United States v. Gordon , 875 F.3d 26 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1896
UNITED STATES OF AMERICA,
Appellee,
v.
ANDREW GORDON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Barron, Selya and Lipez,
Circuit Judges.
Robert L. Sheketoff for appellant.
Rachel Y. Hemani, Assistant United States Attorney, with whom
William D. Weinbreb, Acting United States Attorney, was on brief,
for appellee.
November 7, 2017
SELYA, Circuit Judge. After attempting unsuccessfully
to hire a hit man to murder his wife (the person whom he asked to
facilitate the matter tipped off the authorities and the hired gun
turned out to be an undercover state trooper), defendant-appellant
Andrew Gordon then sought to procure the services of a second hit
man to kill both the tipster and the imposter. That attempt, too,
came to naught. This time, though, federal authorities charged
the defendant with five counts of using facilities of interstate
commerce in connection with the hiring of a person to commit a
murder. See 18 U.S.C. § 1958(a).
The defendant was tried and convicted on all counts, and
the district court sentenced him to what amounted to twenty years'
imprisonment. He now appeals, raising both an evidentiary issue
and a question of first impression in this circuit concerning the
appropriate unit of prosecution under the statute of conviction.
After careful consideration, we hold that the district court did
not commit reversible error with respect to the challenged
evidentiary ruling and, thus, we affirm the defendant's
conviction. We further hold, however, that the appropriate unit
of prosecution under 18 U.S.C. § 1958(a) is a single plot to murder
a single individual, not the number of times that the facilities
of interstate commerce were used. Because the government charged
the defendant in separate counts for separate uses of the
facilities of interstate commerce without regard to the number of
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plots or the number of intended victims, we direct that the counts
be merged, vacate the defendant's sentence, and remand for
resentencing.
I. BACKGROUND
We briefly rehearse the facts and travel of the case.
Because the defendant does not challenge the sufficiency of the
evidence, we present the facts in a balanced manner. See United
States v. Cox, 851 F.3d 113, 118 n.1 (1st Cir. 2017).
In late 2014, the defendant was being detained at the
Billerica House of Corrections while awaiting trial in state court
for the solicitation of his wife's attempted murder. While there,
he met a fellow inmate, whom we shall call CW (an acronym for
"cooperating witness"). CW had a lurid history of prior
convictions for violent crimes and was himself awaiting trial on
charges of aggravated rape and assault with a dangerous weapon.
The defendant asked if CW knew anyone who "had the balls
to kill." CW replied that he had a cousin who would be willing to
kill in exchange for money. Over the course of several ensuing
conversations, the defendant disclosed that he wanted two
individuals murdered: the state trooper who had posed as a hit man
in the defendant's botched attempt to rid himself of his wife and
the person who had reported the defendant's scheme to the
authorities. These persons, if not eliminated, would likely be
key witnesses for the prosecution in the defendant's forthcoming
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criminal trial, and the defendant gave CW written information
concerning both of them.
Lightning sometimes does strike twice, and the defendant
was betrayed a second time. CW squealed and coordinated with law
enforcement personnel as they recruited an undercover agent to
pose as CW's cousin (the erstwhile hired gun). The government
equipped its ersatz hit man with a post office box and a telephone
number in New Hampshire, which were designed to serve as channels
of communication with the defendant.
At that juncture, CW introduced the defendant to the
undercover agent masquerading as CW's fictional cousin/hit man.
During a period of nearly four months, the defendant engaged in
numerous mail exchanges with the fake hit man and used
intermediaries to relay messages to the hit man by telephone. In
these communications, the men discussed the logistics of the
planned slayings. The government gathered footage of the defendant
receiving and responding to letters from the phony hit man and
recordings of the defendant speaking on the telephone in connection
with the plot. When the trap was sprung and the defendant was
charged with violating section 1958(a) (known colloquially as the
"murder-for-hire" statute), two of these mailings and three of the
telephone calls comprised the building blocks for the five counts
of the indictment: each count represented a discrete use of the
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facilities of interstate commerce in furtherance of the plot to
carry out the anticipated killings.
