Thursday, March 19, 2009
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Court Clarifies Intent Element of U.S. Murder-for-Hire Law
By SHERRI M. OKAMOTO, Staff Writer
A defendant cannot be convicted of violating the federal murder-for-hire statute unless he or she traveled between states or countries or caused another person to do so at a time when the defendant possessed the intent to commit murder.
The panel yesterday affirmed Paul Driggers’ conviction for causing Matthew Robinson to travel from California to Idaho with the intent of having Robinson kill Driggers’ ex-wife. Chief Judge Alex Kozinski, writing for the panel, said the district judge gave an erroneous instruction on the requisite intent, but that it was harmless.
At trial before U.S. District Judge Edward J. Lodge of the District of Idaho, Robinson testified that he met Driggers in Idaho in April 2006 and agreed to kill Driggers’ ex-wife for $10,000.
He claimed that Driggers had driven him to the ex-wife’s house, and that they had discussed various ways to kill her before he returned to California with the understanding that Driggers would send him a deposit when Driggers was ready to proceed with their plan.
Plot Denied
Driggers admitted to meeting with Robinson, but denied plotting the murder of his ex-wife. He claimed that Robinson had proposed arranging for a contract killing during a subsequent phone conversation.
About two months after the initial Idaho meeting, Robinson claimed Driggers deposited $1,000 in Robinson’s bank account and told him he had a “green light” to proceed with the murder.
Robinson then turned to the police as an informant and officers began recording his conversations with Driggers.
In their next conversation, Driggers said he wanted Robinson to return to Idaho, but that he wanted “to have a good long conversation” together “before we even do anything.”
After Robinson flew to Idaho and met with Driggers again, Driggers confirmed that he wanted Robinson to kill his ex-wife, according to testimony. He was arrested and charged with violating 18 U.S.C. § 1958.
Sec. 1958 prohibits ““travel[ing] in or caus[ing] another…to travel in interstate or foreign commerce…with intent that a murder be committed” for hire.
Jury Instructions
Lodge instructed the jury that for Driggers to be guilty, the government had to prove that Driggers had caused Robison to travel from one state to another, had intended a murder be committed, and promised to pay Robinson for the murder.
Driggers was convicted, and on appeal contended that Lodge had committed instructional error by omitting the requirement that the government prove a connection between the travel and the intent to murder.
Writing for the appellate court, Kozinski explained that that the causing of interstate travel must be done with the intent that a murder be committed to run afoul of Sec. 1958, and that the district court’s instruction did not adequately convey this requirement.
As instructed, the jury was not required to find any connection between the murder scheme and Robinson’s travel, Kozinski wrote.
If Driggers had asked Robinson to “cross state lines to pick up a birthday present for his niece or to fix his grandmother’s roof” and later involved him in an intrastate murder-for-hire scheme, Kozinski reasoned the jury could still have found him guilty of using interstate commerce facilities in the commission of murder for hire under the instruction given.
He clarified that the interstate travel is what triggers federal jurisdiction, but a defendant does not need to intend to travel across state lines as long as he intended to commit murder for hire and in acting on that intent, crossed state lines.
Recorded Conversations
Noting the recorded conversations in which Driggers negotiated the payment to Robinson and responded affirmatively when Robinson said he was ready to proceed—Kozinski concluded that the erroneous jury instruction was harmless because the evidence at trial “overwhelmingly proved” that Driggers intended for Robinson to kill his ex-wife when he caused Robinson to travel from California to Idaho.
Senior Judge Betty B. Fletcher joined Kozinski in his opinion, and Judge Johnnie B. Rawlinson wrote a separate concurrence arguing that any instructional error was “at most, technical in nature.”
She opined that there was “no legally significant difference between an instruction that states the defendant caused another to travel in interstate commerce with the intent that a murder be committed and an instruction that states the defendant caused another to travel in interstate commerce and intended that a murder be committed.”
As the evidence established Driggers had asked Robinson to cross state lines to commit murder-for-hire, Rawlinson argued that the “hypothetical possibility that the jury could have misapprehended the instruction” did not constitute cognizable error.
The case is United States v. Driggers, 07-30190.
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