UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ UNITED STATES OF AMERICA, │ Plaintiff-Appellee, │ > Nos. 22-1698/1717 │ v. │ │ DAVID ALLEN (22-1698); MICHAEL DAVIS (22-1717), │ Defendants-Appellants. │ ┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:18-cr-20085—Paul D. Borman, District Judge.

Decided and Filed: November 9, 2023

Before: STRANCH, BUSH, and MURPHY, Circuit Judges.

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COUNSEL ON BRIEF: Martin J. Beres, Clinton Township, Michigan, for Appellant in 22-1698. Harold Gurewitz, GUREWITZ & RABEN, PLC, Detroit, Michigan, for Appellant in 22-1717. William J. Vailliencourt, Jr., UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.

The court delivered a PER CURIAM opinion. MURPHY, J. (pp. 17–25), delivered a separate concurring opinion, in which BUSH, J., joined. _________________

OPINION _________________

PER CURIAM. Michael Davis and David Allen pleaded guilty to using a facility of interstate commerce (their cellphones) in a murder-for-hire scheme, in violation of 18 U.S.C. Nos. 22-1698/1717 United States v. Allen, et al. Page 2

§ 1958(a). But they reserved the right to raise two constitutional issues on appeal, one involving the Commerce Clause and the other involving the Sixth Amendment right to a speedy trial.

Davis and Allen first argue that the government could not constitutionally apply the federal murder-for-hire statute to their conduct. Although the statute rests on Congress’s power to regulate interstate commerce, Davis and Allen never left Michigan or even made calls outside the State when committing the murder. At most, some of their intrastate calls required the telephone company to use out-of-state switches. This interstate connection, they say, does not suffice to give Congress the power to regulate their crime. Our binding precedent requires us to reject this claim. The Supreme Court has held that Congress may regulate the “instrumentalities of interstate commerce” even when used only within a State, and we have long treated an ordinary telephone as one such “instrumentality” within Congress’s control. See United States v. Windham, 53 F.4th 1006, 1013 (6th Cir. 2022); United States v. Weathers, 169 F.3d 336, 341–42 (6th Cir. 1999).

So Davis and Allen turn to their speedy-trial claims. Before they pleaded guilty, the district court had postponed their trial for nearly four years. Davis and Allen allege that this lengthy delay violated the Sixth Amendment right to a speedy trial, and Allen also claims that it violated the Speedy Trial Act. But the delay arose in part from their own repeated requests for more time and in part from the COVID-19 pandemic. Because the district court found that both reasons justified the delay, it saw no speedy-trial problem. We agree and affirm.

I

In their plea agreements, Davis and Allen admitted to the following details of their murder-for-hire scheme. Dwight Williams wanted to kill Deangelo Pippen. In late December 2016, Williams a