United States v. Fathia-Anna Davis (4th Cir. 1/5/17): Manufactured Jurisdiction Argument. Also, Don’t Try to Murder Your Husband.

So, this case raises an interesting claim in the context of a murder-for-hire scheme. Davis apparently loathed her husband.  So much so that she repeatedly tried to murder him.  Her first attempt, giving him an overdose of Ambien, did not work. The husband merely ended up in the hospital. Seeking a more certain outcome, Davis reached out to a friend of hers who worked at a car dealership that catered to the local gang members and drug dealer milieu.  This friend, instead of helping her solicit a murderer, instead went to law enforcement. Law enforcement, in conjunction with this friend set up a sting operation. This friend sent a text message to Davis, at the behest of law enforcement, informing her that he found someone for the job. This text message is the basis for Davis’s argument that her conviction and sentence should be vacated under the manufactured jurisdiction doctrine.

Under the manufactured jurisdiction doctrine, federal law enforcement officers essentially cannot use an instrumentality of interstate commerce in order to elevate what would normally be a local concern into a federal one. Davis relied primarily on United States v. Coates, 949 F.2d 104 (4^th Cir. 1991) for this analysis. In that case, the court found that despite investigating Coates for a month, the government “had no evidence of his use of interstate mail or wire facilities in connection in the murder-for-hire scheme. To cure this problem, the government agent drove to Virginia for the sole purpose of making a telephone call across state lines in order to induce Coates to ‘use’ that interstate facility to discuss the scheme.”  Id. at 105.

The Court found the reliance on Coates misplaced.  First, the manufactured jurisdiction argument does not categorically prohibit government agents from using a facility of interstate or foreign commerce to initiate contact.  Instead, it only prohibits them from doing so for the sole purpose of turning a state crime into a federal crime.  Two, in this case, the record is silent as to the officers’ intent in asking the car-dealership friend to send the initial text.  It’s quite likely it was done for convenience sake, and not as a ploy to confer federal jurisdiction over the case.  And lastly, unlike Coates, this is not a case where there was a one-time direct response to a government agent’s invitation.  Instead, the record shows that Davis voluntarily used her car and mobile phones, repeatedly, to meet and communicate with the detectives regarding the plot to murder her husband.

The Court also found that Davis’s sentence of 120 months was completely reasonable under the facts of this case. Appellate counsel made the important argument that Davis was improperly enhanced in her sentencing for facts that actually constitute elements of the offense. For example, because the offer or receipt of something of pecuniary value is an element of the offense (Section 1958), everyone convicted under that statute will receive a four-level enhancement under 2A1.5.  This argument, however, was not presented to the sentencing court, so the Fourth Circuit assessed it under plain error review.  Under that stringent standard she did not prevail. The Court notes in footnote 7 that other circuits have also rejected the 2E1.5 cross reference to 2A1.5 (specifically, the 2^nd and 8^th circuits).  The Court also rejected other, preserved issues regarding the substantive reasonableness of her sentence.

An interesting legal issue with some highly unsavory facts.  Ten years seems very reasonable to this completely defense-oriented-never-even-thought-about-being-a-prosecutor attorney.