The Line Between State And Federal Criminal Jurisdiction
Two Recent Murder-for-Hire Decisions Illustrate How Blurry It Can Be

Can a murder-for-hire transaction conducted within a single state, and involving only residents of that state, ever be a federal crime? One might think not - but a federal criminal statute makes clear the answer is yes.

Two recent federal appellate decisions regarding murder-for-hire cases also supported this assertion. While they quibbled over exactly what proof that statute requires to support federal jurisdiction, they did not disagree on whether in-state murder-for-hire can be a federal crime in the first place.

That more basic point is somewhat odd, however. For murder - like other violent crimes that occur only a single time, and only in a single place - generally falls naturally under state criminal jurisdiction. Furthermore, the fact that money changes hands, and a hired assassin is involved, doesn't seem to change that fact that, by rights, the state ought to be the prosecuting entity.

Over our history, federal criminal authority has increasingly overlapped with the authority of the states. And it has done so even in areas where the crime at issue seems to be a crime that falls squarely into the state's bailiwick - and does not affect federal interests at all.

In this column, I will look at the federal murder-for-hire statute and the two decisions interpreting it. I will argue that the statute, and the decisions - issued, respectively, by the Eleventh Circuit this September, and by a fifteen judge panel of the US Court of Appeals for the Fifth Circuit in 2001-- illustrate some of the problems that arise when the line between state and federal criminal jurisdiction is blurry, or essentially nonexistent.

The statute defines as a federal crime the "Use of interstate commerce facilities in the commission of murder-for hire." The presence of "interstate commerce" is thought to render the crime at issue a federal crime - since under the Constitution, the involvement of "interstate commerce" gives Congress a right to legislate.

But what counts as "interstate commerce"? In the federal murder-for-hire statute, interstate travel and interstate commerce - which can merely be the use of the mail, or a telephone - can both count.

The feds obviously have a legitimate interest in, say, a murder-for-hire case that involves an interstate kidnapping, or a conspiracy that genuinely spans several states. But the statute goes much further than that - to make almost every murder-for-hire case a federal crime. For it ensures that the mere act of picking up a phone (and cellphones count), or dropping a letter in one's own mailbox, can transform an alleged state crime into an alleged federal crime.

The breadth of the statute's reach has inevitably led to some strange scenarios for the courts. The Fifth Circuit and Eleventh Circuit, for instance, both had to consider whether an intrastate call could still count as interstate commerce for the purpose of the federal murder-for-hire statute.

If all this seems like madness, that's because - at least in my view - it is. It's crazy that a state case can become a federal case merely by virtue of the fact that one's cellphone call happened to be routed to a switching center out of state.

And it's at least somewhat crazy that a state case can be become a federal case merely because it happened to involve a phone call or letter sent to another state. If a fraud scheme happens entirely in Georgia, but happens to involve one letter sent to Florida because someone was on vacation there, why does that make it legitimately a federal case? The same ought to be true when murder-for-hire is alleged.

In sum, our system for figuring out when only a state - and not the feds - can prosecute a given offense is deeply flawed. Federal jurisdiction over crimes sweeps, in certain instances, too broadly.

Readers may ask, So what? Why does it make a difference if an offense may be prosecuted only by the state, or can also be prosecuted by the feds as well?

The answer is that there are some real costs to having federal jurisdiction sweep too broadly. One is that U.S. Attorneys' Offices may be distracted from true federal interests by the temptation to take over some of the caseloads of local D.A.'s.

Another is that it gives the U.S. Attorney General too much power if he or she can initiate prosecutions of what are, in essence, non-federal crimes. (Indeed, in a worst case scenario, that power could be used politically to transform a state offense that would normally carry little time, into a federal offense that carries more.)

Another is that defendants will be open to the risk of successive prosecutions by the states and by the federal government. Unfortunately, the Supreme Court's interpretation of the Fifth Amendment's Double Jeopardy Clause allows just such successive prosecutions. .

The Clause says that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." But the Supreme Court has ruled that the Clause does not apply when the prosecutions are brought by "dual sovereigns" - that is, the federal government, and a State government. One upshot of this holding is that persons can indeed be prosecuted twice "for the same offence."

So imagine you are a defendant, indicted by the State for murder. You go to trial and you get acquitted - arguing that your whole "scheme" was just a practical joke on your spouse, with the horrible irony that your spouse died of a heart attack that same day. In fact, this is true - and fortunately for you, the jury is convinced of it.

That day, you get home, elated from your acquittal, and your attorney receives a criminal indictment. The federal government is charging you with murder-for-hire under the federal statute. Can you invoke the Double Jeopardy Clause? Absolutely not. (You may be able to invoke a separate Double Jeopardy statute, but not necessarily.)

So having mortgaged your home to clear yourself, you'll now have to try for a second mortgage. Meanwhile, you will be facing prosecutors who are already familiar with your case - they can simply get the trial transcript from their helpful state counterparts, or from the court.

At the same time, you also may face a third suit in the future - a civil suit from your spouse's relatives, who still do not believe the death was accidental. No one's going to give you a third mortgage, so you're pretty much financially ruined.

Of course, much of the injustice of this scenario comes from the fact that you were innocent. But is that so rare, under the circumstances? Not really.

If the state convicts, the feds usually won't bother to prosecute. So by definition, when the "dual sovereigns" doctrine is invoked, it's usually the case that the person was acquitted - either because they actually were innocent, or because proof fell short.

In some instances, however, it is because of another factor - such as apparent racial bias. For instance, the verdict in the first, State trial of the police officers charged with beating Rodney King is thought by many to have been based not on the evidence, but on bias. And in such cases, a second, federal trial may be warranted, so that a jury can fairly consider the evidence.

But such cases are an exception. Generally, prosecuting the same person twice for the same crime is unfair and unjust. That's why the Double Jeopardy Clause forbids it. Still, the Supreme Court has interpreted that Clause not to apply when the prosecutions at issue are by the feds, and by the state, respectively.

As it is an unlikely prospect that the Court will ever change its mind, is there anything that can be done? The answer is: Yes, but only by Congress.

Granted, the Constitution allows Congress to define federal jurisdiction to encompass even those crimes that barely touch on interstate commerce - such as an alleged murder-for-hire that happens to involve a cellphone call. But Congress doesn't have to adopt such a broad definition of when a given alleged crime involves interstate commerce.

It can reach very far, but it can choose to stretch the law less, and be fairer to defendants. At the same time, it can impose a healthy limit on the power of the U.S. Attorney General and of local U.S. Attorneys' Offices - a limit that will allow them to concentrate on cases that are truly of federal interest.

Of course, some cases in which the conduct all occurs in-state do involve a genuine federal interest. A murder on a military base, or of a government official, is an obvious example; federal jurisdiction is plainly proper. So is, for example, the counterfeiting of currency (which the Constitution specifically authorizes Congress to punish).

But the real question is whether Congress should restrain itself - and decide not to prosecute conduct that the States can prosecute themselves, and that is at the very limit of federal power and interest.

Of course, Congress may be reluctant to give up the ability to exercise this broad power to its very limit. But it could reserve an exception for cases (such as the Rodney King case) in which it can prove to a federal judge that State prosecutions were deficient, or State trials unfair.

In the end, no one benefits when the federal government goes after a defendant based on where his cell phone calls happened to bounce through, or where his alleged victim or alleged co-conspirator happened to go on vacation. Jurisdiction should be based on a true interest, not a thin pretext.