U.S. v. Mandel

• Decision Date: 28 July 2011
• Docket Number: No. 09–4116.,09–4116.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Robert MANDEL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

647 F.3d 710

UNITED STATES of America, Plaintiff–Appellee,

v.Robert MANDEL, Defendant–Appellant.

No. 09–4116.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 19, 2010.Decided July 28, 2011.

Michael J. Chmelar (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.Andrew Caridas (argued), Attorney, Zuckerman Spaeder, Washington, DC, for Defendant–Appellant.Before CUDAHY and ROVNER, Circuit Judges, and ADELMAN, District Judge.^*ROVNER, Circuit Judge.

When Robert Mandel decided to have his business partner killed, he turned to Patrick Dwyer, a trusted friend and employee of the business, for help in finding a killer. Dwyer instead went to the authorities, was outfitted with a wire, and proceeded to record a series of conversations in which he and Mandel plotted the details of the murder in person and over the telephone. A jury later convicted Mandel on multiple charges that he used facilities of interstate commerce—namely, a cellular telephone and his car—in furtherance of a murder for hire scheme, in violation of 18 U.S.C. § 1958(a). Mandel appeals, contending that he was entrapped into discussing the murder on a cell phone, so as to manufacture federal jurisdiction over an otherwise local offense, and that his purely intrastate use of an automobile does not constitute the use of an facility of interstate commerce. We affirm.

I.

Mandel and Konstantinos “Gus” Antoniou each owned a 50–percent share in G & D Excavating Company, a firm that engaged in sewer and water work and trucking in addition to excavations. Disagreements over the company's finances and equipment caused their friendship as well as their partnership to erode. As of April 2008, the two men were in litigation over the company's property. As of the following October, Antoniou had locked Mandel out of the company's premises.

In late August 2008, members of the Chicago police and the Federal Bureau of Investigation's armed violence task force learned from Dwyer that Mandel had discussed the possibility of hiring someone to murder Antoniou. According to Dwyer, Mandel had said he knew an unidentified individual who wanted Antoniou killed and had asked Dwyer to find a hit man and determine how much it would cost. Mandel reportedly offered to provide Dwyer with a gun, if needed.

Dwyer agreed to help the authorities investigate the murder for hire scheme. He proceeded to engage Mandel in a number of covertly recorded conversations, both in person and on the telephone, in which the two men laid out plans to engage a hit man to commit Antoniou's murder. These conversations would later form the basis for federal charges against Mandel.

On August 28, Mandel met Dwyer at a job site on the south side of Chicago where Dwyer was working. The two men then went for a drive in Mandel's car to inspect another job site. While en route and upon arrival at the site, the two of them discussed the murder. Dwyer had informed Mandel by telephone the day before that he had located someone who was willing to kill Antoniou. Mandel now confirmed to Dwyer that the unnamed third party, along with a second unidentified person, still wanted Antoniou killed—purportedly because he had cheated them out of $85,000—but not until November. When Dwyer remarked that the hit man might not be able to procure a gun on his own, Mandel assured Dwyer that this would not be a problem. “Oh I can get a gun,” he assured Dwyer. “I'll get it from ... Indiana.” Gov. Ex. Aug. 28, 2008 Tr. 1. Mandel suggested that when the time came, the hit man should lay in wait for Antoniou at his home, to which he typically returned in the late evening or early morning hours. Mandel offered to drive Dwyer past the house to show him the layout. As for the hit man's fee, Dwyer advised Mandel that he had talked the hit man down to five thousand dollars from ten. Mandel agreed with Dwyer's request that the third parties who were commissioning the murder be asked to pay six thousand dollars. “Leave somethin' for us, yeah.” Id. at 13. When Dwyer inquired who else knew about the plan, and expressed concern that neither he nor Mandel be identified as complicit, Mandel repeatedly assured Dwyer that he had told no one. “Nobody knows,” he told Dwyer. “Me and you.” Id. at 2. Mandel had driven to this meeting in his automobile, a 2004 Mercury Marauder. His use of the car in furtherance of the scheme formed the basis for Count One of the indictment. The vanity license plate on the Mercury Marauder bore the apt legend, “NoHalo.” Truth bests fiction once again.

Dwyer contacted Mandel on Mandel's cell phone on September 10, 2008. When Dwyer inquired whether Mandel had spoken with “them people yet,” Mandel advised him that they were arriving in town on the following day and that he expected to speak with them within a day or two after that. Gov. Ex. Sept. 10, 2008 Tr. 1. The conversation then turned to the hit man's payment. Dwyer suggested that Mandel ask the third parties for money so that the hit man could be given some portion of his fee up front. Mandel rejected the idea. “Ah here's the story[.] I'm not gonna give him any money. Here's what I wanna do is. I want to have all the money in my hand [and] show it to you and he can see it to[o].” Id. at 2. “When he's done we'll give it to him,” Mandel told Dwyer. Id. Mandel's use of his cell phone to conduct this discussion of the murder for hire scheme formed the basis for Count Two of the indictment.

