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Upholding the conviction of Jose Antonio Perez on five counts related to the murder-for-hire of Theodore Casiano, the head of a drug-dealing gang, the 2d U.S. Circuit Court of Appeals ruled that the jurisdictional prerequisite of a connection to interstate commerce for a federal conviction was met even though the phone calls made by the defendant to arrange a killing were only made within Connecticut. U.S. v. Perez, No. 03-1445. Members of the Perez organization hired a professional hit man from the Bronx, N.Y., to travel to Connecticut to murder Casiano. Perez’s job was to call Casiano to lure him to a meeting where he would be killed. Perez argued that the calls to Casiano were all local and did not involve interstate communication. Therefore, he said, he could not be found guilty of the use of interstate facilities in the commission of murder-for-hire under 18 U.S.C. 1958. While Section 1958(a) begins with the phrase “Whoever . . . uses . . . any facility in interstate commerce,” definitional subsection (b) describes “facility of interstate commerce” to include means of transportation and communication. Perez argued that the meaning of “in interstate commerce” in subsection (a) is narrower than the meaning of “of interstate commerce” in subsection (b). “In other words,” the 2d Circuit said in an unsigned opinion, “whereas ‘use of a facility of interstate commerce’ (subsection b) applies only to any use of a facility that happens . . . to be involved in interstate commerce, ‘use of a facility in interstate commerce’ (subsection a) requires the defendant to have actually used the facility in its interstate capacity in furtherance of murder-for-hire.” The court said the circuits are split on the issue of whether the defendant’s actual use of a means of communication or transportation must be an interstate one. The 5th and 7th circuits, the court said, do not require actual interstate usage, with the 5th Circuit in U.S. v. Marek, 238 F.3d 310 (2001), deciding en banc that the use of a facility “in” interstate commerce is “synonymous” with the use of a facility “of” interstate commerce and “therefore that � 1958 satisfies the jurisdictional element of the federal murder-for-hire statute, irrespective of whether the particular usage in question was itself interstate or intrastate, so long as the facility is one involved in interstate commerce.” Perez pointed to a 6th Circuit case, U.S. v. Weathers, 169 F.3d 336 (1999), which held that the communication itself involved in the murder-for-hire conspiracy must affect interstate commerce. He also pointed to two Southern District of New York cases that had similar holdings on beepers that were used only intrastate. The 2d Circuit rejected his argument. “We adopt the reasoning of Marek and today hold that the phrases ‘facility of interstate commerce’ and ‘facility in interstate commerce’ are to be used interchangeably,” the court said. “Moreover, we agree with the Government’s argument that taking ‘in’ and ‘of’ to connote different scopes of coverage is difficult to square with the structure of the statute, which makes ‘the use of a facility in interstate commerce’ part of the substantive law of � 1958(a), and defines ‘facility of interstate’ in � 1958(b). “If the phrases have different meanings, then � 1958(b) defines a phrase with no application to the substantive offense, and leaves undefined the phrase that does not appear in the substantive law.” Therefore, the court said, even though Perez’s calls to Casiano were entirely within the state of Connecticut, the calls were made using the network of Southern New England Telephone, “a facility involved in interstate commerce,” which “leads us to conclude that Perez was properly subject to prosecution for using interstate commerce facilities in the commission of murder-for-hire.”

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