Case: 13-40689 Document: 00512944046 Page: 1 Date Filed: 02/23/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40689 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, February 23, 2015
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
SAMUEL WALKER; CALVIN EPPS, also known as Beef;
Defendants - Appellants
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 5:12-CR-185
Before STEWART, Chief Judge, and BARKSDALE and GRAVES, Circuit
Judges.
PER CURIAM:*
This appeal arises from a Drug Enforcement Agency (DEA) sting
operation involving large quantities of marijuana and cocaine and a murder-
for-hire contract. After their arrests, Defendants-Appellants Samuel Walker
and Calvin Epps were tried together in a nine-day jury trial. At the conclusion
of the trial, the jury found Walker guilty of conspiracy to commit murder-for-
hire in violation of 18 U.S.C. § 1958(a) and using and carrying a firearm during
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)
and (B)(i). The jury found Epps guilty of conspiracy to possess with intent to
distribute 5 kilograms or more of cocaine and 100 kilograms or more of
marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1), possession with
intent to distribute 100 kilograms or more of marijuana in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1), and using and carrying a firearm during and in
relation to and possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A). On appeal, Walker and Epps
assert various challenges seeking to vacate their convictions. Finding these
arguments without merit, we AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2010, the Laredo, Texas branch of the DEA launched an
undercover operation, which made use of social networking websites in order
to make contact with potential drug traffickers. In support of this operation,
the DEA created fictitious profiles on websites such as Facebook that were
designed to look as if they were operated by individuals involved in the drug
trafficking trade in Laredo and along the Mexican border. These profiles were
managed by DEA Agents John Leonard and Patrick Curran.
In January 2011, an individual named Marcus Mickle contacted one of
the fictitious profiles the DEA had created. Mickle identified himself as a
stolen weapons broker from Columbia, South Carolina and stated that he was
interested in trading his stolen goods for marijuana. Agent Leonard told
Mickle that he owned a legitimate trucking company, which he used to
transport narcotics for a Mexican drug cartel called Los Zetas (the “Zetas”),
and that he was friends with the son-in-law of a Zeta cartel leader who resided
in Mexico. Leonard also claimed that he had a drug distribution route that
shipped cocaine to Charlotte, North Carolina on a regular basis.
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On September 14, 2011, Mickle traveled to Laredo, Texas to meet with
Agent Leonard, who was accompanied by Agent Curran posing as the son-in-
law of a fictitious Zeta leader named “Jefe.” Mickle was accompanied by Calvin
Epps, whom he introduced as his “money-man.” The purpose of the meeting
was to negotiate Mickle’s proposal to provide weapons to the Zeta cartel in
exchange for drugs.
During the September 14 meeting, Agent Leonard reasserted that his
company had a drug route that shipped cocaine to Charlotte, North Carolina
and claimed that the shipment arrived twice a month. Mickle and Epps
claimed that they could serve as a reliable source of weapons for the cartel—
including M4s, M6s, and sniper rifles—and proposed that the cartel front them
drugs, which they could use “to get [them] started.” Epps also claimed that he
knew someone serving in the military, who was one of his potential sources for
weapons. This source was eventually identified as an individual named Kevin
Corley. After some negotiation, the agents agreed to provide Epps and Mickle
with 500 pounds of marijuana at $350 per pound and Epps and Mickle, in turn,
agreed to use the marijuana to purchase weapons for the cartel and keep a
portion of the profits from the marijuana they sold for themselves. Epps and
Mickle also agreed that after the first shipment, such transactions would occur
on a regular basis for the foreseeable future.
On September 26, 2011, Epps introduced Agents Leonard and Curran to
Kevin Corley, Epps’ alleged military source for weapons, via a telephonic
conference call. During the call, Corley, who was stationed in Colorado
Springs, Colorado, told the agents that he was an active duty infantry officer
in the United States Army and that he was responsible for training officers
and planning missions. Corley offered to use his military experience to train
members of the Zeta cartel in military tactics.
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After Epps’ initial introduction, the agents continued to speak with
Corley directly. On November 2, 2011, during a telephone conversation with
Agent Leonard regarding Corley’s offer to train Zeta members, Corley brought
up the possibility of doing “wet work” on behalf of the cartel. When Agent
Leonard repeated the phrase “wet work,” Corley stated,
I mean hey, when it comes time for him to ask me that, you know
what I’m saying, if that’s what it is that’s what it is, you know. . . .
I mean I’m pretty sure you got somebody doing something but like
I said, whatever I do, it’s what I can give you guys whatever that
helps, you know what I’m saying.
At the time, Agent Leonard did not know the meaning of the term “wet work”
but he eventually learned that the term referred to murder-for-hire.
To investigate Corley’s offer, the DEA concocted a fictitious story
involving an individual that had supposedly stolen 20 kilograms of cocaine
from Jefe and the cartel. Agent Leonard relayed this story to Corley and asked
whether Corley would be willing to retrieve the cocaine and kill the individual
who had stolen it. Corley stated that he would.
Sometime after discussing the possibility of conducting a murder-for-
hire on behalf of the cartel, Corley contacted Samuel Walker, a sergeant in the
Army, who was assigned to the same unit as Corley. Corley told Walker that
he had met people associated with the Zeta drug cartel and had offered to
provide military training to some of its members. Corley also brought up the
possibility of the cartel hiring him and a team of his choosing to murder an
individual who had stolen 20 kilograms of cocaine from the cartel’s leader.
Walker stated that he was interested in participating in the contract killing
and that he had committed a murder-for-hire previously. Walker also told
Corley that he should ask for at least $50,000 for the murder. After Corley
spoke with Walker, he told Agent Leonard that he could put together a team
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to help him train Zeta members to have someone “erased from the Earth” and
that this team might include a sergeant he knew from his unit.
