                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                             No. 10-15646                 SEP 07, 2011
                                                           JOHN LEY
                         Non-Argument Calendar               CLERK
                       ________________________

                D.C. Docket No. 1:09-cr-00188-MEF-WC-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

STEVEN MICHAEL CAPSHAW,
a.k.a. Mike Capshaw,

                                                         Defendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________

                           (September 7, 2011)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      After a jury trial, Defendant Steven Michael Capshaw appeals his

conviction and 120-month sentence for one count of using or causing the use of a

facility of interstate or foreign commerce (a telephone), with intent to commit

murder-for-hire, in violation of 18 U.S.C. § 1958. On appeal, Capshaw argues

that: (1) the government did not present sufficient evidence that, independent of

government intervention, he used a telephone in the commission of the offense;

(2) to the extent the government established that he used a telephone, that

jurisdictional element was manufactured by the government; and (3) at sentencing,

his offense level should not have been increased for obstruction of justice based

on his trial testimony. After review, we affirm.

                                I. BACKGROUND

      Because Defendant Capshaw’s trial issues revolve around the sufficiency of

the government’s evidence of his use of the telephone to commit the offense, we

first review the pertinent trial evidence in the light most favorable to the

government. See United States v. Byrd, 403 F.3d 1278, 1288 (11th Cir. 2005)

(explaining that, in reviewing the denial of a motion for a judgment of acquittal,

“we view the evidence in the light most favorable to the government, with all

reasonable inferences and credibility choices drawn in the government’s favor”).

A.    Trial Evidence

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      In August 2009, Defendant Capshaw’s wife, Sandra Capshaw (“Sandra”),

told him that she wanted a divorce and then moved out of the family home into an

apartment. Although Capshaw had very infrequent contact with his sister, Karen

Whitaker, Capshaw called Karen in early October 2009 and asked to meet her at

the Farm Center. Karen then called her daughter (and Capshaw’s niece), Nathina

Whitaker, and asked her to be at the Farm Center meeting too.

      At the meeting, Defendant Capshaw told his sister Karen that he and his

wife Sandra were getting a divorce and that he wanted his wife taken out of the

picture. At some point, Karen’s daughter, Nathina, arrived. Karen explained to

Nathina that Defendant Capshaw wanted to kill his wife and asked Nathina

whether she knew anyone who would do it, or if she would be willing to do it

herself.

      There is conflicting evidence as to whether Nathina agreed to participate in

the plot. Nathina testified that: (1) she told her mother and Capshaw they were

crazy; (2) she left, and afterward, Capshaw tried to contact her numerous times by

phone; and (3) Nathina did not return his calls. However, there is also evidence in

the record that Nathina accepted $2500 from Capshaw.

      Meanwhile, on October 28, 2009, police, acting on a tip, contacted Nathina

and interviewed her about a possible murder-for-hire plot. Nathina agreed to

                                         3
cooperate with their investigation. The next morning, while investigators

conducted video and audio surveillance, Nathina went to her mother Karen’s

house to talk about Capshaw’s wanting to kill his wife. Karen told Nathina to call

Capshaw.

      That afternoon, with investigators recording, Nathina called Defendant

Capshaw on a cell phone and told him she had “somebody that can do that for

you.” Capshaw suggested they meet at Lowe’s, where Capshaw was working.

After the call ended, Nathina’s boyfriend, Tate O’Neal, volunteered to pose as the

“hitman” and go with Nathina to Lowe’s.

      Nathina and O’Neal were wired with video and audio recording devices

and, while under police surveillance, went to Lowe’s and met with Defendant

Capshaw. O’Neal and Capshaw discussed Sandra’s apartment and possible

payment. Capshaw agreed to call O’Neal after he got off work to arrange a second

meeting to show O’Neal the area around Sandra’s apartment.

      Later that evening, Defendant Capshaw called O’Neal at the cell phone

number Nathina had used to call Capshaw earlier. Capshaw told O’Neal he was

ready to meet. O’Neal stalled Capshaw until he could report to investigators, at

which point O’Neal returned Capshaw’s call in the presence of law enforcement




                                         4
and while the call was recorded. Capshaw and O’Neal arranged to meet at Nurse-

Temps, another place where Capshaw worked.

      O’Neal and his car were equipped with video and audio recorders. Then,

O’Neal drove to Nurse-Temps and picked up Capshaw. Following Capshaw’s

directions, O’Neal drove to Sandra’s apartment complex. Capshaw pointed out

Sandra’s apartment, a secluded place for O’Neal to park his car, routes for an easy

getaway and a nearby motel where O’Neal could go to clean up after the murder.