At trial, the defendant did not testify. His counsel
argued, though, that the defendant had been putting on a show: he
had only been pretending to need the services of CW's cousin in
order to curry favor with CW. He had been afraid of CW, and this
fear motivated him to feign participation in the murder-for-hire
plot.
The jury proved unreceptive to this tall tale. After a
week-long trial, it found the defendant guilty on each of the five
counts charged in the indictment. The district court sentenced
the defendant to what amounted to twenty years' imprisonment, to
run concurrently with a state-court sentence for the attempted
murder of his wife that he had already begun serving. This timely
appeal followed.
II. ANALYSIS
Ably represented, the defendant advances two claims of
error. We start with his assertion that the district court erred
in admitting impermissible character evidence. We then mull his
assertion that the government employed the wrong unit of
prosecution in its charging document. Finding this second claim
of error to have merit, we conclude by discussing the appropriate
remedy.
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A. The Challenged Evidentiary Ruling.
The Billerica House of Corrections (where the defendant
was detained) is operated under the aegis of the Middlesex County
Sheriff's Department. The defendant argues that the district court
should not have allowed the following testimony from George
Karelis, a Sheriff's Department employee responsible for
investigations within the House of Corrections:
Prosecutor: And in that capacity, did you
become familiar with the troublemakers that
were inmates at the jail?
Karelis: Yes.
Prosecutor: Did the name of [CW] ever cross
your desk?
Defense Counsel: Objection, your honor.
The Court: Overruled.
Karelis: As a troublemaker?
Prosecutor: Yes.
Karelis: No, sir.
In the defendant's view, this testimony offended Federal Rule of
Evidence 404(a)(1), which generally proscribes the admission of
character evidence for the purpose of showing "that on a particular
occasion the person acted in accordance with the character or
trait."
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When claims of error are preserved, rulings admitting or
excluding evidence are ordinarily reviewed for abuse of
discretion.1 See United States v. Iwuala, 789 F.3d 1, 5 (1st Cir.
2015); United States v. Gobbi, 471 F.3d 302, 311 (1st Cir. 2006).
When claims of error are not preserved, though, such rulings are
reviewed only for plain error. See United States v. Bailey, 270
F.3d 83, 87-88 (1st Cir. 2001).
We repeatedly have held, consistent with the express
command of Federal Rule of Evidence 103(a)(1)(B), that "objections
to evidentiary proffers must be reasonably specific in order to
preserve a right to appellate review." United States v. Holmquist,
36 F.3d 154, 168 (1st Cir. 1994); see Bailey, 270 F.3d at 87-88.
The defendant's bald objection could not have been less specific:
no attempt was made to state the grounds for the objection. Nor
does the context suffice to rescue the objection. Although
surrounding circumstances sometimes may dress an otherwise bare
objection and make the reason for the objection obvious, see Fed.
R. Evid. 103(a)(1)(B), that principle does not apply where, as
here, the record suggests a multitude of possible grounds for the
objection. For example, the objection could have been predicated
1 We say "ordinarily" because, if a preserved claim of error
challenges the district court's interpretation of one of the
Federal Rules of Evidence, de novo review may be appropriate. See
United States v. Zarauskas, 814 F.3d 509, 519 (1st Cir. 2016).
That does not appear to be the case here: the defendant's challenge
is directed at the court's application of such a rule.
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on concerns about relevancy, concerns about the form of the
question, concerns about the ambiguity inherent in the term
"troublemaker," concerns about the balance between probative value
and unfair prejudicial effect, or concerns about something
entirely different. Rule 103(a)(1)(B) is intended to shield a
trial judge from the need to engage in such guesswork, see United
States v. Vargas, 471 F.3d 255, 262-63 (1st Cir. 2006), and the
rule should have been complied with in this instance.
Consequently, we hold that the objection was not duly preserved
and, thus, review is for plain error.