As the investigation progressed, the DEA arranged for Corley to travel
to Laredo, Texas on January 7, 2012, to determine Corley’s level of
commitment with respect to the murder-for-hire. At this meeting, which took
place at a Texas travel center along Interstate 35, Corley met with Agent
Leonard and the fictitious Jefe, who was played by another undercover DEA
agent. Jefe and Agent Leonard discussed the 20 kilograms of cocaine that had
supposedly been stolen from the cartel. The agents told Corley that the cocaine
had been taken to a ranch and asked whether he could organize and lead a
team to retrieve the cocaine and murder the person responsible for stealing it.
Corley agreed and referred to Walker by name as an individual that could be
included in the murder-for-hire team. Later that same evening, Corley and
Agent Leonard spoke over the phone. Corley confirmed that “Walker’s in,”
meaning that Walker would participate in the murder-for-hire. At that time,
Corley was to be paid $100,000 for the murder, of which $40,000 would be paid
to Walker. Corley also told Epps about the murder-for-hire contract that he
had entered into with Jefe and the cartel.
During the same time period, the DEA continued to investigate Epps and
Mickle’s drug trafficking efforts. In furtherance of this aspect of the
investigation, the agents told Epps and Mickle that the cartel had agreed to
front an initial 500 pounds of marijuana, which Epps and Mickle could sell in
order to provide the cartel with weapons in accordance with previous
negotiations. After this initial fronted transaction, Epps and Mickle agreed
that the cartel would then regularly provide them with an additional 500
pounds of marijuana as well as shipments of cocaine every fifteen days.
The agents then set up a “reverse operation,” in which Epps, Mickle,
Corley, and Corley’s cousin Jerome travelled to Laredo, on the pretense of
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assisting in transporting the 500-pound marijuana shipment back to
Columbia, South Carolina. Unbeknownst to these four, however, the DEA
never intended nor permitted the marijuana to leave its custody or reach its
destination. After Epps, Mickle, Corley, and Jerome arrived in Laredo, they
followed Agents Leonard and Curran to a warehouse in order to retrieve the
marijuana. They then helped load the marijuana onto a truck—that was to be
driven by another undercover DEA agent posing as one of Agent Leonard’s
drivers—and began to follow the truck back north. In accordance with the
DEA’s plan, the truck was interdicted by law enforcement soon after it left the
warehouse.
When Epps, Mickle, and Corley realized that the truck had been stopped,
they immediately called Agent Leonard to inform him of the development. The
call was placed on cellular speakerphone in the car with Epps, Mickle, and
Corley participating. Epps and Mickle were livid about the loss of the
shipment and asked Agent Leonard if the cartel would front them another
shipment without a monetary deposit. Leonard responded that Jefe would not
agree to front another shipment given the loss of the first one. Leonard also
stated that Jefe would be more focused on the murder-for-hire plan, which was
next on the Zeta’s itinerary. In order to facilitate another drug shipment,
Corley offered to finalize arrangements for Jefe’s anticipated contract murder
as a bargaining chip for Jefe to provide them with another shipment. Leonard
told the group that he would take this proposal to Jefe.
After this initial proposal, Epps, Corley, and Mickle began to negotiate
the details of the new arrangement with Agent Leonard on behalf of the cartel.
With respect to the new shipment, Epps agreed to provide weapons to the
cartel as a good faith deposit for another shipment of 500 pounds of marijuana.
To satisfy this requirement, Epps wired funds to Corley through Western
Union, who then purchased two assault rifles from a sporting goods store.
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Mickle, in turn, arranged for 5 kilograms of cocaine to arrive in the same
shipment, with the help of a relative who purportedly agreed to provide half of
the purchase price, $50,000, to facilitate the transaction. Epps and Mickle
agreed to receive the cocaine and the marijuana shipment and then store the
drugs in a warehouse provided by Mickle’s relative.
Meanwhile, Corley finalized the members of the murder-for-hire team,
which consisted of himself, Walker, Corley’s cousin Jerome, and a fourth
associate of Corley’s named Shavar Davis. On March 5, 2012, Corley met with
Agent Leonard in Colorado Springs and provided him with the two assault
rifles that Corley had purchased for Epps to facilitate the second shipment of
narcotics from the cartel. During this meeting, Leonard and Corley confirmed
the details of the murder-for-hire plan. Corley and his team would commit the
murder the same day that Epps and Mickle would receive the shipment of
marijuana and cocaine. The DEA had arranged for these two events to coincide
so that they could arrest everyone simultaneously and ensure that no one
would be tipped off. The location of the ranch where the murder was to take
place was in Laredo, Texas and Corley and his team were to meet Agent
Leonard in Laredo prior to the murder. In addition, Corley would receive
$50,000 and 5 kilograms of cocaine as payment for the murder and would be
permitted to keep whatever remained of the 20 kilograms of cocaine the
intended victim had supposedly stolen.
Corley told Epps about the murder-for-hire contract and the 25
kilograms of cocaine he was going to receive as partial payment. On a March
10, 2012 phone call, Epps and Corley discussed the impending transactions.
The second shipment and the murder were both scheduled to take place on
March 24, 2012. Because Corley could not be in South Carolina to meet that
shipment, he intended to procure additional narcotics from the cartel in a
future shipment. During the phone call, Epps asked Corley to provide him
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with two “birds,” a slang term meaning a kilogram of cocaine, from the 20-plus
kilograms of cocaine that Corley was to receive for the murder-for-hire.
Corley also contacted Walker and told him that he had gotten the green
light to travel to Laredo and commit the murder. Walker agreed to join the
team and told Corley that he would bring his .300 caliber Weatherby rifle for
the job. Walker and Corley also went to a sporting goods store together to
purchase ammunition and then to a gun range to calibrate their weapons. On
March 23, 2012, Corley, Walker, Davis, and Jerome drove to Laredo, Texas in
a rented vehicle intending to commit the murder. During the drive, Corley
assigned each individual a role: Jerome would be the lookout; Davis would be
the driver; Walker would be the sniper and “overwatch”; and Corley would
retrieve the cocaine and commit the actual murder.