Capshaw gave O’Neal Sandra’s work schedule and said he did not care how

O’Neal killed Sandra as long as she was dead. When O’Neal suggested using a

gun with a silencer, Capshaw suggested using a knife or machete, which would be

quieter. When they drove back to Capshaw’s car, Capshaw gave O’Neal a knife

and a box of latex gloves.

      Defendant Capshaw testified in his own defense and denied that he was

involved in a plot to kill his wife. According to Capshaw, Nathina threatened to

harm Capshaw and his son unless Capshaw paid her for killing Sandra. Capshaw

admitted giving Nathina money on multiple occasions to ensure that nothing

happened and claimed his meetings with Nathina and O’Neal were to gather

enough information to go to the police. Capshaw contended he gave O’Neal the

knife and gloves “to get something in [O’Neal’s] vehicle” so the police would

                                         5
know Capshaw was telling the truth. Defendant Capshaw claimed he was on his

way to the police to report the plot when he was arrested.

B.    Capshaw’s Motions for a Judgment of Acquittal

      Defendant Capshaw moved for a judgment of acquittal after the government

rested its case and again after the close of evidence. Capshaw argued that the

government failed to present evidence that between October 1 and 29, 2009,

Capshaw had used the telephone with the intent to commit murder because the

substance of the phone calls was either not related to the plot, or related to

Capshaw’s attempts to thwart the plot. Capshaw argued that any use of the

telephones between October 29 and 30 was at the direction of the government.

The district court denied Capshaw’s motions. The jury convicted Capshaw of

violating 18 U.S.C. § 1958.

      After conviction, Capshaw filed another motion for judgment of acquittal

or, in the alternative, a motion for new trial, arguing, inter alia, that the

government had not presented sufficient evidence that Capshaw had “used a

facility of interstate commerce while it had some nexus to interstate commerce,”

and that even if it had, the government had “manufactured jurisdiction” by using a

government informant to make phone calls to facilitate the plot. Capshaw also

filed a motion to dismiss for lack of jurisdiction under Federal Rule of Criminal

                                            6
Procedure 12(b)(3)(B). The district court denied these motions and Capshaw’s

subsequent motion for reconsideration.

D.    Sentencing

      The presentence investigation report (“PSI”) recommended a base offense

level of 37, pursuant to U.S.S.G. § 2A1.5(a), and a 2-level enhancement for

obstruction of justice, pursuant to U.S.S.G. § 3C1.1, because Capshaw committed

perjury during his trial. With a total offense level of 39 and a criminal history

category of I, the resulting advisory guidelines range was 262 to 327 months’

imprisonment. However, because the statutory maximum sentence under 18

U.S.C. § 1958 is 120 months, Capshaw’s advisory guidelines range became 120

months. See U.S.S.G. § 5G1.1(a).

      Capshaw objected to the obstruction of justice enhancement and the PSI’s

statement that he committed perjury. The district court overruled Capshaw’s

objection and determined that the 2-point enhancement under U.S.S.G. § 3C1.1

was proper, stating:

      To believe that you were operating in an effort to assist law enforcement
      in arresting individuals or an individual who was going to do harm to
      your estranged wife, I would have expected to hear testimony that you
      had done something to document your efforts so that you could turn that
      over to law enforcement to support your version of these facts. I heard
      no such testimony. I heard no evidence that you had done anything to
      even document that you had a conversation with the person who was

                                          7
       hired. I also didn’t hear any testimony that you had done anything
       which would have left the commission of the act in limbo until you
       could have gone to law enforcement, contacted them, and arranged for
       some type of stakeout and then done the final act, such as pay the money
       or make the phone call or do whatever you were going to – a person
       would have done under those circumstances to put in motion the final
       version of this crime.

       The district court adopted the PSI’s factual statements and guidelines

calculations, determined that Capshaw’s guidelines range was 120 months and

sentenced Capshaw to 120 months’ imprisonment. Capshaw filed this appeal.

                                      II. DISCUSSION

A.     Sufficiency of the Evidence of Interstate Nexus

       Defendant Capshaw argues that the district court erred in denying his

motions for a judgment of acquittal because the government did not meet its

burden to show the interstate commerce jurisdictional element of 18 U.S.C.

