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Full Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30365
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD D. BARNETT; VIRGIL R. DRAKE,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Louisiana
November 22, 1999
Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges.
POLITZ, Circuit Judge:
Richard D. Barnett and Virgil R. Drake appeal
convictions for conspiracy to commit murder for hire in
violation of 18 U.S.C. Ā§Ā§ 371 and 1958, and for aiding
and abetting each other in attempted murder for hire in
violation of 18 U.S.C. Ā§Ā§ 1958 and 2. For the reasons
assigned we affirm the convictions of Barnett and reverse
the convictions of Drake.
Background
The record establishes that the relevant events began
in early July 1997 in Belize City, Belize where Barnett,
an American citizen, had been working for several months.
He was scheduled to return to the United States on
July 12. While in Belize he frequented a local
gymnasium, Body 2000, and became acquainted with Rushiel
Bevans, a Belize native, who worked there as a trainer
and bodybuilder. On July 11, Barnett and Bevans had
dinner together at a restaurant.1 They left the
restaurant in Barnettās truck. Just prior to leaving,
Bevans activated a miniature tape recorder hidden in his
clothing, and recorded their conversation.
While in Barnettās truck they discussed plans for
Bevans to travel to Lafayette, Louisiana and kill one or
possibly two individuals. One of the intended victims
1
Barnett contends that the purpose of the meeting was to discuss
his plans to start a health food business in Belize and to seek the
participation of Bevans who was holder of the āMr. Belizeā
bodybuilding title. Bevans maintains that the meeting was arranged
the previous day at Body 2000 when Barnett approached him and said,
āI am looking for a son-of-a-bitch to kill someone for me.ā Bevans
testified that the July 11 meeting was to discuss this subject. He
brought a tape recorder with him and recorded their conversation.
At trial Barnett proffered the notes of DEA agent Art Elliot
reflecting a call from Bevans on July 10 informing about the
meeting scheduled for the next day.
2
was Ernest L. Parker, a Lafayette attorney who Barnett
claimed had cheated him out of money in a crooked stock
transfer. Litigation between Parker and Barnett was
pending and Barnett made no secret of his animosity
towards Parker. Barnett questioned Bevans about his
seriousness in carrying out the homicide. He asked
Bevans if he had a passport, gave him detailed
instructions on construction of a silencer for use with
a firearm, discussed the amount of money he would pay
Bevans, and offered a ātwenty Gs kickerā if the murder
resulted in a prompt settlement of his lawsuit against
Parker. He advised of Parkerās habits, such as his
travels and the time he arose in the morning. He also
told Bevans that he had contemplated committing the
murder himself and described how he might dispose of his
clothing to prevent the police from finding traces of gun
powder on them.
Barnett continued the discussion, explaining that he
had a ābrotherā in the United States who had made
arrangements with a potential assassin but those plans
went awry when that person was arrested on an unrelated
3
matter. He promised Bevans more information after he
spoke with the ābrotherā and suggested that they meet the
next day at Body 2000. Bevans, in turn, boasted of his
time in Leavenworth, told Barnett the preferred method of
contact between them, explained how money should be
transferred, when he would obtain a firearm, and other
details designed to persuade Barnett of his ability to
break and evade the law.
The next day Barnett gave Bevans written information,
including where Virgil Drake could be reached in
Louisiana, and a series of code phrases for contacting
him.2 Barnett then left for the United States. Bevans
contacted Art Elliot, a DEA agent stationed in Belize,
who contacted the FBI.
Upon arriving in Lafayette, Bevans contacted Drake as
instructed. Drake met Bevans and FBI undercover agent
2
The note instructed Bevans to call Drake and leave his return
number and a message that he needed Drake to inspect a water well
near Abbeville, Louisiana. Drake was to respond, āJoe, where can
papers on well be inspected?ā At that, Bevans was to disclose his
location so that Drake could bring him additional information.