When the group arrived on March 24, 2012, they followed Agent Leonard
and the other undercover agents present for the takedown to a warehouse to
go over the final plan for the murder. Once in the warehouse, the undercover
agents provided maps and photographs purporting to show the location of the
ranch where the murder was to take place and explained that they would
“bring [the team] to Laredo” and the four would take it from there. In addition,
Corley and Walker discussed the logistics of the assault and the strategy they
had planned. Walker explained that he had a “high powered” rifle with him,
and bragged that it was capable of hitting a target more than two football fields
away. Corley and Walker’s plan was to have Walker initiate the first shot and
then have Corley storm the ranch directly after. Once the DEA determined
that each member of the murder-for-hire team had indicated his willingness to
participate in the plan, the DEA signaled its arrest team and the group was
taken into custody. Walker’s Weatherby rifle was recovered in the trunk of the
car that he, Corley, and the other members of the murder-for-hire team used
in travelling to Texas.
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On the same evening that the murder-for-hire team was arrested in
Texas, Epps and Mickle traveled to a hotel parking lot in South Carolina to
pick up the shipment of marijuana and cocaine. When Epps and Mickle
arrived, they met an undercover agent posing as one of Agent Leonard’s truck
drivers. The agent asked for the $50,000 down payment for the cocaine, and
Epps and Mickle claimed that the money was with a third individual at
another location “in the country.” When the agent protested, both Epps and
Mickle assured him that they had the money and told the agent to follow them
to this other location. The agent then told Mickle and Epps to follow him into
a hotel room, where they could discuss the situation with Jefe, whereupon
Mickle and Epps were both arrested. After Epps was arrested, the DEA
retrieved a loaded .25 caliber pistol from Epps’ right cargo pocket.
Epps and Walker were tried together in a lengthy nine-day jury trial.
During the trial, the government introduced over two hundred audio and video
exhibits, including recordings of phone calls, text messages, and recordings of
meetings between Walker, Epps, the undercover agents, and the other alleged
coconspirators, in which the parties discussed various narcotics transactions
and the murder-for-hire arrangements. In addition, law enforcement agents
involved in the investigation, including Agents Leonard and Curran, offered
testimony in support of the government’s case. The government’s case also
included testimony from the agents who interviewed Epps and Walker after
their arrests.
During Epps’ post-arrest interview, Epps admitted that he was at the
South Carolina hotel parking lot on the night of March 24th, 2012 to meet the
cartel’s narcotics shipment. Epps intended to split the marijuana with Mickle
and sell it in Columbia. Further, although Epps admitted that he was aware
that the shipment included cocaine, Epps claimed that cocaine was for Mickle
and that he was not part of that aspect of the transaction. Finally, Epps told
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the agents who interviewed him that he knew that Corley had traveled to
Laredo, Texas to commit a murder-for-hire.
Walker made similarly incriminating statements after he was arrested.
During his post-arrest interview, Walker admitted that Corley had recruited
him to participate in the murder-for-hire for the Zeta cartel. Walker told the
agents that he had agreed to participate and that he understood the purpose
of the plan was to retrieve cocaine that had been stolen from the cartel and to
murder the individual responsible. Finally, Walker admitted that he had
helped plan the operation with Corley and had brought his Weatherby rifle for
purposes of the ranch assault.
Both Epps and Walker testified on their own behalves. Epps admitted
that he was a participant in the marijuana distribution conspiracy but claimed
that he was not involved in the cocaine transaction, which he attributed to
Mickle. Walker denied making the incriminating statements that the DEA
agents attributed to him. Walker claimed that he had traveled to Texas with
Corley believing that the purpose of the trip was to discuss providing security
training for a trucking firm in Laredo. According to Walker, when he met with
the agents in the warehouse, he was shocked to discover that the meeting
concerned a murder-for-hire for a drug cartel. Walker claimed that he was too
afraid to protest once he realized the true purpose of the meeting and decided
to pretend to agree to the plan so that he could leave for home after the meeting
concluded. Walker also claimed that he brought his rifle solely for recreational
purposes.
DISCUSSION
Walker and Epps seek to vacate their convictions on various grounds.
Walker challenges the sufficiency of the evidence in support of his federal
murder-for-hire conviction and his firearm conviction. Walker also challenges
the district court’s jury instruction with respect to the murder-for-hire count.
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Epps challenges the sufficiency of the evidence in support of his drug
conspiracy conviction, but only as it relates to the cocaine. Both Walker and
Epps challenge a comment made by the district court while instructing the
jury, regarding the nature of the evidence that had been adduced at trial.
Finally, Epps presses a claim for ineffective assistance of counsel. We consider
each argument in turn.
A.
Walker challenges the sufficiency of the evidence in support of his
conviction for conspiracy to commit murder-for-hire under 18 U.S.C. § 1958
(the federal murder-for-hire statute or the murder-for-hire statute). In
relevant part, the federal murder-for-hire statute criminalizes the conduct of
anyone who:
travels in or causes another . . . to travel in interstate or foreign
commerce, or uses or causes another . . . to use the mail or any
facility of interstate or foreign commerce, with intent that a
murder be committed in violation of the laws of any State or the
United States as consideration for the receipt of . . . anything of
pecuniary value, or who conspires to do so . . . .
18 U.S.C. § 1958(a). To prove a conspiracy of the underlying murder-for-hire
offense, the government must demonstrate:
(1) an agreement by two or more persons to achieve the unlawful
purpose . . . ; (2) the defendant’s knowing and voluntary
participation in the agreement; and (3) an overt act committed by
any one of the conspirators in furtherance of the conspiratorial
object.
