U.S. v. Marek

Citation238 F.3d 310
Decision Date04 January 2001
Docket Number98-40955,Nos. 98-40568,s. 98-40568
Parties(5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BETTY LOUISE MAREK, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DORA GARCIA CISNEROS, Defendant-Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Appeals from the United States District Court For the Southern District of Texas.

Before REYNALDO G. GARZA, POLITZ, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.*

WIENER, Circuit Judge:

According to its title, the federal murder-for-hire statute, 18 U.S.C. § 1958 ("§ 1958"), criminalizes the "[u]se of interstate commerce facilities in the commission of murder-for-hire."1 The statute proscribes paying another to commit murder, but only when the defendant either (1) "travels in or causes another (including the intended victim) to travel in interstate or foreign commerce," or (2) "uses or causes another (including the intended victim) to use the mail or any facility in interstate or foreign commerce."2 Both of the instant cases concern only the second prong of § 1958's jurisdictional element, the use of an interstate (or foreign) commerce facility.

In United States v. Cisneros,3 a panel of this court suggested in dicta that, to satisfy the jurisdictional element, a facility must be used in an interstate fashion, i.e., that intrastate use of a facility would not suffice, even though that facility is one that generally is an interstate commerce facility. In contrast, a divided panel of this court held, in United States v. Marek,4 that wholly intrastate use of a facility that is an interstate commerce facility is sufficient to satisfy § 1958's jurisdictional element.5 The Marek majority acknowledged Cisneros but reasoned that it was not binding because, in furtherance of her murder-for-hire scheme, Cisneros had caused international telephone calls to be made, an activity that indisputably satisfied the jurisdictional element even if Marek's wholly intrastate communication might not. Thus, the portion of Cisneros that suggests that § 1958's application is limited to interstate use of an interstate commerce communication facility is dicta.6

To reconcile these differences and announce a consistent position for this Circuit, we voted to rehear both cases en banc,7 which had the collateral effect of vacating both panel decisions. We now adopt the position taken by the panel majority in Marek and hold that § 1958's use of a "facility in interstate commerce" is synonymous with the use of an "interstate commerce facility" and satisfies the jurisdictional element of that federal murder-for-hire statute, irrespective of whether the particular transaction in question is itself interstate or wholly intrastate.

I. FACTS AND PROCEEDINGS
A. Marek

The facts are not in dispute. Defendant-Appellant Betty Louise Marek pleaded guilty to paying an undercover FBI agent, who was posing as a hit-man, to murder her boyfriend's paramour. Marek was arrested after she used Western Union to transfer $500 to the putative hit-man. Marek initiated the wire transfer in Houston, Texas, and it was received in Harlingen, Texas. The government introduced no evidence to show that the Western Union transmission actually crossed the Texas state line en route from Houston to Harlingen, so we must assume that it did not.8

After the district court had accepted Marek's guilty plea and subsequently sentenced her, she appealed her conviction, urging that the district court erred when it found that she had admitted to facts that satisfied each legal element of the crime charged. Convinced that Western Union is "a facility in interstate commerce," and that this phrase is synonymous with "interstate commerce facility," a divided panel of this court affirmed her conviction, holding that Marek's wholly intrastate use of Western Union was sufficient to satisfy the jurisdictional element of §1958.9

B. Cisneros

The relevant facts in Cisneros also are undisputed at this juncture. Doris Cisneros wanted to have her daughter's erstwhile boyfriend killed. Cisneros told this to her fortune teller and asked if the seer would find someone to commit the murder for a price. Acting as Cisneros's agent, the clairvoyant ---- through another client ---- ultimately located and employed two hit-men for Cisneros. In doing so the oracle placed and received international phone calls between Texas and Mexico. The hit-men traveled from Mexico to Brownsville, Texas, where they shot and killed Cisneros's intended victim.10 A jury convicted Cisneros, and she appealed.