To prevail on plain error review, the defendant must
show: "(1) that an error occurred (2) which was clear or obvious
and which not only (3) affected the defendant's substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001). The party asserting that an error
was plain must carry the burden of establishing that the claimed
error satisfies each element of this standard. See United States
v. Bramley, 847 F.3d 1, 5 (1st Cir. 2017); United States v. Vega
Molina, 407 F.3d 511, 521 (1st Cir. 2005). Since the defendant's
claim so readily fails on the third element of the analysis, we
need not discuss the other elements.
As we have explained, erroneously admitted evidence may
be said to have affected a defendant's substantial rights only if
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the admission of that evidence was likely to have influenced the
outcome of the trial. See Bramley, 847 F.3d at 7; United States
v. Padilla, 415 F.3d 211, 221 (1st Cir. 2005) (en banc). Here,
the contested exchange is but a pebble in the avalanche of
compelling evidence introduced against the defendant at trial.
Although CW was an important participant in the government's
evidence-gathering process, the bulk of the government's proof was
captured by either video or audio recordings in which the defendant
could be seen or heard engaging (independent of CW) in an active
effort to arrange a pair of murders for hire with an individual
represented to be a hit man. Indeed, a substantial portion of
this evidence was generated while the defendant and CW were
billeted in separate dormitories at the House of Corrections and
not permitted to communicate with each other. It follows, we
think, that even if there were a clear and obvious error in
admitting the challenged testimony — a matter on which we take no
view — that error was not likely either to have influenced the
outcome of the trial or to have affected the defendant's
substantial rights. Plain error was plainly absent.
In an effort to blunt the force of this mass of evidence,
the defendant argues that he was merely pretending to enter into
a scheme with CW so that the latter would befriend him. The
defendant suggests that the contested exchange significantly
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bolstered CW's credibility and, thus, undermined the defendant's
"play-acting" line of defense.
This suggestion does not withstand scrutiny. The jurors
were exposed to plenty of troubling information about CW's lurid
past, yet this information did not lead them to find the
defendant's fear of CW credible. The bare fact that CW's name had
never been brought to Karelis's attention as a "troublemaker" seems
unlikely to have impacted the jurors' assessment of the defendant's
purported fear to any meaningful extent. It was, therefore,
unlikely to have influenced the outcome of the trial.
That ends this aspect of the matter. Viewing the record
as a whole, we deem speculative at best the defendant's claim that
allowing Karelis to answer the single question to which an
objection had been interposed somehow affected the defendant's
substantial rights. That claim is too weak to clear the high bar
imposed by plain error review. Given the powerful evidence of his
guilt, the defendant has not shown a reasonable probability that,
but for the admission of the challenged testimony, the outcome of
the trial likely would have been different. See Jones v. United
States, 527 U.S. 373, 394-95 (1999) ("Where the effect of an
alleged error is so uncertain, a defendant cannot meet his burden
of showing that the error actually affected his substantial
rights.").
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B. The Unit of Prosecution.
Next, the defendant asseverates that the indictment used
the wrong unit of prosecution and, thus, was multiplicitous.
Although the district court twice rejected this asseveration, we
are less sanguine.
The statute of conviction reads in relevant part:
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,
shall be fined under this title or imprisoned
for not more than ten years, or both; and if
personal injury results, shall be fined under
this title or imprisoned for not more than
twenty years, or both; and if death results,
shall be punished by death or life
imprisonment, or shall be fined not more than
$250,000, or both.
18 U.S.C. § 1958(a). The government argues that the appropriate
unit of prosecution is each separate use of the facilities of
interstate commerce.2 On that basis, it charged the defendant with
five distinct violations of the statute. The defendant counters
2 To be precise, section 1958(a) speaks in terms of the
facilities of "interstate or foreign commerce." Foreign commerce
is not involved in this case, so we use "interstate commerce"
throughout as a shorthand.