United States v. McCullough, 631 F.3d 783, 791-92 (5th Cir. 2011) (quoting
United States v. Blackthorne, 378 F.3d 449, 453 (5th Cir. 2004)). “[T]o convict
a defendant of conspiracy to violate [the] federal [murder-for-hire] statute, the
Government must prove at least the degree of criminal intent necessary for the
substantive offense itself.” United States v. Barnett, 197 F.3d 138, 146 (5th
Cir. 1999) (internal quotations omitted).
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Walker argues that the government failed to adduce sufficient evidence
of his intent to commit the substantive offense. While he essentially concedes
that there was sufficient evidence that he intended to participate in the
murder, 1 he argues that the evidence was not sufficient to demonstrate that
he intended that the murder be committed “in violation of the laws of any State
or the United States”—as required by the statute—until after the conspiracy
was complete. 18 U.S.C. § 1958. 2 According to Walker, the evidence at trial
indicated that he was at first led to believe that the murder would take place
at a ranch in Mexico. It was not until the March 24, 2012 warehouse meeting,
just prior to his arrest, that the fact that the murder would take place in
Laredo, Texas was revealed to him. Walker argues that this information was
revealed too late because the murder-for-hire team had already travelled
interstate from Colorado to Texas, and the conspiracy, according to Walker,
was therefore already completed. Walker, thus, argues that he did not possess
the requisite intent to commit a murder in violation of any state or federal laws
because the crucial information regarding the murder’s location was not
revealed to him until after the conspiracy ended.
Although Walker presents his argument as a straightforward sufficiency
challenge, it necessarily implicates legal questions regarding the proper
interpretation of the federal murder-for-hire statute. First, the argument
presumes that a murder that is committed outside the United States, such as
in Mexico, is not committed “in violation of the laws of any State or the United
States.” Second, the argument contends that a conspiracy to commit a federal
murder-for-hire is completed once the interstate facilities element of the
1 Indeed, the evidence was rather overwhelming with respect to that issue.
2 Under the federal murder-for-hire statute, the term “State” is defined to include “a
State of the United States, the District of Columbia, and any commonwealth, territory, or
possession of the United States.” 18 U.S.C. § 1958(b).
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offense is committed. This is true, according to Walker, even if the central
unlawful object of the conspiracy has not yet been achieved and is continuing
to be pursued by the conspirators.
Walker moved for judgment of acquittal on his federal murder-for-hire
count before the district court but he did not present these legal arguments in
support of his motion. Rather, Walker’s sufficiency argument before the
district court was that his conviction could not be sustained because no actual
victim ever existed due to the nature of the DEA’s sting operation. Walker no
longer pursues this argument before this court. 3 Instead, he raises these
statutory arguments for the first time on appeal. Accordingly, we review
Walker’s arguments regarding the scope of the federal murder-for-hire statute
for plain error and will reverse only if, inter alia, the error is “so clear or obvious
that it is not subject to reasonable dispute.” See United States v. McRae, 702
F.3d 806, 835 (5th Cir. 2012) (reviewing a sufficiency challenge for plain error
where the defendant “did not preserve [his] challenge concerning the meaning
of the statute”); United States v. Kelley, 481 F. App’x 111, 113 (5th Cir. 2012)
(reviewing an argument “couched in terms of sufficiency,” which “raise[d] a[n]
[unpreserved] legal argument” under plain error). Because Walker has failed
to show the claimed errors are clear or obvious, we reject his challenge to his
conviction on these grounds. See United States v. Bueno, 585 F.3d 847, 850
(5th Cir. 2009).
With respect to Walker’s first contention, we are not aware of any United
States Supreme Court or Fifth Circuit precedent determining that acts taken
in furtherance of a murder that is intended to be committed abroad do not
3 Because the essence of a conspiracy is the agreement to commit an unlawful act,
factual impossibility does not necessarily preclude a conspiracy conviction. United States v.
Jimenez Recio, 537 U.S. 270, 274-76 (2003); United States v. Burke, 431 F.3d 883, 886 (5th
Cir. 2005).
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violate state or federal law. Indeed, the Fourth Circuit has explicitly held
otherwise in rejecting an almost identical challenge to a conviction under the
federal murder-for-hire statute. See United States v. Morin, 80 F.3d 124, 126-
27 (4th Cir. 1996). The defendant in that case was convicted under 18 U.S.C.
§ 1958 after a jury found that he hired an assassin, who in actuality was an
undercover FBI agent, to murder an individual in the Philippines. Id. at 126.
After negotiating with the undercover agent over the phone, the defendant flew
to Virginia to meet with the agent and provided $1,400 in cash and an airline
ticket to the Philippines. Id. The defendant was arrested at the conclusion of
this meeting. Id.
On appeal, the defendant argued that the government failed to establish
his “intent that a murder be committed in violation of the laws of any State or
the United States,” because the murder was to take place in the Philippines,
outside of the jurisdiction of the United States. Id. (quotations omitted)
(emphasis in original). In rejecting this argument, the Fourth Circuit held that
an intended murder may violate the laws of a state “other than those
specifically prohibiting homicide.” Id. at 127. As an example, the court
identified a Virginia statute criminalizing conspiracy to commit capital
murder. Id. Because the defendant committed acts in furtherance of the
conspiracy in Virginia, his intended murder violated that Virginia statute and
satisfied the relevant element of the federal murder-for-hire statute. Id.
