United States v. Cisneros (456 F. Supp. 2d 826, 2006)

MEMORANDUM OPINION AND ORDER

ANDREW S. HANEN, District Judge.

Before the Court is the Report and Recommendation of the United States Magistrate Judge in which he recommended that Petitioner’s Motion to Vacate, Set Aside, and Correct Judgment and Sentence [Docket No. 1] be denied. That report also recommended that the Government’s Motion to Dismiss [Docket No. 5] be granted. Petitioner has filed lengthy and detailed objections to the Magistrate’s rulings. [Docket No. 21] Aside from the more straight-forward legal issues, this case and Petitioner’s objections to the Report and Recommendation present this Court with a somewhat unique opportunity. In addition to other bases for Petitioner’s motion to vacate pursuant to 28 U.S.C. § 2255, he is, sometimes directly and sometimes more implicitly, requesting this District Court to hold that the Fifth Circuit Court of Appeals and subsequently the United States Supreme Court violated her constitutional rights and/or committed error. Rarely is a district court put in such a position and it is necessary to explain the procedural history of this matter to understand portions of the Petitioner’s argument and how she has called upon this Court to rule on the actions of the Supreme and Circuit Courts.

I.

Background Facts and Procedural History

This case arises out of the 1993 murder of Joey Fischer, a high school student at St. Joseph Academy in Brownsville, Texas. During the spring of 1992 Fischer began dating Cristina Cisneros, a fellow high school student, but ended the relationship shortly thereafter. Dora Cisneros, Cristina’s mother, became upset about the break-up and, after attempting to reunite the teens, went to Maria Martinez, a local fortune teller (curandera), to arrange for Fischer’s murder. Martinez asked one of her other clients, Daniel Garza, to hire someone to kill Fischer.

Garza discussed hiring a killer in several telephone conversations with Martinez. According to Garza’s testimony at trial he made some of those calls from Mexico. Garza eventually hired Israel Olivarez and Heriberto “Eddie” Pizana, who worked for the Cuellar crime family. On the evening of March 2, 1993, a car with Mexican license plate number “821 THE7” crossed from Mexico into Brownsville, Texas. Later that night Pizana and Ramon Palo-mares, another hit man for the Cuellar family, checked into the La Quinta Inn in Brownsville and the receptionist registered their car as a white Grand Marquis with a Mexican license plate number of “821 TWEX” or “821 THE7” (the receptionist’s handwriting was apparently difficult to decipher). Fischer was shot and killed as he left his house for school the next morning. Interestingly, a witness testified to passing a white four-door car with a Mexican license plate near Fischer’s home at the time of the murder. Shortly thereafter, Garza and Pizana collected the money for the hit from Martinez. Garza attempted to leave the money with Pizana, but he insisted Garza return with him to the La Quinta Inn and give the money directly to Olivarez. After giving the money to Oliva-rez, Garza noticed that Olivarez and Piza-na had two cars — a white pickup truck with a black stripe and a white Ford.

Cisneros was originally tried in state court, convicted of capital murder, and sentenced to life in prison. The Thirteenth Court of Appeals sitting in Corpus Christi overturned the conviction, holding that the evidence was insufficient to support a conviction. Cisneros v. State, 915 S.W.2d 217 (Tex.App.-Corpus Christi 1996) pet. ref'd 935 S.W.2d 789 (Tex.Cr.App.1996) (en banc). The Court of Criminal Appeals affirmed, explaining that despite the fact that Cisneros “wanted her daughter’s former boyfriend dead[,] engaged a fortune teller[ ] to find someone to kill him [and even] ... supplied money, information, and directions [to the fortune teller],” there was not sufficient evidence to prove the individuals hired by the fortune teller were actually the ones who committed the crime. State v. Cisneros, 935 S.W.2d 789 (Tex.Crim.App.1996).

Defendant was then tried and convicted under the federal murder-for-hire statute, 18 U.S.C. § 1958, in the United States District Court for the Southern District of Texas. Cisneros appealed, arguing that: (1) there was not “sufficient evidence to show that Cisneros met the interstate/foreign commerce requirement for a federal murder-for-hire conviction,” (2) a new trial was necessary because the government elicited testimony about the state court murder convictions, (3) the district court erred in rejecting five of Cisneros’ proposed jury instructions, (4) “the district court erred in admitting the evidence of Fischer’s murder under Fed.R.Evid. 403,” (5) “the conviction should be reversed because the district court failed to maintain an appearance of impartiality in its questioning of witnesses and comments made during the trial,” and (6) the district court abused its discretion by “admitting Moreno’s testimony under the co-conspirator exception to the hearsay rule, Fed.R.Evid. 801(d)(2)(E).” United States v. Cisneros, 194 F.3d 626 (5th Cir.1999). The Fifth Circuit affirmed the judgment of the district court, rejecting each of Cisneros arguments. Id. The court held that there was sufficient evidence for a jury to find that Garza made phone calls from Mexico and that this was enough to meet the interstate/foreign commerce requirement. Id. at 635-36. The court rejected arguments that Cisneros did not cause the telephone to be used “in furtherance” of the murder, explaining that mere “but for” causation was all that was required. Id. at 636. The court also pointed out that “[b]e-cause these telephone calls satisfy the interstate nexus requirement, we need not address the more complicated issue, the ear travel between Mexico and Texas.” Id. at 637. Turning to Cisneros’ arguments that the government elicited testimony regarding the state court proceedings, the Fifth Circuit held that “[t]he admission of this testimony was not an abuse of discretion, since there was no chance of any ‘significant impact’ on the jury verdict.” Id. Evaluating each of the jury instructions individually, the Fifth Circuit rejected each objection lodged by Cisneros. Addressing Cisneros’ argument that the district court erred in admitting evidence of Fischer’s murder, the court stated that Cisneros’ “offer to stipulate to the shooting of Fischer did not reduce the probative value of evidence of how Fischer’s parents found their son, the pathologist’s testimony about Fischer’s autopsy, or the photographs of Fischer’s corpse.” Id. at 639. “The probative value of the challenged evidence, therefore, was not substantially outweighed by the danger of unfair prejudice.” Id. In response to Cisneros’ arguments that “the district court failed to maintain an appearance of impartiality,” the Fifth Circuit explained that “[a] trial court has the discretion to clarify testimony, even if that elicits facts harmful to the defendant.” Id. at 640. The court further explained that any potential impartiality the jury might have suspected was cured by the court’s instruction that the it had no opinion on the case and the jury should disregard any statements that would indicate otherwise. Id. at 641. Finally, the court held that admitting Moreno’s testimony under the co-conspirator exception to the hearsay rule was not error because “[t]he government met its burden of proving the co-conspirator exception to the hearsay rule by a preponderance of the evidence” by showing Moreno was a member of the Cuellar organization in which Palomares and Olivarez worked as hit men. Id.

