murder be committed in violation of the laws of any State or the United States. . . ." Defendants Winslow and Dickson are also jointly charged under local District of Columbia criminal code provisions with conspiracy and attempted first degree murder. 22 D.C. Code §§ 103 and 2401. Defendant Dickson, alone, is charged in a fourth count of the indictment with assault with intent to kill. 22 D.C. Code § 501.
Defendants' counsel have moved for dismissal of Count One of the indictment on jurisdictional grounds, arguing that Congress never intended that the Murder-for-Hire Statute be used to invoke federal jurisdiction over essentially local crimes. In response to the motion the government contends that Congress intended that the statute "reach[es] every murder for hire with any federal nexus." Government's Opposition to Defendants' Motion to Dismiss Count I, p. 3, filed July 22, 1986. (emphasis included.)
The matter has been fully briefed and argued by counsel. For the reasons set out below the Court determines that § 1952A should be narrowly interpreted, that the underlying facts relied upon by the government are insufficient to support the murder-for-hire count of the indictment, that jurisdiction over the defendants is lacking, that the first count of the indictment should be dismissed.
The parties' dispute over the jurisdictional scope of § 1952A complicates an otherwise local criminal matter. According to the factual record developed in pretrial proceedings, the following events led to the return of the indictment. The defendants' alleged criminal scheme began on April 29, 1986 and terminated with their arrest on May 7, 1986.
The genesis of the aborted criminal venture was an old romance of defendant Dickson's which had turned sour. According to the testimonial record of the preliminary and detention hearing before the Magistrate, Dickson's testimony at a recent pretrial hearing, and evidence gathered by the local police also involved from the inception of the scheme,
Dickson had previously formed an acquaintance with a lady friend. The two had developed a mutual interest and had dated steadily for several months. The lady's interest waned and she suggested ending the romance but continuing a friendship. The defendant was disappointed and not entirely satisfied with the turn of events. Meanwhile the lady's interests were directed towards another male companion. Upon learning of this development, the defendant Dickson became obsessed with jealousy. He confronted his competitor, verbally abused him, and allegedly attempted to run him down with a motor vehicle. The government also contends that Dickson decided to pursue a more direct course of action when he contacted Stanley Winslow, his friend and alleged co-conspirator to help him hire a person to murder the competitor. According to the government, Winslow acted as a middleman to arrange a contract between Dickson and a contract killer to eliminate the intruder.
The interstate nexus began at the point when an undercover officer of the District of Columbia police force, posing as a "hit man" was contacted by Winslow. After a number of telephone calls and meetings related to identifying the male intruder and potential victim and discussing the financial arrangements of the contract, Dickson agreed to pay the officer $200 for the murder. During the course of the negotiations/arrangements, the officer provided defendants with a local telephone number where he could be reached. When that number was called, a paging device was activated which in turn transmitted electronic beeper signals to the officer. The beeper signals were transmitted by wire and then by radio signals to locations in the District of Columbia and the neighboring jurisdictions of Maryland or Virginia. On several occasions defendants called the undercover officer who at the time was in Virginia. This activated the paging device and the officer in turn responded to the calls while he still was in Virginia.
The government contends that both the beeper transmissions and the triggering of the officer's interstate call provided a sufficient interstate nexus to exercise federal jurisdiction under § 1952A. There can be no dispute that the government has established the requisite interstate nexus. Indeed, a single telephone call is sufficient to invoke federal jurisdiction. See U.S. v. Pecora, 693 F.2d 421 (5th Cir. 1982) (holding one telephone call from defendant to sheriff sufficient to exercise jurisdiction for an indictment charging attempted bribery under § 1952). Rather, the Court focuses its attention upon the types of murder-for-hire cases which warrant federal Jurisdiction.
The reach of federal jurisdiction under § 1952A poses an important question of federalism: how far did Congress intend to intervene into the traditional state responsibilities of law enforcement?
Congress and the courts have historically deferred to state sovereignty in the criminal realm in contrast to the general trend expanding federal jurisdiction at the expense of states in civil matters. See, J. Baker, Nationalizing Criminal Law: Does Organized Crime Make it Necessary or Proper, 16 Rutgers L. J. 495 (1985). This historic reticence offers background for a general analysis of federal criminal statutes. However, each statute must be examined individually to determine Congress' specific intent. To interpret the proper application of the Murder-for-Hire Statute, this Court applies the principle of statutory construction long enunciated by the Supreme Court. "In the interpretation of statutes, the function of the courts is easily stated. It is to construe the language so as to give effect to the intent of Congress." United States v. American Trucking Assn, 310 U.S. 534, 542, 84 L. Ed. 1345, 60 S. Ct. 1059 (1940). The traditional starting point for such an interpretation is the language of the statute itself. See Murphy, Old Maxims Never Die: The Plain Meaning Rule and Statutory Interpretation in the Modern Federal Courts, 75 Colum. L. Rev. 1299 (1975). The relevant provision of § 1952A reads
Whoever travels in or causes another [including the intended victim] to travel in interstate or foreign commerce, or uses or causes another to use the mail or any facility in interstate or foreign commerce, with intent that a murder be committed . . . shall be fined not more than $10,000 or imprisoned. . . .