A panel of this court concluded that a reasonable jury could have found that (1) the fortune teller had participated in international telephone calls as Cisneros's agent, and (2) those calls were sufficiently connected to the murder to be "in furtherance" of that crime.11 The panel therefore affirmed Cisneros's conviction.

A crucial factual distinction between Marek and Cisneros exists: In Cisneros the subject telephone calls were unquestionably international so the use of the telephone facility was international ("foreign"), as is the telephone facility itself; in Marek, however, there was only an intrastate communication (a wire transfer of funds between two Texas cities), albeit the communication facility, Western Union, is an interstate commerce facility. Therefore, to affirm Marek we must conclude that § 1958 reaches intrastate use of a facility in interstate commerce. In Cisneros, on the other hand, even if we assume arguendo that the statute should be accorded the narrowest interpretation possible, we must affirm Cisneros's conviction on the strength of the international (foreign) telephone calls.

II. STANDARDS OF REVIEW

Cisneros was convicted by a jury. If, after viewing the evidence and all reasonable inferences in the light most favorable to the verdict, we conclude that a rational trier of fact could find that the government proved each essential element of the crime of conviction beyond a reasonable doubt, we must affirm.12

Marek, in contrast, pleaded guilty. We review guilty pleas for compliance with Rule 11 of the Federal Rules of Criminal Procedure. Here, the determinative question is whether there is an adequate factual basis in the record from which the district court could conclude as a matter of law that Marek's conduct satisfies each element of § 1958. That Marek pleaded guilty ---- a legal conclusion on her part ---- ostensibly admitting to discrete facts supporting the charge against her, is not itself sufficient to support her guilty plea.13 Subsection (f) of Rule 11 requires the district court to determine that the factual conduct to which the defendant admits is sufficient as a matter of law to constitute a violation of the statute.14 Rule 11(f) reads:

(f) Determining accuracy of plea. Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.

The Supreme Court has explained that this requirement ---- mandating that the district court compare (1) the conduct to which the defendant admits with (2) the elements of the offense charged in the indictment or information ---- "is designed to 'protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.'"15 Implicit in the district court's acceptance of Marek's plea of guilty, then, was its determination that her admitted conduct satisfies every legal element of the federal murder-for-hire statute.

Marek did not raise a challenge to the adequacy of the factual basis underlying her guilty plea in the district court, either by making her plea conditional pursuant to Rule 11(a)(2) or by objecting thereafter, such as at her sentencing. Rather, she raised it for the first time on appeal. We have repeatedly held that when a defendant, for the first time on appeal, presents a straightforward issue of law ---- here, whether the undisputed factual basis is sufficient as a matter of law to sustain the guilty plea ---- we will review that issue for plain error.16

Plain error review requires the appellant to show (1) there is an error, (2) that is clear and obvious, and (3) that affects his substantial rights.17 If these factors are established, the decision to correct the forfeited error still lies within our sound discretion, which we will not exercise unless the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.18

The first of the three facets of plain error that we must address is whether there was error. To answer this threshold question when Rule 11(f) is implicated, we must examine, parse, and interpret § 1958, the criminal statute under which Marek was convicted of murder-for-hire. Only by determining the elements of that crime and comparing each element to the facts admitted by Marek, as set forth in the factual basis during the plea colloquy, can we determine if there was error vel non.

III. STATUTORY CONSTRUCTION

In Marek's case we must ask whether, for purposes of satisfying the jurisdictional element of the federal murder-for-hire statute, it is sufficient that the defendant used an interstate commerce facility in an intrastate fashion. Asked differently, is it necessary that both (1) the facility and (2) the defendant's use of that facility be in interstate or foreign commerce? To answer this question, we will look first to the plain language of the statute and second to its statutory context.

A. Statutory Language

§ 1958. Use of interstate commerce facilities in the commission of murder-for-hire (a) Whoever travels in or causes another (including the intended victim) to travel...

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