Sunday, March 22, 2009

Case o' The Week: Potato Driggers, J/x, Mens Rea, and Jury Instructions

The defense wins on the jurisdictional hook in federal jury instructions, and the relation of that jurisdictional element to the mens rea requirement. United States v, Driggers,__ F.3d __, No. 07-31090, 2009 WL 692003 (9th Cir. March 18, 2009), decision available here. (The defense ultimately loses, however, on harmless error review . . . . )

Players: Decision by Chief Judge Kozinski, joined by Judge Betty Fletcher. Concurrence by Judge Rawlinson.

Facts: Paul Driggers (twice) asked Robinson to travel from California to Idaho to kill his ex-wife. Id. at *1. Robinson (who later snitched) testified that he met Driggers in the spud state, and agreed to the task for $10k. Id. Driggers put a $1,000 “deposit” in Robinson’s bank account. Id.

Now a snitch, Robinson returned to Idaho, had a long (recorded) conversation with Driggers, and Driggers confirmed that the plan was still on. Id. Driggers was arrested by surveilling agents and charged federally with causing Robinson to travel interstate to undertake a murder-for-hire, 18 USC § 1958. Id.

At trial, Driggers contested the model jury instruction, which required proof 1. of interstate travel; 2. that Driggers intended a murder be committed, and 3. that Driggers intended to pay Robinson for the murder. Id. Driggers argued that the government instead had to “prove a connection between the travel and the intent to murder.” Id. The proposed defense jury instruction was denied and Driggers was convicted.

Issue(s): “We consider the intent requirement of 18 U.S.C. § 1958, which prohibits using interstate commerce facilities in the commission of murder-for-hire.” Id. at *1.

Held: “The statute itself, and our interpretation of it in Ritter, make clear that the defendant must have had a murderous intent when he caused another person to travel across state lines. In other words, the causing of the travel (the actus reus) must have been done with the intent that a murder be committed (the mens rea). The instruction given by the district court didn’t adequately explain this. The instruction would have allowed the jury to convict even if it found that the defendant did not form a murderous intent until after the interstate travel was completed. . . . The instruction was therefore misleading and inadequate to guide the jury’s deliberation.” Id. at *2.

(But, the conviction was nonetheless upheld on harmless error review). Id. at *3-*4.

Of Note: There’s two interesting little side-discussions in Driggers. The first is the meaning of a “jurisdictional” statutory requirement. Id. at *3. This term refers to an element that is a jurisdictional hook (like interstate travel) which the defendant needn’t have had in mind when he committed the crime. Id. In other words, Driggers could have committed this federal crime without intending that someone cross state lines. Driggers had to, however, intend to cause someone to travel to commit murder.


Here’s a hypo: assume a defendant hires a Las Vegas killer to murder the defendant’s wife in Reno, but the defendant never knows how the hitman plans to travel. If the hitman drives straight north on I-95 through Death Valley (staying in Nevada), the defendant is guilty of some state offense only. If the hitman gets a cheap Southwest flight from Vegas to San Francisco, though, and then drives a rental car to Reno – then the defendant has committed a federal crime. The defendant must induce the hitman to travel to murder, and (whether known to the defendant or not) the murderer must travel interstate, to satisfy the federal statute.

How to Use: The second interesting side discussion in Driggers is on “constructive amendments.” Id. at *3. Trying to dodge harmless error review, Driggers argued that the defective standard instructions were a constructive amendment from the indictment (which alleged that he caused travel with the intent that murder be committed). Id. (NB: Constructive amendments require per se reversal).

The Chief Judge doesn’t bite: he explains that “constructive amendments occur when the prosecutor proves, or the court instructs the jury to convict on, materially different facts or substantially different crimes than those charged in the indictment.” Id. at *3. That didn’t happen in this case. Id. While Driggers' gambit didn’t work, the approach illustrates a solid appellate strategy: to avoid winning the battle and losing the war, choose appellate arguments with the standard of review in mind.

For Further Reading: For more details on this salacious case, visit the USAO’s press release here.

Idaho spud picture from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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