On petition for rehearing, the Fifth Circuit panel applied different reasoning to certain arguments advanced by Cisneros, but reached the same conclusion, affirming the district court. United States v. Cisne-ros, 203 F.3d 333 (2000). In addressing Cisneros’ argument that “the evidence did not establish that she caused the telephone to be used ‘in furtherance’ of the murder-for-hire,” the court abandoned its previous holding that “but for” causation was all that was required, holding that Martinez’ constant reminders during the telephone calls “facilitated” in bringing the murder to fruition. Id. at 344-45. The court also expanded on its previous holding that the district court did not err in failing to instruct the jury “that the use of the facility in foreign commerce had to have been ‘in furtherance’ of the murder-for-hire,” explaining that the standard in the Fifth Circuit is “facilitated” or “made easier.” Id. at 346. Thus, even though Garza’s phone calls to Martinez arguably may not have been “in furtherance” of the murder-for-hire, the calls “facilitated” the murder because they allowed Martinez to advance the plot to kill Fischer. Id. Finally, the panel elaborated on its holding that the standard for causation argued by Cisneros was inconsistent with Fifth Circuit precedent. It ultimately decided Cisneros’ proposed instruction was incorrect, finding no error on the part of the district court. Id. at 347. Thus, although the court’s decision to grant a rehearing had the effect of vacating the opinion found at 194 F.3d 626, the only pertinent substantive changes were those discussed above.

On February 24, 2000, the Fifth Circuit, sua sponte, granted a rehearing en banc. United States v. Cisneros, 206 F.3d 448 (5th Cir.2000). Although Cisneros had filed a motion for rehearing en banc on virtually every point it had presented to the panel on two occasions, the court explained that the en banc hearing was granted to reconcile the dicta that “to satisfy the jurisdictional element, a facility must be used in an inter state fashion,” found in United States v. Cisneros, 203 F.3d 333 (5th Cir.2000), vacating 194 F.3d 626 (5th Cir.2000), with the holding that intra state use is sufficient, found in United States v. Marek, 198 F.3d 532 (5th Cir.1999). United States v. Marek, 238 F.3d 310, 313 (5th Cir.2001). As pointed out in Cisneros’ Petition, the en banc court chose only to address the conflict between Marek and Cisneros regarding the use of interstate commerce under the murder-for-hire statute.

Because the Fifth Circuit’s decision to rehear the case en banc “had the collateral effect of vacating both panel decisions,” Cisneros now argues in this § 2255 proceeding that she was denied her right to an appeal by the court’s failure to reinstate either of the panel decisions. [Docket No. 1] The en banc decision was not the end of the procedural story as Cisneros moved for an additional rehearing of the en banc opinion on the remainder of her points of error and eventually sought relief from the United States Supreme Court, where her Petition for Writ of Certiorari was denied. Garcia Cisneros v. United States, 534 U.S. 813, 122 S.Ct. 37, 151 L.Ed.2d 11 (2001). In her Petition before the Supreme Court, Cisneros asked that it “grant review, vacate the Fifth Circuit en banc opinion as it relates to Petitioner, and remand the case with instructions that, since the Marek en banc decision did not address any of the material issues in Petitioner’s case, the Fifth Circuit should reinstate the second Cisneros panel opinion, except as it addresses the issue taken up in the en bane opinion.” Pet. for Writ of Cert., No. GO-1526, 2001 WL 34125493 (April 4, 2001). Her Petition for Writ of Certiorari was denied. Garcia Cisneros v. United States, 534 U.S. 813, 122 S.Ct. 37, 151 L.Ed.2d 11 (2001).

The record before this Court reveals three significant facts: (1) the Fifth Circuit’s first and second panel decisions addressed each issue raised by Cisneros and denied each one in turn; (2) the Fifth Circuit’s second panel decision at 203 F.3d 338 vacated the first and was itself vacated by the court’s en banc opinion in United States v. Marek, 238 F.3d 310 (2001); and (3) both the Fifth Circuit sitting en banc and the United States Supreme Court were made aware of this situation, but denied Cisneros relief. Having been denied review by both of those courts, Cisne-ros now attempts to reargue before this Court most of the same issues she has already unsuccessfully argued to the Fifth Circuit.

II.

Petitioner’s Objections

Petitioner’s objections to the Report and Recommendation can be divided into four somewhat overlapping categories. The first category is one of a factual nature, but it is used by Petitioner throughout her legal objections. It concerns the Fifth Circuit statement in its en banc opinion that it was undisputed that “the hit men traveled from Mexico to Brownsville, Texas where they shot and killed Cisneros’s intended victim.” 238 F.3d at 314. The second group of objections are more legal in nature and are centered around the Magistrate’s use of the “law of the case” doctrine in overruling certain objections. The third category of complaints deals with her claim that no appellate court ruled on the objections raised in her initial appeal. The fourth category of objections is focused upon the trial court’s instructions to the jury-especially those relating to the causation and required relationship instructions.

A. Factually-Based Allegations

1. International Travel of the Hit Men

As stated above, the Fifth Circuit maintained in its en banc opinion:

The relevant facts in Cisneros also are undisputed at this juncture.... The hit men traveled from Mexico to Brownsville, Texas where they shot and killed Cisneros’s intended victim. A jury convicted Cisneros, and she appealed. A panel of this Court concluded that a reasonable jury could have found that: (1) the fortune teller had participated in international calls as Cisneros’s agent; and (2) that those calls were sufficiently connected to the murder to be “in furtherance” of that crime. That panel, therefore, affirmed the conviction.

Id. at 314.

Petitioner goes to great lengths to attack the “undisputed” statement that the hit men traveled from Mexico to Brownsville, Texas. She disputes both the factual accuracy of the statement and the fact that it is undisputed. She details the testimony that seems to support the conclusion that the hit men, rather than merely crossing the Matamoros/Brownsville border, actually came down to Brownsville from Dallas where they had been engaged in various enterprises for the Cuellar crime organization. Most of this evidence was adduced at trial by the Government and was argued by the Government in its presentation to the jury. Petitioner concludes that the Fifth Circuit was “dead wrong.”