Barnett claims that he went to Bevansā home in order to terminate
the scheme, and that it was only after Bevans threatened to harm
his children that he brought Bevans the information on how to
contact Drake.
4
Mike Chatman, posing as Bevansā former cellmate at
Leavenworth, and delivered maps to Parkerās house and to
the house of a second target, Logan Nichols, and
biographical data and a photo of Parker. Bevans and
Chatman told Drake they needed more money and Drake
agreed to pass that message on to Barnett in Houston.
Shortly thereafter Barnett called Bevans and arranged a
meeting in Orange, Texas that afternoon.
At that meeting Barnett, Bevans, and Chatman
finalized plans for the murder. Barnett described
Parkerās auto, the golf club Parker frequented, and the
homes of Parker and Nichols and he offered to cover any
additional expenses. Later that day Drake drove Bevans
and Chatman to Parkerās home and showed them the best
route from it to Interstate 10.
Barnett and Drake were arrested and charged with
conspiracy to commit murder for hire and with aiding and
abetting each other in attempted murder for hire. At
trial, Barnett sought to explain all of the taped
conversations as a combination of barroom talk, nervous
chatter, and attempts to extricate himself from
5
situations with Bevans and Chatman in which he felt he
and his family were in danger.3 He claimed that he never
wanted Parker and Nichols killed, and was only feigning
agreement with Bevans in order to placate him. He
requested, but did not receive, an entrapment
instruction. Drake argued that he was not sufficiently
aware of what was going on to support convictions for
conspiracy and aiding and abetting. The jury returned
verdicts of guilty on both counts for both defendants.
Barnett received a 60-month sentence on Count I and a
120-month sentence on Count II, to be served
consecutively. Drake received a 60-month sentence on
Count I and a 97-month sentence on Count II, to be served
concurrently. Both timely appealed.
Analysis
3
Barnett sought to support this claim with evidence that Bevans
was a dangerous character. He questioned Bevans about his time in
prison for gun running activities, his alleged drug activities, use
of an assumed name, alleged sham marriage, dishonorable discharge
from the United States military, deportation from the United
States, current tax deficiency in Belize, and a fistfight with his
boss. He also claimed Bevans knew where his children lived in
Louisiana, and said that he suspected Bevans of being involved in
a hit-and-run accident in which his daughter was injured. His
hope, he says, was that if he paid Bevans enough money, Bevans
would simply leave him alone.
6
Entrapment.
Barnett contends that the district court erred by not
granting his request for an entrapment instruction. We
review the refusal to give a requested jury instruction
for abuse of discretion.4 In general, the trial court is
given great latitude in formulating its instructions,5 and
we will not find an abuse of discretion where the
āinstructions . . . fairly and adequately cover the
issues presented by the case.ā6 The trial court must be
mindful, however, of the defendantās right to request and
receive jury instructions regarding the particulars of
his defense which, ultimately, could affect the juryās
verdict. āIt has long been well established in this
Circuit that it is reversible error to refuse a charge on
a defense theory for which there is an evidentiary
foundation and which, if believed by the jury, would be
legally sufficientā to support a verdict of not guilty.7
4
United States v. Pennington, 20 F.3d 593 (5th Cir. 1994).
5
United States v. Rochester, 898 F.2d 971 (5th Cir. 1990).
6
United States v. Mollier, 853 F.2d 1169, 1174 (5th Cir. 1988).
7
United States v. Rubio, 834 F.2d 442, 446 (5th Cir. 1987)
(quoting United States v. Lewis, 592 F.2d 1282, 1285 (5th Cir.
