United States v. Fischl

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 26, 2001
• Docket: 00-30437
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-30437 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TERRY S. FISCHL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 99-CR-353-1-S -------------------- January 24, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Terry S. Fischl argues that the district court lacked

subject matter jurisdiction because the Government failed to show

that his murder-for-hire offense had a sufficient effect on

interstate commerce. Fischl also argues, that assuming that the

court finds a basis for federal jurisdiction, his conviction

should be vacated and the case dismissed because the

jurisdictional element was manufactured by the Government.

Title 18 U.S.C. § 1958's “use of a `facility in interstate

commerce’ is synonymous with the use of an `interstate commerce

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-30437 -2-

facility’ and satisfies the jurisdictional element of that

federal murder-for-hire statute, irrespective of whether the

particular transaction in question is itself interstate or wholly

intrastate.” United States v. Marek, F.3d Nos. 98-40568

c/w United States v. Cisneros, F.3d , No. 98-40955 at 15.

(5th Cir. Jan. 4, 2001). A telephone, even if used for

intrastate calls, constitutes an instrumentality of interstate

commerce that creates the necessary criminal federal

jurisdictional nexus required by 18 U.S.C. § 1958. Id. at 15 &

n.35. The telephone calls made by Fischl to the purported “hit

man” supplied the requisite interstate nexus even if the calls

are construed as intrastate calls. The district court clearly

possessed federal subject matter jurisdiction.

With respect to Fischl’s claim that the Government

manufactured the federal jurisdictional element, the record does

not reflect that the Government agents provided a New York

telephone number to Fischl solely for the purpose of creating an

interstate nexus. See United States v. Garrett, 716 F.2d 257,

267 (5th Cir. 1983). The Government provided Fischl with the New

York telephone number only after Fischl had inquired about a hit

man, and Deemer had told Fischl that she knew such a man in New

York. Further, Fischl independently took the affirmative step of

calling the New York number in order to get in touch with the hit

man, which initiated the federal nexus. Fischl has not

demonstrated that the Government manufactured federal No. 00-30437 -3-

jurisdiction. See United States v. Clark, 63 F.3d 110, 113-14

(5th Cir. 1995).

AFFIRMED.