Interstate Use of Cell Phone to Arrange Murder-For-Hire is Use of an Interstate Communications Facility

US v. Means, No. 07-7112, 10/24/08 - Defendant and his girlfriend conspired to murder her husband and sought out a hit man. The person defendant solicited for the job ratted him out and the FBI got involved. It recorded meetings and cellphone conversations. Everything happened in Oklahoma. Defendant was prosecuted for, and pled guilty to, conspiring to use an interstate communications facility (the cellphone network) in a murder-for-hire scheme, in violation of 18 USC Sec. 1958(a) and 18 USC Sec. 371. He took no direct appeal. He did, however, timely file a Sec. 2255 motion based on his claim that, at the time of the offense, his actions did not violate Sec. 1958(a) because all activity was intrastate, and he therefore committed no crime merely by using his cellphone. Reversing the district court, the 10th held that he could raise this claim in spite of his guilty plea because his claim was that he had "the right not to be haled into court at all upon the felony charge," rather an a challenge to the sufficiency of the evidence establishing an essential element of the crime charged, which was how the district court saw it.

Nevertheless, the 10th rejected defendant's substantive argument, holding that Congress intended to criminalize purely intrastate use of interstate communications facilities in murder-for-hire cases. The issue came up at all because of some inconsistent language in the statute, which Congress cleaned up in December 2004 (after defendant's activities were completed) with an amendment to the statute.The inconsistent language had caused some confusion as to the scope of the statute in the purely intrastate activity area, with one circuit agreeing with defendant's position. The 10th joined the majority of circuits in rejecting that approach, and viewed the amendment as mere housekeeping to eliminate the confusion.