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that the appropriate unit of prosecution is each plot to hire
someone to commit a murder. On that basis, he argues that the
indictment is multiplicitous because he should have been charged
in only a single count.3 These divergent views have real-world
consequences: if only a single count was appropriate, the
defendant's sentence would be limited by the ten-year statutory
maximum. See id. If, however, the government were free to employ
each use of the facilities of interstate commerce as the unit of
prosecution, the defendant would be exposed to multiple
punishments that could total substantially more than ten years.
This issue is fully preserved. The defendant raised it
below both by a pretrial motion to dismiss and at the close of all
the evidence. The district court rejected the defendant's
importunings on both occasions and explicated its reasoning in a
post-trial opinion. See United States v. Gordon, 169 F. Supp. 3d
301, 303-04 (D. Mass. 2016). Since the issue turns on a question
of statutory interpretation, our review is plenary. See United
States v. Marquez, 280 F.3d 19, 22 (1st Cir. 2002).
The prohibition against multiplicitous prosecution
derives from the Double Jeopardy Clause. See United States v.
3While the defendant concedes that the government might have
charged two counts (one for each of the two targets), he
nevertheless points out that because the government opted to charge
both attempted murders in each of the five counts, the indictment
was multiplicitous.
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Pires, 642 F.3d 1, 15 (1st Cir. 2011) (quoting Illinois v. Vitale,
447 U.S. 410, 415 (1980)); see also U.S. Const. amend. V. As
relevant here, "multiplicity" means that a single crime (or "unit
of prosecution") has been charged as multiple crimes, each of which
is to be punished separately. See United States v. Chiaradio, 684
F.3d 265, 272 (1st Cir. 2012). We have illustrated the way in
which this branch of the multiplicity doctrine works through the
following example: "when a felon has violated 18 U.S.C. § 922(g)
by possessing a firearm, it would be multiplicitous to charge the
felon with two counts simply because he had it yesterday and
today." Id.
In general terms, when "a claim of multiplicity is
premised on an indictment alleging several violations of a single
statutory provision, an inquiring court must determine whether
there is a sufficient factual basis to treat each count as
separate." United States v. Stefanidakis, 678 F.3d 96, 100-01
(1st Cir. 2012) (citing Pires, 642 F.3d at 15). Here, this
determination depends on whether Congress intended to punish
separately each of the alleged violations. See Jeffers v. United
States, 432 U.S. 137, 155 (1977) (plurality opinion).
The problem, then, is easily defined — but less easily
solved. The combination of a clumsily drafted statute, enigmatic
legislative history, and sparse precedent presents a quandary.
The key to unlocking that quandary is congressional intent. See
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Chiaradio, 684 F.3d at 272 (explaining that, in identifying
appropriate unit of prosecution, "Congress's intent is
paramount").
In ascertaining congressional intent, we employ "the
traditional tools of statutory construction, including a
consideration of the language, structure, purpose, and history of
the statute." McKenna v. First Horizon Home Loan Corp., 475 F.3d
418, 423 (1st Cir. 2007) (quoting Estey v. Comm'r, Me. Dep't of
Human Servs., 21 F.3d 1198, 1201 (1st Cir. 1994)). Our starting
point is the text of the statute itself. See United States v.
Charles George Trucking Co., 823 F.2d 685, 688 (1st Cir. 1987).
To the extent that Congress chose words that it did not define, we
assume those words "carry their plain and ordinary meaning."
Stornawaye Fin. Corp. v. Hill (In re Hill), 562 F.3d 29, 32 (1st
Cir. 2009).
If a statute's plain meaning supplies a plausible
interpretation, the inquiry is often at an end. See id. Here,
however, the plain meaning of the words that Congress used in
framing the description of the offense suggests two possible units
of prosecution. Those words can be read (as the government posits)
to criminalize each act of travel or each use of the facilities of
interstate commerce in service of a murder-for-hire scheme. But
those words also can be read (as the defendant posits) to
criminalize each plot or scheme to murder an individual for which
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something of value is promised in consideration for the solicited
murder. Since this text is sufficiently malleable to accommodate
either of the proposed units of prosecution, we must undertake the
judicial equivalent of an archeological dig to ascertain
Congress's intent.
