DocketNumber： No. 02-12924
Judges： Alarcón, Barkett, Marcus
Filed Date： 9/2/2003
Status： Precedential
Modified Date： 11/5/2024
Dr. Carl M. Drury, Jr. appeals his convictions for using a facility in interstate commerce to effect a murder-for-hire scheme, in violation of 18 U.S.C. § 1958(a), and for possessing a firearm in connection with a crime of violence, in violation of 18
We find that the evidence presented at trial sufficiently established the requisite jurisdictional nexus under § 1958(a) and that the district court committed no reversible error. Therefore, we AFFIRM Drury’s convictions.
I. BACKGROUND
The unusual sequence of events that culminated in Drury’s convictions began with Bureau of Alcohol, Tobacco, and Firearms (“ATF”) Agent Steven Whatley’s separation from his wife. Drury, a longtime friend and family physician, offered to let Whatley reside at his home. Whatley accepted this offer and stayed with Drury for the next several months.
During their time together, Drury complained bitterly about his wife Mary. Dru-ry told Whatley that he needed “some relief’ from his wife and joked that “it had to look like an accident.” Eventually, Dru-ry asked Whatley if he might be able to find someone to kill his wife. Drury also inquired whether Whatley could modify a pistol to make it fully automatic and “quieter.”
Whatley reported this conversation to his supervisor at the Federal Law Enforcement Training Center (“FLETC”), who arranged a meeting with ATF Agents John Limbach and Louis Valoze. The agents provided Whatley with Agent Val-oze’s undercover cellular phone number and instructed him to give Drury the number upon request. Valoze’s cellular phone number was registered in a South Georgia area code. Drury called Agent Valoze’s cellular phone from a pay phone, introduced himself as Whatley’s friend, and arranged to meet Valoze the next day. This telephone call was recorded. During the call, and all subsequent phone conversations between Agent Valoze and Drury, both men were physically located in Georgia.
As planned, Drury met with Valoze the next day to discuss the murder of Drury’s wife. At the meeting, Valoze told Drury that he required a gun and a fee of $2,000. Drury provided Valoze with detailed information regarding his wife, including her place of employment, the type of car she drove, her work schedule, and her habits. He stressed to Valoze that “[i]t just needs to be an accident.” At the conclusion of the meeting, Drury informed Valoze that he would call him in a couple of days. Drury did so and provided Valoze with the tag number of his wife’s car. He also negotiated Valoze’s price for the murder down to $250.
The men met again several days later, and Drury provided Valoze both the $250 and a .38 caliber Taurus handgun. Drury told Valoze that if his wife agreed to sign their divorce papers, the money would only be “to follow her” and see if she was seeing another man. But if Mary refused to sign the papers, “we’ll go ahead.” The men agreed that Drury would call Valoze at the end of the week with this information.
When Drury called Agent Valoze, he indicated that Mary had not signed the
At trial, the government introduced expert testimony from representatives of BellSouth Telecommunications, the company that serviced the pay telephones Drury used to contact Valoze, and VoiceStream Wireless, the company that serviced Val-oze’s cellular phone. The BellSouth representative testified that all calls from the phones that Drury used are routed to the Brunswick, Georgia switching center where they are switched to the requested destination, be it local, interstate, or international. The signal from a purely local call would not leave Georgia, but a call to a cellular phone might. The VoiceStream representative testified that Drury’s calls to Valoze’s cellular phone were all routed out of Georgia to the company’s Jacksonville, Florida switching center.
Drury based his defense on the theory that the entire murder-for-hire scheme was, in reality, just an ATF role-playing exercise. He testified at trial that he never spoke with Whatley about killing his wife. Rather, their conversations centered on the possibility that Mary was having an affair. According to Drury, he informed Whatley that he wanted to hire a private investigator to surveil Mary, but could not afford to do so. Whatley had then advised Drury about a role-playing training program at the ATF.
Drury also attempted to introduce testimony from his son, Don, recounting a conversation they had the night Drury was arrested. Don had spoken to Drury immediately following the arrest, while Dru-ry was still in the arresting officer’s vehicle, and sought to testify that Drury had told him of the role-playing exercise. The government objected, arguing that the testimony was not admissible because Drury had a motive to fabricate the story after his arrest since he had not informed anyone of the role-playing exercise prior to his arrest. The district court ruled Don’s testimony inadmissible.
Drury additionally sought to introduce testimony regarding his character for truthfulness under Rule 608 of the Federal Rules of Evidence. The government responded that Rule 608 did not apply because it had never questioned Drury’s character, only his credibility. The district court agreed and excluded the testimony.
Prior to trial, Drury had submitted two requested jury charges regarding improper government investigations and witness credibility as follows:
I instruct you that you may consider such evidence, including improper inves*1095 tigative techniques, in evaluating the credibility of the government witnesses. In other words, an investigation that is thorough and conducted in good faith may lead to more credible evidence than an investigation that is incomplete, negligent, or conducted in bad faith. In deciding the credibility of law enforcement witnesses, you may consider whether the investigation was conducted according to proper protocol and was complete.
I further instruct you that if the government improperly, or inadequately investigated one aspect of this case, you may infer that the government inadequately, or improperly investigated other aspects of the case, as well. Based on this inference alone, you may disbelieve certain government witnesses.