7
The trial court must charge the jury on a defense
theory if there is sufficient evidence reasonably to find
in favor of the defendant thereon.8 To warrant an
entrapment instruction the defendant need only show a
basis for reasonable doubt on the ultimate issue whether
the criminal intent originated with the government.9 The
mere assertion of entrapment does not suffice.10 The
defendant must present evidence sufficient to sustain a
jury finding on both prongs of the entrapment defense;
that is, āthe record must contain sufficient evidence of
both inducement and lack of predisposition to raise an
entrapment issue; the entrapment issue need not be
presented to the jury if the evidence does not raise the
issue to that degree.ā11
Barnett claims that Bevans induced his participation
1979)).
8
United States v. Collins, 972 F.2d 1385 (5th Cir. 1992) (citing
Mathews v. United States, 485 U.S. 58 (1988)).
9
United States v. Bradfield, 113 F.3d 515 (5th Cir. 1997) (citing
United States v. Nations, 764 F.2d 1073 (5th Cir. 1985)).
10
Mathews v. United States, 485 U.S. 58 (1988); United States v.
Menesses, 962 F.2d 420 (5th Cir. 1992).
11
Bradfield, 113 F.3d at 521.
8
in the murder for hire scheme, testifying that the idea
of killing Parker was initiated by Bevans before any of
the taped conversations, and that Bevans prevented his
withdrawal when he went to Bevansā house.
Barnett may satisfy the government inducement prong
of entrapment only if Bevans was a government agent at
the time of the alleged inducement. The defense of
entrapment is not applicable where one is induced to
engage in criminal activity by a private citizen acting
alone.12 Entrapment is available only to the innocent
defendant whom the government seeks to punish for an
offense āwhich is the product of the creative activity of
its own officialsā13 or āborn in the minds of government
agents.ā14 āEntrapment as a defense occurs only when
criminal conduct is the product of the creative activity
of government officials or those private citizens acting
12
United States v. Prieto-Olivas, 419 F.2d 149 (5th Cir. 1969);
Pearson v. United States, 378 F.2d 555 (5th Cir. 1967).
13
Sorrells v. United States, 287 U.S. 435 (1932).
14
Prieto-Olivas, 419 F.2d at 150 (citing Kivette v. United
States, 230 F.2d 749 (5th Cir. 1956)).
9
under government direction.ā15
Barnett contends that Bevans was an agent of the
government because of his previous contacts with Elliot
and the DEA. Bevans had known Agent Elliot during the
more than two years that Elliot worked out at Body 2000.
On one prior occasion Bevans provided the DEA with
information that someone at the U.S. Embassy in Belize
might be in danger. Bevans refused to cooperate further
in the investigation, despite being promised that the
government would ātake care of him.ā On July 10, the day
Bevans asserts Barnett first suggested the deal, Bevans
called Elliot. Elliotās notes of that call reflect that
Elliot told Bevans to call when he had more details.
Bevans and Elliot did not speak again until after Barnett
left Belize on July 12. Elliot later heard the July 11
tape and put Bevans in contact with the FBI. FBI agents
then began to give Bevans directions and promised to fly
him to the United States and help him find his wife in
exchange for his cooperation with the remainder of the
investigation.
15
United States v. Dodson, 481 F.2d 656, 657 (5th Cir. 1972).
10
The district court did not abuse its discretion in
concluding that Barnettās evidence was insufficient to
establish a jury question as to Bevansā status as a
government agent prior to July 13, the time Barnett
alleges Bevans induced him to participate in the murder
for hire scheme. Barnett failed to produce any evidence
that Bevans acted under the direction or supervision of
the government during the initial stages of the scheme.
Agent Elliotās notes on July 10 reflect only that he
passively received information and asked Bevans to keep
him informed of future developments. This was an
informal request for future information, not an agreement
that Bevans would work on behalf of the government to
obtain that information.16
Barnett correctly points out, however, that an
informer may be an agent of the government even if its
officials do not directly orchestrate his activities.
Law enforcement authorities may not make promises to
private citizen informants in exchange for their efforts
in instigating crimes and then secure insulation from
16
United States v. Busby, 780 F.2d 804 (9th Cir. 1986).
