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