In some cases, Congress's will can be divined from an
examination of the statute as a whole. See Sturgeon v. Frost, 136
S. Ct. 1061, 1070 (2016). Perlustration of the sentencing scheme
embedded in section 1958(a) illuminates Congress's thinking and —
at the same time — highlights the odd results that would flow from
adopting the government's proposed unit of prosecution. The
statute provides for a maximum of ten years' imprisonment for a
violation that does not result in personal injury, a maximum of
twenty years' imprisonment for a violation that does result in
personal injury, and a maximum of death or life imprisonment if
murder results. See 18 U.S.C. § 1958(a). This taxonomy comprises
a graduated sentencing scheme and, as such, conveys a clear
indication of Congress's apparent belief that the greater the harm
to the victim, the harsher the punishment should be for the
offender.
The government's proposed unit of prosecution would
frustrate this congressional aim: it would, for example, expose a
person who made ten telephone calls in service of a failed plot
that caused no injury to anyone to a much steeper maximum sentence
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than a person who, as a result of a single telephone call, caused
substantial personal injury to a victim. Such a result seems
irrational when considered in light of the evident purpose of the
statute's sentencing scheme. The unit of prosecution advocated by
the defendant (which focuses on the number of plots) is much more
consistent with the victim-centric sentencing scheme formulated by
Congress.
Statutory history and legislative context furnish
additional sources of insight that a court may inspect when
attempting to discern congressional purpose. See Greenwood Tr.
Co. v. Massachusetts, 971 F.2d 818, 824 (1st Cir. 1992). This
analysis, too, supports a plot-focused unit of prosecution. Though
the Senate Report explaining the adoption of section 1958 gives
some comfort to both sides of this debate (it is replete with
statements that may arguably support either proposed unit of
prosecution), the discussion that focuses on the overlap between
state and federal jurisdiction is especially instructive. At the
time of enactment, murder prosecutions had "been the almost
exclusive responsibility of state and local authorities." S. Rep.
No. 98-225, at 304 (1984), as reprinted in 1984 U.S.C.C.A.N. 3182,
3484. The Report, though, reflected the Senate's determination
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
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. . . is present." Id. at 304-05. The drafters nonetheless
cautioned that:
[f]ederal jurisdiction should be asserted
selectively based on such factors as the type
of defendants reasonably believed to be
involved and the relative ability of the
federal and state authorities to investigate
and prosecute. For example, the apparent
involvement of organized crime figures or the
lack of effective local investigation because
of the interstate features of the crime could
indicate that federal action was appropriate.
Id. at 305. In pursuance of this theme, the Report makes pellucid
that the crime Congress thought it was penalizing was similar to
existing state murder crimes (for example, solicitation of murder)
but also included certain specified features warranting federal
intervention. The focal point of the newly added offense was a
murder plot that had a federal nexus, not the federal nexus itself.
The government's thesis concerning the appropriate unit of
prosecution turns this rationale on its head and, in effect, makes
the federal nexus the substantive offense.4
4The government places great emphasis on a passage in the
Report, which states that the "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 and the offense
is complete whether or not the murder is carried out or even
attempted." S. Rep. No. 98-225, at 306 (1984) as reprinted in
1984 U.S.C.C.A.N. 3182, 3484. This passage, the government says,
supports its argument that the offense was intended to punish each
use of the facilities of interstate commerce. But the government's
emphasis is misplaced: the passage does not indicate whether
multiple uses constitute serial violations of the statute and,
thus, furnishes little guidance as to the appropriate unit of
prosecution.
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The history of the statute's enactment reinforces the
centrality of the murder-for-hire plot. Section 1958 became law
as part of the Comprehensive Crime Control Act of 1984, Pub. L.
No. 98-473, 98 Stat 1837. It was enacted along with a companion
provision, 18 U.S.C. § 1959, which criminalized violent crimes in
aid of racketeering activity. Both provisions were added as part
of a congressional effort to "proscribe[] murder and other violent
crimes committed for money or other valuable consideration or as
an integral aspect of membership in an enterprise engaged in
racketeering." S. Rep. No. 98-225, at 304. A unit of prosecution
focused on the murder-for-hire plot seems more in keeping with
this legislative history than one focused on the use of the
facilities of interstate commerce.
