FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 07-30311

v.  D.C. No.

TINA MICHELLE NADER, CR-06-00106-RFC

Defendant-Appellant. 

UNITED STATES OF AMERICA,  No. 07-30316

Plaintiff-Appellee, D.C. No.

v.  CR-06-00106-

M RFC-02 ARILYN LAKE,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Montana

Richard F. Cebull, District Judge, Presiding

Submitted July 8, 2008*

Seattle, Washington

Filed September 5, 2008

Before: Kim McLane Wardlaw, Richard R. Clifton, and

N. Randy Smith, Circuit Judges.

Opinion by Judge Clifton

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2)(C). 

12351
COUNSEL

Nathan J. Hoines, Hoines Law Office, Great Falls, Montana,

for defendant-appellant Tina Nader. 

Mark S. Werner, Federal Defenders of Montana, Billings,

Montana, for defendant-appellant Marilyn Lake. 

Kurt G. Alme, Assistant United States Attorney, Billings,

Montana, for the plaintiff-appellee. 

OPINION

CLIFTON, Circuit Judge: 

Tina Nader and Marilyn Lake, operators of a prostitution

business, appeal their convictions for violating the Travel Act,

18 U.S.C. § 1952. Among other things, the Travel Act prohibits the use of “any facility in interstate or foreign commerce”

12354 UNITED STATES v. NADER
with intent to further certain unlawful activity, including prostitution.1

 Nader and Lake used telephones to conduct their

unlawful prostitution business, but there is no evidence of any

calls that crossed state lines. This presents the question

whether telephone calls within a single state—intrastate rather

than interstate calls—can violate the Travel Act. 

Nader and Lake argue that the facility at issue must actually

be used in interstate commerce in order to violate the Travel

Act. In support of this position, they argue that Congress

showed its intent to require actual interstate activity by drafting the Travel Act to prohibit the use of “any facility in interstate or foreign commerce” rather than the use of “any facility

of interstate or foreign commerce.” They also argue that their

conduct falls outside the Travel Act’s primary legislative purpose, which was to target organized crime, particularly crime

bosses who supervise illegal activities in one state while

residing in another. The government responds that Nader and

Lake’s interpretation is at odds with the plain meaning of the

Travel Act because the phrase “in interstate or foreign commerce” plainly modifies the word “facility,” not the word

“uses.” The government also argues that Congress intended

the terms “in” and “of” to be interchangeable, since it used

them interchangeably in the related federal murder-for-hire

statute. 

1The Travel Act provides: 

Whoever travels in interstate or foreign commerce or uses the

mail or any facility in interstate or foreign commerce, with intent

to . . . otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on,

of any unlawful activity, and thereafter performs or attempts to

perform . . . [such] an act . . . shall be fined under this title,

imprisoned . . . or both . . . . 

18 U.S.C. § 1952(a) (1990) (emphasis added). The Travel Act also defines

“unlawful activity” to include “any business enterprise involving . . . prostitution offenses.” 18 U.S.C. § 1952(b). 

UNITED STATES v. NADER 12355
The government’s interpretation of the Travel Act is the

more sensible. We affirm Nader and Lake’s convictions and

hold that intrastate telephone calls made with intent to further

unlawful activity can violate the Travel Act because they

involve use of a facility in interstate commerce. 

I. Background

Nader owned and operated a massage studio in Billings,

Montana from 1994 to 2004, and another massage studio in

Great Falls, Montana from 1993 to 2006. Lake managed the

Billings studio and worked for Nader until 2003 or 2004. It

is undisputed that the businesses involved prostitution. Card

catalogs show that the two businesses had approximately

5000 customers from Montana and at least five other states.2

Many of the prostitution transactions were initiated by a telephone call from the customer. 

Nader and Lake were indicted for violating 18 U.S.C.

