined not more than $20,000 and

imprisoned for not more than twenty years, or both; and if death results,

shall be subject to imprisonment for any term of years or for life, or shall

be fined not more than $50,000, or both.” 18 U.S.C. 1958(a) (1988). In

1994, Congress amended the statute to make murder-for-hire a capital

crime if the offense resulted in death. Pub. L. No. 103-322, § 60003(a)(11),

108 Stat. 1969.

17 For related reasons, one court has suggested that the sentence en-

hancing factor of death might constitute an element of the offense. See

United States v. Smith, 232 F.3d 650, 652 (8th Cir. 2000). Cisneros, how-

ever, raises no claim under Apprendi v. New Jersey, 120 S. Ct. 2348 (2000),

and any such error would be harmless beyond a reasonable doubt. It is

not and has never been disputed that Joey Fischer was murdered.

30

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

MICHAEL CHERTOFF

Assistant Attorney General

DEBORAH WATSON

Attorney

JUNE 2001