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

and 1958, and for aiding

and abetting each other in attempted murder for hire in

violation of

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 Barnett’s truck. Just prior to leaving,

Bevans activated a miniature tape recorder hidden in his

clothing, and recorded their conversation.

While in Barnett’s 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 “Mr. Belize” bodybuilding title. Bevans maintains that the meeting was arranged the previous day at Body 2000 when Barnett approached him and said, “I am looking for a son-of-a-bitch to kill someone for me.” 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 “twenty Gs kicker” if the murder

resulted in a prompt settlement of his lawsuit against

Parker. He advised of Parker’s 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 “brother” 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 “brother” 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, “Joe, where can papers on well be inspected?” At that, Bevans was to disclose his location so that Drake could bring him additional information. Barnett claims that he went to Bevans’ 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 Bevans’ former cellmate at

Leavenworth, and delivered maps to Parker’s 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

Parker’s 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 Parker’s 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

“instructions . . . fairly and adequately cover the

issues presented by the case.”6 The trial court must be

mindful, however, of the defendant’s right to request and

receive jury instructions regarding the particulars of

his defense which, ultimately, could affect the jury’s

verdict. “It 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 sufficient” to support a verdict of not guilty.7

4 United States v. Pennington,

(5th Cir. 1994). 5 United States v. Rochester,

(5th Cir. 1990). 6 United States v. Mollier,

(5th Cir. 1988). 7 United States v. Rubio,

(5th Cir. 1987) (quoting United States v. Lewis,

(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, “the 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.”11

Barnett claims that Bevans induced his participation

1979)). 8 United States v. Collins,

(5th Cir. 1992) (citing Mathews v. United States,

(1988)). 9 United States v. Bradfield,

(5th Cir. 1997) (citing United States v. Nations,

(5th Cir. 1985)). 10 Mathews v. United States,

(1988); United States v. Menesses,

(5th Cir. 1992). 11 Bradfield,

.

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 Bevans’ 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 “which is the product of the creative activity of

its own officials”13 or “born in the minds of government

agents.”14 “Entrapment 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,

(5th Cir. 1969); Pearson v. United States,

(5th Cir. 1967). 13 Sorrells v. United States,

(1932). 14 Prieto-Olivas,

(citing Kivette v. United States,

(5th Cir. 1956)).

9 under government direction.”15

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 “take care of him.” On July 10, the day

Bevans asserts Barnett first suggested the deal, Bevans

called Elliot. Elliot’s 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,

(5th Cir. 1972).

10 The district court did not abuse its discretion in

concluding that Barnett’s evidence was insufficient to

establish a jury question as to Bevans’ 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 Elliot’s 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,

(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 “paid

government informer” or “active government informer”

prior to July 13. The record contains no evidence that

the government made it Bevans’ “job” 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,

(1958); United States v. Waddell,

(5th Cir. 1975). 18 Sherman,

. 19 Busby,

.

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 Bevans’ criminal history and

his contacts. Barnett claims that he needed a

continuance in order to investigate Bevans’ 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 “‘specific and compelling’ or

‘serious’ prejudice.”22 Barnett maintains that he needed

20 Brady v. Maryland,

(1963). 21 United States v. Krout,

(5th Cir. 1995). 22

.

13 information on Bevans’ 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 Barnett’s defense, and the denial of the

continuance was not an abuse of discretion. We find no

“specific and compelling” or “serious” prejudice.

Admission of Informant’s Testimony.

Barnett and Drake both contend that Bevans’ testimony

should not have been admitted at trial because he

received $7500 for his participation in the case. They

assert that the payment violates

(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 “‘[N]o practice is more

23 United States v. Haese,

(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.”24 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 “the compensated witness and

the witness promised a reduced sentence are

indistinguishable in principle and should be dealt with

in the same way,”25 we hold that

(c)(2) is

not violated when prosecutors compensate informants for

their cooperation.

24

at 366 (quoting United States v. Cervantes-Pacheco,

(5th Cir. 1987)). 25 Cervantes-Pacheco,

.

15 Motion to Sever.

Drake maintains that the trial court erred by denying

his motion to sever. He claims that the “spillover

effect” 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,

(5th Cir.), cert. denied,

(1994). 27 Id. 28 United States v. Hernandez,

(5th Cir. 1994).

16 have been participants in the same conspiracy.29

Severance is necessary only when “there 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.”30

We find that the district court acted within its

discretion in denying Drake’s 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

coconspirator’s fifth amendment rights. In fact, Drake’s

only alleged coconspirator, Barnett, testified at trial,

was cross examined by Drake’s attorney, and generally

gave information that supported Drake’s 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,

. 30 United States v. Bermea,

(5th Cir. 1994).

17 fairly. Even if Drake’s 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 Drake’s being tried with Barnett

was neutralized by the trial court’s 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,

. 32 United States v. Lindell,

(5th Cir. 1989) (holding that defendant must show that he suffered “specific and compelling prejudice” that could not be mitigated by lesser measures than severance, including a proper limiting instruction). 33 United States v. Ramirez,

(5th Cir. 1998).

18 inferences made in support of the jury’s 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, “the Government must prove at least

the degree of criminal intent necessary for the

substantive offense itself.”36 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,

(5th Cir. 1997). 35 United States v. Grassi,

(5th Cir. 1980) (citations omitted). 36 United States v. Feola,

(1975); United States v. Osgood,

(5th Cir. 1986).

19 prove that the defendant “shared in the criminal intent

of the principal.”37 Here, the underlying federal statute

requires proof of “intent that a murder be committed in

violation of the laws of any state or the United

States. . . .”38 Drake argues that he blindly followed

Barnett’s 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 government’s evidence on this issue essentially

is two recorded meetings between Drake, Bevans, and

Chatman that took place at the hotel in Lafayette and in

Drake’s truck while driving through Lafayette. At the

hotel, Drake delivered a package containing maps to the

homes of Parker and Nichols. Drake’s 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 “a lot of it” but was “not

gonna say I know anything and I’m not gonna tell you I

37 United States v. Ortiz-Loya,

(5th Cir. 1985). 38

.

20 know everything.” Later that evening, Drake drove Bevans

and Chatman to Parker’s home. It was clear that Drake

knew that their objective involved Parker, because

neither Bevans nor Chatman mentioned Parker’s name or

asked to be taken to his home. Drake stated that he

formerly had been involved in law enforcement and that

“this” meant that he would have been on “both sides of

the fence.” 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 Parker’s 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 Barnett’s 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

“kill,” “murder,” “death,” “hit,” or “contract” 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,

“must we consider conspiracy to commit a crime or must we

specifically consider a conspiracy to commit ‘murder for

hire’ to make/come to a decision according to the

charges?”39 The government’s 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 Drake’s conviction on

both counts.

Barnett’s convictions for aiding and abetting and

conspiracy to commit murder for hire are AFFIRMED.

Drake’s convictions for aiding and abetting and

conspiracy to commit murder for hire are REVERSED.

40 United States v. Jordan,

(5th Cir. 1980); United States v. Ritter,

(9th Cir. 1993).

23