§§ 1952 and 2 by using the telephone to carry on a business

enterprise involving prostitution in violation of Montana Code

Ann. § 45-5-601. The government notified Nader and Lake

that it intended to prove that they used a “facility in interstate

or foreign commerce” with evidence of only intrastate telephone calls. Nader and Lake jointly moved to dismiss the

indictment, arguing that their intrastate use of the telephone

was not the use of a “facility in interstate or foreign commerce” under the Travel Act. The district court denied the

motion. Nader and Lake pled guilty pursuant to plea agreements in which they expressly reserved their right to appeal

the denial of their joint motion to dismiss. Lake was sentenced to 30 months imprisonment and two years of super2While some of Nader and Lake’s customers came from other states,

this fact is insufficient by itself to support a violation of the Travel Act.

Rewis v. United States, 401 U.S. 808, 811 (1971) (“But we are unable to

conclude that conducting a gambling operation frequented by out-of-state

bettors, by itself, violates the [Travel] Act.”). 

12356 UNITED STATES v. NADER
vised release. Nader was sentenced to 46 months

imprisonment and two years of supervised release. Both were

released pending appeal. These timely appeals followed and

were consolidated.

II. Discussion 

“We review de novo a district court’s refusal to dismiss an

indictment when the refusal is based on an interpretation of a

federal statute.” United States v. Fitzgerald, 147 F.3d 1101,

1102 (9th Cir. 1998) (citing United States v. GomezRodriguez, 96 F.3d 1262, 1264 (9th Cir. 1996) (en banc)). 

[1] Whether the Travel Act reaches intrastate telephone

calls is a question of first impression in this Circuit. We note

at the outset that this is a question of congressional intent, not

congressional power. Nader and Lake correctly do not contest

that Congress has the power to regulate intrastate telephone

calls. In United States v. Lopez, the Supreme Court identified

“three broad categories of activity that Congress may regulate

under its commerce power.” 514 U.S. 549, 558-59 (1995).

Telephones are instrumentalities of interstate commerce that

fall within the second Lopez category. United States v. Dela

Cruz, 358 F.3d 623, 625 (9th Cir. 2004); United States v.

Clayton, 108 F.3d 1114, 1117 (9th Cir. 1997). At issue is

whether Congress intended to regulate intrastate telephone

calls by the language it used in the Travel Act. 

In answering this question, we first consider the plain

meaning of the statute’s text. Jonah R. v. Carmona, 446 F.3d

1000, 1005 (9th Cir. 2006). If the terms are ambiguous, we

may look to other sources to determine congressional intent,

such as the canons of construction or the statute’s legislative

history. Id. at 1005. We may consider related statutes because

“statutes dealing with similar subjects should be interpreted

harmoniously.” Id. at 1007 (quoting Jett v. Dallas Indep. Sch.

Dist., 491 U.S. 701, 738-39 (1989) (Scalia, J., concurring)).

Titles are also an appropriate source from which to discern

UNITED STATES v. NADER 12357
legislative intent. Goodcell v. Graham, 35 F.2d 586, 587 (9th

Cir. 1929) (citing Holy Trinity Church v. United States, 143

U.S. 457, 462 (1892)). 

A. Whether the Facility Must Be Used in a Manner that

Crosses State Lines

[2] The Travel Act provides that “[w]hoever . . . uses the

mail or any facility in interstate or foreign commerce” with

intent to carry on unlawful activity is guilty of a crime. 18

U.S.C. § 1952(a). Nader and Lake argue that they did not violate the Travel Act because the government has not proved

that any telephone calls crossed state lines. Under Nader and

Lake’s interpretation, the facility at issue must actually be

used in interstate commerce, so the phrase “in interstate or

foreign commerce” in the Travel Act must modify the verb

“uses,” not the noun “facility.” But a common sense reading

of the plain language of the Travel Act shows that it does not.