It is an age-old tenet of statutory interpretation that
"plain meaning sometimes must yield if its application would bring
about results that are . . . antithetical to Congress's discernible
intent." Hill, 562 F.3d at 32; see Church of the Holy Trinity v.
United States, 143 U.S. 457, 459 (1892). Extrapolating from this
tenet, it follows logically that when the plain meaning of a
statute can feasibly suggest two results — one which appears
consistent with Congress's intent and the other not — the
consistent result should carry the day. This is such an instance.
Although both interpretations offered here may seem plausible at
a glance, closer examination reveals that the government's
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interpretation is suspect because it is "antithetical to
Congress's discernible intent" as made manifest by the statute's
graduated sentencing scheme and its legislative history. Hill,
562 F.3d at 32.
As we already have explained, under the government's
theory, a person who makes ten telephone calls to a hit man in
service of a failed murder-for-hire plot commits ten separate
crimes; yet a person who unsuccessfully makes arrangements to
procure the murder of ten individuals in a single uninterrupted
telephone call commits but one crime. The first of these
malefactors would, therefore, be subject to ten times the maximum
punishment to which the second malefactor would be exposed. Given
the congressional objectives we have identified, we think it
obvious that Congress could not have intended the statute to
operate in so curious a fashion.
In reaching the conclusion that the correct unit of
prosecution is plot-centric, we echo the only other published
circuit court decision squarely on point. The Sixth Circuit so
held in United States v. Wynn, 987 F.2d 354, 359 (6th Cir. 1993),
ruling that the appropriate unit of prosecution under section
1958(a) is the number of plots to murder a single victim.5 In
5 To be sure, there is an unpublished Sixth Circuit opinion
that takes a different view. See United States v. Ng, 26 F. App'x
452 (6th Cir. 2001) (per curiam). That opinion, however, is bereft
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Wynn, as in this case, the government had argued that each
telephone call made by the defendant in support of his scheme "was
a separate offense." Id. at 358-59. The court rejected this
argument, explaining that "separate phone calls which relate to
one plan to murder one individual constitute only one violation of
18 U.S.C. § 1958." Id. at 359.
We add, moreover, that the case law that interprets other
aspects of section 1958(a) is somewhat inhospitable to a unit of
prosecution that penalizes each use of interstate facilities. For
instance, in United States v. Edelman, 873 F.2d 791 (5th Cir.
1989), the Fifth Circuit held that, for a defendant to violate
section 1958(a), he need neither intend nor be aware that any
facility of interstate commerce would be used in connection with
the murder-for-hire plot. See id. at 794-95. It is enough if the
government can show, say, that "the mails were in fact used in the
commission of [the] offense" and that the defendant "had knowledge
of the nature of the substantive offense which he promoted." Id.
Given the holding in Edelman, incorporating the
government's proposed unit of prosecution into existing doctrine
would yield a regime in which a defendant could be charged with a
separate count each time a hit man he had hired opted (unbeknownst
to the defendant) to make a telephone call, send an e-mail, or
of precedential value even in the circuit that spawned it. See
6th Cir. R. 32.1(b).
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post a letter. See id. Such an arbitrary relationship between a
defendant's conduct and the maximum penalty to which he is exposed
offers scant redemption for the government's view.6
Heedless of these authorities, the government invites us
to read the statute woodenly. We decline the invitation. When
faced with a wooden reading of a statute that would produce a
result that conflicts with the clear congressional purpose
animating that statute, a reviewing court ought to be open to
adopting a textually plausible alternative reading that would
produce a more sensible result. See Dynamic Image Techs., Inc. v.
United States, 221 F.3d 34, 40 (1st Cir. 2000).
We do not gainsay that identifying the proper unit of
prosecution under section 1958(a) presents a challenging question.
