United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
TAYLOR SWAIN United States District Judge.
December 13, 2016, this Court issued an Opinion and Order
granting, in part, Defendants' motion to dismiss the S9
Superseding Indictment (the “Indictment”).
(Docket entry no. 376 (the “December Opinion”).)
The Government now seeks reconsideration of the aspect of the
December Opinion that granted Defendants' motion to
dismiss Counts One and Two of the Indictment, which charged a
conspiracy to commit murder-for-hire and murder-for-hire,
respectively, in violation of Section 1958(a) of Title 18 of
the United States Code. U.S. v. Samia, 2016 WL
7223410, at *1 (S.D.N.Y. Dec. 13, 2016) (Swain, J.). The
Court has considered the submissions of both parties
carefully and, for the reasons that follow, grants the
Government's motion for reconsideration and, on
reconsideration, reinstates Counts One and Two of the
Court assumes the parties' familiarity with the relevant
facts of this case, which are summarized in the December
Opinion, and this memorandum opinion therefore sets forth
only the factual and procedural history relevant to the
disposition of the instant motion.
One and Two of the Indictment charged both Defendants with
violations of 18 U.S.C. section 1958(a), which requires, in
relevant part, that Defendants have used a facility of
interstate or foreign commerce “with intent that a
murder be committed in violation of the laws of any State or
the United States.” The Indictment alleges that the
Defendants traveled in foreign commerce in connection with
the murder of Catherine Lee, a non-U.S. national, in the
Phillippines. See Samia, 2016 WL 7223410, at *1.
August 19, 2016, Defendant Stillwell moved, inter
alia, to dismiss Counts One and Two of the Indictment.
(Docket entry no. 345.) In his memorandum of law in support
of the motion, Stillwell argued that Section 1958 should not
be read to have extraterritorial effect (i.e,
application in connection with a murder that allegedly took
place outside of the United States). In the course of making
that argument, which the motion characterized as a
“jurisdictional” challenge, Stillwell noted that
“[d]espite Section 1958's reference to a murder in
violation of any of the laws of the United States, the
Government has identified no other homicide statute to close
this jurisdictional loophole.” (Docket entry no. 346,
Mem. of Law in Support of Motion to Dismiss, p. 13 n. 8.)
Defendant Samia later joined the motion. In response, the
Government asserted that the Indictment sufficiently alleged
violations of Section 1958 because it alleged that Defendants
possessed “the intent to commit a murder in violation
of Section 956, ” which the Government described as
“the object murder offense.” (Docket entry no.
349, Mem. of Law in Opposition, p. 15.)
argument on the motion to dismiss, the Court asked the
Government to clarify its position on this issue:
THE COURT: What is the murder prohibitive statute that the
government contends the defendants formed an intent to
violate while in the United States?
MR. LOCKARD: Yes, your Honor. That is Count Three. That is
the murder in violation of Section 956.
THE COURT: 956 by its terms doesn't prohibit murder. It
criminalizes a conspiracy to commit murder. . . .
MR. LOCKARD: So, again, I think if you look at Section 1958,
this is all about the intent of the parties at the time that
they used the facilities of interstate commerce or at the
time when they traveled in interstate commerce. . . . So the
fact that 956 also criminalizes the conspiracy to commit a
foreign murder I think is pretty consonant with what 1958
says, which is when you travel with that intent, right, the
murder itself is inchoate at the time of the travel or at the
time the facilities are used. So if there is that travel with
that intent, which also is at the same time that the 956
violation was occurring, because this is a conspiracy
that's been formed to commit that murder, then the intent
of the defendants, right, has triggered 956. . . .
THE COURT: Is there no significance in the fact that in
1958(a) Congress specifically used the words [“]murder
be committed in violation of the laws of the United
States[“], as opposed to [“]a murder-related
crime be committed in violation of the laws of the United
States[“] or [“]with intent that a crime that
would be a murder under the laws of the United States were it
committed in the United States be committed there[“]. .
MR. LOCKARD: [Section 956] is a conspiracy statute, but it is
a murder conspiracy statute, it is a kidnapping conspiracy
statute, which I think is reflective of the fact that the
statute, again, like 1958, is targeting the ...