§ 1958.1

       Section 1958 of Title 18 provides in pertinent part:

       Whoever . . . uses or causes another (including the intended victim) to
       use . . . any facility of interstate or foreign commerce, with intent that a
       murder be committed in violation of the laws of any State or the United
       States as consideration for the receipt of, or as consideration for a

       1
         “We review a district court’s denial of a motion for judgment of acquittal based on
sufficiency of the evidence de novo.” United States v. Smith, 459 F.3d 1276, 1286 (11th Cir.
2006). We likewise “review de novo the district court’s interpretation and application of the
statutory provisions concerning the court’s subject matter jurisdiction.” United States v. Evans,
476 F.3d 1176, 1178 (11th Cir. 2007) (quotation marks omitted).

                                                8
       promise or agreement to pay, anything of pecuniary value, or who
       conspires to do so, shall be fined under this title or imprisoned for not
       more than ten years, or both . . . .

18 U.S.C. § 1958(a). Section 1958(b) provides that “‘facility of interstate or

foreign commerce’ includes means of transportation and communication.” 18

U.S.C. § 1958(b). “The telephone system is clearly a ‘facility of interstate . . .

commerce,’” and “[a]nswering a telephone and conversing on it” constitutes use of

a facility of interstate commerce. United States v. Covington, 565 F.3d 1336,

1343 (11th Cir.) (alteration in original) (quoting 18 U.S.C. § 1958(b)), cert.

denied, 130 S. Ct. 564 (2009).

       The current language in § 1958 “establishes federal jurisdiction whenever

any ‘facility of interstate commerce’ is used in the commission of a murder-for-

hire offense, regardless of whether the use is interstate in nature (i.e. the telephone

call was between states) or purely intrastate in nature (i.e. the telephone call was

made to another telephone within the same state).” United States v. Drury, 396

F.3d 1303, 1311 (11th Cir. 2005).2 Reviewing another criminal statute with a


       2
         Defendant Capshaw argues that the Drury Court declined to hold whether § 1958(a)
actually requires that a facility be used in interstate commerce. However, Drury addressed the
former version of § 1958(a), which prohibited the “use [of] mail or any facility in interstate or
foreign commerce, with intent that a murder be committed.” See 18 U.S.C. § 1958(a) (2000)
(emphasis added). We commented in Drury that Congress had since amended the statute to read
“facility of interstate commerce,” confirming that a purely intrastate use of a phone satisfies the
jurisdictional element of the statute. 396 F.3d at 1311.

                                                 9
similar jurisdictional element, this Court has concluded that the use of a telephone

constitutes the use of “instrumentalities of interstate commerce” regardless of

whether the call is routed across state lines. See United States v. Faris, 583 F.3d

756, 759 (11th Cir. 2009) (quotation marks omitted) (holding that 18 U.S.C.

§ 2422(b), as applied to defendant, did not exceed Congress’s commerce power

because “[e]ven if none of Faris’ communications were routed over state lines, the

internet and telephone he used to contact the undercover officer were still

‘instrumentalities of interstate commerce’”); United States v. Evans, 476 F.3d

1176, 1180-81 (11th Cir. 2007) (holding that defendant’s use of telephones and

cell phones alone, even without evidence that the calls were routed through an

interstate system, was sufficient to satisfy 18 U.S.C. § 2422(b)’s jurisdictional

element).

      Moreover, the government presented sufficient evidence for a jury to

reasonably find that Defendant Capshaw used the telephone to further the murder-

for-hire plot. Specifically, (1) Capshaw called his sister in early October and set

up a meeting with her at which he discussed finding someone to kill his wife; (2)

Capshaw received a call from Nathina and arranged to meet her at Lowe’s to meet

O’Neal, the purported “hitman”; (3) Capshaw called O’Neal to set up a second

meeting to give O’Neal details he would need to commit the murder; and (4)

                                         10
Capshaw received a call back from O’Neal to finalize the arrangements for the

second meeting. The district court did not err in denying Capshaw’s motion for

judgment of acquittal on the basis of the evidence presented to satisfy the

jurisdictional element of 18 U.S.C. § 1958.

B.    “Manufactured Jurisdiction”

      Alternatively, Defendant Capshaw argues that any evidence establishing

interstate commerce jurisdiction was “manufactured by the government,” in that

all of the phone calls involving the murder plot were made to Capshaw by

government agents at the direction of law enforcement, and Capshaw’s sole phone

call to O’Neal in furtherance of the plot was instigated by government action.

      Capshaw relies on United States v. Coates, 949 F.2d 104 (4th Cir. 1991)

(holding no jurisdiction under 18 U.S.C. § 1958 where a government agent

traveled across state lines to place a call to defendant solely to establish federal

jurisdiction), and United States v. Archer, 486 F.2d 670, 681-83 (2d Cir. 1973)

(dismissing an indictment under the Travel Act because the telephone calls

involved were “manufactured by the Government for the precise purpose of

transforming a local . . . offense into a federal crime”). But see United States v.