The importance of this alleged factual error, if it be so, to the Petitioner’s point-of-view, is that if this factual nexus does not exist, then 18 U.S.C. § 1958 cannot be properly applied to her. This presents this Court with at least two interesting questions: First, can a district court overrule “factual findings” made by a Circuit Court of Appeals? Second, in this case, does it matter if the Court of Appeals was in fact “dead wrong”? Obviously, the Fifth Circuit can and has been reversing factual findings of district courts when they are “‘left with a definite and firm conviction that a mistake has been made.’ ” Mumblow v. Monroe Broadcasting, Inc., 401 F.3d 616, 622 (5th Cir.2005) (quoting Otto Candies, L.L.C. v. Nippon Kaiji Kyokai Corp., 346 F.3d 530, 533 (5th Cir.2003)). Petitioner cites no authority which would support a district court’s overruling either a factual statement made by a Fifth Circuit panel or made by the Court sitting en banc. While some courts might even relish the chance presented by this novel situation, this Court sees no need to avail itself of this unique opportunity.

The Circuit, in its en banc consideration of Petitioner’s appeal, was primarily concerned with a budding conflict between two of its panels concerning the second prong of 18 U.S.C. § 1958, which proscribes paying another to commit murder only if the defendant “uses or causes another (including the intended victim) to use the mail or any facility in interstate or foreign commerce.” The panel in Petitioner’s case had suggested that a facility must be used in an interstate fashion (and, therefore, presumably intrastate use of a facility would not suffice even if that facility is generally an interstate commerce facility). The panel in United States v. Ma-rek, 198 F.3d 532 (5th Cir.1999), while divided, held that wholly intrastate use of an interstate facility was sufficient to support § 1958 jurisdiction. The Circuit in the consolidated en banc appeal chose to follow the rule suggested by the Marek majority to the effect that the use of an interstate commerce facility “satisfies the jurisdiction requirement of prong two of § 1958, regardless of whether its use was inter state or wholly intra state.”

The Circuit noted that the Marek panel had even considered the panel’s discussion in Cisneros, but the Marek panel reasoned that due to the international telephone calls — “an activity that indisputably satisfied the jurisdictional element” — the discussion in Cisneros was dicta. The en banc opinion also described the statements by the Cisneros panel as dicta and, in doing so, impliedly adopted Marek’s reasoning. Id. at 313.

It is that same reasoning that reheves this Court of its need to consider the factual accuracy of the above-referenced Fifth Circuit description of the path followed by the hit men or whether that path was a disputed issue. That statement is merely dicta in the en banc opinion. In the very paragraph containing the complained of statement the court explained that the panel decision was based upon their conclusion that the international phone calls were a sufficient nexus. Id. at 314. The en banc court then concludes:

In Cisneros, on the other hand, even if we assume arguendo, that the statute [ 18 U.S.C.1958] should be accorded the narrowest interpretation possible, we must affirm Cisneros’ conviction on the strength of the international (foreign) telephone calls.

Id.

2. The Telephone Calls

Clearly, the en banc panel relied on the phone calls for the jurisdictional basis, rather than the hit men. Perhaps in recognition of that, Petitioner also questions the phone calls. Petitioner attacks the phone calls on both a factual and a legal basis. The factual basis will be discussed here, while the legal basis (which primarily focuses on the instructions given to the jury and as a basis for an ineffective assistance claim) will be discussed below.

Factually, the controversy centers around witness Daniel Garza and the phone calls he made to Maria Martinez, Cisneros’ curandera. These calls are, of course, the basis of the jurisdictional nexus as discussed above and in both panel decisions. Petitioner claims that the prosecution mislead the grand jury as to whether the phone calls were collect. Garza testified at trial that he did not remember exactly, but could not have made more than one collect call. The witness was questioned about these inconsistencies at trial, so the jury could judge his memory and credibility. The Magistrate Judge’s conclusions concerning this topic and his analysis of the applicable legal factors are accurate and are hereby adopted.

B. Ineffective Assistance

Next, Cisneros claims that these phone conversations, and their admission at trial, is the basis for an ineffective assistance of counsel claim. Her theory is that her counsel should have: (1) objected to the transcripts; (2) cross-examined more intensively in hopes of proving the calls originated in Texas rather than Mexico; (3) emphasized Garza’s inconsistencies; (4) requested an instruction demanding the jury find the phone calls be sufficiently related to the murder and/or; (5) insisted on a causation instruction. Again, the Magistrate Judge’s analysis of these allegations is correct and is hereby adopted.

Cisneros follows this argument with one complaining about her appellate counsel and their alleged failure to: (1) challenge the propriety of the foreign commerce instruction; (2) raise causation as an issue; and (3) raise the alleged “misconduct” before the jury. This court adopts the opinion of the Magistrate Judge on these items. This Court understands why counsel for Cisneros puts emphasis on Agent Church’s recollection that the Mexico telephone calls were collect and compares that to Mr. Garza’s testimony that they were probably not collect (or at most one was collect). Cisneros, however, leaps to three conclusions which do not necessarily follow: (1) that Agent Church lied to the grand jury; (2) that the absence of collect calls necessarily destroys the international nexus which is the basis for jurisdiction; and (3) that these two events, combined with the failure of counsel to either successfully exploit them, either at trial or on appeal, equates to ineffective assistance of counsel.

