The murder-for-hire statute makes it a crime to agree to commit murder in exchange for “anything of pecuniary value.” 18 U.S.C. § 1958. The Second Circuit has understood this language to require that, at the time of the agreement, there was a quid pro quo or at least the promise of some pecuniary consideration. In United States v. Babilonia, No. 14-3739, the Court (Chin, Carney, and Cogan, sitting by designation) reaffirmed this “pecuniary consideration” requirement, but then suggested it presents a minimal hurdle where there was payment after the fact.[1]

The case stems from the murder of Terry Harrison, a rival drug dealer at the time to the appellant, Roger Key. In 2010, one of Key’s associates, Matthew Davis, approached Kevin Wilson and asked him to kill an unspecified target. Wilson agreed and the next day went to Key’s “headquarters,” where he stayed with Davis and two of his associates for several days. Although Wilson never asked what he would get in exchange, he testified that he had hoped to become a part of Key’s team and that Davis told him they were “going to hold me down, that I was going to be good,” by which he understood he would receive money, acceptance, and protection. On the day of the murder, Key spoke with Davis and Wilson in what seemed to Wilson like “code.” Davis then drove Wilson to Harrison’s location, where Wilson shot Harrison three times. (Harrison later died from his injuries.) That night, Davis told Wilson that it was “pay day” and the two met up with Key, who thanked Wilson and paid him $1,000.

A jury convicted Key of conspiracy to commit murder-for-hire. On appeal, he argued that Wilson’s testimony showed only that he expected an unspecified “favor” in return for his promise to kill Harrison, and the evidence was therefore insufficient under United States v. Frampton, 382 F.3d 213 (2d Cir. 2004). In that case, the Court affirmed a judgment of acquittal where the sole evidence of consideration was a co-conspirator’s testimony that the shooter would receive a “favor,” described as “anything he needed,” reasoning that “there must be some evidence to establish that at the time the agreement was formed, the consideration was something the primary significance of which lay in its economic advantage”; the mere fact that the consideration offered “could inure to the economic benefit” of the offeree was inadequate.

Although the Babilonia panel agreed that Frampton showed courts the way to analyze murder-for-hire cases, the panel nonetheless deemed Frampton distinguishable.  The Court pointed to the fact that Wilson and Davis discussed the shooting over several days, that Wilson said that he understood Davis’s representation that he would “hold him down” to mean that he would receive payment, and that Key, while not involved in the discussions, was present at headquarters, providing a reasonable basis to infer that he was giving Davis instructions. Key and his co-conspirators’ post-agreement conduct also provided circumstantial evidence of his intent at the time of the agreement: “In particular, Key paid Wilson after the murder.”

Key also raised two Fourth Amendment challenges related to evidence seized during a search of his vehicle and his apartment in 2012. By that point, Key was under investigation for Harrison’s murder and drug trafficking. After investigators witnessed him purchase drug-packaging equipment and pick up a small gift bag at an automotive shop in exchange for another, they attempted to pull him over and he fled, leading to a high-speed chase. When Key was arrested, agents confiscated a visible, tightly wrapped green plastic bag in the front seat, which contained $10,000 in cash. The investigators also performed a “cursory search” of the vehicle’s back seat and trunk and found cell phones, a license plate matching a number they had received from an informant, and receipts for more cell phones. A month later, agents arrested Key at his apartment and, while performing a search for contraband, confiscated cell phones and an iPad on his table, car keys, and an address book.

The Court rejected the first challenge on the ground that the automobile exception to the warrant requirement permitted the investigators to search for contraband in any part of Key’s vehicle in which it could be concealed, given that they had reasonably believed from Key’s behavior (including his attempted escape) that he was trying to hide drugs or proceeds from a sale. The Court further reasoned that the search of the back of the vehicle was permissible under the inevitable discovery doctrine because the agent would have been entitled to search the entire vehicle as part of a routine inventory search following Key’s arrest; therefore, the evidence would have inevitably been obtained even in the absence of a constitutional violation.

With respect to the apartment search, Key argued that the agents could not take his cell phones or iPad from his home because the plain view doctrine only permits the warrantless taking of objects whose incriminating character is immediately apparent, and such devices in the home lack an apparent incriminating character given their ubiquity in modern society. The Court agreed that “the presence of a cell phone, or even several cell phones, in a home is not inherently incriminating,” but noted that here investigators were aware that the murder-for-hire and drug-trafficking conspiracies involved the use of multiple cell phones.

While Babilonia’s Fourth Amendment analysis fits well within the confines of the Court’s precedent, its application of the “pecuniary consideration” requirement seems to push the bounds of what constitutes a contemporaneous promise to provide something of pecuniary value. Indeed, the sole contemporaneous and non-speculative evidence appears to have been Wilson’s testimony that, when Davis told him he would “be good,” he expected to receive payment. At first blush, the “be good” comment sounds a lot like the possible economic benefit that Frampton said was insufficient.  In addition, it is difficult to see how Wilson’s unilateral understanding of a representation by Davis suffices to show that Key, a third party, understood at the time of agreement that Wilson would be paid for his actions. Perhaps because of this, the Court leaned heavily on post-murder conduct as circumstantial evidence of the parties’ agreement. Although that seems right as a practical matter—if Wilson was paid after the fact, then it is quite likely that the parties understood beforehand that payment would be forthcoming—it also calls into question whether Frampton’s requirement of a contemporaneous agreement of a quid pro quo makes much, if any, difference, so long as money ultimately exchanges hands.