There are two sides to the story, and the government has done its
level best to marshal arguments in support of its position. On
the surface, its most persuasive argument is that the Travel Act,
18 U.S.C. § 1952 (which penalizes each act of travel or use of the
mail or other facility of interstate commerce), was the model for
section 1958(a), so that the unit of prosecution for section
1958(a) should match that of the Travel Act. See 18 U.S.C. § 1952;
6 Adopting the government's suggested unit of prosecution
would be particularly problematic in cases, like this one, in which
the government uses an undercover agent who, by controlling contact
with a defendant, can easily manipulate the number of chargeable
counts. Here, for example, the government could, on its theory,
have elected to charge the defendant with many more counts.
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see also S. Rep. No. 98-225, at 305. With a little probing,
however, this comparison crumbles. The government's attempted
analogy ignores salient differences between the anatomy of the
Travel Act and the anatomy of the murder-for-hire statute. The
two are more like cousins than they are like twins. We explain
briefly.
Like the counterpart language in section 1958(a), a
conviction under the Travel Act requires that a defendant "travel[]
in interstate or foreign commerce or use[] the mail or any facility
in interstate or foreign commerce, with intent to" engage in a
prohibited activity. 18 U.S.C. § 1952. To complete an offense
under the Travel Act, though, the defendant must also "thereafter
perform[] or attempt[] to perform" a prohibited activity. Id. In
contrast, section 1958(a) includes no requirement of an act
subsequent to the use of interstate facilities in order to complete
the offense. This missing element — the requirement of a
subsequent act — makes it surpassingly difficult to believe that
Congress intended for the units of prosecution under these two
laws to be the same. In the end, we conclude that the government
is comparing plums to pomegranates.
The government also points to cases distinguishing
between statutes that criminalize the means of committing a
substantive offense and those that criminalize the offense itself.
See, e.g., United States v. Lilly, 983 F.2d 300, 304 (1st Cir.
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1992). Specifically, courts have found that the mail and wire
fraud statutes, see 18 U.S.C. §§ 1341, 1343, are in the former
category, criminalizing each use of the facilities of interstate
commerce in the service of a crime. The government argues — without
meaningful analysis — that the murder-for-hire statute should be
interpreted in the same way. For several reasons, though, any
similarity between the murder-for-hire statute and the mail and
wire fraud statutes proves too little.
To begin, while references to the facilities of
interstate commerce are ubiquitous in our nation's laws, the
significance of such language necessarily varies based on context.
Some statutes, such as the Securities Act, 15 U.S.C. § 77q(a),
feature the familiar "interstate commerce" language, yet have
units of prosecution that are distinct from those embodied in the
mail and wire fraud statutes. See United States v. Waldman, 579
F.2d 649, 654 (1st Cir. 1978) (establishing appropriate unit of
prosecution for securities fraud under section 77q(a) as each
"separate transaction[] accompanied by use of the mails"). Thus,
the simple attempt to compare section 1958(a) to other statutes
invoking the channels of interstate commerce brings us no closer
to an answer than when we began. Further mining is required to
ascertain whether a particular statute criminalizes the means of
committing a substantive offense or the offense itself.
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Such an excavation is revealing with respect to the mail
and wire fraud statutes. From a textual perspective, neither of
those statutes contains strong indicators that Congress intended
the unit of prosecution to be something other than each use of the
relevant facilities of interstate commerce. Indeed, the
description of a "scheme or artifice to defraud" is ensconced in
those statutes by parenthetical commas and followed by a discussion
of the relevant facilities of interstate commerce. 18 U.S.C. §§
1341, 1343. Thus, the grammatical structure of the statute
suggests the supremacy of the "means" element — the use of the
mails or wires — and the correspondingly subordinate nature of the
"substantive offense" element — the scheme or artifice to defraud.
The murder-for-hire statute does not share this architecture.
Moreover, the murder-for-hire statute contains a graduated
sentencing scheme that readily elucidates a congressional focus on
potential harm to victims.
