Reported / Citable
Background
During a bitter international custody dispute, Allen Gessen discussed paying $50,000 to have the mother of his children killed. The person he believed was a criminal broker was actually an undercover FBI agent. Their communications and meetings spanned locations, including activity in San Francisco, and a federal jury in the Northern District of California convicted Gessen of murder-for-hire under 18 U.S.C. section 1958.
Gessen argued that the crime could not exist because the supposed intermediary never genuinely intended to arrange a killing. He also maintained that he wanted deportation rather than death, disputed whether the payment was tied to murder, and challenged venue in California. His venue theory treated the offense as complete with the first use of an interstate-commerce facility outside the district.
The Court’s Holding
The Ninth Circuit affirmed. Section 1958 focuses on the defendant’s use of interstate commerce with the required murderous intent and pecuniary arrangement; it does not require that an undercover intermediary share the intent or that an actual assassin exist. Nor does the statute demand a completed bilateral quid pro quo. The recorded exchanges and $25,000 initial payment allowed a rational jury to find that Gessen intended a paid killing rather than merely immigration action.
The court also held that murder-for-hire may be charged as a continuing offense when the indictment alleges an overarching plot advanced through multiple interstate communications or acts of travel. Venue therefore lies in any district the charged crime touched before completion. Evidence that Gessen traveled to San Francisco and took steps there to advance the plan supported Northern District venue. The trial judge properly rejected an instruction declaring the offense complete after a single interstate use because that instruction conflicted with the continuing-offense theory properly charged.
Key Takeaways
- A murder-for-hire conviction does not require a real intermediary or assassin; an undercover agent’s lack of criminal intent is not a defense.
- The government must prove the defendant’s intent that a murder occur for something of pecuniary value, but need not prove a completed bilateral contract.
- Section 1958 can describe a continuing offense when multiple acts further one overarching plot.
- For a continuing offense, federal venue may lie in any district through which the charged conduct continued.
- Venue instructions must track the offense theory in the indictment and the acts the jury could find occurred in the forum district.
Why It Matters
The decision gives federal prosecutors and defense lawyers a significant venue rule for schemes carried out through phones, messages, travel, and undercover operations. Charging language matters: an indictment framing one continuing plot can support venue beyond the location of the first interstate communication.
Practitioners should map every alleged interstate act and distinguish substantive elements from facts bearing only on proof. The government still must show that conduct in the chosen district furthered the charged plot; mere after-the-fact contact would present a different question.
The panel resolved separate evidentiary and due-process challenges in a nonprecedential companion memorandum. The published opinion’s rule is concentrated on the statutory elements and venue. For California-based investigations, meetings with undercover agents or other acts in the district may carry venue consequences even when the scheme originated elsewhere. Defense counsel should test whether each local act genuinely advanced the charged offense and whether the indictment fairly alleged a course of conduct continuing through that act.