Initially, this Court notes that direct (non-collect) calls such as those recounted by Mr. Garza at trial would be sufficient under the murder for hire statute as per controlling Fifth Circuit authority. Secondly, an agent’s recollection of, or notes concerning, an event can differ from a witness without either the agent or the witness committing perjury. The important factor is that both witnesses’ testimony detailed international phone calls in which the murder plot was embraced. This is not only the conclusion reached by this Court, but also the one reached by the Fifth Circuit in both vacated opinions. Cisneros, 203 F.3d at 343; Cisneros, 194 F.3d at 636. Further, it is not true that any of the items complained of would support a claim of ineffective assistance of counsel. The Magistrate Judge’s opinion details the evidentiary showing what one must make to succeed on a collateral attack based upon ineffective assistance of counsel. Tactical strategy and determinations, even those which later prove to be in error, do not suffice. Rather, counsel’s performance is considered effective so long as it is based upon adequate investigation. Further, there must be a reasonable probability (not a mere possibility) that the result would have been different, but for the alleged errors. Crane v. Johnson, 178 F.3d 309, 312 (5th Cir.1999). This Court adopts the Magistrate Judge’s conclusions with regard to the claims of ineffective assistance of trial counsel. Petitioner also attacks the performance of her appellate counsel on the basis of the failure to adequately challenge: (1) the required relationship or “furtherance” instruction; (2) the omission of the causation instruction; and (3) the failure to raise prosecutorial misconduct. Again, the Magistrate Judge’s Report and Recommendation discusses in detail why § 2255 relief should not be granted. As such, this Court will not retrace those footsteps. Suffice to say that such claims have been considered in detail and found to be wanting.

C. Law of the Case

While this Court has considered the Magistrate Judge’s Report and Recommendation regarding Petitioner’s objections to lack of a causation and required relationship instruction, it cannot totally accept his recitation of the law and applicable facts. With regard to the Cisneros’s argument that the jury should have been instructed about the required relationship between foreign commerce and the murder for hire scheme, the Magistrate Judge relied upon the vacated Fifth Circuit opinions as establishing a prevailing law of the case standard. The Magistrate Judge accurately described the law of the case doctrine. Reliance on this doctrine, however, is questionable when the decision establishing such “law” has been vacated.

“The doctrine of the law of the case directs that a decision of an appellate court on an issue of law, unless vacated or set aside, governs the issue during all subsequent stages of litigation in the nisi prius court and thereafter on any further appeal.” Commercial Union Ins. Co. v. Walbrook Ins. Co., 41 F.3d 764, 769 (1st Cir.1994); see also Cohen v. Brown Univ., 101 F.3d 155 (1st Cir.1996) (citing Moore’s Federal Practice § 0.404 (2d ed.1993)). It is well established that reconsideration en banc vacates a panel’s decision. 5th Cir. R. 41.3 (stating that the “effect of granting a rehearing en banc is to vacate the panel opinion”); see, e.g., Hooten v. Jenne, 786 F.2d 692, 695 (5th Cir.1986); Longoria v. Wilson, 730 F.2d 300, 304 (5th Cir.1984). A vacated decision, while persuasive, is no longer binding precedent. Marathon Oil Co. v. Ruhrgas, 145 F.3d 211, 225 n. 23 (5th Cir.1998).

While arguments could be made to the contrary, most courts hold that a vacated opinion is deprived of its status such that it cannot be used to trigger the application of the law of the case doctrine. See, e.g., Johnson v. Bd. of Educ. of the City of Chicago, 457 U.S. 52, 53-54, 102 S.Ct. 2223, 72 L.Ed.2d 668 (1982); Brown v. Bryan County, OK, 219 F.3d 450, 453 n. 1 (5th Cir.2000); Creighton v. Anderson, 922 F.2d 443, 449 (8th Cir.1990); Dorsey v. Cont’l Cas., Co., 730 F.2d 675 (11th Cir.1984); Banco Nacional de Cuba v. Farr, 383 F.2d 166, 177-78 (2d Cir.1967). That being the case, this Court finds the Magistrate Judge’s use of the law of the case doctrine to be ill-advised and specifically chooses not to adopt or follow this line of reasoning. As such, this Court does not consider the vacated opinions to be controlling in this matter.

Despite the fact that the opinions upon which the Magistrate Judge relied were vacated (and thus do not command “law of the case” deference), they can still be instructive. Ruhrgas, 145 F.3d at 225, n. 23. As detailed in the Magistrate Judge’s opinion, the panel addressed in both opinions these very issues regarding the “furtherance” and causation instructions and rejected Petitioner’s complaints each time because the requested instructions were not substantially correct and were not consistent with the law in the Fifth Circuit. [Docket No. 18] at 15-20; Cisneros, 203 F.3d at 346-47; Cisneros, 194 F.3d at 638-39. Both of those holdings are as accurate now as they were when they were written by the Fifth Circuit panels in 1999 and 2000. The Marek/Cisneros en banc opinion did not alter the reasoning or the law upon which both panel decisions were based. Further, as noted in the Magistrate Judge’s opinion, Cisneros failed to object to the lack of an instruction on the nexus requirement and instead objected only to the refusal of the trial court to use her proposed “furtherance” instruction. Cisneros has shown no error and certainly has not shown the requisite cause and prejudice which she must to prevail in this action. These requisites have been adequately described in the Magistrate Judge’s opinion, as well as in the two vacated Fifth Circuit opinions. This Court, therefore, sees no reason to reiterate what has already been detailed and, while not bound to follow those decisions, sees no valid reason why they are not accurate and why the same reasoning should not be used here.

With respect to the issue of preservation of error and due process on the causation issue, the Magistrate Judge has analyzed this point in great detail and this court adopts the reasoning of the Report and Recommendation. Federal Rule of Civil Procedure 51 requires that a party objecting to a jury instruction or the failure to give an instruction state “distinctly the matter objected to and the grounds for the objection.” Fed. R. Civ. P. 51. “Where a party argues on appeal that the district court erred in refusing to give a proffered jury instruction, that party must ‘show as a threshold matter that the proposed instruction correctly stated the law.’ ” Russell v. Plano Bank & Trust, 130 F.3d 715, 719 (5th Cir.1997) (quoting Federal Deposit Ins. Corp. v. Mijalis, 15 F.3d 1314, 1318 (5th Cir.1994)). In this case the causation instruction submitted by Cisneros was properly denied as it was not a correct statement of the law. When the court refused to include Cisneros’ proposed instruction, Cisneros did not offer an alternative definition or object to the fact that there was no definition in the jury instructions. When the proposed jury instruction misstates the law a district court is “under no obligation to tinker with the flawed proposed instruction until it [is] legally acceptable.” Rogers v. Ingersoll-Rand Co., 144 F.3d 841, 845 (D.C.Cir.1998). That is, “[a] requested instruction is properly refused if it is improper, and a trial court is not required to correct a defective request.” Bueno v. City of Donna, 714 F.2d 484, 490 (5th Cir.1983). Furthermore, had the court come up with its own definition of causation and included it in the jury instructions it is unlikely it would have helped Cisneros. Therefore, Cisneros’ proposed definition was properly refused as it was incorrect and the court’s decision not to included an alternative definition did not prejudice Cisneros.