The statutory language is broad and unqualified. The government argues that such unqualified language makes all defendants charged who travel across or use an interstate facility, liable in federal court. Such a broad application would permit the federal government to intrude into essentially local murder cases and would upset the traditional distribution and line of demarcation between federal and state power. Such an interpretation ignores legislative history to the contrary and is at variance with the policy goals of the statute.
Congress was very clear in the Senate Report accompanying the proposed legislation that the presence of a federal nexus alone should not convert all contract murders into matters of federal responsibility. S. Rep. No. 225, 98th Cong., 1st Sess. 305 (1983). Although the legislative history which sheds light on the intent and purpose of the Congress is limited,
it is, nonetheless, unambiguous. Congress enacted the Murder-for-Hire Statute to combat the professional contract killer employed by organized criminal elements. The Congress recognized that the Statute would permit concurrent jurisdiction with state and local forces. Noting the concern of local prosecutors over the federal incursion into state territory, the Senate Report advised that "Federal jurisdiction should be asserted selectively." Id. at 305. The Report then set out several criteria which should be present to support and warrant federal intervention in a murder investigation. Jurisdiction should be
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.
The Committee was aware of the federalism issue posed and advised that the Statute should not be used to usurp local responsibility. The Senate Report concluded that [the Statute] "does not mean, nor does the Committee intend, that all or even most such offenses should become matters of Federal responsibility." Id. at 305. (emphasis added.) Congress conceived that "coordination" and "cooperation" between federal and state officials would be the standard not federal intervention and usurpation.
Congress' sensitivity to the federalism issues presented was also expressed in the Senate hearings. The one witness who spoke to the proposed statute, was Mr. Edwin Miller, San Diego, California District Attorney, the President-Elect of the National District Attorneys Association. The Committee was very conscious to assuage Miller's concerns over excessive federal intervention. Speaking for the subcommittee, Senator Laxalt stated " The last thing we want to do in this package is to intrude unnecessarily into the State and local realm. We just do not want to do that." Hearings on the Comprehensive Crime Control Act, 98th Cong., 1st Sess. at 295. (emphasis added.)
To avoid excessive federal intervention, Congress intended that the Statute should be utilized only when federal investigations were needed. It saw a need for federal intervention to prosecute those crimes committed by organized criminal enterprises identified by certain shared characteristics. They are organized according to some formalized corporate-like structure and are motivated by profits and power. See Organized Crime and the Use of Violence: Hearings Before the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs, 96th Cong., 2d Sess. 17-19 (1980). (Testimony of William H. Webster, Director, Federal Bureau of Investigation.)
Local law enforcers encounter difficulties when prosecuting organized criminal figures who operate from another state and may live as respected citizens in the state of their abode. They often encounter jurisdictional and financial limitations which weaken their capacity to investigate nationally operated crimes. Thus, the Act was conceived to give authority to federal investigators to assist the states in prosecuting complex cases with multiple defendants from different states. See S. Report No. 225 at 305.
This rationale authorizing federal intervention based upon the surrounding circumstances and type of crime, not simply the existence of an interstate nexus, was also the basis behind the enactment of the Murder-for-Hire's companion statute, commonly referred to as the Travel Act, § 1952 and informs the application of § 1952A as well. See H.R. Rep., No. 966, 87th Cong., 1st Sess, reprinted in 1961 U.S. Code Cong. & Ad. News 2664.
Congress explicitly stated "that § 1952A follows the format of § 1952." S. Report No. 225 at 306. The Statute was enacted to fill in the jurisdictional vacuum left by the Travel Act. The Act did not impose federal criminal liability for pure contract murders committed without a drug, bribery or gambling component. The murder-for-hire provision grants this jurisdiction. In the leading case examining the jurisdictional scope of the Travel Act, the Supreme Court noted,
that the Act was aimed primarily at organized crime and more specifically, at persons who reside in one State while operating or managing illegal activities located in another.