OPINION AND ORDER
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.
For the purposes of this motion, the following facts will be accepted as true.
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.
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 language of the statute, the legislative history and the applicable case law.
I. Plain Meaning Interpretation of 18 U.S.C. § 1958
In applying criminal laws, courts "generally must follow the plain and unambiguous meaning of the statutory language." United States v. Albertini, 472 U.S. 675, 680, 86 L. Ed. 2d 536, 105 S. Ct. 2897 (1985). The starting point in determining the question presented must therefore be the language of the statute itself. The instant motion turns on whether defendant used or caused another to use a facility in interstate commerce within the meaning of the murder-for-hire statute. Specifically, the question is whether defendant used a facility in interstate commerce by (1) giving CI-1 and CI-2 his beeper number to further his murder-for-hire scheme; (2) causing CI-1 and CI-2 to call his beeper number for the same purpose; or by (3) responding to calls to his beeper from CI-1 and CI-2 for the same purpose. It is undisputed that defendant, UC-1, CI-1, and CI-2 acted at all relevant times within the geographic boundaries of New York.
The government's theory rests solely on the proposition that the beeper system, which emits an interstate signal each time it is activated, is intrinsically a "facility in interstate commerce."
Thus, the government contends that defendant used a facility in interstate commerce within the meaning of § 1958 by providing his beeper number and by returning calls placed to that number in furtherance of a murder-for-hire scheme. In support of this argument, the government relies on United States v. Stevens, 842 F. Supp. 96 (S.D.N.Y. 1994), which appears to be the first and only federal court opinion directly on point. Stevens involved a similar murder-for-hire case in which the only basis for establishing an interstate nexus was the defendant's in-state call to a paging system. The Stevens court held:
The defendant's call to such a system cannot be considered an intrastate act, no matter how its signals were routed. The paging system's very purpose is to reach across state lines to find people. In pursuit of that purpose, it sends radio waves across the borders of three states each time it is activated; every time the system is used, it is used in an interstate manner. It makes no difference that the paging party may not know of the system's interstate range. Further, it is of no importance that the paged party is ultimately reached in the same state as the paging party. This does not change the fact that by using the interstate system, the paging party, in effect, makes an interstate search.
Id. at 98. Thus Stevens distinguishes a call to an interstate paging system from a local telephone call which similarly involves an interstate communication system because the former makes an "interstate search" while the latter merely connects one in-state point to another.
Id. This theory, advanced by the government here, allows federal jurisdiction to turn on the means by which the defendant's chosen mode of communication functions rather than the location of the communicating parties.
Although grammatically viable, this reading of the statute is not the only reasonable interpretation of the murder-for-hire statute. A rigorous parsing of the statute also leads to the conclusion that it is the "use" that must be "in interstate commerce", not the "facility". Stated another way, the statute may be read to indicate that the interstate nexus requirement turns not on the facility's interstate capacity but its actual use in the particular case.
See Minneapolis & St. Louis R. Co. v. Winters, 242 U.S. 353, 358, 61 L. Ed. 358, 37 S. Ct. 170 (1917) (Holmes, J.) (in determining the inter- or intra-state character of a train, "its character as an instrument of commerce depended on its employment at the time, not upon remote probabilities or upon accidental later events.") See also Rosen v. Albern Color Research, Inc., 218 F. Supp. 473, 476 (E.D. Pa. 1963) ("The question as to whether a particular instrumentality is one of interstate commerce is to be determined by the use to which it is put, rather than its nature.") (citing 15 C.J.S. § 41). See generally 15A Am.Jur. 2d, Commerce § 8 ("Whether a particular business or activity is interstate or intrastate commerce depends basically upon the facts of each case") (citation omitted).
The phrase "use . . . any facility in interstate or foreign commerce" is inherently ambiguous.
As discussed, there are at least two grammatically cognizable interpretations one stressing "use" and the other stressing "facility". Faced with unavoidably ambiguous statutory wording, a court must look behind the words themselves in an attempt to reconstruct their purpose. See United States v. R.L.C., 503 U.S. 291, 298, 117 L. Ed. 2d 559, 112 S. Ct. 1329 (1992); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395, 95 L. Ed. 1035, 71 S. Ct. 745 (1951) (Jackson, J., concurring).
II. Legislative History of 18 U.S.C. § 1958
The murder-for-hire statute was not intended to completely preempt state prosecution of similar crimes. The statute's limited legislative history demonstrates that Congress did not intend to convert "all or even most such offenses [into] matters of federal responsibility." S. Rep. No. 225, 98th Cong., 1st Sess. 305 (1984), U.S. Code Cong. & Admin. News 1984, at 3182, 3484. Rather, Congress intended that:
Federal jurisdiction should be asserted selectively based on such factors as the type of defendants reasonably believed to be involved and the relative ability of the federal and state authorities to investigate and prosecute. For example, the apparent involvement of organized crime figures or the lack of effective local investigation because of the interstate features of the crime could indicate that federal action was appropriate. . . . Cooperation and coordination between federal and state officials should be utilized to ensure that the new murder-for-hire statute is used in appropriate cases to assist the states rather than to allow the usurpation of significant cases by federal authorities that could be handled as well or better at the local level.