11
charges of entrapment simply by leaving the informers to
their own devices.17 To allow such a practice would
permit the type of government overreaching that the
entrapment defense was designed to prevent. Bevans,
however, cannot be characterized as such a āpaid
government informerā or āactive government informerā
prior to July 13. The record contains no evidence that
the government made it Bevansā ājobā to be the instigator
of similar prosecutions.18 Barnett produced no evidence
that Bevans had been promised anything in exchange for
compromising him. Bevans may have seen value in
ingratiating himself with the authorities because of his
criminal history and his tax difficulties, but that he
may have anticipated compensation for providing
information does not make him an agent of the
government.19 Barnett failed to produce evidence
sufficient to sustain a finding that he was induced by
the government to commit any crime, and we must therefore
17
Sherman v. United States, 356 U.S. 369 (1958); United States
v. Waddell, 507 F.2d 1226 (5th Cir. 1975).
18
Sherman, 356 U.S. 369.
19
Busby, 780 F.2d 804.
12
conclude that the district court did not abuse its
discretion by declining to give an entrapment charge.
Denial of the Motion for Continuance.
Barnett next contends that the trial court erred by
refusing to grant his motion for a continuance. He made
several requests for Brady20 material prior to trial.
Each of his requests was met with a representation by the
government that no such material existed. Then on the
first day of trial, the government delivered a report
from the Joint Intelligence Coordinating Center
containing information about Bevansā criminal history and
his contacts. Barnett claims that he needed a
continuance in order to investigate Bevansā background
adequately.
We review the denial of a motion for continuance for
abuse of discretion.21 To prevail, the movant must show
that the denial resulted in āāspecific and compellingā or
āseriousā prejudice.ā22 Barnett maintains that he needed
20
Brady v. Maryland, 373 U.S. 83 (1963).
21
United States v. Krout, 66 F.3d 1420 (5th Cir. 1995).
22
Id. at 1436.
13
information on Bevansā criminal history and criminal
contacts in order to develop his theory that Bevans
entrapped him to ingratiate himself with the authorities.
Bevans was not a government agent. Whatever his motives,
he therefore could not have entrapped Barnett. The
failure to produce the information at an earlier time did
not prejudice Barnettās defense, and the denial of the
continuance was not an abuse of discretion. We find no
āspecific and compellingā or āseriousā prejudice.
Admission of Informantās Testimony.
Barnett and Drake both contend that Bevansā testimony
should not have been admitted at trial because he
received $7500 for his participation in the case. They
assert that the payment violates 18 U.S.C. Ā§ 201(c)(2),
which prohibits the giving of anything of value to a
witness in exchange for testimony. This issue was not
raised at trial and we review for plain error.
We previously have held that section 201(c)(2) is not
violated when prosecutors offer leniency to a witness in
exchange for testimony.23 āā[N]o practice is more
23
United States v. Haese, 162 F.3d 359 (5th Cir. 1998).
14
ingrained in our criminal justice system than the
practice of the government calling a witness who is an
accessory to the crime for which the defendant is charged
and having that witness testify under a plea bargain that
promises him a reduced sentence.ā24 We have opted to
protect the judicial process from the stain of perjury
with other safeguards, including the prohibition on the
use of perjured testimony, the requirement that the
government disclose such arrangements, the opportunity
for defense counsel to engage in rigorous cross-
examination, and the instruction of the jury on the
suspect nature of compensated testimony. Because of
these safeguards and because āthe compensated witness and
the witness promised a reduced sentence are
indistinguishable in principle and should be dealt with
in the same way,ā25 we hold that 18 U.S.C. Ā§ 201(c)(2) is
not violated when prosecutors compensate informants for
their cooperation.
24
Id. at 366 (quoting United States v. Cervantes-Pacheco, 826
F.2d 310, 315 (5th Cir. 1987)).
25
Cervantes-Pacheco, 826 F.2d at 315.
15
Motion to Sever.