Drury’s second proposed jury instruction was 11th Circuit Pattern Jury Instruction (Criminal Cases), Basic Instruction 6.7 at 30 (West 1997):
There may also be evidence tending to show that a witness has a bad reputation for truthfulness in the community where the witness resides, or has recently resided; or that others have an unfavorable opinion of the truthfulness of the witness. You may consider those matters also in deciding whether to believe or disbelieve such witness.
The district court did not give either instruction. Instead, as part of its preliminary instructions prior to opening statements, the district court instructed the jury that:
[Y]ou are the only people who can determine the credibility or the believability of the witnesses. You are the sole judges of the credibility of the witnesses and the weight to be accorded to the testimony and the evidence.... What you are going to see is that in determining the credibility of the witnesses you will use the same criteria that you use in your daily life. The same things that you use to determine the credibility or the believability of the witnesses, are exactly the same sorts of things that you use in your daily lives when you are trying to decide whether or not you can believe somebody about a very important matter.
At the close of the trial, the judge provided the following instruction:
In deciding whether you believe or do not believe any witness, I suggest that you ask yourself a few questions: did the witness impress you as one who was telling the truth? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome of the case? Did the witness seem to have a good memory? Did the witness have the opportunity and ability to observe accurately the things he or she testified about? Did the witness appear to understand the questions clearly and answer them directly? Did the witness’s testimony differ from other testimony or other evidence?
The district court also informed the jury that, as a matter of law, “pay phones and cellular phones are ‘facilities in interstate commerce’ under federal law.” Drury objected to this charge and to the district court’s refusal to give his requested instructions.
The jury found Drury guilty of both the murder-for-hire scheme and the firearms violation. The district court subsequently sentenced Drury to 204 months’ imprisonment. Drury filed a timely appeal with this Court.
II. DISCUSSION
A. The Necessary Interstate Commerce Nexus
Drury first argues that the government failed to adduce sufficient evidence at trial
The government argues that it was only required to prove that Drury used a means of communication capable of traveling interstate to impose liability under the statute. Alternatively, the government argues that even if the statute requires that a “facility” actually be used in interstate commerce, Drury’s call, which was routed through another state, satisfies that requirement. Thus, we are called upon to interpret and apply 18 U.S.C. § 1958,
Use of interstate commerce facilities in the commission of murder-for-hire.
(a) 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, shall be fined under this title or imprisoned for not more than ten years, or both; and if personal injury results, shall be fined under this title or imprisoned for not more than twenty years, or both; and if death results, shall be punished by death or life imprisonment, or shall be fined not more than $250,000, or both.
(b) As used in this section and section 1959—
(1) “anything of pecuniary value” means anything of value in the form of money, a negotiable instrument, a commercial interest, or anything else the primary significance of which is economic advantage;
(2) “facility of interstate commerce” includes means of transportation and communication; and
(3) “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
18 U.S.C. § 1958 (emphases supplied).
The statute finds its origins in the Interstate Travel in Aid of Racketeering Statute (“the Travel Act”). See 18 U.S.C. § 1952 (1961), amended by 18 U.S.C. § 1952A (1984). The Travel Act federalized the prosecution of organized crime and racketeering offenses that cross state borders. It originally covered “unlawful activity” associated with organized crime (e.g., gambling, prostitution, liquor, and narcotics), but did not include murder-for-hire as a distinct offense.
In 1984, Congress passed the Comprehensive Crime Control Act, which amended the Travel Act to include the crime of murder-for-hire.
In 1988, Congress passed the Anti-Drug Abuse Act of 1988, which, inter alia, recast § 1952A as § 1958. See 18 U.S.C. § 1958 (1988). The text of § 1958 is identical to the previous version under § 1952A, save for the addition of the phrase “or who conspires to do so” after the words “pecuniary value.”
We begin our analysis with the text of the statute. We must first discern the burden that § 1958(a)’s jurisdictional element imposes upon the government and then judge whether the government met this burden.
1. The Plain Meaning of 18 U.S.C. § 1958
Our analysis begins with an examination of the language of the statute itself. See RJR Nabisco, Inc. v. United States, 955 F.2d 1457, 1460 (11th Cir.1992). We must “determine whether the language
Two clauses in § 1958 are central to the instant case. The first, reduced to the relevant text, is “[w]hoever ... uses ... any facility in interstate ... commerce.” See 18 U.S.C. § 1958(a). The second is “ ‘facility of interstate commerce’ includes means of transportation and communication.” See 18 U.S.C. § 1958(b)(2). While one might expect that the harmonization of two such seemingly manageable clauses would be fairly easy to achieve, there is disagreement in our sister circuits as to § 1958’s proper reach. Compare United States v. Weathers, 169 F.3d 336 (6th Cir.) (finding that § 1958 requires that the facility actually be used in interstate commerce), cert. denied, 528 U.S. 838, 120 S.Ct. 101, 145 L.Ed.2d 85 (1999); United States v. Paredes, 950 F.Supp. 584, 590 (S.D.N.Y.1996) (same), aff'd, 162 F.3d 1149 (2nd Cir.1998) (table), with United States v. Marek, 238 F.3d 310 (5th Cir.) (finding that using a facility capable of interstate commerce is sufficient), cert. denied, 534 U.S. 813, 122 S.Ct. 37, 151 L.Ed.2d 11 (2001).
