The "murder-for-hire" statute, 18 U.S.C. § 1958, was enacted
as part of the Comprehensive Crime Control Act of 1984, Pub.L. 98-473, Ch.
X, Part A (Oct. 12, 1984). Section 1958(a) provides:|
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 of
interstate or foreign commerce, with intent that a murder be committed in
violation of the laws of any State or the United States as consideration
for the receipt of, or as consideration for a promise or agreement to pay
anything of pecuniary value, or who conspires to do so [violates this
Initially § 1958 was codified as 18 U.S.C. § 1952A,
but in 1988 it was renumbered as § 1958. Section 1958 was
patterned after the Interstate Travel in Aid of Racketeering (ITAR) statute,
18 U.S.C. § 1952. S. Rep. No. 225, 98th Cong., 2d Sess. 306,
reprinted in 1984 U.S. Code Cong. & Adm. News 3182, 3485 (hereinafter
S. Rep. No. 225). Consequently, some case law under § 1952,
especially that relating to the use of a facility of interstate commerce, is
applicable to § 1958.
Section 1958 renders it illegal: 1) to travel or use facilities of
interstate or foreign commerce; 2) with intent that a murder in violation of
State or Federal law be committed; 3) for money or other pecuniary
compensation. See United States v. Ritter, 989 F.2d 318, 321
(9th Cir. 1993). The government is not required to prove that a defendant
intended or knew that the mails or any other facility of interstate commerce
would be used or that interstate travel would occur. United States v.
Edelman, 873 F.2d 791, 794-95 (5th Cir. 1989). Rather, a defendant must
use or cause another to use such a facility with the intent that a murder be
committed. See United States v. Winter, 33 F.3d 720, 721 (6th
Cir.), cert. denied, 115 S.Ct. 1148 (1994).
Federal jurisdiction may be established in one of three ways: 1)
by travel in interstate or foreign commerce; 2) by use of the mails; or 3)
by use of any facility of interstate or foreign commerce.
The term "facility of interstate or foreign commerce" is defined to
expressly include "means of transportation and communication." §
1958(b)(2). Congress intended to give the term "facility of interstate or
foreign commerce" the same scope and breadth encompassed by the Travel Act,
18 U.S.C. § 1952. S.Rep. 225 at 306 n.5.
Any use of the mails, including intrastate mailings, will furnish
Federal jurisdiction. See United States v. Riccardelli, 794
F.2d 829, 830-33 (2d Cir. 1986); United States v. Heacock, 31 F.3d
249, 254 (5th Cir. 1994).
A single interstate telephone call will furnish Federal jurisdiction.
United States v. Perrin, 580 F.2d 730, 733 (5th Cir. 1978),
aff'd, 444 U.S. 37 (1979); United States v. Pecora, 693 F.2d
421 (5th Cir. 1982). The Senate Report specifically cites the example of an
interstate telephone call as a basis for Federal jurisdiction. S. Rep. 225
at 306 n.5 (The Committee cited in support of its conclusion United
States v. Villano, 529 F.2d 1046, 1052-54 (10th Cir.), cert.
denied, 426 U.S. 953 (1976)). The fact that a call was incidental to
the scheme does not matter, so long as the interstate phone call facilitated
the crime. See United States v. Jones, 642 F.2d 909, 913 (5th
Cir. 1981). An intrastate telephone call, however, will not furnish Federal
jurisdiction. United States v. Sapio, 299 F. Supp. 436 (S.D.N.Y.
1969); Utz v. Correa, 631 F. Supp. 592 (S.D.N.Y. 1986). It is
unsettled whether a means of communication that requires interstate
equipment (such as cellular phones and pagers), even when the parties are
within the same state, triggers Federal jurisdiction under § 1958.
One district court held that the jurisdictional element was satisfied.
See United States v. Stevens, 842 F. Supp. 96 (S.D.N.Y. 1994)
(use of pager system that transmitted signals across state boundaries
provided jurisdiction under § 1958).
When using an informant in a murder-for-hire investigation, the
government must not manufacture the interstate nexus required for
jurisdiction. Such actions may be grounds for reversal. See, e.g.,
United States v. Coates, 949 F.2d 104 (4th Cir. 1991) (reversal of
convictions where only basis for Federal jurisdiction was interstate calls
government agent arranged for sole purpose of creating Federal
jurisdiction); United States v. Archer, 486 F.2d 670 (2d Cir. 1973).
Such cases are typically analyzed by courts as outrageous government conduct
or government overreaching. See, e.g., United States v.
Keats, 937 F.2d 58, 65 (2d Cir.), cert. denied, 112 S.Ct. 399
(1991); United States v. Bagnariol, 665 F.2d 877, 898 n.15 (9th Cir.
1981), cert. denied, 456 U.S. 962 (1982); United States v.
Hall, 536 F.2d 313, 327 (10th Cir.), cert. denied, 429 U.S. 919
According to the legislative history, § 1958 covers both the
"hit man" and the contractor under the theory that the contractor causes the
hit man to travel or use facilities in interstate commerce. S. Rep. 225 at
The maximum penalty for violating § 1958 varies with the
severity of the conduct: a fine and/or ten years for any violation; a fine
and/or twenty years if personal injury results; and a fine of not more than
$250,000 and/or death or life imprisonment if death results. If the death
penalty might be applicable, the United States Attorney's Office must comply
with the guidelines at USAM 9-10.000.
[cited in USAM 9-60.900]