Murder

Federal Law:

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree.
(b) Within the special maritime and territorial jurisdiction of the United States,
Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;
Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.

Murder-for-Hire

The "murder-for-hire" statute, 18 U.S.C. § 1958, was enacted as part of the Comprehensive Crime Control Act of 1984, Pub.L. 98-473, Ch. X, Part A (Oct. 12, 1984). Section 1958(a) provides:

Whoever travels in or causes another (including the intended victim) to travel in interstate or foreign commerce, or uses or causes another (including the intended victim) to use the mail or any facility in interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay anything of pecuniary value, or who conspires to do so [violates this statute].

Initially § 1958 was codified as 18 U.S.C. § 1952A, but in 1988 it was renumbered as § 1958. Section 1958 was patterned after the Interstate Travel in Aid of Racketeering (ITAR) statute, 18 U.S.C. § 1952. S. Rep. No. 225, 98th Cong., 2d Sess. 306, reprinted in 1984 U.S. Code Cong. & Adm. News 3182, 3485 (hereinafter S. Rep. No. 225). Consequently, some case law under § 1952, especially that relating to the use of a facility in interstate commerce, is applicable to § 1958.

Section 1958 renders it illegal: 1) to travel or use facilities in interstate or foreign commerce; 2) with intent that a murder in violation of State or Federal law be committed; 3) for money or other pecuniary compensation. See United States v. Ritter, 989 F.2d 318, 321 (9th Cir. 1993). The government is not required to prove that a defendant intended or knew that the mails or any other facility of interstate commerce would be used or that interstate travel would occur. United States v. Edelman, 873 F.2d 791, 794-95 (5th Cir. 1989). Rather, a defendant must use or cause another to use such a facility with the intent that a murder be committed. See United States v. Winter, 33 F.3d 720, 721 (6th Cir.), cert. denied, 115 S.Ct. 1148 (1994).

Federal jurisdiction may be established in one of three ways: 1) by travel in interstate or foreign commerce; 2) by use of the mails; or 3) by use of any facility in interstate or foreign commerce.

The term "facility in interstate or foreign commerce" is defined to expressly include "means of transportation and communication." § 1958(b)(2). Congress intended to give the term "facility in interstate or foreign commerce" the same scope and breadth encompassed by the Travel Act, 18 U.S.C. § 1952. S.Rep. 225 at 306 n.5.

Any use of the mails, including intrastate mailings, will furnish Federal jurisdiction. See United States v. Riccardelli, 794 F.2d 829, 830-33 (2d Cir. 1986); United States v. Heacock, 31 F.3d 249, 254 (5th Cir. 1994).

A single interstate telephone call will furnish Federal jurisdiction. United States v. Perrin, 580 F.2d 730, 733 (5th Cir. 1978), aff'd, 444 U.S. 37 (1979); United States v. Pecora, 693 F.2d 421 (5th Cir. 1982). The Senate Report specifically cites the example of an interstate telephone call as a basis for Federal jurisdiction. S. Rep. 225 at 306 n.5 (The Committee cited in support of its conclusion United States v. Villano, 529 F.2d 1046, 1052-54 (10th Cir.), cert. denied, 426 U.S. 953 (1976)). The fact that a call was incidental to the scheme does not matter, so long as the interstate phone call facilitated the crime. See United States v. Jones, 642 F.2d 909, 913 (5th Cir. 1981). An intrastate telephone call, however, will not furnish Federal jurisdiction. United States v. Sapio, 299 F. Supp. 436 (S.D.N.Y. 1969); Utz v. Correa, 631 F. Supp. 592 (S.D.N.Y. 1986). It is unsettled whether a means of communication that requires interstate equipment (such as cellular phones and pagers), even when the parties are within the same state, triggers Federal jurisdiction under § 1958. One district court held that the jurisdictional element was satisfied. See United States v. Stevens, 842 F. Supp. 96 (S.D.N.Y. 1994) (use of pager system that transmitted signals across state boundaries provided jurisdiction under § 1958).

When using an informant in a murder-for-hire investigation, the government must not manufacture the interstate nexus required for jurisdiction. Such actions may be grounds for reversal. See, e.g., United States v. Coates, 949 F.2d 104 (4th Cir. 1991) (reversal of convictions where only basis for Federal jurisdiction was interstate calls government agent arranged for sole purpose of creating Federal jurisdiction); United States v. Archer, 486 F.2d 670 (2d Cir. 1973). Such cases are typically analyzed by courts as outrageous government conduct or government overreaching. See, e.g., United States v. Keats, 937 F.2d 58, 65 (2d Cir.), cert. denied, 112 S.Ct. 399 (1991); United States v. Bagnariol, 665 F.2d 877, 898 n.15 (9th Cir. 1981), cert. denied, 456 U.S. 962 (1982); United States v. Hall, 536 F.2d 313, 327 (10th Cir.), cert. denied, 429 U.S. 919 (1976).

According to the legislative history, § 1958 covers both the "hit man" and the contractor under the theory that the contractor causes the hit man to travel or use facilities in interstate commerce. S. Rep. 225 at 306.

The maximum penalty for violating § 1958 varies with the severity of the conduct: a fine and/or ten years for any violation; a fine and/or twenty years if personal injury results; and a fine of not more than $250,000 and/or death or life imprisonment if death results.

State Law:

(a) In this section:

(1) "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. (2) "Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.

(b) A person commits an offense if he: (1) intentionally or knowingly causes the death of an individual; (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or (3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

(c) Except as provided by Subsection (d), an offense under this section is a felony of the first degree.
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.

Capital Murder
(a) A person commits an offense if the person commits murder as defined under Section 19.02(b)(1) and: (1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman; (2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat under Section 22.07(a)(1), (3), (4), (5), or (6); (3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration; (4) the person commits the murder while escaping or attempting to escape from a penal institution; (5) the person, while incarcerated in a penal institution, murders another: (A) who is employed in the operation of the penal institution; or (B) with the intent to establish, maintain, or participate in a combination or in the profits of a combination;

(6) the person: (A) while incarcerated for an offense under this section or Section 19.02, murders another; or (B) while serving a sentence of life imprisonment or a term of 99 years for an offense under Section 20.04, 22.021, or 29.03, murders another;

(7) the person murders more than one person: (A) during the same criminal transaction; or (B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct; or

(8) the person murders an individual under six years of age.

(b) An offense under this section is a capital felony.
(c) If the jury or, when authorized by law, the judge does not find beyond a reasonable doubt that the defendant is guilty of an offense under this section, he may be convicted of murder or of any other lesser included offense.

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