First, it is unclear from the terms of subsection (a) whether the phrase “in interstate ... commerce,”
Second, it is notable that while § 1958(a) utilizes the prepositional phrase “in interstate ... commerce,” § 1958(b) employs the conceptually distinct phrase “of interstate commerce.” A plain reading of the
In short, the structure and language of 18 U.S.C. § 1958 make it impossible to discern a “plain and unambiguous meaning with regard to [§ 1958].” Robinson, 519 U.S. at 340, 117 S.Ct. 843; see also Paredes, 950 F.Supp. at 587 (“The phrase ‘use ... any facility in interstate or foreign commerce’ is inherently ambiguous.”). As a consequence, we must resort to alternative canons of statutory interpretation. See United States v. Monsanto, 491 U.S. 600, 611, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989).
2. All Words Must, To The Extent Possible, Be Given Meaning
[4,5] “A basic premise of statutory construction is that a statute is to be interpreted so that no words shall be discarded as being meaningless, redundant, or mere surplusage.” United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir.1991). “It is our duty ‘to give effect, if possible, to every clause and word of a statute.’ ” United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (quoting Montclair v. Ramsdell, 107 U.S. 147,152, 2 S.Ct. 391, 27 L.Ed. 431 (1883)). Avoiding circumscription in our reading of the murder-for-hire statute requires that the two clauses at issue here be harmonized so that neither is rendered meaningless.
The government argues that the phrase “facility of interstate commerce” in § 1958(b)(2) simply defines the phrase “facility in interstate ... commerce” in § 1958(a). This tactic assumes that Congress intended for the words “in” and “of’ to be used interchangeably. But this deceptively simple construction is inherently problematic. Despite the convenience of equating the word “in” with the word “of,” it is clear that the two terms are different. As a consequence, this approach runs counter to the very principle that it seeks to effect by “discarding] as being meaningless, redundant, or mere surplusage” § 1958(a)’s use of the word “in.”
To avoid the shortcomings of equating two plainly different terms, we read § 1958(b)(2) in harmony with § 1958(a). An accord between the two subsections is achieved by recognizing that § 1958(b) merely provides examples of what might constitute a “facility” under the statute. This makes sense because § 1958(b)(2) does not even purport to be definitional, but rather explicitly uses language making it exemplary. See 18 U.S.C. § 1958(b). Unlike other statutes that clearly designate a definitions section, § 1958 simply states that, “[a]s used in this section ... ‘facility of interstate commerce’ includes means of transportation and communication.” Id. (emphasis supplied). Because it is not intuitive that a “facility of interstate commerce” would include things such as a telephone or a passenger car, this provision does not “accomplish[ ] absolutely nothing,” as the concurrence claims, but rather includes telephones in the types of “facilities of interstate commerce” that must be used in interstate commerce to satisfy § 1958(a). Read in this way, § 1958(b) does not conflict with § 1958(a), as it neither equates two different terms nor defines a phrase not present in subsection (a). Id. Thus, a faithful application of the dual principles that (1) a statute should not be read in a manner that renders its terms “mere surplusage” and (2) courts should try to harmonize distinct provisions in a statute lends support to the conclusion that § 1958 applies solely to facilities that are actually used in interstate commerce.
3. Clear Statement Rule
Particularly relevant to the instant case is the precept that “if Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute.’ ” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). “[T]he clear statement rule ... ensure[s] that attempts to limit state power [are] unmistakable, thereby structuring the legislative process to allow the centrifugal forces in Congress the greatest opportunity to protect the states’ interests.” Hutto v. Finney, 437 U.S. 678, 706 n. 4, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (Powell, J. concurring in part and dissenting in part) (quoting Laurence H. Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: Separation of Powers Issues in Controversies About Federalism, 89 Harv. L.Rev. 682, 695 (1976)). To apply the clear statement rule, we must first determine whether § 1958 generates federalism concerns and, if so, assess whether Congress made its intention to alter the federal-state balance clear in the text of the statute.
We find that § 1958 impinges upon the traditional powers of the states. As the Supreme Court has stated, “[w]hen Congress criminalizes conduct already denounced as criminal by the States, it effects ‘a change in the sensitive relation between federal and state criminal jurisdiction.’” United States v. Lopez, 514 U.S. 549, 561 n. 3, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (quoting United States v. Enmons, 410 U.S. 396, 411-12, 93 S.Ct.
In enacting § 1958, however, Congress failed to use “unmistakably clear” language that would signal its intent to alter this balance. Instead, as discussed supra Part 1(A)(1), the statute is ambiguous with regard to its jurisdictional nexus requirement. In the absence of a clear statement of congressional design, the Supreme Court has refused to interpret ambiguous federal statutes in a manner that disrupts the delicate balance between state and federal power. Gregory v. Ashcroft, 501 U.S. 452, 460-64, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). Rather, the Court has instructed that when faced with two plausible interpretations of an ambiguous federal criminal statute, courts should generally apply the alternative that does not impute an intention upon Congress to invoke its full commerce power to regulate conduct traditionally controlled by the States. See Enmons, 410 U.S. at 411-12, 93 S.Ct. 1007; United States v. Bass, 404 U.S. 336, 349-50, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); Rewis, 401 U.S. at 812, 91 S.Ct. 1056. Given the ambiguity in § 1958, the plain statement rule directs us to construe the statute in a manner that minimizes the federal intrusion on state police powers.