III.

Denial Of Cisneros’s Constitutional Rights By The Fifth Circuit And The United States Supreme Court

The most interesting and unusual point raised by the Petitioner is her claim that her constitutional rights were denied by the appellate courts. The genesis of her claim is that the Circuit, in its en banc opinion, failed to address each and every point of error in its opinion and that, ultimately, the Supreme Court erred in denying her Petition for Writ of Certiorari in which she argued the Court should order the reinstatement of the second panel opinion. Cisneros’ argument is as follows:

(A) The first Fifth Circuit opinion, which did address all of her points of error, was vacated by the second;

(B) The second Fifth Circuit opinion, which also addressed all of her points of error, was vacated by the en banc opinion;

(C) The en banc opinion, which vacated the second panel decision, addressed only the conflict between the second Cisneros opinion and the opinion in United States v. Marek, 198 F.3d 532 (5th Cir.2001);

(D) Despite the affirmance of the trial court by the Circuit sitting en banc, it denied Cisneros’s “meaningful appellate review” and worked a “manifest injustice” and in effect denied Cisneros her right to “meaningful review” and “due process.”

(E) The Supreme Court, by denying her petition for certiorari, compounded the error by failing to correct the alleged Fifth Circuit error.

It is not clear whether Petitioner is objecting to the Magistrate’s Report and Recommendation on this issue or she has chosen to accept his Report in this regard and merely concentrate her complaints on his use of the “law of case” doctrine. In an abundance of caution, this Court will address this somewhat unusual complaint.

Factually, this Court would note that Cisneros has had more appellate review, quantitatively speaking, than most litigants. She has had three judges consider all of her points of error and write one opinion. Those same three jurists granted a rehearing, reconsidered those points, and wrote a new opinion. Then the entire Fifth Circuit voted a rehearing en banc and heard her case, including her motion for rehearing. She then filed a petition for writ of certiorari, which was denied by the Supreme Court, in which she raised the subject matter of the panel opinions. Now, in addition to those judges, she has had a United States Magistrate Judge and a different United States District Judge consider her objections. Thus, in terms of sheer numbers, Cisneros has had almost the maximum number of judges one can possibly have review her case.

The Circuit sitting en banc ruled that “we therefore affirm both appellants’ [Marek and Cisneros] convictions and sentences.” Marek, 238 F.3d at 323. To affirm those convictions, the court had to have given due consideration to any points raised. This Court is unaware of any requirement that an en banc panel of the Fifth Circuit write an opinion addressing each point raised before the Panel or each point raised in a motion for rehearing. The en banc court also stated “we hold that both Cisneros’s and Marek’s murder for hire transactions violated 18 U.S.C. § 1958. Cisneros did so by causing her agent to make qualifying telephone calls between the United States and Mexico.” Id.

This Court has not been provided with any authority holding that each opinion of an en banc appellate court must address each point of error or reinstate a vacated opinion. This Court finds that the due process rights of Cisneros have not been violated. She has had more than twenty-four appellate judges (three of whom considered her case on three separate occasions), two District Judges, and one United States Magistrate Judge consider the merits of her case. Both panel decisions considered all of her points of error, and all appellate judges considered these points when they addressed her motions for rehearing and petition for writ of certiorari. Otherwise, they could not have affirmed her conviction. There is no requirement for a court to reduce each such consideration to writing nor is there a requirement that the court reinstate a Circuit Panel opinion, which was vacated by virtue of rehearing en banc — especially when one considers Cisneros moved for rehearing en banc. In effect, she is complaining because the result of the rehearing en banc was not what she wanted. Cisneros was not deprived of the opportunity to have all her claims raised before the Supreme Court, merely by the failure to write on them by the Fifth Circuit sitting en banc. She was free to raise these issues in her petition for certiorari and, if granted, could have had each reviewed despite the Fifth Circuit’s failure to address these in writing in the en banc opinion.

This holding is not merely an exercise in the obvious as it directly applies to at least two portions of the Magistrate Judge’s report to which she objects. Cisneros complains, as discussed above, about the Court’s failure to include her proposed causation issue. She admits that she appealed this issue and obtained relief in neither the panel decisions nor the en banc decision. She writes that “the objection was preserved on this appellate point, which was raised in full in the prior briefing to the Fifth Circuit.” [Docket No. 21] at 17. The fact that the panel decision, which addressed in writing and denied Cisneros relief on this point, was vacated does not mean this point has not been considered or ruled upon. This affirmance of her conviction by the en banc court was a denial of this point of error notwithstanding the fact that the Circuit chose not to write on that issue.

Similarly, Cisneros’s objection as to her proposed “furtherance” instructions were also briefed, heard and rejected by the Court of Appeals. While this Court agrees it is not bound by, and will not apply, the “law of the case” doctrine, Petitioner’s conclusion that she has never had a “full and fair opportunity” for review is patently false. Her complaints have been considered by two panels, the Fifth Circuit en banc, and the United States Supreme Court. Each court denied her relief. Cisneros concludes:

[I]t is entirely probable that Cisneros’s jury convicted her without any finding that either alleged act of foreign commerce (car travel or phone car) facilitated (or was “in furtherance of’) the “murder for hire scheme.”

To suggest this was not considered by the Court of Appeals ignores both the vacated panel opinions and the en banc opinion. As quoted above, the Court en banc wrote:

[Cisneros violated the murder for hire statute] by causing her agent to make qualifying telephone calls ... thereby using a facility in foreign commerce to facilitate a murder for hire.

These issues were obviously before the panel in both of its decisions and before the court sitting en banc. Cisneros admits the error was presented and was contained in her briefing to the Fifth Circuit. [Docket No. 21] at 23. She cannot now complain that her arguments were not accepted by a majority of that court. Simply because arguments that were put forth to the court were not accepted does not mean that they were not considered-even if their ultimate rejection was not detailed in an opinion.

Matters that have been rejected on appeal cannot be re-attacked collaterally pursuant to 28 U.S.C. § 2255. Vernell v. United States, 559 F.2d 963, 964 (5th Cir.1977); Del Genio v. United States, 352 F.2d 304 (5th Cir.1965).

IV.

