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United States v. Gordon

United States v. Gordon

United States Court of Appeals for the First Circuit

November 7, 2017, Decided

No. 16-1896

Opinion

 [*28]  SELYA, Circuit Judge. After attempting unsuccessfully to hire a hit man to murder his wife (the person whom he asked to facilitate the matter tipped off the authorities and the hired gun turned out to be an undercover state trooper), defendant-appellant Andrew Gordon then sought to procure the services of a second hit man to kill both the tipster and the imposter. That attempt, too, came to naught. This time, though, federal authorities charged the defendant with five counts of using facilities of interstate commerce in connection with the hiring of a person to commit a murder. See 18 U.S.C. § 1958(a).

The defendant was tried and convicted on all counts, and the district court sentenced him to what amounted to twenty years' imprisonment. He now appeals, raising both an evidentiary issue and a question of first impression [**2]  in this circuit concerning the appropriate unit of prosecution under the statute of conviction. After careful consideration, we hold that the district court did not commit reversible error with respect to the challenged evidentiary ruling and, thus, we affirm the defendant's conviction. We further hold, however, that ] the appropriate unit of prosecution under 18 U.S.C. § 1958(a) is a single plot to murder a single individual, not the number of times that the facilities of interstate commerce were used. Because the government charged the defendant in separate counts for separate uses of the facilities of interstate commerce without regard to the number of plots or the number of intended victims, we direct that the counts be merged, vacate the defendant's sentence, and remand for resentencing.

I. BACKGROUND

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875 F.3d 26 *; 2017 U.S. App. LEXIS 22249 **; 104 Fed. R. Evid. Serv. (Callaghan) 1254; 2017 WL 5150276

UNITED STATES OF AMERICA, Appellee, v. ANDREW GORDON, Defendant, Appellant.

Prior History:  [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Patti B. Saris, U.S. District Judge.

United States v. Gordon, 169 F. Supp. 3d 301, 2016 U.S. Dist. LEXIS 32509 (D. Mass., Mar. 14, 2016)

Disposition: Affirmed in part, Vacated in part, and Remanded.

CORE TERMS

murder, mail, interstate commerce, plot, murder-for-hire, counts, sentence, hitman, district court, travel, facilities, maximum, appropriate unit, wire fraud, imprisonment, hire, substantive offense, telephone call, multiplicitous, criminalize, indictment, interstate, sentencing scheme, use of a facility, authorities, legislative history, substantial rights, plain error, exposed, argues

Criminal Law & Procedure, Homicide, Manslaughter & Murder, Solicitation of Murder, Elements, Standards of Review, Plain Error, Evidence, Evidence, Procedural Matters, Objections & Offers of Proof, Objections, Abuse of Discretion, Burdens of Proof, Definition of Plain Error, Penalties, De Novo Review, Conclusions of Law, Governments, Legislation, Interpretation, Constitutional Law, Fundamental Rights, Procedural Due Process, Double Jeopardy, Defective Joinder & Severance, Multiplicity, Definition of Multiplicity, Joinder & Severance, Multiplicity, Fraud, Fraud Against the Government, Mail Fraud, Criminal Offenses, Solicitation of Murder, Wire Fraud