A The Rule Of Lenity
The rule of lenity is also applicable to our inquiry into the intended scope of § 1958’s jurisdictional element. It states that “when there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language.” McNally v. United States, 483 U.S. 350, 359-60, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987); see also Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 123 S.Ct. 1057,
First, “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.
Bass, 404 U.S. at 348, 92 S.Ct. 515 (internal quotation, citations, and a footnote omitted). Given ambiguity in a criminal statute, the rule of lenity counsels us to construe it more narrowly. Id. at 347, 92 S.Ct. 515; see also Rewis, 401 U.S. at 812, 91 S.Ct. 1056 (“In short, neither statutory language nor legislative history supports such a broad-ranging interpretation of [the Travel Act], And even if this lack of support were less apparent, ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”) (citing Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955)). Applied to § 1958, this rule instructs that § 1958(a)’s jurisdictional element should be interpreted to include only the use of facilities that are actually engaged in interstate commerce.
5. Legislative History
Finally, although we do not find it necessary to rely on legislative history to resolve the question before us, a review of § 1958’s legislative history persuades us that the aforementioned interpretive guides lead to the correct conclusion. As stated previously, the modern federal murder-for-hire statute derives from the Travel Act. See 18 U.S.C. § 1952 (1961). The Travel Act originated in a bill forwarded to Congress by Attorney General Robert F. Kennedy on April 6, 1961. Letter from Robert F. Kennedy, Attorney General, to the Vice President (Apr. 6, 1961), S.Rep. No. 87-644, at 4 (1961), reprinted in 1961 U.S.C.C.A.N. 2664, 2666 (“Attorney General Letter of 1961”); see also United States v. Archer, 486 F.2d 670, 685 (2d Cir.1973). This letter proposed a statute of limited scope aimed at combating organized crime and racketeering:
Because many rackets are conducted by highly organized syndicates whose influence extends over State and National borders, the Federal Government should come to the aid of local law enforcement authorities in an effort to stem such activity.
Attorney General Letter of 1961 at 4. Attorney General Kennedy made clear that the proposed bill was intended to combat organized crimes that cross state or national borders:
The bill which I submit to the Congress would impose criminal sanctions upon the person whose work takes him across State or National boundaries in aid of certain “unlawful activities.”
Id. Thus, an interstate nexus was central to the proposed legislation and justified the federalization of the subject crimes. See also United States v. Nardello, 393 U.S. 286, 290, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969) (quoting Kennedy’s statement to the Committee that the Act would assist prosecution where “the ‘top men’ of a given criminal operation resided in one State but conducted their illegal activities in another”).
Beyond Attorney General Kennedy’s letter and testimony before Congress regarding the foundational Travel Act, the main substantive historical source for the current murder-for-hire statute is found in a 1984 Senate Subcommittee Report on the
For example, the report states that the drafters sought “to ensure that the new murder-for-hire statute [would be] used in appropriate cases to assist the states rather than to allow the usurpation of significant cases by federal authorities that could be handled as well or better at the local level.” 1984 U.S.C.C.A.N. at 3484; see also Paredes, 950 F.Supp. at 588 (“[T]his brief quotation from the legislative history confirms that even before the mushrooming of interstate communication technology such as beepers, cellular phones and email, Congress was concerned that the murder-for-hire statute would allow federal ‘usurpation’ of essentially local cases.”). In this regard, “the committee [noted its] aware[ness] of the concerns of local prosecutors with respect to the creation of concurrent federal jurisdiction in an area, namely murder cases, which has heretofore been the almost exclusive responsibility of state and local authorities.” 1984 U.S.C.C.A.N. at 3484. As the report explicitly states, “the committee fully appreciate[d] that many state and local police forces and prosecutor offices are quite capable of handling a murder-for-hire case notwithstanding the presence of some interstate aspects.” Id. Thus, while the report notes that the proposed statute allows that “the option of federal investigation and prosecution should be available when a murder is committed or planned as consideration for something of pecuniary value and the proper federal nexus ... is present,” id., this “does not mean, nor does the committee intend, that all or even most such offenses should become matters of federal responsibility.” Id. Rather, to the extent that federal jurisdiction is sought over crimes with an interstate component, it “should be asserted selectively based on such factors as the type of defendants reasonably believed to be involved” and “the relative ability of the federal and state authorities to investigate and prosecute.” Id. (emphasis supplied). These passages from the Senate Subcommittee report indicate that the drafters intended § 1958(a)’s jurisdictional element to require at least some “interstate aspects” beyond the mere intrastate use of a car, telephone, or other facility capable of interstate commerce.
Further support for a narrow reading of the murder-for-hire statute is found in the examples that the report provides of the requisite jurisdictional nexus. The report states that:
an interstate telephone call is sufficient to trigger federal jurisdiction, as it is under the [International Traffic in Arms Regulations, 22 C.F.R. §§ 120.1-130.17 (1990)] statute. Both the person who ordered the murder and the “hit man” would be covered by the new section provided the interstate commerce or mail nexus is present.
