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state nexus - should slill argue that the federal government m ot prosecuteintrastate crime.11. THE STATUTE'S PLAIN LANGUAGETl~e substantive portion of the federal murder-for-l&estatute, 18 U.S.C. 5 1958(a), provides, in pertinent pan:moever travels in or canses another (including theiulended victim) to travel in interstate or foreigncommerce, or uses or causes another (includingthe intended nctim) to use the mailor any facilivin it~terstrre or fore@ commerce, with intent thata murder he committed in violation of the laws ofany State or the United States as consideration forthe receipt of, or as consideration for a promise oragreenlent to pay, anything of pecuniary value, orwho conspires to do so, shall be h~ed under thistitle or im risoned for not more than ten years, orbo th.... BThus, in v connection with a murder-for-he, the statute prohibits a pe~sonfrom: (1) traveling in interstate comnwce; (2) using the mail; or (3)using a faciltty in interstate commerce. Subsection (b)(2) dehes "facilityof interstate conlmerce" as incll~dhlg Ihe mans of lransportatio~~ andcomm~nicatiou.~~ Oddly, the plme "facility in interstate or foreigncommerce," as used in subsection (a), is not dehed in subsect~on (b),wlde the ph~ase "facility of intentate comme~re," as defined in suhsection(b) (2), is never used h~ snbsection (a).I. INTRODUCTION'Iko Texas women scor~~ed in love and a n~urder-fo~hire plotto exact revenge. Altliough it sounds like a television n~ovie of the week,that is the snbject of two recent cases kom the U.S. Court of App& forthe Fiffh Circuit analyzing the inkrstate nexus requirement of the fede~nlmnrder-fo~hire stah~te.~In tiniferlsfates u. Cisneros, the defendant hired sonleone tokill a young man xho had broken up with her daughtefi Tl~e FikhC~rcuit held that international telephone d s about the murder were sufficientto establish tl~e intentate new required for the federal mnrderfor-hirestatute4 In UnitedStatm u. rllarek, the defendant wired $500iron1 Ibuston, Texas, via Western Union to an nnde~~cover officer inHarlingen, Texas, to kill her boyiiie11d.5 The Fifth Circuit held that theintrastate use of the Western Union was sufficient to establish the rcquislteinterstate nexus under the federal nmrder-for-hire ~tatute.~ The FifthCircuit consolidated the two cases and granted en banc rehming toresolve the intra-circuit conflict?n~e question thus is whetl~er he statute requires interstate useof a facility, as Cisneros held, or whetl~er the ruere intrastate use of afacility \'il suffice, asilln~k held. On Jama~y 4, 2001, the en bane FifthCitruit held, ten to five, that the intrastate use of any facility, even a telephone,sufficiently establishes the federal murder-for-lure s$lute's interstatenexus. 8For the reasons hat follorv, defense l a n nid~ ~ clientschnrged under the statute - or any fcde~zl stahlte that requires inter-The Si~th Circuit in titilted States u. RWthers held illatbecause subsection (a) creates the substantive offense, its language controlso er the definition in subsection (b)(2).11 '?Ience, in order toestablish the court's jurisdiction uncier $ 1958, the government mustshow that the defendant used a 'facility h interstate commc~tc."'~~ TheSixth Circuit previously had exanlined the T~zvel Act, 18 U.S.C. $ 1952, ofwlvllich the murder-for-hire statute was o~iginally a subset, and deterrnh~edthat the use of the tem "instnu~~ent;llitytyinterstate conmn~crce" in theInterstate Incitement of Riot Act, 18 U.S C. $ 2101, which is sinular to theTravel Act, is diflerent from the use of the tern1 "inst~nmentdity of interstateconime~ce."~~ The Sxth Cimit concluded that the phrase "itlshumentalityin interstate conunerce" applies only to interstate acti\it~es.l*The Sixth Circuit likewise reasoned that only interstate activities will SIISfaina prosecution under $ 1958(a).I5In Cisrrems, theFitth C~rcuit similarly concluded that "In thiscontext, 'of means 'lb]elon@~g or connected to,' wl~ile 'in' means'Idlu~~iug tl~e act or process 0 ~ " Thus, ' ~ under ~ 3 1958(a), a "facilityin interstate conimerce" requires that the facllity achldy be used tn theprocess of interstate comnelce, while under subsection (b), "facility ofinterstate conunerce" asonlpasscs intrastate use of facilities connectedto interstate coliinmx, such as cars and telephones The F&h Circuitin Cisrreros held that $ 1958 requ~res tlwt the facility be used intetstate,and thus ~uereint~xstate activity will not suffice.18Further, in tinited States u. Pi~tedes,]udge Scheindtin of theSouthern Disttict of New York held that the intrastate IW of an illte~statepaging systenl was insufficient under 3 1958 because "the intemtatenehus requirement hlmS not 011 the facility's interstate capacit): but ilsactual use in the particular case."l9Nevertheless, contw-j to IVeatheis, IJ~redes, and its own