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STRETCHINGICLAUSE CONNECTION2001 beganwith a divided en banc court of the F8th Circuil firming the convictions of twodefendants in murder-for-hire cases. United States v. i\larek and United Statesv. Cisneros, - 5t11 Cie-, 2001 WL 10561 (5d1~ic 2001).In each case, the defendant was chazed with a violation of Btle 18 5 1958:(a) Whoever travels in or muses another (uichiding the intendedvictim)to travel in interstate or foreign commerce, or uses ormuses mother (including the intended victim) touse the mail orany facility ill internlate or foreign commerce, with intent that ami~rder be coiuniitted in violation of the laws of any %ate or theUnited States as consideration for the receipt of, or s considerationfor a pro~uise or agmment to pay, anyihh~g of pecunia~ydue, slid be Jined not more tl~an $10,000 or ~ml~riso~ied fornot more than ten pm, or both; ;u~d if personal injmy results,shall be fined not more than $20,000 and imprisoned for notmore than twenty yeam, or hoth; and if death results, shall besubject to implisonn~ent for any Wni of years or for life, or sL2Uhe hed not more than $50,000, or bath.(b) As used hi this sectioli and scclion 1959 ...(2) 'facility of interstate commerce' includes means of timsportationmd comniunic~tio~i.Marek was cm~gltt up in a tlylcd sting ope~xtion in wllich an undercover FBI agent was posingas a "hit man." Marek delivered $500 to a Westem Union Office in llouston for tlmsfer to the uodercov-eragent ir IlarUugen A dividedpanel ofthe circuit heid that ". . .regardless of the place of origin and placeof completion, the use of Western Union, quh~tessentially a facility81 intekmtc conimerce and of interstatecomiierceas well, satisfies the j~uisdictional requirements of 51958." United Statesv. Marek, 198 E3d 532(5lh Cic 1999).Cisneros wanted to have lier daughter's former boyfriend killed. She attempted to armge thismurder with the assistance of Maria hfartinez, a fortune teller. Daniel Garza had gone to the same fortuneteller to get her assistance in sohiug llis marital pmblems. Garza called Martinez four times h mMexico. During the ds, Garza would attempt to discuss Itis marital problems; however, Martinez wouldinterrupt him illid skwhether he had found someone to kill "the boy for "her client." A panel of thecheuit 11eld that these telephone &were s~fldent nidence to meet the interstate/foreign commercerequirement for a federal murder-for-hire conviction. <strong>The</strong> panel opi~lion included flus si@cant dicta.. . . to satisfy the jurisdictional element, a facihtynmst be used inan inter state fshioa, i.e., that in& state use of a facility wouldnot s~ace, even though that facility is one that genemlly is aninterst~te commerce facility. United State v. Cjsneros, 203 E3d333 (5t'lcic 2000).
In order to reconcile the conflict hehveen &&and Cisneros, the court voted to rehear both cases en bauc. JudgeJolly authored the opinion of the court whicb hduded the following:We now adopt the position taken by the panel majority in and hold that 3 1958'suse of a 'facility in hte~state commerce' is synonymous with the use of an 'interstate commercefacility' and satisfies the jurisdictional element of that federal murder-for-hirestatute, irrespective of the par~cular vansaction in question is itself inter state orwhoUy intra state....When it adopted § 1958, Co~~gress was actingwithinthe second of three broad categoriesidentified by the Supreme Court in United States v. Lopez as conduct appropriately subjectto regulation under the Cnmmerce Clause. Of the second categoly, the Court wrote that'Congress is empowered to regdate and protect the instrumentalities of interstate commerce,or persons or tlungs fi~ intentate conimerce, men thoug11 the threat may comeonly from hitmtate activities.' When Congress regulates and protects under the secondLopez category, therefore, fedenl jurisdictio~is supplied by the nature of the inst~mentalityor facility used, not by sepamte proof of interstate movement. Under statutes similarto 5 1958, federal jmisdiction based on intrastate use of inter state facilities is an approp~iatexerciseof the commerce power, as flus aad other circuit courts repeatedly havefound.We me satisfied &at when Q 1958 is read as a uthble and viewed in context as part of thepower of Congress to regulate and protect the instrumentalities of inklstate commerce,even when the threat comes from inhitate acllvities, it hecames clear that the faciJity, notits use, is what must he "ln interstnte or foreign commerce." In the instant context, then,when afacility employed to advance murder-for-hire is in interstate or foreign commercegenerallg the jurisdictional element of $ 1958 is satisfled even though the particular useof the faciIity on the spec& occasion in quation is only in& state. Thus, both (1)Marek's intrastate use of Western Union-+ quintessential facility in interslate commer-totransfer funds within Texas, and (2) Cisneros's international telephone calls,we sufficient to satislj the jurisdictional element of 3 1958, and-morein~portantly-that jnrisdlctional element is present in the statute through avalid exerciseof congressional Commerce Clause pawer under the second Lopez categoly.Judge Jolly dissented, joined by Judges Jones, Smith, Barkdale and DeMoss This was their thesis:. . . the issue before us is simply stated: what does the phrase 'uses or causes another touse themail or any hiUty in iuterstate or foreign commerce' mean?Does it mean that theparticular use must beininterstateor foreign commerce at the time of the offense, or doesit mean tbat the facility must he one genedy engaged in interstate or foreign commerce?<strong>The</strong> former is the proper way to read the statute.Over the last several years, the en bauc court has had some difficulties resolving Commerce Clause issues; s, Ustater 179E3d. 230 (5Ih Cir. 1999) (18 U.S.C. 5 1951 -Hobhs'Act violation) andunitedstatesv. Kirk, 105 E3d. 997(5lh Cir 1997) (18 U.S.C. 5 922(0) -machine gun violation). In mch of these mes, fJ~en hauc comwas equally divided andcould not reach a decision.Maybeit was hecause~and~sweremurder cases that it was so easy for theen hanc court to find a CommerceClause connection in eath case - but it looks to me like it required some intenectual stretching for them to get there.See relaedmticle to challenge the Intetstate Commerce Connection o n~e38
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