Id. (emphasis supplied). This passage makes plain that the Subcommittee contemplated federal jurisdiction only over cases where the participants used facilities in the course of interstate commerce. Indeed, it would make little sense for the Subcommittee expressly to indicate that an “interstate telephone call is sufficient to trigger federal jurisdiction” if it intended that all phone calls — regardless of origin
In sum, the report demonstrates that the Senate Subcommittee did not intend to federalize murder-for-hire schemes with merely tenuous links to interstate commerce. Instead, only “crimes with interstate features” were to be prosecuted federally. Id. The very notion “[t]hat a defendant who never travelled from one state to another, conducted an interstate transaction, or communicated across state lines could now be prosecuted under this Act because of the evolution in communications technology runs against the grain of the statute’s legislative history.” Paredes, 950 F.Supp. at 588; see also Archer, 486 F.2d at 685 (“Both the legislative history summarized in our opinion and the additional extracts relied on in the Government’s petition show that the overriding Congressional purpose was to permit the federal government to act against members of organized crime whose activity crossed state lines when local law enforcement officers were unable or unwilling to do so.... ”). Accordingly, we conclude that the legislative history strongly suggests that Congress intended § 1958(a)’s interstate nexus provision to be read narrowly rather than broadly; that is, the facility in question must actually be used in an interstate manner rather than simply be capable of such use.
6. Conclusion Regarding Section 1958(a)’s Jurisdictional Element
Based on the foregoing, we conclude that 18 U.S.C. § 1958(a)’s jurisdictional element requires that a defendant must actually use a facility in a manner that implicates interstate commerce, not just that the facility itself possess the capability of affecting interstate commerce. With that issue decided, we now turn to the question of whether the government presented sufficient evidence at trial to demonstrate that Drury’s telephone calls actually moved in interstate commerce.
B. Sufficiency of the Evidence
Whether there is sufficient evidence to support a conviction is a question of law which this Court reviews de novo. United States v. Tarkoff, 242 F.3d 991, 993 (11th Cir.2001). The relevant inquiry is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “[A]ll reasonable inferences and credibility choices [are] made in the government’s favor.” United States v. Miles, 290 F.3d 1341, 1355 (11th Cir.), cert. denied, 537 U.S. 1089, 123 S.Ct. 707, 154 L.Ed.2d 634 (2002).
To support a murder-for-hire conviction under § 1958(a), the government must show that the defendant either (1) traveled (or caused another to travel) in interstate commerce or (2) used the mail, or used any facility of interstate commerce in a manner that qualifies as interstate commerce. See 18 U.S.C. § 1958(a). Here, there is no question that Drury did not travel in interstate commerce or use the mail “with the intent that a murder be committed.” Id. Therefore, the jury’s
We conclude that the government adequately satisfied its evidentiary burden. Drury does not dispute the government’s expert testimony that the telephone calls to Valoze’s cellular phone traveled through a switching center in Jacksonville, Florida before reaching their final destination.
We have already determined that § 1958(a)’s jurisdictional element solely implicates the use of facilities that actually cross state lines. See supra Part 11(A). Thus, the statute regulates a “channel of interstate commerce,” and Congress’s authority to do so is quite clear. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (“[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.”) (quoting Caminetti v. United States, 242 U.S. 470, 491, 37 S.Ct. 192, 61 L.Ed. 442 (1917)). Accordingly, it is of no moment that Drury’s telephone calls to Valoze only incidentally and unintentionally ventured out of state. The undisputed fact is that they did. We, therefore, conclude that the government satisfied its evidentiary burden under § 1958(a).
Circuit precedent supports this conclusion. In United States v. Davila, 592 F.2d 1261 at 1265 (5th Cir.1979),
The routing of Drury’s telephone calls through the Jacksonville switching center was similarly “essential” to their completion. Though the contacts themselves were certainly minimal, the government presented sufficient evidence at trial of their interstate nature for a jury to have “found the essential elements of the crime beyond a reasonable doubt.” Tarkoff, 242 F.3d at 993. We, therefore, reject Drury’s sufficiency of the evidence claim.
C. The “In Interstate Commerce” Jury Charge
Drury next argues that, regardless of whether the evidence presented at
The propriety of the trial court’s instructions to the jury regarding § 1958(a)’s jurisdictional element is an issue of law which we review de novo. See United States v. Leonard, 138 F.3d 906, 908 (11th Cir.1998).
Section 1958(a)’s interstate nexus requirement is an essential element of a murder-for-hire offense. See United States v. Tinoco, 304 F.3d 1088, 1105 (11th Cir.2002) (“[T]he use of interstate facilities is a substantive element of Travel Act offenses that must be decided by the jury.”) (citing United States v. Perrin, 580 F.2d 730, 737 (5th Cir.1978)), cert. denied sub nom. Hernandez v. United States, — U.S. -, 123 S.Ct. 1484, 155 L.Ed.2d 231 (2003). “The Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged.” Gaudin, 515 U.S. at 522-23, 115 S.Ct. 2310. As a consequence, Drury was entitled to have the jury determine whether § 1958(a)’s jurisdictional element was satisfied. Id. at 513, 115 S.Ct. 2310 (noting that there is a “historical and constitutionally guaranteed right of criminal defendants to demand that the jury decide guilt or innocence on every issue, which includes application of the law to the facts”).
