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As if to demonstrate the power of hairsplitting to split the circuits, the 11th U.S. Circuit Court of Appeals joined the fray over the jurisdictional requirements of a federal murder-for-hire statute in a decision that focuses heavily on minutiae like the nuances of the words “in” and “of.” The court lined up with the 6th Circuit in opposition to the 5th Circuit’s view that federal jurisdiction over murder-for-hire is proper even if the defendant did no more than use locally an instrument, such as a telephone, that is capable of reaching across state lines. The 6th Circuit, and now the 11th Circuit, require that the instrument actually be used in interstate commerce. Murder on the cheap Quite apart from its legal significance, the 11th Circuit case, U.S. v. Drury, No. 02-2924, decided on Sept. 2, would be noteworthy for the light it shines on a criminal mind. A Georgia physician, Dr. Carl M. Drury Jr., confided to a friend, Steven Whatley, that he needed “some relief” from his wife and that the relief “had to look like an accident.” Drury may have thought Whatley would be sympathetic to his message because Whatley had just separated from his wife. Still, one would think that Drury would be hesitant to bring Whatley into his scheme, knowing as he did that Whatley was an agent of the U.S Bureau of Alcohol, Tobacco, Firearms and Explosives. Whatley gave Drury the cellphone number of one of his colleagues at the bureau, Louis Valoze, who pretended to be a willing hitman. When Drury placed a call to Valoze, the signal went from Georgia, to a switching center in Florida and then back to Valoze’s cellphone, which was both registered and located in Georgia. At first, Valoze demanded $2,000, but Drury negotiated Valoze’s price for the murder down to $250. Drury was arrested after giving Valoze the money, a gun and the go-ahead for the murder. The statute under which Drury was convicted, 18 U.S.C. 1958, confers federal jurisdiction not only over crimes in which one of the parties physically crosses state lines, but also over those in which the contractor or the hitman uses or induces the victim to “use the mail or any facility in interstate commerce.” The 11th Circuit noted that it was unclear whether “in interstate commerce” was meant to modify the verb “use,” in which case one would expect the manner of the use to be the predominant concern, or to modify the noun “facility,” in which case the nature of the instrument would seem to be the important consideration. A subclause-” ‘facility of interstate commerce’ includes means of transportation and communication”-was no doubt meant to clarify the statute, but has instead added to the confusion by substitution “of interstate commerce” for “in interstate commerce.” 5th Circuit analysis In a 2001 case, U.S. v. Marek, 238 F.3d 310, the 5th Circuit concluded that the nature of the facility-whether it had the potential to be used in interstate commerce or not-was more decisive than whether or not it happened to have been used in interstate commerce in any given case. The court relied partly on its sense of the overall thrust of the statute, but also on textual factors, such as the fact that “in interstate commerce” lies next to “facility” but stands six words away from “use.” The court held that the change from “in” to “of” in the subclause had no significance. The 11th Circuit in Drury relied on several factors-context, legislative history and rules of statutory construction, for instance-to reach a different conclusion: something must actually cross state lines. On a textual level, the court upheld the distinct significance of “of” by reading the subclause as merely an example of the kind of facility that the overarching clause required to be used in interstate commerce. In Drury’s case, the court found, the Florida detour of his telephone call satisfied the statute. Young’s e-mail address is gyoungnlj.com.

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