As in Morin, even if Walker intended that the murder occur in Mexico,
he would likely be criminally liable for conspiracy to commit murder under
Texas law. See Tex. Penal Code Ann. §§ 15.02, 19.02. The government’s
evidence at trial established that many of the acts committed in furtherance of
the murder-for-hire conspiracy took place in Texas. The Texas Penal Code
extends the state’s jurisdiction to criminal offenses when, inter alia, conduct
“that is an element of the offense occurs inside th[e] state,” and when “conduct
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inside th[e] state constitutes . . . [a] conspiracy to commit, or establishes
criminal responsibility for the commission of, an offense in another jurisdiction
that is also an offense under” Texas law. Tex. Penal Code Ann. § 1.04; see also
United States v. Hernandez-Flores, No. 96-50477, 1997 WL 420174, at *5 (5th
Cir. June 26, 1997) (per curiam) (unpublished) (upholding a conviction under
the Mann Act, 18 U.S.C. § 2423, where the government provided sufficient
evidence of “unlawful sexual activity,” as required by the statute, because the
defendant formed his “intent to commit the aggravated sexual assault . . . in
Texas” and was therefore subject to criminal liability pursuant to Tex. Penal
Code Ann. § 1.04). 4 Although, we need not decide whether to interpret the
federal murder-for-hire statute in the same manner as the Fourth Circuit on
this appeal, given the lack of precedent in support of Walker’s construction of
the intent element, his argument with respect to this issue fails under plain
error review.
Moreover, even if we were to assume that Walker’s conviction required
an intent that the murder be committed within the borders of the United
States, our inquiry would not end there. Walker’s theory with respect to the
evidence on this intent issue is that, although there was evidence that Agent
Leonard told Corley that the murder would take place on a ranch in Laredo,
4 In instructing the jury regarding the intent necessary to support a federal murder-
for-hire conviction, the district court explained that the statute required a defendant to
“commit a murder . . . under the laws of the State of Texas, because that’s where we are.” We
note, however, that Walker’s conduct likely also violated federal law. For example, 18 U.S.C.
§ 956 provides that criminal liability shall be imposed upon:
Whoever, within the jurisdiction of the United States, conspires with one or
more other persons, regardless of where such other person or persons are
located, to commit at any place outside the United States an act that would
constitute the offense of murder, kidnapping, or maiming if committed in the
special maritime and territorial jurisdiction of the United States . . . if any of
the conspirators commits an act within the jurisdiction of the United States to
effect any object of the conspiracy.
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Texas, there was insufficient evidence that the murder’s location had been
relayed to Walker. Walker claims that he did not find out about the location
of the murder until the final meeting in the warehouse, just before the DEA
arrested the murder-for-hire team, when Agent Leonard and other undercover
agents specifically identified the ranch’s Texas location to the murder-for-hire
team.
Notably, even under Walker’s view of the evidence, after the ranch’s
location was revealed for the first time, Walker verbally expressed his
continued willingness to participate in the murder plan. According to Walker,
however, it was too late to join the conspiracy at that time because the murder-
for-hire team had already traveled interstate and the conspiracy was complete.
In support of this argument, Walker relies on an Eighth Circuit case, United
States v. Delpit, 94 F.3d 1134 (8th Cir. 1996), which held that once a defendant
makes use of “interstate-commerce facilities with the intent that murder for
hire be committed[,] . . . the crime [of conspiracy to commit-murder-for-hire] is
complete.” Id. at 1149. Based on this conclusion, the Eight Circuit vacated a
defendant’s conviction for conspiracy to violate § 1958, where the defendant
participated in a scheme to hire an out-of-state hit man but joined the scheme
after the hit man had already traveled interstate. Id. at 1151. We are not
convinced that the issue is so clear.
A conspiracy is a continuing crime and “[w]here the conspiracy
contemplates various overt acts and the consequent continuance of the
conspiracy beyond the commission of the first act, each overt act thereafter
gives a new, separate, and distinct effect to the conspiracy, and constitutes
another agreement . . . .” Pinkerton v. United States, 145 F.2d 252, 254 (5th
Cir. 1944); see also United States v. Branch, 91 F.3d 699, 735-36 (5th Cir. 1996)
(upholding a conviction for the use of a firearm during a conspiracy to murder
federal agents because the conspiracy continued months after federal agents
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were killed when defendants continued to fire at other agents who attempted
to approach); United States v. Jacobs, 451 F.2d 530, 539 (5th Cir. 1971)
(Although a “conspiracy is complete when the criminal agreement has been
entered into and at least one overt act has been performed . . . . [it] does not
necessarily end with the completion of the first overt act.”); Huff v. United
States, 192 F.2d 911, 915 (5th Cir. 1951) (where conspirators continue their
efforts to commit crime in pursuance of plan, “the conspiracy continues up to
the time of abandonment or success”) (internal quotations omitted). Moreover,
“one who joins an ongoing conspiracy is deemed to have adopted the prior acts
and declarations of conspirators, made after the formation and in furtherance
of the conspiracy.” United States v. Barksdale-Contreras, 972 F.2d 111, 114
(5th Cir. 1992). Based on these principles, we have rejected similar arguments
regarding the jurisdictional element of a federal statute that prohibits the
kidnapping and transportation of a person in interstate or foreign commerce,
18 U.S.C. § 1201. 5 See United States v. Garza-Robles, 627 F.3d 161, 169 (5th
Cir. 2010); Barksdale-Contreras, 972 F.2d at 114. In both cases, the defendants
appealed their conspiracy convictions based on an argument that they could
not be held liable because their involvement in the kidnapping schemes began
after the victims had been transported in foreign commerce. See Garza-Robles,
627 F.3d at 169; Barksdale-Contreras, 972 F.2d at 114. In both cases, we
rejected the defendants’ arguments, holding that “[j]oining a conspiracy after
a victim has been transported in foreign commerce creates criminal liability
for the prior acts.” Garza-Robles, 627 F.3d at 169; accord Barksdale-Contreras,
972 F.2d at 114 (“The entry into the conspiracy of [the defendants] after the
5 In relevant part, 18 U.S.C. § 1201, imposes criminal liability on “[w]hoever
unlawfully . . . kidnaps, abducts, or carries away and holds for ransom or reward . . . any
person, except in the case of a minor by the parent thereof, when . . . the person is willfully
transported in interstate or foreign commerce.”