We have already determined that the phrase “facility in interstate ... commerce” is not the functional equivalent to “facility of interstate commerce.” See supra, Part 11(A)(2). Whereas the latter phrase includes all facilities that are capable of effecting interstate communication, the former phrase requires that the facility actually be used in a manner that traverses state boundaries. By instructing the jury that the use of a pay or cellular phone is per se interstate commerce under § 1958(a), the district court both removed an element of the crime from the jury’s consideration and did so by way of a faulty definition.
But this conclusion does not end our inquiry. In addition to finding error, we must determine whether that error provides grounds for a reversal. Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (“We
Here, the district court’s jurisdictional element instruction was harmless. At trial, the government presented evidence that the telephone calls between Drury and Valoze traveled from Georgia to Florida and then back to Georgia. Drury neither offered testimony to counter this evidence nor disputed its veracity on appeal. Given that the factual foundation for the § 1958(a) jurisdictional nexus is uncontested, we cannot conclude that Drury’s substantial rights were impugned by the district court’s erroneous statement of the law. See id. We have no reasonable doubt that, had the jury been properly instructed, it would have reached the same result. Neder, 527 U.S. at 15, 119 S.Ct. 1827. Although the district court erred in instructing the jury that telephones are per se “facilities] in interstate commerce,” we conclude that this error was harmless.
D. Truthful Person Evidence Under Fed.R.Evid. 608(a)(2)
Drury next challenges the district court’s decision to exclude evidence that he is a truthful person. Drury contends that the government affirmatively challenged his believability.
This Court reviews a district court’s evidentiary rulings for “a clear abuse of discretion.” Tinoco, 304 F.3d at 1119 (citation omitted). A district court’s eviden-tiary rulings will only be reversed if the resulting error “affected the defendant’s substantial rights.” Id. (citing United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.1999)). “The trial judge is given broad discretion in ruling on the admissibility of character testimony.” Unit
After a careful review of the pertinent exchanges between the government’s counsel dnd Drury, we conclude that the district court did not abuse its discretion in excluding the proffered testimony. In general, “[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but evidence of a witnesses’ [sic] truthful character is admissible only after character for truthfulness has been attacked.” United States v. Hilton, 772 F.2d 783, 786 (11th Cir.1985) (citing Fed. R.Evid. 608(a)) (emphases supplied). An “attack” that consists of “Government counsel pointing out inconsistencies in testimony and arguing that the accused’s testimony is not credible does not constitute an attack on the accused’s reputation for truthfulness within the meaning of Rule 608.” United States v. Danehy, 680 F.2d 1311, 1314 (11th Cir.1982). This is precisely what occurred during the government’s cross-examination of Drury and, therefore, the district court did not abuse its discretion in excluding the desired reputation for truthfulness testimony.
E. Prior Consistent Statements Under Fed.R.Evid. 801(d)(1)(B)
Drury advances two arguments in support of his assertion that the district court abused its discretion in refusing to allow his son Don to testify regarding a statement Drury made subsequent to his arrest. First, he contends that the statement was admissible under Rule 613(b) of the Federal Rules of Evidence as a prior consistent statement that “may be used for rehabilitation when the statement has a probative force bearing on credibility beyond merely showing repetition.” See United States v. Pierre, 781 F.2d 329, 333 (2d Cir.1986). Drury claims that Don’s testimony would have rebutted the government’s charge that he fabricated the role-playing story and is probative of his credibility on this issue. Second, Drury argues that under Fed.R.Evid. 801(d)(1)(B), his statements to his son should have been admitted because they were made before he had the motive or opportunity to fabricate a story. See Fed.R.Evid. 801(d)(1)(B). Drury avers that the district court abused its discretion by simply applying a “temporal litmus test,” determining that since the statements were made after the arrest Drury possessed a motive to fabricate and the statements were not admissible. See United States v. Prieto, 232 F.3d 816, 822 (11th Cir.2000) (rejecting a “bright line rule that motive to fabricate necessarily and automatically attaches upon arrest”).
“A district court is granted broad discretion in determining the admissibility of a prior consistent statement under Fed. R.Evid. 801(d)(1)(B) and will not be reversed absent a clear showing of abuse of discretion.” Id. at 819 (citing United States v. Reed, 887 F.2d 1398, 1405 (11th Cir.1989)).
The district court did not abuse its discretion in denying Drury’s request to admit his son’s testimony regarding the alleged prior statements. First, contrary to Drury’s assertions, Rule 613(b) is inapplicable to the facts of this case. That rule is pertinent only where a party seeks to introduce “extrinsic evidence of a prior inconsistent statement by a witness.... ” Fed.R.Evid. 613(b). Drury’s proffered statement was not “a prior inconsistent statement”; rather, it was consistent and, therefore, Rule 613(b) does not apply. Second, Drury’s reliance upon Rule
F. Refused Jury Instructions
Lastly, Drury urges this Court to find error in the district court’s refusal to give two requested jury instructions. The first proposed instruction, quoted in full supra Part I, addresses improper investigative techniques and the credibility inferences that jurors may draw from them regarding the testimony of government witnesses. Drury contends that the district court’s credibility instructions were insufficient due to over-breadth and severely hindered his defense. The second instruction that Drury proposed is 11th Circuit Pattern Jury Instruction 6.7, also quoted in full supra Part I, which concerns a witness’s reputation for truthfulness in the community. Drury argues that the district court abused its discretion in declining to provide this instruction because Whatley, whom Drury characterizes as the crux of the government’s case, was shown at trial to have a bad reputation for truthfulness in the community..