So, too, legislative history offers a principled basis
for distinguishing the mail and wire fraud statutes from the
murder-for-hire statute, notwithstanding the shared allusion to
interstate commerce. The progenitor to the current mail fraud
statute was enacted in 1872 as "part of a 327-section omnibus act
chiefly intended to revise and recodify the various laws relating
to the post office." Jed S. Rakoff, The Federal Mail Fraud Statute
(Part I), 18 Duq. L. Rev. 771, 779 (1980) (citation omitted). At
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the time, Congress was concerned about misuse of the national
postal system, a federal entity that — due to a quickly developing
national economy and a suddenly muscular federal government — had
an expanded role during the Reconstruction Era. See id. at 779-
80. To safeguard the integrity of the postal system, punishment
under the federal mail fraud statute "was to be based not so much
on the degree of the fraud as on the degree of misuse of the
mails." Id. at 784. The wire fraud statute, enacted in 1952, was
deliberately "patterned on the mail fraud" statute. United States
v. Fermin Castillo, 829 F.2d 1194, 1198 (1st Cir. 1987) (citing S.
Rep. No. 82-44, at 14 (1951)). Except for the means employed, the
"requisite elements" of the mail and wire fraud statutes "are
identical."7 Id.
We believe that this legislative history convincingly
demonstrates that, in enacting the mail and wire fraud statutes,
Congress took aim at the means of conducting a substantive offense,
not at the substantive offense itself. That is not true of the
murder-for-hire statute: rather, in fashioning section 1958(a),
Congress quite plainly chose the latter target.
To say more would be to paint the lily. Where a statute
can be read in two ways, both of which are literally feasible but
only one of which is plausible, common sense dictates that the
7Of course, the "requisite elements" of the murder-for-hire
statute are materially different.
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plausible reading ought to prevail. In this case, the text,
structure, history, and purpose of section 1958(a), taken together
and considered in light of the case law, lead us to hold that the
proper unit of prosecution under the murder-for-hire statute is a
single plot to murder a single individual. Under this statute,
Congress did not intend to punish separately each use of the
facilities of interstate commerce. It follows inexorably that the
indictment is multiplicitous and that the defendant is entitled to
relief.
C. The Remedy.
This brings us to the nature of the relief to which the
defendant is entitled. As we have explained, the five counts of
conviction are premised on an incorrect unit of prosecution. Those
counts, therefore, are multiplicitous. Nor is the error that
resulted in the proliferation of counts harmless: the statute of
conviction carries a ten-year maximum term of immurement for a
thwarted murder for hire. See 18 U.S.C. § 1958(a). Because of
the multiplicitous character of the indictment (that is, the
presence of multiple counts), the district court was able to engage
in "stacking," see USSG §5G1.2(d), and to impose what amounts to
a twenty-year term of immurement.
Viewed against this backdrop, the multiplicity error
requires that we vacate the defendant's sentence. It also requires
that we direct the district court, on remand, to merge the five
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counts into a single count and resentence the defendant.8 We take
no view either of the sentence to be imposed on the merged count
or of how that sentence should interface with the state sentence
that the defendant is currently serving, except to note that the
merged count will be subject to the statutory maximum sentence
adumbrated in 18 U.S.C. § 1958(a).
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we affirm the defendant's conviction but vacate his sentence. We
remand the case to the district court with directions to merge the
five counts of conviction into a single count and to resentence
the defendant consistent with this opinion.
Affirmed in part, Vacated in part, and Remanded.
8
The government argues that, even if we conclude (as we have)
that the correct unit of prosecution is plot-centric, two counts
should survive (one for each of the two intended victims). We do
not agree. After all, the government charged the proposed killing
of both victims in each of the five counts and, in so doing, denied
the jury the opportunity to make independent findings with respect
to the possible existence of more than one murder-for-hire plot.
See supra note 3. That duality distinguishes this case from United
States v. Vasco, 564 F.3d 12, 17, 24 n.9 (1st Cir. 2009), upon
which the government mistakenly relies.
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