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movement across the border does not bar holding them responsible for the prior
acts.”). While we need not determine on this appeal whether such an analysis
applies with equal force to the federal murder-for-hire statute, we are satisfied
that Walker’s claimed error regarding the duration of the murder-for-hire
conspiracy is neither clear nor obvious.
B.
Walker also challenges the sufficiency of the evidence in support of his
firearm conviction under 18 U.S.C. § 924(c)(3). He argues that his conviction
for conspiracy to commit a murder-for-hire, 18 U.S.C. § 1958—the offense upon
which is firearm conviction was based—is not a “crime of violence” under the
statute. As with his challenge to the predicate murder-for-hire offense, Walker
moved for judgment of acquittal on this count but did not present the district
court with the legal argument he now presses on appeal. Accordingly, we
review this issue for plain error. United States v. Williams, 343 F.3d 423, 431
(5th Cir. 2003); see McRae, 702 F.3d at 834-35. Finding no error, plain or
otherwise, we reject Walker’s argument.
Section 924(c)(1) prohibits the use of a firearm “during and in relation
to any crime of violence . . . .” The term “crime of violence” is defined in section
924(c)(3) as an offense that is a felony and:
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical
force against the person or property of another may be used in the
course of committing the offense.
To determine whether a predicate offense constitutes a crime of violence, we
employ a categorical approach, considering whether the “particular defined
offense, in the abstract, is a crime of violence.” Williams, 343 F.3d at 431
(alteration omitted). We do not consider the facts underlying Walker’s
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conviction as his actual conduct is not material to the inquiry. Id.; accord
United States v. Jennings, 195 F.3d 795, 797-98 (5th Cir. 1999).
Walker argues that conspiracy to commit murder-for-hire is not a crime
of violence because the statute merely prohibits the use of interstate commerce
with intent to murder rather than murder per se. This argument fails to
account for the full breadth of the definition provided under § 924(c). In
enacting § 924(c), Congress determined “that violence need not be a necessary
ingredient of the underlying predicate offense.” United States v. Greer, 939
F.2d 1076, 1099 (5th Cir. 1991); accord Jennings, 195 F.3d at 798. “Rather the
statute requires merely that the predicate crime create a substantial risk of
the possible use of force.” Greer, 939 F.2d at 1099. “Therefore, if a felony
involves a strong possibility of violence . . . , regardless of whether it is an
inchoate or a completed crime, it is a ‘crime of violence’ for purposes” of the
statute. Jennings, 195 F.3d at 798 (holding that the mere “possession of an
unregistered pipe bomb, by its very nature, creates a substantial risk of
violence”); see also Greer, 939 F.2d at 1099 (holding that conspiring to deny
citizens of their civil rights in violation of 18 U.S.C. § 214 is a crime of violence).
We believe that conspiring to use interstate commerce with the intent of
committing a murder-for-hire clearly involves a substantial risk of violence. In
reaching this conclusion, we are joined by the Fourth Circuit, which observed
that “[o]ne can hardly conceive of a more cold-blooded violent act than murder-
for-hire . . . .” United States v. Luskin, 926 F.2d 372, 379 (4th Cir. 1991)
(holding that the federal murder-for-hire statute constitutes a “crime of
violence” under 18 U.S.C. § 924(c)). Nor does it matter that the predicate crime
supporting Walker’s firearm conviction is a conspiracy and not the substantive
murder-for-hire offense. We have held that “a conspiracy to commit an act of
violence is an act involving a ‘substantial risk’ of violence,” and that conclusion
is equally applicable to this case. Greer, 939 F.2d at 1099 (quotations omitted).
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Accordingly, we hold that a federal conspiracy to commit murder-for-hire
constitutes a “crime of violence” under 18 U.S.C. § 924(c)(3)(B) and affirm
Walker’s conviction on those grounds. 6
C.
Epps challenges the sufficiency of the evidence to support the jury’s
finding that he conspired to possess with intent to distribute 5 kilograms or
more of cocaine. To establish a conspiracy to possess with intent to distribute
a controlled substance, the government must prove beyond a reasonable doubt
that: (1) there was an agreement between two or more people to violate
narcotics laws; (2) the defendant knew about the agreement; and (3) the
defendant voluntarily participated in the conspiracy. United States v. Wallace,
759 F.3d 486, 491 (5th Cir. 2014). In addition, where “the government seeks
enhanced penalties based on the amount of drugs under 21 U.S.C.
§ 841(b)(1)(A) or (B), the drug quantity must be stated in the indictment and
submitted to the fact finder for a finding of proof beyond a reasonable doubt.”
United States v. Daniels, 723 F.3d 562, 570 (alterations omitted), modified in
part on rehearing, 729 F.3d 496 (5th Cir. 2013).
Epps was charged with conspiracy to possess with intent to distribute a
controlled substance in violation of 21 U.S.C. §§ 841 and 846. The government
also sought enhanced penalties based on the specific amount of drug quantities
and types of drugs involved. Accordingly, pursuant 21 U.S.C. § 841(b)(1)(A)
and (B), the relevant count of the indictment charged Epps with conspiring to
possess with intent to distribute a controlled substance and specified that the
conspiracy involved: (a) a quantity of cocaine equal to or in excess of 5
6Because we affirm Walker’s conviction under subsection (B) of section 924(c)(3), we
need not consider whether subsection (A) also applies to the predicate felony in this case.
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kilograms of cocaine, and (b) a quantity of marijuana equal to or in excess of
100 kilograms.
