596 F. App'x 302
5th Cir.2015Background
- DEA ran an undercover reverse-sting using fictitious social-media profiles and agents posing as cartel associates; Marcus Mickle and Calvin Epps negotiated drug-for-weapons deals with agents.
- Kevin Corley (Army officer) offered to train cartel members and agree to "wet work"; he recruited Sergeant Samuel Walker and others to form a murder-for-hire team to retrieve purportedly stolen cocaine.
- DEA arranged coincident events: a narcotics pickup (marijuana and cocaine) for Epps/Mickle and a ranch assault/murder-for-hire by Corley/Walker’s team; both events were set for March 24, 2012, and ended in simultaneous arrests.
- Evidence at trial included recorded calls, texts, meetings, purchases of rifles/ammo, travel to Laredo, post-arrest admissions, and recovery of weapons; trial lasted nine days.
- Verdicts: Walker convicted of conspiracy to commit murder-for-hire (18 U.S.C. §1958) and related §924(c) firearms offense; Epps convicted of conspiracy to possess with intent to distribute large quantities of marijuana and cocaine and a §924(c) firearms count.
- Appeals raised challenges to sufficiency of evidence (intent/location; drug-quantity), jury instructions/comments, classification of predicate offense as a "crime of violence," and ineffective assistance of counsel (raised only for Epps).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency: intent/location for §1958 conspiracy (Walker) | Walker: lacked intent that murder be committed in U.S.; learned Texas location only after interstate travel, so conspiracy element tied to interstate facility was already completed | Govt: acts in U.S. and continuing conspiracy facts support intent; state or federal law could apply even if intended killing abroad; jury evidence showed participation after location revealed | Affirmed — plain-error review: argument not clearly correct; conspiracy continued and sufficient evidence of intent to commit murder within scope of §1958 |
| Predicate for §924(c): is §1958 conspiracy a "crime of violence" (Walker) | Walker: §1958 prohibits use of interstate commerce with intent to murder, not murder itself, so it’s not a crime of violence | Govt: §924(c)(3)(B) covers felonies that by nature involve substantial risk of force; murder-for-hire conspiracy inherently involves substantial risk of violence | Affirmed — conspiracy to commit murder-for-hire qualifies as a "crime of violence" under §924(c)(3)(B) |
| Sufficiency: cocaine quantity for drug-conspiracy enhanced penalty (Epps) | Epps: insufficient evidence he conspired to distribute ≥5 kg cocaine, so conviction should be vacated as to cocaine | Govt: indictment alleged both cocaine and marijuana quantities; jury found conspiracy to distribute controlled substances and attributed 100+ kg marijuana to Epps; quantity/type affect sentencing, not the substantive §846 conviction | Affirmed — insufficiency on specific drug-quantity/type affects sentencing exposure but does not invalidate the §846 conspiracy conviction |
| Jury-comment / instruction and IAC claim | Walker & Epps: trial judge’s remark (“Direct evidence — and there was plenty of both”) improperly commented on weight of evidence; Epps: counsel ineffective for not objecting | Govt: judge’s brief remark viewed in context of full instructions leaving credibility and weight to jury; no substantial prejudice; IAC claim not suitable on direct appeal without developed record | Affirmed — remark not reversible plain error given full instructions; IAC claim declined (record undeveloped) |
Key Cases Cited
- United States v. Morin, 80 F.3d 124 (4th Cir. 1996) (rejects argument that intended murder abroad cannot satisfy §1958 intent element)
- United States v. Delpit, 94 F.3d 1134 (8th Cir. 1996) (discusses completion of §1958 when interstate facility used)
- Pinkerton v. United States, 145 F.2d 252 (5th Cir. 1944) (conspiracy is continuing crime; later overt acts sustain liability)
- United States v. Garza-Robles, 627 F.3d 161 (5th Cir. 2010) (joining ongoing interstate conspiracy imputes prior acts)
- United States v. Greer, 939 F.2d 1076 (5th Cir. 1991) (predicate need only create substantial risk of force for §924(c))
- United States v. Daniels, 723 F.3d 562 (5th Cir. 2013) (drug-quantity/type allegations affect sentencing exposure but are not formal elements required to sustain a §846 conviction)
- United States v. McCullough, 631 F.3d 783 (5th Cir. 2011) (elements for conspiracy and conspiracy liability principles)