Petit, 841 F.2d 1546, 1553-54 (11th Cir. 1988) (expressing “doubt” about Archer’s

proscription against the “manufacture” of federal jurisdiction “in circumstances

                                          11
not constituting entrapment and not canceling any element of the crime such as

criminal intent” (quotation marks omitted)). We need not decide whether the

government’s investigative conduct may be so outrageous as to bar the

government from invoking judicial processes because here the government’s

investigative conduct does not rise to such a level and thus federal jurisdiction is

proper. See id. (concluding that federal jurisdiction was proper where FBI had

used goods in interstate commerce in sting operation); Covington, 565 F.3d at

1343-44 (rejecting defendant’s reliance on Coates where “[t]he FBI did not

contrive to make the phone calls in order to manufacture the interstate element as

was the case in Coates, but only collected more and better evidence of the crime”).

      Jurisdiction in this case was not based on a single phone call initiated by the

police solely to establish jurisdiction, as it was in Coates. Nor did the

investigators in this case employ cellular phones solely to manufacture

jurisdiction; they merely used them as a tool in their investigation of Capshaw.

Moreover, there was sufficient trial evidence in the form of telephone records and

the testimony from Karen and Nathina Whitaker to support the finding that

Defendant Capshaw had called Karen and Nathina in furtherance of the plot in

early October of 2009, before the investigation even began. Under these particular




                                          12
factual circumstances, the district court did not err in concluding that jurisdiction

was proper under 18 U.S.C. § 1958.

C.    Obstruction of Justice Enhancement

      Defendant Capshaw argues that his sentence is procedurally unreasonable

because the district court erred in applying a 2-level obstruction of justice

enhancement under U.S.S.G. § 3C1.1.3

      Section 3C1.1 provides for a 2-level increase in the offense level if the

defendant “willfully obstructed or impeded, or attempted to obstruct or impede,

the administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction” and “the obstructive conduct

related to . . . the defendant’s offense of conviction and any relevant conduct.”

U.S.S.G. § 3C1.1. The § 3C1.1 enhancement applies if a defendant commits

perjury pertaining to conduct that forms the basis of the offense of conviction or

provides materially false information to a judge or magistrate. U.S.S.G. § 3C1.1

cmt. n.4(B), (F). For purposes of applying this enhancement, perjury is defined as

“false testimony concerning a material matter with the willful intent to provide

false testimony, rather than as a result of confusion, mistake, or faulty memory.”




      3
          Capshaw makes no argument as to the substantive reasonableness of his sentence.

                                               13
United States v. Bradberry, 466 F.3d 1249, 1254 (11th Cir. 2006) (quotation

marks omitted).4

       We cannot say that the district court clearly erred in applying the

obstruction of justice enhancement. The district court made a sufficient

independent factual determination that Capshaw lied during his testimony based

on the inconsistencies in his testimony. Capshaw’s testimony directly

contradicted the testimony of other witnesses and was irreconcilable with the

evidence presented by the government. Capshaw’s assertion that he was an

unwilling participant in the murder plot was undermined by his own admission

that he failed to approach the police with any information about the crime.

       Furthermore, even without the 2-level obstruction of justice enhancement,

Capshaw’s guidelines range would have been 210 to 262 months, well above the

statutory maximum of 120 months under 18 U.S.C. § 1958. Under such

circumstances, the guidelines range becomes the statutory maximum sentence.

See U.S.S.G. § 5G1.1(a) (providing that where the statutory maximum sentence is

less than the low end of the applicable guidelines range, the statutory maximum

       4
          When a district court imposes an enhancement for obstruction of justice, we review the
district court’s factual findings for clear error and its application of the Sentencing Guidelines to
those facts de novo. United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). Where the
district court bases an obstruction of justice enhancement on perjury, we “accord great deference
to the district court’s credibility determinations.” United States v. Singh, 291 F.3d 756, 763
(11th Cir. 2002) (quotation marks omitted).

                                                 14
sentence “shall be the guideline sentence”). In other words, even if the district

court had sustained Capshaw’s objection to the enhancement, Capshaw’s

guidelines sentence would have remained 120 months. Thus, any error in the

district court’s application of an obstruction of justice enhancement was harmless.

See United States v. Jones, 1 F.3d 1167, 1171 (11th Cir. 1993) (“A sentencing

error is harmless if the record as a whole shows that the error did not affect the

district court’s selection of the sentence imposed.”).

      AFFIRMED.




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