Conclusion

With the few exceptions noted above, the report and recommendation of the Magistrate Judge is adopted. The Respondent’s Motion to Dismiss [Docket No. 5] is GRANTED and the Petitioner’s § 2255 motion is DENIED. The Court finds no merit to her claim that her conviction was marred by constitutional infirmities and/or ineffective counsel.

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

JOHN WM. BLACK, United States Magistrate Judge.

Pending before the court is Petitioner’s Motion to Vacate or Set Aside Sentence, pursuant to 28 U.S.C. § 2255. For the reasons stated below it is recommended that the motion be denied.

I. Background

The sequence of events which led to the indictment and conviction of Petitioner, Dora Cisneros, (“Cisneros”) for capital murder are voluminous and complex. Simply stated, Dora Cisneros hired a hit man, through her association with Maria Martinez, a curandera (Mexican folk healer), and her client, Daniel Garza, to murder her teen-age daughter’s ex-boyfriend, Joey Fischer, a high school student.

Cisneros was convicted of capital murder in the 357th Judicial District Court, Cameron County, Texas, Criminal Cause No. 93-CR-1515-E, and was sentenced to life imprisonment. Cisneros appealed the state conviction and on January 25, 1996, the Texas Appeals Court reversed her conviction. Cisneros v. State, 915 S.W.2d 217 (Tex.App.-Corpus Christi), pet. ref'd., 935 S.W.2d 789 (Tex.Crim.App.1996). The state court conviction was overturned because the state court jury was charged in such a way that in order for Dora Cisneros to have been found guilty, she would have had to have hired the killers. The evidence was that she used an intermediary, Maria Martinez, to hire the killers.

On February 23, 1998, Cisneros was indicted for the offense of murder for hire in violation of 18 U.S.C. § 1958, Criminal Cause No. B-98-124, in the United States District Court for the Southern District of Texas. On May 12,1998, after a jury trial, Cisneros was convicted and subsequently sentenced to life imprisonment. Cisneros appealed and the United States Court of Appeals for the Fifth Circuit affirmed the conviction in a published panel opinion. United States v. Cisneros, 194 F.3d 626 (5th Cir.1999). On February 3, 2000, this opinion was vacated and a new panel opinion was issued, affirming the conviction. United States v. Cisneros, 203 F.3d 333 (5th Cir.2000). Then the Fifth Circuit, on its own motion, granted rehearing en banc and consolidated the case with United States v. Marek, 198 F.3d 532 (5th Cir.1999). On January 4, 2001, the en banc court affirmed Cisneros’ conviction without additional elaboration on issues presented in the panel opinion. Cisneros’ petition for re-hearing was denied. The Supreme Court denied Cisneros’ petition for writ of certiorari on .October 1, 2001. Garcia Cisneros v. United States, 534 U.S. 813, 122 S.Ct. 37, 151 L.Ed.2d 11 (2001). Cisneros filed the instant motion on September 30, 2002, consisting of ten claims. For purposes of this Court’s analysis, Cisneros’ claims have been consolidated into four sections.

II. Analysis

A. The Fifth Circuit’s En Banc Opinion

Cisneros asserts that she was denied due process of law because the Fifth Circuit did not re-address the following claims in its en banc opinion, which in effect, denied her a meaningful right to appeal: (1) sufficiency of the evidence; (2) insufficient jurisdictional nexus; (3) the district court’s submission of inadequate jury instruction on jurisdictional nexus; (4) the district court’s refusal to submit a causation instruction; and (5) the district court’s refusal to submit statute of limitations instruction.

The Government contends that the en banc court’s decision not to re-visit all of the issues, as previously ruled upon by the panel, does not equate to a violation of due process. Cisneros cannot claim that she was denied meaningful review when the appellate courts considered her appeal on four separate occasions. The Government argues that the Fifth Circuit, in its panel opinion, ruled on all five points raised by Cisneros and the en banc court simply affirmed these points without opinion and implicitly adopted the ruling of the panel. The Government also urges that Cisneros’ claims are barred from review by this Court under the law of the case doctrine.

In her 28 U.S.C. § 2255 motion, Cisne-ros asserts that her judgment and sentence were imposed in violation of the Constitution. Specifically, Cisneros invokes the due process clause of the Fifth Amendment and argues she was denied her right to due process of law and meaningful appeal by virtue of the Fifth Circuit’s failure to address her first five points of error. However, Cisneros fails to provide this Court with any authority for the proposition that her disagreement with the method in which the Fifth Circuit framed its en banc opinion rises to a violation of a constitutional right cognizable under § 2255. Neither has Cisneros provided authority for her position that she has a constitutional right under § 2255 to have a district court review an appellate court’s prerogative to hear, decide and frame opinions in the most appropriate manner it sees fit. A review, by this Court, of the pertinent case law regarding permissible grounds for attacking sentences under § 2255 finds no authority for Cisneros’ claim.

Cisneros argues that the due process clause guarantees her the right to a meaningful review. Although the right to appeal a criminal conviction is not constitutional, but statutory in nature, due process requires that the review be meaningful. See United States v. Pajooh, 143 F.3d 203, 204 (5th Cir.1998). A litigant is entitled to have all issues fully considered by the appellate court. Id. However, meaningful review and the manner in which the appellate court announces its decision are distinguishable. Id. Whether a case merits a lengthy opinion, or summary affirmance without opinion, or some other form of summary disposition, is determined on a case by case basis and hinges on the benefit such disposition will have on the bench, bar, or litigants. Id.

In this case, although the en banc court did not expressly re-visit all of Cisneros’ arguments, her issues nonetheless received full consideration and a ruling. This is apparent from the panel opinions provided on direct review as well as the en banc opinion which clearly concluded with a finding of no error and affirming Cisneros’ conviction and sentence. United States v. Marek, 238 F.3d 310, 323 (5th Cir.2001). Cisneros has not shown that the en banc court’s omission of language reinstating parts of the panel opinions equates to a denial of meaningful review.

The Government has argued that the law of the case doctrine precludes Cisneros from raising issues in the instant motion that were already raised and considered on appeal. The five issues that the en banc court did not re-visit, which form the basis of Cisneros’ lack of meaningful review claim, were fully considered and found to be without merit in the first and second panel opinions. See United States v. Cisneros, 194 F.3d 626 (5th Cir.1999) and United States v. Cisneros, 203 F.3d 333 (5th Cir.2000).