One week later, Dwyer spoke with Mandel, again via Mandel's cell phone. Dwyer placed the initial call to Mandel but did not reach him; Mandel subsequently returned Dwyer's call. When Dwyer asked him whether “that thing [is] still gonna happen,” Gov. Ex. Sept. 10, 2008 Tr. 1, Mandel assured him that it would. “Yes, it is. Yes, it is. You gotta ... it'll happen soon.” Id. “I would say in a week or so,” he added. Id. Dwyer told Mandel that they would have to get together so that Mandel could “show me that house and that again,” to which Mandel responded “Okay.” Id. But when Dwyer then asked Mandel to “get that thing for me from Indiana,” id., an apparent reference to a gun for the hit man, Mandel questioned whether it was necessary. “I thought he had his own tools.” Id. at 2. Dwyer said he would ask the hit man. This telephone call formed the basis for Count Three of the indictment.

Delay set in (Mandel advised Dwyer that his principals were not returning his calls), and when Dwyer and Mandel spoke by phone on October 22, 2008, Mandel said that he was now “working on something of my own.” Gov. Ex. Oct. 22, 2008 Tr. 2. “It took me a little while but I got some things going,” he told Dwyer. Id.

Mandel met Dwyer in the parking lot of a Des Plaines restaurant/bar on November 7. Mandel announced that he was ready to proceed with the murder without the support of the third parties on whose behalf he had been acting previously. “I'm ready to do it myself,” he announced. Gov. Ex. Nov. 7, 2008 Tr. 1. “[T]hey won't give me the money.” Id. When Mandel asked Dwyer to remind him how much the hit man wanted, Dwyer told him five thousand dollars but suggested that he (Dwyer) might unilaterally cut that price in half and pay the hit man out of his own pocket. Mandel responded that he would “like to give him some money too” because “[i]t would make my life easier too because then I'd own all of G and D.” Id. at 8. Mandel disclaimed any worry that he would be fingered for the hit, reasoning that he was only one of many people who wanted Antoniou dead. “[T]here's too many other people that have more to gain than I do,” he observed. Id. at 10. “Too many people have already fuckin' threatened him.” Id. at 12. When Dwyer inquired of Mandel, “Well I mean should I just send him to do it?” Mandel responded, “Yeah, I'll come over, show you exactly where everything is ...” Id. at 10–11. Mandel then told Dwyer that he could help himself to some of G & D's equipment once the murder had been accomplished.

Mandel: Well get him done and I'll give 'em to ya. I'll give you so much shit back there you're gonna have to find a ...

Dwyer: If I get rid of him.

Mandel: Get 'em.

Dwyer: If I get rid of him. I'll, I'll get all the shit out a there.

Mandel: I'll get you as much as I can.

Id. at 11. As the meeting began to wind down, Dwyer asked Mandel where Antoniou typically could be found. Mandel reiterated, “The house is the best place. He never comes home 'til two in the morning.... Three in the morning.” Id. at 14–15. Dwyer concluded the meeting by urging Mandel to “get that done.” Id. at 15. Mandel responded, “I'm in.” Id. at 16. Mandel promised Dwyer that he would be reimbursed for the hit eventually. “You can get it done, and pay for it later. I'll get it done,” he assured Dwyer. Id.

Later that month, on November 25, Mandel drove Dwyer past Antoniou's home and discussed the logistics of the murder.¹ Mandel suggested that when Antoniou arrived home in his car, the hit man should approach the car and kill Antoniou before he could exit the vehicle. “I'd go right up to his car, shoot him right in the door. Don't even let him get out of it.” Gov. Ex. Nov. 25, 2008 Tr. 20. “I'd come around the front of the house, not through the back, ‘cause he'll see you comin’, then he can back out. Come around the front, walk up to the driveway, and talk to him.” Id. at 21. Antoniou was expected to have his son with him for visitation during the upcoming Thanksgiving weekend, and because Antoniou's girlfriend would not allow the son in her house, Antoniou was expected to stay at his mother's home for the duration of the visitation. So, during this meeting, in order to determine when Antoniou would be returning to his usual residence, Mandel telephoned a third party on his cell phone to determine when Antoniou would return the boy to Antoniou's ex-wife. That call formed the basis for Count Five of the indictment. The overall encounter between Mandel and Dwyer, and...