Drake maintains that the trial court erred by denying
his motion to sever. He claims that the āspillover
effectā of the evidence presented against Barnett
confused the jury to such a degree that severance was
required in order to avoid undue prejudice to his
defense.
We review the denial of a motion to sever for abuse
of discretion.26 As a general rule, defendants who are
indicted together are tried together.27 The decision
whether to sever the trials of persons indicted together
is within the discretion of the trial court, and the
denial of a severance will not furnish grounds for
reversal unless the defendant can demonstrate specific
compelling prejudice against which the district court was
unable to afford protection.28 A joint trial is
especially appropriate when the defendants are alleged to
26
United States v. Faulkner, 17 F.3d 745 (5th Cir.), cert.
denied, 513 U.S. 870 (1994).
27
Id.
28
United States v. Hernandez, 962 F.2d 1152 (5th Cir. 1994).
16
have been participants in the same conspiracy.29
Severance is necessary only when āthere is a serious risk
that a joint trial would compromise a specific trial
right of one of the defendants or prevent the jury from
making a reliable determination of guilt or innocence.ā30
We find that the district court acted within its
discretion in denying Drakeās motion to sever. Drake was
not prejudiced in the presentation of any defenses as a
result of being tried jointly with Barnett. Nor was
severance required so that the testimony of a
coconspirator could be compelled without violating the
coconspiratorās fifth amendment rights. In fact, Drakeās
only alleged coconspirator, Barnett, testified at trial,
was cross examined by Drakeās attorney, and generally
gave information that supported Drakeās defense.
Stripped to its essentials, Drake simply argues that the
quantum of evidence against Barnett and the chilling
nature of the taped conversations between Barnett and
Bevans made it impossible for the jury to decide his case
29
Faulkner, 17 F.3d 745.
30
United States v. Bermea, 30 F.3d 1539, 1572 (5th Cir. 1994).
17
fairly. Even if Drakeās defense had been tainted to some
degree by the evidence against Barnett, however, the
existence of some spillover effect ordinarily does not
require severance.31 In this case, any prejudice that
might have resulted from Drakeās being tried with Barnett
was neutralized by the trial courtās instruction to the
jury that it must consider the charges and evidence
against Barnett and Drake separately.32
Sufficiency of the Evidence.
Finally, Drake argues that there was not sufficient
evidence to support his conspiracy and aiding-and-
abetting convictions. We review a claim of insufficient
evidence to determine whether a rational trier of fact
could have found that the evidence proved the essential
elements of the crime beyond a reasonable doubt.33 The
evidence presented at trial is viewed with all reasonable
31
Faulkner, 17 F.3d 745.
32
United States v. Lindell, 881 F.2d 1313 (5th Cir. 1989)
(holding that defendant must show that he suffered āspecific and
compelling prejudiceā that could not be mitigated by lesser
measures than severance, including a proper limiting instruction).
33
United States v. Ramirez, 145 F.3d 345 (5th Cir. 1998).
18
inferences made in support of the juryās verdict.34
Drake argues, and the government concedes, that in
order to obtain a conviction for either crime, the
government must show beyond a reasonable doubt that Drake
acted with the intent that a murder be committed in
violation of the laws of any state or of the United
States.
It is a cardinal rule of conspiracy law that one
does not become a coconspirator simply by virtue
of the knowledge of a conspiracy and association
with conspirators. . . . To connect the
defendant to a conspiracy, the prosecution must
demonstrate that the defendant agreed with
others to join the conspiracy and participate in
the achievement of the illegal objective.35
In order to convict a defendant of conspiracy to violate
a federal statute, āthe Government must prove at least
the degree of criminal intent necessary for the
substantive offense itself.ā36 Likewise, in order to
sustain its case that the defendant aided and abetted in
the violation of a federal statute, the government must
34
United States v. Thomas, 120 F.3d 564 (5th Cir. 1997).