“This Court reviews a district court’s refusal to give a proposed jury instruction for an abuse of discretion.” United States v. Futrell, 209 F.3d 1286, 1288 (11th Cir.2000). “The district court’s refusal to give the requested instruction is reversible error only if (1) the instruction is substantially correct, (2) the instruction was not addressed in the charge actually given, and (3) the failure to give the requested instruction seriously impaired the defendant’s ability to present an effective defense.” United States v. De La Mata, 266 F.3d 1275, 1298 (11th Cir.2001).
We find no error in the district court’s decision not to give Drury’s requested instructions. Drury’s suggested non-pattern charge was superfluous, as the instruction that the district court did provide adequately addressed the issue of witness credibility. The “district court has broad discretion in formulating its charge as long as the charge accurately reflects the law and the facts.” United States v.
Nor did the district court abuse its discretion by declining to give 11th Circuit Pattern Jury Instruction 6.7. Clearly, this charge is “substantially correct” and, thus, satisfies the first prong of the jury instruction analysis. United States v. Roberts, 308 F.3d 1147, 1153 (11th Cir.2002), cert. denied, — U.S. -, 123 S.Ct. 2232, 155 L.Ed.2d 1119 (2003). With regard to the second prong, we agree that it is a close question whether the charge provided by the district court adequately covers the same territory as the pattern instruction proffered by Drury. We admit some level of concern because, while the requested instruction refers to a witness’s “reputation for truthfulness in the community,” see 11th Cir. Pattern J. Instr. 6.7 (emphasis added), the charge given concerns solely the believability and truthfulness of a witness. However, even assuming arguendo that the proposed pattern instruction was not sufficiently addressed in the charge actually given by the district court, see Roberts, 308 F.3d at 1153, we nonetheless conclude that Drury’s assignment of error must fail under the third prong of the analysis. See id. Specifically, Drury has not shown that “the [district court’s] failure to give the [requested] instruction substantially impaired [his] ability to present an effective defense.” Id.
We perceive no impediment to Drury’s effective defense in this particular case. This conclusion is bolstered by the fact that the district court permitted Drury to argue vigorously to the jury that Whatley possessed a bad reputation for truthfulness through (1) the testimony of two character witnesses, (2) a cross-examination of Whatley, and (3) the defense’s closing arguments. See United States v. Ryan, 289 F.3d 1339, 1345 (11th Cir.), cert. denied, 537 U.S. 927, 123 S.Ct. 324, 154 L.Ed.2d 221 (2002); see also United States v. Chirinos, 112 F.3d 1089, 1101 (11th Cir.1997) (finding that the district court’s failure to instruct did not impair the defendant’s ability to defend where the court permitted defendant to elicit supporting testimony and to make closing arguments on the issue). Coupled with the arguably satisfactory truthfulness instruction that the district court did provide, we conclude that the court did not abuse its discretion by refusing Drury’s proposed pattern jury instruction.
III. CONCLUSION
Based on the foregoing, we AFFIRM Drury’s murder-for-hire convictions under 18 U.S.C. § 1958(a). We also AFFIRM Drury’s conviction under 18 U.S.C. § 924(c).
. Whatley testified at trial and denied ever discussing or engaging in role-play with Dru-ry. In turn, Drury called two character witnesses, Ted Turner and Joseph Bridgers, who testified that Whatley had a reputation for being untruthful.
. We note that we are not called upon to decide the constitutionality of this Section, and thus United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), which discusses the parameters of Congress's power to legislate pursuant to the Commerce Clause, has no relevance here.
. Section 1952 of the Travel Act, entitled “Interstate and foreign travel or transportation in aid of racketeering enterprises,” read as follows:
(a) Whoever travels in interstate or foreign commerce or uses any facility or foreign commerce, including the mail, with intent to—
*1097 (1) distribute the proceeds of any unlawful activity; or
(2) commit any crime of violence to further any unlawful activity ...
(b) As used in this section "unlawful activity” means
(1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics, or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or
(2) extortion or bribery in violation of the laws of the State in which committed or of the United States.
18 U.S.C. § 1952 (1961).
. The Comprehensive Crime Control Act of 1984 added 18 U.S.C. § 1952A to the Travel Act:
(a) 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, shall be fined....
(b) As used in this section and section 1952B
(1) "anything of pecuniary value” means anything of value in the form of money, a negotiable instrument, a commercial interest, or anything else the primary significance of which is economic advantage; and
(2) "facility of interstate commerce” includes means of transportation and communication.
18 U.S.C. § 1952A (1984).
. Congress slightly modified the murder-for-hire statute again in 1990, adding a new paragraph, § 1958(b)(3), which explains the usage of the term "State.” See Crime Control Act of 1990, Pub.L. No. 101-647, § 1205(k), 104 Stat. 4789, 4831 (1990). Subsequent revisions to the statute were minor and did not alter the substantive language of § 1958(a) or § 1958(b). See Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. ' 103-322, §§ 600003(a)(ii), 140007(b), 320105, 330016(1)(L), (N), (Q), 108 Stat. 1796, 1969, 2033, 2111, 2147-48 (1994) (increasing the maximum penalty for violations of the statute); Economic Espionage Act of 1996, Pub.L. No. 1.04-294, § 601(g)(3), 110 Stat. 3488, 3500 (1996) (fixing minor errors in the 1994 amendment).