In the predicate “uses the mail or any facility in interstate or

foreign commerce,” the prepositional phrase “in interstate or

foreign commerce” modifies the noun “facility,” not the verb

“uses.” Congress placed the phrase next to the word “facility,” which strongly supports the conclusion that the phrase

modifies that word. See The Chicago Manual of Style ¶ 5.167

(15th ed. 2003) (“A prepositional phrase with an adverbial or

adjectival function should be as close as possible to the word

it modifies to avoid awkwardness, ambiguity, or unintended

meanings.”); William Strunk, Jr. & E. B. White, The Elements of Style 30 (4th ed. 2000) (“Modifiers should come, if

possible, next to the words they modify.”). No court has held

that the phrase “in interstate or foreign commerce” modifies

“uses.” Even the Sixth Circuit, which held that the intrastate

use of the mail cannot support a violation of the Travel Act,

based its holding on other aspects of the statute. See United

States v. Barry, 888 F.2d 1092, 1095 (6th Cir. 1989). The

plain language of the statute is unambiguous. The facility

itself, not its use, must be in interstate commerce. 

12358 UNITED STATES v. NADER
[3] The weight of authority from other circuits supports this

reading. The Eighth Circuit has held that the intrastate use of

an ATM is the use of a “facility in interstate or foreign commerce” under the Travel Act. United States v. Baker, 82 F.3d

273, 275 (8th Cir. 1996). This holding is possible only if the

word modified is “facility.” The Second and Fifth Circuits

have held that the intrastate use of the mail can support a violation of the Travel Act. United States v. Heacock, 31 F.3d

249, 255 (5th Cir. 1994); United States v. Riccardelli, 794

F.2d 829, 830 (2d Cir. 1986). Both cases involved the pre1990 version of the Travel Act, which prohibited the use of

“any facility in interstate or foreign commerce, including the

mail.” Both concluded based on this language that the mail is

a facility in interstate commerce. If the intrastate use of the

mail can violate the Travel Act, and the mail is a facility in

interstate commerce, then the intrastate use of a facility in

interstate commerce can violate the Travel Act. This is possible only if the word modified is “facility.”

3

 While these cases

involve facilities other than the telephone, their holdings

require a grammatical construction of the Travel Act that

forecloses Nader and Lake’s interpretation. That the cases

arise under different circumstances does not render them any

less applicable here, since the phrase “in interstate or foreign

commerce” modifies the same word no matter the facts of the

case. 

[4] While the statutory language is unambiguous, we

observe that three circuits, including the Sixth, have explicitly

concluded that the phrase modifies “facility” when construing

nearly identical language in the related murder-for-hire statute.4

3The 1990 amendment to the Travel Act, which was entitled “clarification of applicability of [the Travel Act] to all mailings in furtherance of

unlawful activity,” made clear that intrastate mailings can violate the

Travel Act. Pub. L. No. 101-647, tit. XVI, sec. 1604, 104 Stat. 4789, 4843

(Nov. 29, 1990); United States v. Marek, 238 F.3d 310, 318 (5th Cir.

2001) (en banc). 

4At the time the three cases cited above were decided, the murder-forhire statute provided: 

UNITED STATES v. NADER 12359
See United States v. Richeson, 338 F.3d 653, 660 (7th Cir.

2003) (holding that the intrastate use of the telephone can support a violation of the murder-for-hire statute); United States

v. Cope, 312 F.3d 757, 771 (6th Cir. 2002) (holding that the

intrastate use of the mail can support a violation of the

murder-for-hire statute); United States v. Marek, 238 F.3d

310, 316 (5th Cir. 2001) (en banc) (holding that the intrastate

use of Western Union can support a violation of the murderfor-hire statute). That the phrase modifies “facility” in the

related murder-for-hire statute weighs in favor of reading the

Travel Act the same way. See Jonah R., 446 F.3d at 1007. 

