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UNITED STATES v. PAREDES

December 9, 1996

UNITED STATES OF AMERICA, against JOSE EUGENIO PAREDES, a/k/a "Toshiba," Defendant.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 On April 18, 1996, defendant was indicted on two counts of violating the federal murder-for-hire statute, 18 U.S.C. § 1958 and one count of possession by a felon of ammunition, 18 U.S.C. § 922(g). This opinion addresses defendant's pretrial motion to dismiss his indictments under 18 U.S.C. § 1958 for lack of federal jurisdiction and defendant's request for a pretrial hearing to determine whether the government manufactured federal jurisdiction in this case. For the reasons set forth below, defendant's motion is granted and Counts One and Two of the April 18 indictment are dismissed. Accordingly, no hearing is required.

 Factual Background

 For the purposes of this motion, the following facts will be accepted as true. *fn1" See 2A James W. Moore, Moore's Federal Practice 12-52 (2d ed. 1996) (facts asserted in pleadings should be accepted as true for purposes of determining existence of subject matter jurisdiction). In January or early February of 1996, a confidential informant ("CI-1") informed FBI Agent Robert Bukowski that defendant had discussed a contract murder with other persons. CI-1 then met with defendant, who told CI-1 that he would pay $ 6,000 to hire someone to murder a man whom the government later identified as Eugenio Perez. CI-1 obtained defendant's beeper number at that meeting. On February 15, 1996, at the direction of Agent Bukowski, CI-1 told defendant that CI-1 had arranged for someone else to carry out the contract murder. The person identified by CI-1 was an undercover police officer ("UC-1"). Subsequently, on February 16, either CI-1 or UC-1 called defendant's beeper from within New York and left a call-back number in the Bronx. Defendant then called the Bronx number from within New York and spoke to CI-1 or UC-1 or both.

 Later, on February 18, a second confidential informant ("CI-2") obtained defendant's beeper number from someone the government alleges was defendant's co-conspirator. On February 19, 1996, CI-2 placed a call to the beeper number from within New York and left a Bronx call-back number. Soon afterwards, defendant called that number from within New York and spoke with CI-2.

 Defendant was arrested on February 22, 1996, on charges of using an interstate commerce facility in the commission of a murder-for-hire scheme in violation of 18 U.S.C. § 1958. Defendant was subsequently charged with possession by a felon of ammunition in violation of 18 U.S.C. § 922(g) when the government discovered 10 bullets in defendant's car at the time of his arrest. On April 18, 1996, defendant was indicted on two counts of violating the murder-for-hire statute and one count of possession of ammunition by a convicted felon.

 Applicable Legal Standards

 The federal murder-for-hire statute states in pertinent part:

 
Whoever . . . uses or causes another (including the intended victim) to use the mail or any facility in interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States . . . shall be fined under this title or imprisoned for not more than ten years, or both. . . .

 18 U.S.C. § 1958. The term "facility in interstate commerce" includes "means of transportation and communication". 18 U.S.C. § 1958(b). The requirement that defendant use the mail or a facility in interstate commerce (the "interstate nexus requirement") is jurisdictional. See United States v. Razo-Leora, 961 F.2d 1140, 1148 (5th Cir. 1992). Cf. United States v. Sigalow, 812 F.2d 783, 785-86 (2d Cir. 1987) (the interstate nexus requirement of the Travel Act, 18 U.S.C. § 1952, is jurisdictional and not an additional element that government was required to prove); United States v. Blackmon, 839 F.2d 900, 907 (2d Cir. 1988) (interstate nexus requirement of wire fraud statute is jurisdictional). The interstate nexus requirement arises from "constitutional limits on Congressional power over intrastate activities under the Commerce Clause". See Blackmon, 839 F.2d at 907 (quoting United States v. Bryant, 766 F.2d 370, 375 (8th Cir. 1985), cert. denied, 474 U.S. 1054, 88 L. Ed. 2d 768, 106 S. Ct. 790 (1986)). Thus, where no such nexus is established, an indictment under the statute must be dismissed. If defendant's conduct does implicate federal jurisdiction by satisfying the interstate nexus required under the statute, the Court may not decline to exercise jurisdiction over the charges against him. See United States v. Dickson, 259 U.S. App. D.C. 447, 816 F.2d 751, 752 (D.C. Cir. 1987) (per curiam).

 A federal court may challenge sua sponte subject matter jurisdiction. See Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 53 L. Ed. 126, 29 S. Ct. 42 (1908) (Supreme Court raising objection to federal court jurisdiction). See generally Erwin Chemerinsky, Federal Jurisdiction 249-250 (2d ed. 1994) (explaining that federal courts may raise sua sponte objections to subject matter jurisdiction because the restrictions on federal jurisdiction advance important values of federalism and separation of powers). Here, defendant has expressly challenged the existence of federal subject matter jurisdiction. "Once the existence of subject matter jurisdiction is challenged, the burden of establishing it always rests on the party asserting jurisdiction." 2A Moore's Federal Practice at 12-50.

 Discussion

 This case presents a question that has not yet been addressed by any Court of Appeals: Is the interstate nexus required for federal jurisdiction under 18 U.S.C. § 1958 satisfied when a beeper is used solely within one state? To answer this question it is necessary to review the ...


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