Cisneros’ motion for relief under § 2255 does not appear to be asking this Court to reconsider the merits of her appellate points of error, but is instead seeking adjudication of a due process claim arising out of the appellate court’s election to present its opinion in the manner it which it did. Cisneros has clearly framed her claim around the appellate court’s action or inaction and its associated impact on Cisneros’ constitutional rights.

In the event that Cisneros is requesting this Court to review the five points of error presented in the appellate court, such request will not be entertained. Cisneros was not denied a meaningful review. Additionally, under the law of the ease doctrine, it is well established that when an issue has already been determined on direct appeal, the court need not reconsider it on motion to vacate. See United States v. Johnson, 615 F.2d 1125, 1128 (5th Cir.1980); United States v. Rocha, 109 F.3d 225, 229 (5th Cir.1997). The law of the case doctrine may be applied discretionarily and is subject to three exceptions: (1) the evidence at a subsequent trial is substantially different; (2) there has been an intervening change of law by a controlling authority; and (3) the earlier decision is clearly erroneous and would work a manifest injustice. United States v. Matthews, 312 F.3d 652, 657 (5th Cir.2002).

In this ease, the en banc court made no finding of clear error in the panel opinions, in which Cisneros’ five issues were reviewed. Cisneros has not demonstrated that she falls within any of the exceptions to the law of the case doctrine. Cisneros is attempting to obtain review by this Court and possibly the Fifth Circuit, yet again, of the same issues which were found to be without merit on direct appeal from her criminal case. The law of the case doctrine seeks to prevent this back door approach to multiple review of adjudicated issues. This Court will not review the same arguments which have been made and addressed on appeal.

B. The Causation and Required Relationship Instructions

Cisneros asserts that she was denied due process of law under the Fifth Amendment and her right to trial by jury under the Sixth Amendment because the jury was not instructed on: (1) causation, and (2) the required relationship between the foreign commerce and the murder-for -hire scheme.

The Government contends that this issue was addressed in the second panel opinion and found to be without merit. The Government argues that the subsequent affirmance of the conviction by the en banc court, constitutes the law of the case and Cisneros has not shown clear error, nor that the absence of the instruction works a manifest injustice.

As Cisneros has raised these issues pursuant to a § 2255 motion, the threshold inquiry must be whether these issues were previously raised on direct appeal, and if not, whether Cisneros has demonstrated the requisite “cause and prejudice” which would allow collateral review by this Court. See United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982). The analysis below reveals that Cisneros has failed to show cause and prejudice for failing to raise these errors at trial and consequently on direct appeal.

1. The Causation Instruction

The record clearly shows that Cisneros offered an instruction on the elements of the murder-for-hire statute. Cisneros also offered a definition of “causation” as it related to the first element of the murder-for-hire statute. Both instructions were denied by the trial court. The subsequent Fifth Circuit panel opinions found Cisne-ros’ instructions to be incorrect and the trial court’s denial proper. Cisneros’ proposed Instruction 15 set forth the first element of the murder-for-hire statute as follows:

FIRST ELEMENT: That the defendant: (A) caused Heriberto Pizana to travel from Mexico to Brownsville on March 2, 1993, in furtherance of the alleged murder-for-hire; and/or (B) caused' Daniel Garza to use a facility in foreign commerce to call Maria Martinez in Brownsville from San Fernando and Matamoros, Tamauli-pas, Mexico between November 1992 and February 1993, in furtherance of the alleged murder-for-hire.

Cisneros also submitted Instruction 15A, entitled “Causation” which attempted to set forth a definition of causation as it related to the murder-for-hire statute. However, the problem with this instruction, as so aptly identified by the Fifth Circuit, is that it confused the mens rea requirement with correct legal definition of causation as it related to the murder-for-hire statute. Instruction 15A read as follows:

“A person ‘causes’ another to travel in foreign commerce or to use facilities in foreign commerce if he does an act with knowledge that the foreign travel or use of the facilities in foreign commerce will follow in the ordinary course of business, or where such foreign travel or use of facilities in foreign commerce can be reasonably foreseen, even though not actually intended.”

The trial court, during the charging phase of trial, indicated that objections to the final jury charge would be preserved based on any inconsistencies between the actual jury charge and the proposed charges presented by Cisneros. The trial court stated:

“Now, both sides have kindly favored the Court with requested jury charges. The Court is about to give the charge to the jury this afternoon. Anything that I do that is inconsistent with what you have filed on record, you need not object to. You will preserve your exception. So you need not object to anything that you have already favored me with that I do inconsistent with respect to the charge I give to the jury.” 11 R. 1496.

Immediately prior to charging the jury, the trial court advised Cisneros’ counsel that he would have the opportunity to raise further objections, not covered by the “running” objection, after the jury had been given their instructions:

“You will not be precluded from further objections through tomorrow prior to the jury coming in, but just favor the court with any requested additional instructions overnight. Remember, you do not have to object to anything you’ve already favored me with.” 11R. 1499-1500.

The trial court then provided the parties with a copy of the charge. Counsel for Cisneros acknowledged receipt of the charge:

“Excuse me, Your Honor. The Court definitely did hand it to me, and I did have about four minutes to look at it. I do appreciate that.” 11 R. 1502.

After the jury was charged, the trial court inquired as to the objections thereto:

THE COURT: Any objection from the Government?

MR. MOSBACKER: No, Your Honor.

THE COURT: From the Defendant, knowing well that you preserve everything that I did inconsistent with what you favored me with?

MR. BOTSFORD: Yes, Your Honor, We would respectfully object to the failure of the Court to define under state law the words “intentionally and knowingly” and limit those two definitions under 1.07(a) of the Texas Penal Code to the result of conduct as opposed to the nature of conduct as specified by the Court of Criminal Appeals in numerous cases. 11 R. 1521.

Cisneros’ counsel seized the opportunity to object to items in the charge that were not covered by the running objection. Cisne-ros’ counsel made various other objections to items not covered by the running objection, but clearly did not object to the omission of a definition on causation:

MR. BOTSFROD: And, Your Honor, I guess it’s my understanding, and I don’t mean to object to the Court’s— the refusal of the Court to give the requested instructions that we tendered, those are all preserved.

THE COURT: That is correct.

MR. BOTSFORD: Yes, Your Honor.

THE COURT: Any other objections?