B. Whether Intrastate Telephone Calls Involve the Use of

a Facility “in” Interstate Commerce 

[5] Nader and Lake concede that the telephone is a facility

of interstate commerce. They argue, however, that Congress

intended to require actual interstate activity by drafting the

Travel Act to prohibit the use of “any facility in interstate or

foreign commerce.” 18 U.S.C. § 1952(a) (emphasis added).

Several courts, including ours, have recognized a distinction

between the phrases “in interstate commerce” and “of interstate commerce” in the context of other statutes. In Spilker v.

Shayne Labs., Inc., 520 F.2d 523, 525-26 (9th Cir. 1975), we

(a) Whoever travels in or causes another (including the intended

victim) to travel in interstate or foreign commerce, or uses or

causes another (including the intended victim) to use the mail or

any facility in interstate or foreign commerce, with intent that a

murder be committed . . . . shall be fined under this title or

imprisoned . . . or both. 

(b) As used in this section . . . 

. . . . 

(2) “facility of interstate or foreign commerce” includes means of

transportation and communication . . . . 

18 U.S.C. § 1958 (1996) (emphasis added). 

12360 UNITED STATES v. NADER
joined several other circuits in holding that the intrastate use

of the telephone constitutes the use of an “instrumentality of

interstate commerce” under § 10 of the Securities Exchange

Act of 1934 (“1934 Act”). Spilker contrasted the 1934 Act

with the Securities Act of 1933, which contained the phrase

“ ‘instrumentality in interstate commerce.’ ” Id. at 525

(emphasis added) (quoting Dupuy v. Dupuy, 511 F.2d 641,

642-43 (5th Cir. 1975)). Spilker reasoned that “a number of

courts have considered use of the preposition ‘of’ rather than

‘in’ in itself highly persuasive that intrastate telephone communications are within the purview of the 1934 Act.” Id.

(quoting Dupuy, 511 F.2d at 642-43). The Sixth Circuit relied

on a similar securities case from its circuit in concluding that

intrastate mailings cannot support a violation of the Travel Act.5

See Barry, 888 F.2d at 1095 (citing Aquionics Acceptance

Corp. v. Kollar, 503 F.2d 1225, 1228 (6th Cir. 1974)); see

also United States v. De Sapio, 299 F. Supp. 436, 448

(S.D.N.Y. 1969) (concluding that intrastate telephone calls

cannot support a violation of the Travel Act). 

[6] We attach no special significance to the use of the preposition “in” rather than “of” in the Travel Act. While the language may admit of some ambiguity, we decline to apply

Spilker and the other securities cases because they construe

unrelated statutes not at issue here. See United States ex rel.

Chicago, New York & Boston Refrigerator Co. v. Interstate

Commerce Comm’n, 265 U.S. 292, 295 (1924) (“[B]ecause

words used in one statute have a particular meaning they do

not necessarily denote an identical meaning when used in

another and different statute.”); United States v. King, 478

F.2d 494, 504 (9th Cir. 1973) (“The fact that [Congress] used

5The Fifth Circuit, construing the murder-for-hire statute, distinguished

a similar securities case from its circuit and reached the opposite conclusion: that intrastate activity can support a violation of the Travel Act. See

Marek, 238 F.3d at 319 n.44 (distinguishing Dupuy, 511 F.2d at 642-43).

The Second and Seventh Circuits have adopted Marek’s approach. See

United States v. Perez, 414 F.3d 302, 304-05 (2d Cir. 2005); Richeson,

338 F.3d at 660. 

UNITED STATES v. NADER 12361
different language to achieve the same result in a totally unrelated statute is irrelevant.”). Moreover, these securities cases

do not construe the language that is at issue here. They do not

affirmatively hold that “in interstate commerce”—the language in both the 1933 Act and the Travel Act—requires

actual interstate activity. The 1934 Act was at issue in Spilker

and the other securities cases, not the 1933 Act. The 1934 Act

contains only the phrase “of interstate commerce.” 