35
United States v. Grassi, 616 F.2d 1295, 1301 (5th Cir. 1980)
(citations omitted).
36
United States v. Feola, 420 U.S. 671, 686 (1975); United
States v. Osgood, 794 F.2d 1087 (5th Cir. 1986).
19
prove that the defendant āshared in the criminal intent
of the principal.ā37 Here, the underlying federal statute
requires proof of āintent that a murder be committed in
violation of the laws of any state or the United
States. . . .ā38 Drake argues that he blindly followed
Barnettās instructions and that he was never made aware
of what Barnett was up to or the reason why Barnett had
asked Bevans and Chatman to come to Lafayette.
The governmentās evidence on this issue essentially
is two recorded meetings between Drake, Bevans, and
Chatman that took place at the hotel in Lafayette and in
Drakeās truck while driving through Lafayette. At the
hotel, Drake delivered a package containing maps to the
homes of Parker and Nichols. Drakeās fingerprints were
on the maps. Drake appeared to be nervous during that
meeting, suggesting consciousness of guilt. When asked
directly about the extent of his knowledge by Chatman,
Drake admitted that he knew āa lot of itā but was ānot
gonna say I know anything and Iām not gonna tell you I
37
United States v. Ortiz-Loya, 777 F.2d 973, 980 (5th Cir. 1985).
38
18 U.S.C. Ā§ 1958.
20
know everything.ā Later that evening, Drake drove Bevans
and Chatman to Parkerās home. It was clear that Drake
knew that their objective involved Parker, because
neither Bevans nor Chatman mentioned Parkerās name or
asked to be taken to his home. Drake stated that he
formerly had been involved in law enforcement and that
āthisā meant that he would have been on āboth sides of
the fence.ā He knew a lot of people in the town of
Jennings and refused to be seen there with Bevans and
Chatman. After taking them to Parkerās house, he
instructed them on the quickest way to get to I-10. The
government also avers that because Drake and Barnett were
close friends, Drake must have known of Barnettās intense
hatred for Parker. Finally, telephone records indicate
that Drake and Barnett were in close contact during the
relevant time period.
The foregoing is compelling evidence of the fact that
Drake knew that Bevans and Chatman had been hired to
perpetrate some unlawful act against Parker and Nichols.
It does not, however, represent evidence that Drake knew
that the unlawful act was murder. The government
21
concedes that Bevans and Chatman did not use words like
ākill,ā āmurder,ā ādeath,ā āhit,ā or ācontractā when
talking with Drake as they had with Barnett. Nor did
they discuss, or otherwise indicate, that they were
carrying or intended to use any instrument that might be
employed to carry out a murder. The evidence presented
by the government is equally consistent with the
possibility that Drake believed that Bevans and Chatman
intended to kidnap or threaten Parker or a member of his
family, or to vandalize or burglarize his house, or to
obtain information about Parker that Barnett could use to
extort a favorable settlement from him. The jury
reflected confusion on this very point when it asked,
āmust we consider conspiracy to commit a crime or must we
specifically consider a conspiracy to commit āmurder for
hireā to make/come to a decision according to the
charges?ā39 The governmentās evidence that Drake was
39
In response to this question, the trial judge simply referred
the jury to the indictment and the instructions. Drake does not
question the propriety of this response; we need not consider it to
decide this appeal.
22
aware that some crime was afoot is not sufficient.40
Because the record is devoid of evidence that Drake
intended to conspire in or aid and abet the commission of
murder for hire, we must reverse Drakeās conviction on
both counts.
Barnettās convictions for aiding and abetting and
conspiracy to commit murder for hire are AFFIRMED.
Drakeās convictions for aiding and abetting and
conspiracy to commit murder for hire are REVERSED.
40
United States v. Jordan, 627 F.2d 683 (5th Cir. 1980); United
States v. Ritter, 989 F.2d 318 (9th Cir. 1993).
23