MR. BOTSFORD: Your Honor, not at this time. I would like to review my notes overnight, and if before the jury comes back in I have an additional, I will tell—

THE COURT: Do them in writing and favor me with them by 8:30 in the morning.

MR. BOTSFORD: If I have any additional, I shall do that, Your Honor.

11 R. 1522.

When the court reconvened, Cisneros’ counsel addressed the court and clarified the objections to the trial court’s denial of the proposed instructions, but did not object to the omission of a definition on causation:

MR. BOTSFORD: May I address the Court on one matter on the record for about two seconds. I just wanted to make sure, Your Honor, that after the instructions were read to the jury and the Court asked Mr. Canales and I if we had any additional objections and I said, no we didn’t, Your Honor, I didn’t want that to be construed as a waiver—

THE COURT: Absolutely not.

MR. BOTSFORD: — of instructions.

THE COURT: You had already lodged all of your objections and preserved a record. The only thing only thing I did were the cautionary instructions.

MR. BOTSFORD: I wanted to, I guess, formally reurge the requested instructions that the Court hadn’t given.

THE COURT: They stand reurged and you have preserved that in toto.

12 R. 1599.

It is undisputed that Cisneros preserved her objections to the trial court’s failure to use her proposed jury instructions. But no where on the record, did Cisneros make an objection to the fact that the jury charge did not have a definition of causation as it related to the murder-for-hire statute. Cisneros was given ample opportunity to object orally and in writing after the trial court had charged the jury. A review of the entire record reveals that Cisneros did not object to the omission of a definition of causation. Cisneros merely re-urged her objections to the trial court’s decision not to use her proposed instructions. This objection does not equate to an objection to the omission of a definition of causation as it related to the murder-for-hire scheme.

The Fifth Circuit, in both panel opinions, found no error in the trial court’s denial of Cisneros’ proposed instructions, as they did not reflect the correct law of the Circuit. The Fifth Circuit did not, however, entertain Cisneros’ argument as to whether the omission of a definition of causation was violative of due process. Cisneros, in her appellate brief, argued that “[t]he court refused to give the charge and did not charge on causation.” “The failure to give the requested charge, which was not otherwise covered by the court’s instructions, was harmful in that the jury had no guidance on causation, a key component of the first issue the jury had to consider in ascertaining whether Appellant had committed a crime.” See Appellant’s Brief, Appeal No. 98-40955, p. 41 (Feb. 09, 1999).

Although Cisneros raised the issue of the trial court’s omission of a causation definition in her appellate brief, the issue had not been properly preserved for appeal. Both panel opinions appropriately refrained from entertaining Cisneros’ argument regarding the omission. The Fifth Circuit’s sole reference to the issue is in a footnote in the second panel opinion stating, “we note that the district court failed to give an instruction explaining the notion of causation to the jury”. United States v. Cisneros, 203 F.3d 333, 347 n. 11 (5th Cir.2000).

The record thus far has shown that Cisneros objected to the trial court’s failure to use her proposed jury instruction, but that Cisneros failed to object to the absence of a definition of causation as it related to the murder-for-hire statute. The focus now turns to the legal requirements regarding the procedural bar for collateral attacks brought pursuant to § 2255.

To obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) “cause” excusing his procedural default, and (2) “actual prejudice” resulting from the errors of which he complains. United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982). The proper inquiry, for determining prejudice for alleged errors in a jury charge is whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even universally condemned. Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977).

This cause and actual prejudice standard presents a significantly higher hurdle than the plain error standard that is applied on direct appeal. See United States v. Shaid, 937 F.2d 228, 231 (5th Cir.1991)(en banc). The application of this rigorous standard ensures that final judgments command respect and that their binding effect does not last only until the next in a series of endless post conviction collateral attacks. Id. In an extraordinary case, in which a constitutional violation has probably resulted in the conviction of one who is actually innocent the Supreme Court has recognized a narrow exception to the cause and prejudice test. See Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986). The Supreme Court has not yet found an appropriate case for the application of this exception, and it has emphasized repeatedly that this exception is limited to “extraordinary” cases involving “manifest miscarriage [s] of justice” that would result in the continued incarceration of one actually innocent of the offense. See Shaid, 937 F.2d at 232.

Cisneros, in her § 2255 motion, argues “that cause and actual prejudice have been shown for any procedural default (as reflected elsewhere in this motion in claims relating to ineffective assistance of trial and appellate counsel)” or “that denial of this claims would result in a fundamental miscarriage of justice.” See Cisneros’ Motion to Vacate, n. 41, p. 48. A review by this Court, of Cisneros’ arguments pertaining to ineffective assistance of counsel, does not reveal any mention of the cause and prejudice test.

Cisneros offers no cause for failing to object to the trial court’s omission of a definition on causation as it related to the murder-for-hire statute. It appears that Cisneros’ counsel was given the opportunity to object on at least three occasions and did not. It is unlikely that Cisnoeros’ counsel misunderstood the trial judge’s admonishment that only objections to the denial of her proposed instructions had been preserved. In fact, the record shows that Cisneros’ counsel made objections other than the running objection. In light of this, it is apparent that Cisneros’ counsel did not misunderstand what he was required to do in order to preserve an objection that was outside the scope of the running objection allowed by the trial court.

Likewise, Cisernos offers no showing of the type and extent of prejudice that is required under the law to invoke collateral review of this issue. The applicable standard under Henderson is whether the ailing instruction or the omission of the instruction, by itself, so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even universally condemned. While Cisneros did not meet her burden to demonstrate prejudice, the following analysis shows that Cisneros clearly did not suffer prejudice from the missing definition of causation.

The Fifth Amendment to the United States Constitution guarantees that no one will be deprived of liberty without due process of law and the Sixth Amendment guarantees that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. See United States v. Gaudin, 515 U.S. 506, 509-510, 115 S.Ct. 2310, 2313-2314, 132 L.Ed.2d 444 (1995). These provisions require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Id. The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970).

It is firmly established that the murder-for-hire statute, 18 U.S.C. § 1958, consists of three elements: (1) traveling or causing another to travel in interstate or foreign commerce, or using or causing another to use the mail or other facility of interstate or foreign commerce; (2) with intent that a murder be committed in violation of the laws of any State .or the United States; and (3) as consideration for the receipt of pecuniary value. United States v. Sharpe, 193 F.3d 852, 864 n. 6 (5th Cir.1999). The record shows that the jury was charged on a