United States v. Jose Antonio Perez, AKA Tony, Raymond Pina, AKA Shorty

Citations: 414 F.3d 302; 2005 U.S. App. LEXIS 13903Docket: 04-0751-

Court: Court of Appeals for the Second Circuit; July 11, 2005; Federal Appellate Court

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Jose Antonio Perez, a member of the "Perez Organization," appeals his conviction on five counts related to the murder-for-hire of Theodore Casiano, a rival narcotics leader in Hartford, Connecticut. The district court, presided over by Judge Arterton, sentenced Perez to four concurrent life imprisonment terms and an additional five-year term. Most of Perez's appeals have been denied in an unpublished summary order. The case presents a novel legal question for the Second Circuit: whether a defendant can be convicted under 18 U.S.C. § 1958 for using a facility in interstate commerce to facilitate a murder-for-hire when the usage was entirely intrastate.

In May 1996, the Perez Organization decided to kill Casiano in retaliation for turf conflicts. Perez's role involved luring Casiano to a garage under false pretenses, allowing hit men from the Bronx to execute the plan. Evidence at trial indicated that Perez's phone calls to Casiano were entirely local, having no interstate routing via the Southern New England Telephone Company (SNET), although SNET provided access to long-distance calling.

Perez contends that his local calls do not fall under the jurisdiction of § 1958(a), which penalizes the use of facilities in interstate commerce for murder-for-hire, arguing that the statute's language implies that he must have used the facility in its interstate capacity. He distinguishes between § 1958(a) and § 1958(b), asserting that the former requires actual interstate use, while the latter encompasses any use of a facility that is capable of interstate communication.

A split exists among the circuits regarding whether a defendant's actual use of a facility must be interstate for prosecution under the murder-for-hire statute (18 U.S.C. § 1958). The Fifth and Seventh Circuits support the interpretation that the statute does not require actual interstate usage, as illustrated in United States v. Marek, which equates "use of a facility in interstate commerce" with "use of a facility of interstate commerce," confirming that usage in an intrastate context suffices if the facility is part of interstate commerce.

The Sixth Circuit and two district court opinions suggest some limitations, indicating that the communication must affect interstate commerce, as seen in United States v. Weathers, which emphasized the need for a connection to interstate commerce. Contrarily, in United States v. Cope, the Sixth Circuit narrowed the application of Weathers.

This document adopts the Fifth Circuit's reasoning, affirming that the terms "facility of interstate commerce" and "facility in interstate commerce" are interchangeable. Furthermore, the court agrees with the Government that interpreting the terms differently complicates the statute’s structure. With recent amendments to the statute clarifying its scope, the court concludes that Perez's intrastate calls, made via the SNET network—an interstate facility—justified his prosecution for murder-for-hire. Consequently, the district court's judgment is affirmed. 

The counts against Perez included conspiracy to commit murder-for-hire, using interstate travel and facilities for murder-for-hire, committing a violent crime in aid of racketeering, and causing death by firearm during a violent crime.

Raymond Pina, tried alongside Perez, withdrew his appeal before oral arguments. Casiano, leader of the Savage Nomads gang, was involved in narcotics distribution. During his imprisonment, the gang's market share significantly decreased, losing ground to the Perez Organization, led by Wilfredo Perez, the appellant's brother. Following Casiano's release in 1995, tensions escalated between the Savage Nomads and the Perez Organization. 

Prior to its 2004 amendment, 18 U.S.C. § 1958 outlined the use of interstate commerce facilities in murder-for-hire cases, imposing varying penalties based on the outcomes (e.g., fines or imprisonment for personal injury or death). The act defined key terms related to the statute, including "anything of pecuniary value" and "facility of interstate commerce." 

The Intelligence Reform and Terrorism Prevention Act of 2004 amended § 1958(a) to clarify terminology, replacing "facility in" with "facility of." This change aimed to resolve previous ambiguities, aligning with the Fifth Circuit's interpretation that Congress intended to clarify rather than broaden the law's application.