United States v. Gordon, 169 F. Supp. 3d 301

Defendant Andrew Gordon was charged in a superseding indictment with five counts under 18 U.S.C. § 1958 (murder-for-hire), each count alleging a separate use of mail or telephone in furtherance of the scheme.
Gordon moved pretrial to dismiss the indictment as multiplicitous and duplicitous, arguing the proper unit of prosecution is the overarching "plot to kill" rather than each use of interstate commerce facilities.
The government maintained each discrete use of the mail or interstate commerce facilities with the intent that a murder be committed is a separate unit of prosecution under § 1958.
The court held a hearing, orally denied the motion on February 25, 2016, and the defendant was convicted on all five counts on March 4, 2016.
The court issued this written opinion affirming denial of the motion to dismiss, concluding each use of mail or interstate commerce with the requisite intent constitutes a distinct prosecutable act under § 1958.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper unit of prosecution under § 1958	Government: each use of mail/interstate facility with intent to commit murder is a separate offense	Gordon: the unit is the overall plot/scheme to kill; multiple communications should not be separately charged	Held: Unit is each use of mail/interstate facilities with requisite intent; counts are not multiplicitous
Whether counts are multiplicitous	N/A (Government defends multiplicity)	Multiple counts impermissibly charge same single crime (the plot) multiple times	Held: Not multiplicitous because statute criminalizes each separate use when accompanied by requisite intent
Whether counts are duplicitous due to two targeted victims	N/A	Counts improperly join distinct offenses (two targets) in single counts if unit is the plot	Held: Not duplicitous given court’s determination that unit is each interstate use; counts properly separate
Relevance of legislative history	Government: legislative history supports that the "gist" is the travel/use with requisite intent	Gordon: legislative history shows interstate element is merely jurisdictional, not the gravamen	Held: Legislative history does not overcome plain statutory text; text makes each use with intent the proscribed act

United States v. Chiaradio, 684 F.3d 265 (1st Cir. 2012) (discusses multiplicity and unit-of-prosecution analysis)
United States v. Pires, 642 F.3d 1 (1st Cir. 2011) (unit-of-prosecution inquiry for repeated statutory violations)
United States v. Stefanidakis, 678 F.3d 96 (1st Cir. 2012) (analyzing factual basis to treat counts as separate)
United States v. Polizzi, 500 F.2d 856 (9th Cir. 1974) (Travel Act: each use of interstate facility constitutes separate unit of prosecution)
United States v. Lilly, 983 F.2d 300 (1st Cir. 1992) (bank fraud punished as single scheme — contrasted with statutes punishing each act)
United States v. Luongo, 11 F.3d 7 (1st Cir. 1993) (distinguishing wire fraud and bank fraud units of prosecution)
United States v. Ritter, 989 F.2d 318 (9th Cir. 1993) (enumerating elements of § 1958)
Jeffers v. United States, 432 U.S. 137 (1977) (Congressional intent is critical to unit-of-prosecution analysis)