United States v. Gordon
875 F.3d 26
| 1st Cir. | 2017Background
- Andrew Gordon, detained in a Massachusetts jail, solicited inmate CW to arrange murders of two people: a state trooper (an undercover who previously posed as a hit man) and the informant who exposed him.
- CW cooperated with law enforcement; an undercover agent posed as CW's cousin (a hit man), and the government provided a New Hampshire P.O. box and phone number.
- Over ~4 months Gordon exchanged letters and made telephone calls (some through intermediaries) with the undercover, discussing logistics for the planned killings.
- Indictment charged five counts under 18 U.S.C. § 1958(a), each count alleging a discrete use of interstate commerce (two mailings and three calls) in furtherance of the murder-for-hire plots.
- A jury convicted Gordon on all five counts; district court sentenced him to roughly 20 years (stacking multiple counts). Gordon appealed, challenging an evidentiary ruling and the unit of prosecution.
Issues
| Issue | Plaintiff's Argument (Gov’t) | Defendant's Argument (Gordon) | Held |
|---|---|---|---|
| Admissibility of sheriff’s employee testimony about CW not being a “troublemaker” | Testimony was proper background/context; no reversible error. | Admission violated Fed. R. Evid. 404(a)(1) and prejudiced defense. | Objection not preserved; plain-error review fails—any error was harmless given overwhelming recorded evidence; conviction affirmed. |
| Unit of prosecution under 18 U.S.C. § 1958(a) (multiplicity) | Each separate use of interstate commerce (each call/mail) is a separate offense; five counts valid. | Unit is each plot to kill a single individual; multiple uses in one plot constitute one offense—indictment multiplicitous. | Adopted plot-centric unit: one plot to murder one person = one offense. Indictment multiplicitous; convictions affirmed but sentence vacated; counts to be merged and resentencing ordered. |
Key Cases Cited
- United States v. Wynn, 987 F.2d 354 (6th Cir. 1993) (unit of prosecution under §1958 is number of plots to murder a single individual)
- United States v. Edelman, 873 F.2d 791 (5th Cir. 1989) (defendant need not intend or be aware that interstate facility would be used; suffices that mails were in fact used)
- United States v. Chiaradio, 684 F.3d 265 (1st Cir. 2012) (discussion of multiplicity and unit-of-prosecution principles)
- United States v. Pires, 642 F.3d 1 (1st Cir. 2011) (multiplicity doctrine and Double Jeopardy analysis)
- Jones v. United States, 527 U.S. 373 (1999) (standard for assessing whether an evidentiary error affected substantial rights)