[7] We look, instead, to the murder-for-hire statute, which

is closely related to the Travel Act.6 The murder-for-hire statute supports the conclusion that Congress did not intend to

require actual interstate activity by using the phrase “in interstate or foreign commerce” in the Travel Act. Before it was

amended in 2004, the murder-for-hire statute prohibited the

use of “any facility in interstate or foreign commerce, with

intent that a murder be committed.” 18 U.S.C. § 1958(a)

(1996) (emphasis added). The statute’s definitional section,

however, defined the phrase “facility of interstate or foreign

commerce,” language which did not appear anywhere else in

the statute. 18 U.S.C. § 1958(b) (1996) (emphasis added).7

Three circuits have concluded, based largely on this difference, that Congress intended the two phrases to be interchangeable. See United States v. Perez, 414 F.3d 302, 304-05

6The sequential numbering of the Travel Act, 18 U.S.C. § 1952, and the

original version of the murder-for-hire statute, 18 U.S.C. § 1952A (1985),

as well as their parallel language, overlapping subject matter, and legislative histories show that the murder-for-hire statute was intended to supplement the Travel Act. See Marek, 238 F.3d at 317 n.29 (citing United

States v. Edelman, 873 F.2d 791, 794 (5th Cir. 1989) (quoting S. Rep. No.

98-225, at 306 (2d Sess. 1988), reprinted in 1984 U.S.C.C.A.N 3182,

3485)); Riccardelli, 794 F.2d at 833. Congress later renumbered the

murder-for-hire statute, codifying it at 18 U.S.C. § 1958. See Pub. L. No.

100-690, tit. VII, sec. 7053(a), 102 Stat. 4181, 4402 (Nov. 18, 1988). 

7The definitional section of the murder-for-hire statute provided: “As

used in this section . . . ‘facility of interstate or foreign commerce’

includes means of transportation and communication . . . .” 18 U.S.C.

§ 1958(b) (1996). 

12362 UNITED STATES v. NADER
(2d Cir. 2005) (per curiam); Richeson, 338 F.3d at 660;

Marek, 238 F.3d at 313. But see United States v. Weathers,

169 F.3d 336, 342 (6th Cir. 1999). Any other interpretation

“is difficult to square with the structure of the statute” because

“[i]f the phrases have different meanings, then § 1958(b)

defines a phrase with no application to the substantive

offense.” Perez, 414 F.3d at 305. That Congress intended the

two phrases to be interchangeable in the murder-for-hire statute supports the view that its use of one rather than the other

in the Travel Act has no special significance. See Jonah R.,

446 F.3d at 1007. 

Congress amended the substantive section of the murderfor-hire statute to conform with its definitional section in

2004. Both sections now contain the phrase “of interstate or

foreign commerce.” The 2004 amendment is entitled “clarification of definition,” even though it changed the substantive

section of the murder-for-hire statute, not the definitional section. Pub. L. No. 108-458, tit. II, sec. 6704, 118 Stat. 3638,

3766 (Dec. 17, 2004). That Congress clarified the definition

by changing the substantive section suggests that the content

of the definitional section and the content of the substantive

section were the same before the amendment, i.e., that “in”

and “of” were (and still are) interchangeable. If they were not,

then we would expect the 2004 amendment either to have

changed the definitional section rather than the substantive

section, or not to have purported to be merely a clarification

of the definition. 

[8] Accordingly, intrastate telephone calls involve the use

of a facility “in” interstate commerce. 

C. Legislative Purpose

[9] Nader and Lake argue that we should construe the

Travel Act narrowly because their conduct falls outside its

primary legislative purpose. See Spilker, 520 F.2d at 525 (“It

is a cardinal canon of statutory construction that statutes

UNITED STATES v. NADER 12363
should be interpreted harmoniously with their dominant legislative purpose.”). The primary legislative purpose of the

Travel Act was to target organized crime, particularly the “top

men of organized crime” who oversee illegal activities in one

state while residing in another. 107 Cong. Rec. 13942, 13943

(1961); The Attorney General’s Program to Curb Organized

Crime and Racketeering: Hearings Before the Comm. on the

Judiciary, United States Senate, 87th Cong. 15-16 (1st Sess.