The jury found Epps guilty of the drug conspiracy charge. In addition,
in a special verdict the jury specified that Epps conspired to possess both the
cocaine and the marijuana in the amounts charged in the indictment. On
appeal, Epps does not challenge the underlying conviction for conspiracy to
possess with intent to distribute a controlled substance. Nor does Epps
challenge the jury’s finding attributing 100 kilograms or more of marijuana to
him. Rather, Epps argues that the evidence was insufficient to find that he
conspired with intent to distribute the cocaine and seeks to vacate his
conviction on this ground. This argument misunderstands our precedent with
respect to the drug conspiracy charges under which Epps was convicted.
In Daniels, we considered a case in which the government sufficiently
proved that a defendant was guilty of a conspiracy to distribute drugs but failed
to prove the specific quantity it alleged in the indictment for purposes of the
enhanced penalties it sought. Daniels, 723 F.3d at 572-74. In that case, the
government charged the defendants with a conspiracy to distribute 5 or more
kilograms of powder cocaine. Id. at 570. On appeal, we determined that there
was sufficient evidence to support the conspiracy conviction but insufficient
evidence to demonstrate that the conspiracy involved a quantity of 5 kilograms
or more of cocaine. Id. at 572.
Despite concluding that there was a lack of proof with respect to the
amount of the cocaine, we held that this finding did “not undermine the
conviction.” Id. at 572. In doing so, we distinguished between “the formal
elements of offenses under § 841(a)(1) and § 846 from drug quantity and type,”
which we “described as a ‘functional equivalent of an element’ for Apprendi
purposes.” Id. at 572-73 (quoting United States v. Toliver, 351 F.3d 423, 430-
31 (9th Cir. 2003), abrogated on other grounds by Blakely v. Washington, 542
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U.S. 296 (2004)). This latter category, we reasoned, “is relevant only to
determine the provision of § 841(b) under which defendants may be sentenced,”
it “is not necessary for a § 841(b) conviction . . . .” Id. at 572; see also United
States v. Hernandez, 202 F. App’x 708, 710 (5th Cir. 2006) (per curiam) (“[T]o
find [defendants] guilty under § 841(a)(1), the jury did not have to find that the
conspiracy involved an agreement to possess with intent to distribute a certain
quantity of cocaine and marijuana, only that it involved an agreement to
possess with intent to distribute controlled substances.”) (emphasis in
original); United States v. Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir. 2003)
(“[S]ubsection (b) does not make [a defendant’s] knowledge of drug type or
quantity an element of the § 841 offense.”) (emphasis in original).
In concluding, we summarized our holding as follows:
[W]here a defendant may be subject to enhanced statutory
penalties because of drug quantity or type, the requisite fourth
“element” under Apprendi is not a formal element of the conspiracy
offense. Hence, defendants’ challenges to the quantity of cocaine
charged in . . . the indictment do[] not go to the validity of their
convictions, but rather to the sentence that the district court may
impose.
Daniels, 723 F.3d at 573.
Here, Epps does not challenge the jury’s finding that he conspired to
possess with intent to distribute a controlled substance. Rather, Epps seeks to
vacate his conviction based on an argument that there was insufficient
evidence that he conspired to distribute 5 kilograms of cocaine. However, as
Epps does not challenge the jury’s finding that he conspired to distribute the
100 kilograms of marijuana, his argument goes only to drug type. And because
a failure in proof with respect to drug quantity or type does not undermine
Epps’ conviction for the substantive conspiracy, his argument with respect to
the sufficiency of this “functional element” is unavailing. Accordingly, we
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affirm Epps’ conviction for conspiracy to possess with intent to distribute a
controlled substance.
D.
Walker next argues that the district court erred in failing to adequately
instruct the jury with regard to the intent element of conspiracy to commit
murder-for-hire. As Walker concedes, because he failed to object to this
instruction before the district court, the issue is reviewed for plain error. See
Johnson v. United States, 520 U.S. 461, 465-66 (1997); United States v. Fuchs,
467 F.3d 889, 901 (5th Cir. 2006).
In reviewing a jury instruction, the Court does “not segment it and pass
upon isolated statements out of context.” United States v. Chandler, 586 F.2d
593, 606 (5th Cir. 1978). Rather, the Court considers “whether the instruction,
taken as a whole, ‘is a correct statement of the law and whether it clearly
instructs the jurors as to the principles of law applicable to the factual issues
confronting them.’” United States v. Tolliver, 400 F. App’x 823, 833 (5th Cir.
2010) (quoting United States v. Freeman, 434 F.3d 369, 377 (5th Cir. 2005)).
“A district court has substantial latitude in tailoring his instructions so long
as they fairly and adequately cover the issues presented by the case.” United
States v. Graves, 669 F.2d 964, 971 (5th Cir. 1982).
After providing the jury with general instructions regarding the offense
of conspiracy, the district court provided the following instructions with respect
to the necessary elements of murder-for-hire under 18 U.S.C. § 1958:
I have to tell you what the elements of the crime are, and then
remind you again that it’s -- that the charge is not committing the
crime, but conspiring to do it. But the elements of the crime would
be that a defendant, or several defendants, traveled in interstate
commerce.
And, also, there’s a lot of stuff in the statute about use -- or else
using interstate commerce, like phone calls, or wire service, and
all that. In this case, I don’t need to dwell on that too much.
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Because whatever you believe were in their minds -- there’s no
doubt that, I think, at least, four of them, took a long trip across
interstate lines to come down and, supposedly, do this offense. But
that’s what's required to make it a federal case, that a defendant
cross interstate lines, and that’s simply travel between one state
and another. And -- and so that’s one element.
And then the second element is that there is an intent to -- to commit
a murder. And in this case, under the -- under the laws of the State
of Texas, because that’s where we are. And murder is what you
would expect it is. It’s to intentionally and knowingly cause the
death of an individual, not an accident, not negligence. So, again,
if the plan is to go hunt down somebody on a ranch and shoot him
and kill him, that’s murder.