. Indeed, this disagreement among the circuits that have addressed this issue highlights that reasonable jurists can differ as to the statutory provision's proper meaning, rendering it ambiguous.
. As excerpted from the clause “[w]hoever ... uses ... any facility in interstate ... commerce.” 18 U.S.C. § 1958(a).
. If we were to accept the proposition that different terms in a statute may be used interchangeably, then an equally plausible interpretation of the statute would be that § 1958(b)(2) meant to employ the phrase “facility in interstate commerce.” Based on this view, § 1958(b)(2) simply provides examples of the modalities of interstate commerce that can satisfy § 1958(a) if they are used "in interstate commerce.” See 18 U.S.C. § 1958(a).
. We therefore find ourselves in agreement with Judge Jolly's analysis in Marek, 238 F.3d at 324 (Jolly, J. dissenting), and with those cases holding that the facility’s actual use must be interstate. See Weathers, 169 F.3d at 339; Paredes, 950 F.Supp. at 590.
. Contrary to the concurrence's reasoning on this point, the clear statement rule is not applied only in cases where Congress has totally ''deprived” the states of an area of traditional state legislative control. Rather, the rule applies more broadly, such as when Congress ''alter[s],” Will, 491 U.S. at 65, 109 S.Ct. 2304, "upset[s],” Hilton v. S.C. Pub. Rys. Comm’n, 502 U.S. 197, 208, 112 S.Ct. 560, 116 L.Ed.2d 560 (1991) (O'Connor, dissenting), or "significantly changefs] the federal-state balance,” United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), as it has done here in enacting § 1958.
. This maxim is particularly applicable here, where a broad reading of § 1958(a) would federalize virtually every murder-for-hire scheme. Indeed, it is highly improbable that any murder-for-hire could be set in motion without the participants availing themselves of at least one "facility of interstate commerce” (e.g., land and cellular phones, walk-ie-talkies, automobiles, or the like) even though they may have traveled no further than next door within the state's borders. As discussed infra Part 11(A)(5), the drafters of the Travel Act were acutely sensitive to this possibility and intended to guard against it.
. In contrast, "[a]llowing the government to meet the interstate commerce requirement through only a nominal showing of a connection to interstate commerce would do as much to ‘completely obliterate’ the distinction between national and local authority as if no jurisdictional requirement existed at all.” United States v. Odom, 252 F.3d 1289, 1296 (11th Cir.2001), cert. denied, 535 U.S. 1058, 122 S.Ct. 1920, 152 L.Ed.2d 828 (2002).
. As noted in Part 11(A), supra, the Comprehensive Crime Control Act amended the Travel Act and added the murder-for-hire provision.
. This disjoint between the legislative history and an expansive interpretation of § 1958(a)’s jurisdictional element was noted by the dissenters in Marek, who observed, "[t]he report does not assert that any use of a telephone is sufficient. Instead, it suggests that the actual use must be in interstate or foreign commerce.” Marek, 238 F.3d at 327 (Jolly, J. dissenting).
. Drury does, however, mistakenly refer to the signal as a radio signal. This is incorrect. Prior to reaching the cellular tower closest to the target-user's cellular phone, a telephone signal sent from a land-line travels entirely through terrestrial means. It is only after that call has been switched by the cellular provider to the cellular tower closest to the target subscriber that the signal passes via radio signals.
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981.
. The government cites our decision in United States v. Castleberry, 116 F.3d 1384, 1389 (11th Cir.1997), in support of its contention that the district court's instruction was proper. But in that case the district court defined the phrase "interstate commerce,” not "facility in interstate commerce.” Moreover, the Castleberry court merely stated that "if you believe beyond a reasonable doubt that the defendant committed extortion ... and you believe that the Government's evidence regarding the impact on interstate commerce beyond a reasonable doubt, then, as a matter of law, the jurisdictional requirements of the Hobbs Act ... have been met.” Id. This instruction, which does not state that the defendant’s conduct constitutes, per se, interstate commerce, properly left it to the jury to determine whether the interstate nexus had been proven beyond a reasonable doubt.
. Drury also contends that the government evidenced its intent to attack his character during a sidebar meeting with the trial judge. In that conversation, the government's attorney stated that "[t]his is not a collateral material [sic ], he has made character an issue in his defense.” But either mistakenly or with intent, Drury takes this statement entirely out of context. In reality, that quoted statement referred not to Drury's “character for truthfulness," but to the "character of the relationship” between himself and Whatley, as is shown by a statement made by the prosecutor a few seconds earlier: "this defendant has made it a linchpin of his defense that his relationship with Mr. Whatley was of a particular character.” Therefore, we decline to address this purported error.
. Rule 608(a)(2) states that "evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.” Fed.R.Evid. 608(a)(2) (emphasis supplied).
. Rule 801(d)(1)(B) states:
"A statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.”
Fed.R.Evid. 801(d)(1)(B).