1961) (statement of Attorney General Robert F. Kennedy);

see Rewis v. United States, 401 U.S. 808, 812 & n.6 (1971).

No aspect of that purpose is implicated here, since Nader and

Lake were involved in local prostitution businesses, not organized crime, and they did not reside out-of-state. The statute,

however, is worded broadly. Its plain text prevents us from

reading it to encompass only cases that involve organized

crime or interstate criminal enterprises. To the extent the statute is ambiguous about whether the telephone is a facility “in”

interstate commerce, the other sources of meaning discussed

above weigh more heavily against a narrow construction than

its legislative purpose weighs in favor of one. 

D. The Rule of Lenity 

[10] Nader and Lake argue that we should apply the rule of

lenity because the Travel Act is ambiguous. They rely in part

on Rewis, where the Supreme Court applied the rule of lenity

when construing the interstate travel aspect of the Travel Act.

401 U.S. at 812. The rule of lenity “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected

to them.” United States v. Santos, 128 S. Ct. 2020, 2025

(2008). The rule of lenity, however, “is rooted in fundamental

principles of due process which mandate that no individual be

forced to speculate, at peril of indictment, whether his conduct is prohibited.” Dunn v. United States, 442 U.S. 100, 112

(1979). Nader and Lake were not “forced to speculate”

because they knew that their conduct was illegal. Accord

Marek, 238 F.3d at 322. 

12364 UNITED STATES v. NADER
[11] The rule of lenity applies only where “after seizing

every thing from which aid can be derived, the Court is left

with an ambiguous statute.” Smith v. United States, 508 U.S.

223, 239 (1993) (refusing to apply rule of lenity where defendant had been convicted of using a firearm in the commission

of a drug trafficking crime, but used the firearm only for barter, not as a weapon) (internal quotation marks omitted). The

language of the statute must be “grievously ambiguous.”

United States v. Devorkin, 159 F.3d 465, 469 (9th Cir. 1998)

(citing Chapman v. United States, 500 U.S. 453, 463 (1991)).

We have resolved any ambiguity about the portions of the

Travel Act at issue here with the aid of the related murder-forhire statute. See Marek, 238 F.3d at 322. This case is therefore

unlike Rewis, 401 U.S. at 812, which involved an aspect of

the Travel Act not at issue here. 

E. Federalism 

[12] Nader and Lake argue that interpreting the Travel Act

broadly offends principles of federalism. “[I]f Congress

intends to alter the usual constitutional balance between the

States and the Federal Government, it must make its intention

to do so unmistakably clear in the language of the statute.”

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989)

(internal quotation marks omitted). Nader and Lake argue that

the Travel Act is not unmistakably clear, and that interpreting

it broadly enough to encompass their conduct would alter this

delicate balance. The Travel Act establishes only concurrent

federal jurisdiction over what are already state or local crimes,

however. See Marek, 238 F.3d at 323 (quoting S. Rep. No.

98-225, at 304-05 (1984), reprinted in 1984 U.S.C.C.A.N.

3182, 3484). The federal government cannot usurp state

authority via the Travel Act because a state must first decide

that the conduct at issue is illegal. The Travel Act also does

not render state or local law enforcement agencies any less

able to fight crime; it supplements, not supplants, their capabilities. While there may be valid questions as to the wisdom

of drafting such a broad statute or applying it in the context

UNITED STATES v. NADER 12365
of local prostitution businesses like the ones in this case, these

are policy issues within the discretion of the other branches.

They raise no federalism concerns. 

III. Conclusion

We hold that intrastate telephone calls made with intent to

further unlawful activity can violate the Travel Act because

the telephone is a facility in interstate commerce. 

AFFIRMED. 

12366 UNITED STATES v. NADER