So this crime of murder for hire is traveling in interstate commerce
with the intent to commit a murder, and -- and to do it for some
kind of value, pecuniary value. Money is an obvious one. And there
was talk -- I mean, to the extent that this thing was going on, there
was talk about, I think, $50,000.00 or something, and, also,
cocaine. But it does require that it was -- this -- that the plan has
this element of reward, of -- something of value.
(emphasis added). Walker argues that the district court’s instructions with
respect to the intent element impermissibly lowered the government’s burden
by: 1) failing to require that the jury find that while Walker traveled in
interstate commerce, he possessed the requisite intent to commit a murder
within the United States, and 2) implying that merely travelling interstate was
sufficient, regardless of Walker’s intent during the travel.
Walker’s first argument is related to his sufficiency challenge to the
murder-for-hire count, in which he argued that under 18 U.S.C. § 1958 the
government must prove a defendant’s intent to commit a murder within the
United States. We have already determined that this argument fails on plain
error review and our analysis applies equally to Walker’s argument with
respect to the jury instruction.
Walker’s second argument fails because it conflates the proof required to
convict a defendant of the substantive murder-for-hire offense with the proof
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required to convict a defendant of a conspiracy to commit the offense. As a
participant in the conspiracy, Walker need not have traveled at all. See
Blackthorne, 378 F.3d at 454 (“Even where a conviction for the substantive
offense of federal murder-for-hire fails for want of interstate travel, a
defendant can be convicted of conspiring to commit the offense.”); see also
McCullough, 631 F.3d at 792-94 (affirming convictions under the federal
murder-for-hire statute based on a conspiracy hatched at a federal prison to
kill a Mississippi state prosecutor). Rather, he needed to agree to the object of
the conspiracy and to voluntarily participate in the plan to carry it out.
McCullough, 631 F.3d at 791-92; Blackthorne, 378 F.3d at 453. Walker’s intent
at the time he traveled interstate, therefore, is not relevant to his conviction
for the conspiracy.
E.
Both Epps and Walker argue that the district court erred by commenting
on the nature of the evidence that was presented at trial. When instructing
the jury on the evidence that they were to consider in arriving at their verdict,
the district court made the following statements:
You are limited to the evidence in the case, but you are allowed to
draw out of the evidence whatever reasonable inferences you think
are justified in the light of your common experience. . . The
language we use, the legalese that we use here, is direct evidence
and circumstantial evidence.
Direct evidence -- and there was plenty of both. Direct evidence
means that somebody came in here and said this is what
happened, this is that [sic] I saw, this is what I heard, this is what
I did. That’s one form of evidence.
The other form of evidence is what we call circumstantial evidence.
Proof of a series of events, that if you take those events and look at
them and add them all up, they tell you a story. And all I -- all I
can tell you is that that’s a perfectly valid form of evidence.
The law does not make any distinction between the two. It’s up to
you to, first, decide what you think the evidence -- the background
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facts are. And then it’s up to you to decide what conclusion you
draw from those facts.
(emphasis added). Epps and Walker argue that the district court’s comment,
“Direct evidence -- and there was plenty of both,” implied that there was a great
amount of evidence in support of their guilt. Because neither party objected to
this comment below, the issue is reviewed for plain error. See United States v.
Carpenter, 776 F.2d 1291, 1295 (5th Cir. 1985).
“In the federal courts a trial judge may comment on the evidence
provided the final decision as to the guilt or innocence of the defendant is left
unequivocally to the jury’s determination.” Thurmond v. United States, 377
F.2d 448, 451 (5th Cir. 1967); see also United States v. Wallace, 32 F.3d 921,
928 (5th Cir. 1994); United States v. Cisneros, 491 F.2d 1068, 1074 (5th Cir.
1974). “Improper comments by a trial judge do not entitle the defendant to a
new trial unless the comments are error that is substantial and prejudicial to
the defendant’s case.” Wallace, 32 F.3d at 928 (internal quotations omitted).
In reviewing this issue, we consider “the record as a whole rather than viewing
individual incidents in isolation.” Id.
As a general rule, we think it is inadvisable for a district court to make
an unplanned comment on the quantity of evidence presented at trial.
Nevertheless, in the context of this case, it is unlikely that the jury would have
interpreted this brief comment as communicating the court’s view of the
evidence. The comment was likely, and would probably have been understood
by the jury as, a reference to the fact that the jury had just sat through eight
days of trial, heard testimony from numerous witnesses, both for the
government and the defense, and was presented with numerous evidentiary
exhibits.
Further, in instructing the jury, the district court explained that the
“weight of the evidence is not necessarily based on the number of witnesses
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who testify” and that it was the jury’s function to “make [its] own independent
decision about the outcome of the case.” Given these instructions and others–
“[I]t’s up to you to decide what conclusion you draw from those facts. . . . You
don’t have to accept all of the evidence in the case. One of the main functions
of a jury is to decide what evidence you accept and what you don’t accept. . . .
[O]ne of the main . . . functions of a jury is to decide who you believe and who
you don’t believe.”–we conclude that the district court’s comment prejudiced
neither Walker’s nor Epps’ case. Thus, based on the jury instructions as a
whole, the district court’s reference to the amount of evidence did not result in
reversible plain error.
F.
Finally, Epps argues that his conviction should be vacated because his
trial counsel was ineffective for failing to object to the district court’s comment
regarding the amount of evidence adduced at trial. “The general rule in this
circuit is that a claim of ineffective assistance of counsel cannot be resolved on
direct appeal when the claim has not been raised before the district court since
no opportunity existed to develop the record on the merits of the allegations.”
United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987); accord Wallace,
32 F.3d at 930. Based on record before us, we see no reason to depart from this
general rule. See United States v. Cortez, 578 F. App’x 420, 421 (5th Cir. 2014)
(per curiam); Wallace, 759 F.3d at 498. Accordingly, we decline to address
Epps’ ineffective assistance of counsel claim.
CONCLUSION
For the foregoing reasons, the judgments are AFFIRMED.
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