United States v. Daniel Dvorkin

Court of Appeals for the Seventh Circuit
799 F.3d 867 (2015)

ELI5:

Rule of Law:

A conviction under the federal murder-for-hire statute, 18 U.S.C. § 1958, requires proof that the defendant used a facility of interstate commerce with the intent that a murder be committed for pecuniary value; it does not require proof that an actual agreement was formed.

Facts:

After Texas 1845, a company managed by Larry Meyer, obtained an $8.2 million judgment against Daniel Dvorkin, settlement negotiations failed.
On April 5, 2012, Dvorkin left a voicemail for Robert Bevis, a private detective who operated a gun store in a building Dvorkin's company owned.
The next day, Dvorkin met with Bevis, told him he wanted Meyer "to stop breathing," offered to pay $50,000 for the murder, brandished a large amount of cash, and gave Bevis a copy of Meyer's LinkedIn profile.
Bevis falsely told Dvorkin he knew a hitman in Florida to end the conversation, but then contacted the police and agreed to become a cooperating witness for the FBI.
In a series of recorded conversations, Dvorkin discussed payment terms with Bevis for the fictitious Florida hitman.
On May 7, 2012, Dvorkin informed Bevis that he had hired another person to kill Meyer for a lower price but instructed Bevis to keep the Florida hitman as a backup option by negotiating a lower price.
Later on May 7, law enforcement officers confronted Dvorkin, telling him they were aware of his plot to kill Meyer.
On May 11, after being confronted by the FBI, Dvorkin told Bevis in a recorded call that the plan was "all stopped" and he was only pursuing legal avenues.

Procedural Posture:

A federal grand jury returned a six-count indictment against Daniel Dvorkin.
Dvorkin was tried before a jury in the U.S. District Court (trial court).
At the close of the government's case, Dvorkin moved for a judgment of acquittal, which the district court denied.
The jury found Dvorkin guilty on all counts.
Dvorkin filed a renewed motion for acquittal and a motion for a new trial; the district court denied both motions.
Dvorkin, as appellant, timely appealed his convictions to the U.S. Court of Appeals for the Seventh Circuit.

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Issue:

Does a conviction under the federal murder-for-hire statute, 18 U.S.C. § 1958, require the government to prove that the defendant actually entered into a murder-for-hire agreement?

Opinions:

Majority - Ripple, Circuit Judge.

No. The federal murder-for-hire statute, 18 U.S.C. § 1958, does not require proof of an actual murder-for-hire agreement, but only that the defendant acted with the intent that a murder for hire be committed. The plain wording of the statute sets forth two elements: (1) using a facility of interstate commerce, and (2) with the intent that a murder for hire be committed. The statutory phrase 'consideration for a promise or agreement to pay' does not create a separate 'agreement element,' but rather modifies the type of intent a defendant must possess. This interpretation is supported by the statute's history; unlike the Travel Act on which it was modeled, § 1958 omits the requirement that a defendant thereafter perform or attempt to perform the criminal act, indicating Congress did not intend to require a completed agreement. This court's holding aligns with the overwhelming majority of circuits that have addressed the issue.

Analysis:

This decision solidifies the Seventh Circuit's position on the elements of 18 U.S.C. § 1958, aligning it with the majority of federal circuits. By holding that the statute is an intent-based crime that does not require a completed agreement, the court lowers the evidentiary burden for prosecutors. This is particularly significant in cases involving sting operations where the 'hitman' is an undercover agent or informant who has no actual intention of forming an agreement. The ruling clarifies that the defendant's culpability attaches at the moment they use a facility of interstate commerce with the requisite criminal intent, regardless of whether their plot could ever come to fruition.

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