IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 91-7084

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN JACKSON and GENARO CAMACHO,

Defendants-Appellants.

_________________ _________________________________________________

Appeal from the United States District Court for the

Northern District of Texas

__________________________________________________________________ (November 23, 1992)

Before POLITZ, Chief Judge, JOHNSON, and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this appeal, Juan Jackson and Genaro Ruiz Camacho contest

their convictions for the kidnapping of Evellyn Banks and her

three-year-old son Andre. The kidnapping arose out of a drug

transaction and it ended in the cold-blooded murder of Evellyn and

Andre Banks.

Camacho asserts that the district court reversibly erred when

it denied him a forty-five day continuance. It further erred, he

says, when it allowed the government to introduce evidence of an

earlier kidnapping. He contends additionally that the government

failed to timely disclose Brady material. Jackson argues that the-2-

evidence was insufficient to establish kidnapping under federal law

because he could not reasonably foresee that the victims would be

transported in interstate commerce.

Both defendants argue that they were improperly denied access

to the presentence reports of their co-defendants. Both defendants

also urge that the court incorrectl y sentenced them under the

guideline for murder and ordered them to pay restitution in an

amount that is unrelated to the losses of their victims.

Finding no merit in the bulk of the defendants' arguments, we

affirm their convictions and their sentences. However, we reverse

and remand the restitution orders for both Jackson and Camacho

because the district court did not support its orders with factual

findings.

I

On May 20, 1988, Genaro Ruiz Camacho enlisted the aid of Juan

Jackson and several others to collect a debt that Sam Junior Wright

owed him as a result of a drug-related transaction. The men went

to Wright's home in Pleasant Grove, Texas, which he shared with

Evellyn Banks, their three and a half year old son Andre Banks, and

Evellyn's two school aged children. The two older children were at

school. Camacho insisted that Wright owed him between $10,000 and

$20,000, and demanded that Wright pay him. Wright had $1,500,

which he gave to Camacho. Camacho was not satisfied. He and his

fellow defendants, who were all armed, proceeded to terrorize their

captives.1 The state tried and convicted Camacho for the murder of David

Wilburn and sentenced him to death.

-3- David Wilburn, a young, retarded man who wo rked for Wright,

interrupted the kidnappers when he knocked on the door. Camacho

told Wilburn to come in, searched him and made him lie flat on the

floor. Wilburn was not armed and offered no resistance. Camacho,

without warning or provocation, shot and killed Wilburn. 1

Turning his attention back to Wright, Camacho asked him when

he could get the money. When Wright replied in a couple of days,

Camacho demanded to know how he would get the money. Wright told

Camacho he would sell his house and his car. Camacho replied that

he would kill Evellyn and Andre i f Wright failed to pay him.

Camacho then ordered the other defendants to handcuff Evellyn and

Andre and put them in the car. At this point, Wright managed to

escape the house and yelled to a neighbor to call the police. The

kidnappers chased Wright around the block. Camacho ordered Jackson

to shoot him. Jackson did not comply.

The k idnappers took Evellyn and Andre to an apartment in

Dallas that several of the d efendants shared. While two of the

ot her defendants watched Evellyn and Andre, Jackson and another

defendant counted and split the money. A few hours later, Jackson

left with his share of th e money and never returned. The

kidnapper s kept them there for two days. On May 22, Camacho and

the other defendants decided to take Evellyn and Andre to Oklahoma

to kill them because they had witnessed the murder of Wilburn and-4-

could provide evidence to the police if released. That evening,

they took Evellyn and Andre to Ardmore, Oklahoma, and the next

morning, they took them to a location near Arbuckle N ational

Forest. There the kidnappers killed their victims and buried them

in a pre-dug grave. The autopsies of the bodies revealed that the

kidnappers shot Evellyn in the head twice and that they shot Andre

in the head four times.

At trial, the government introduced evidence of a prior

kidnapping incide nt involving Jackson and Camacho. In that

incident, the men had driven to Wichita, Kansas, to collect a debt

owed to Camacho. Not finding the debtor, they kidnapped his

sister-in-law and brought her to Dallas until the debt was paid a

few days later. After obtaining the money, they released the woman

and gave her a plane ticket back to Kansas.

II

On October 6, 1988, the United States charged Jackson and

Camacho in a seven-count indictment with: (1) know ingly and

willfully conspiring to kidnap Evellyn and Andre Banks in

i nterstate commerce; (2) knowingly and unlawfully kidnapping and

transporting Evellyn and Andre Banks in interstate commerce; and

(3) willf ully and unlawfully carrying and using a firearm during

the commission of a felony. On February 27, 1991, the United

States returned a virtually identical indictment that only deleted

counts that pertained solely to a few co-defendants who had plead

guilty, and who had agreed to testify against the defendants. In-5-

the meantime, the State of Texas tried and convicted Camacho on a

charge of capital murder.

On March 6, 1991, the district court entered an order setting

this case for trial on May 6. Camacho filed his first motion for

continuance on April 12. The district court granted the requested

continuance and s et the case for trial on its June docket. On

June 12, Camacho again moved for a continuance. Camacho requested

a forty-five day continuance, but the district court granted a

continuance for only seven days.

From June 24 to July 9, 1991, the United States tried Jackson

and Camacho before a jury in the United States District Court for

the Northern District of Texas, Dallas Division, with the Honorable

A. Joe Fish presiding. On July 9, the jury returned a verdict

finding Camacho guilty on all counts, and finding Jackson guilty on

all but one count. The district court gave both defendants life

sentences under the s entencing guidelines for murder. The court

also ordered Camacho to pay the estate of Evellyn Banks $1,000,000

in restitution, and Jackson to pay $250,000 in restitution. Both

defendants moved for new trials, and when the district court denied

those motions, they filed timely notices of appeal. These appeals

followed.-6- III

A

We begin with Jackson and Camacho's contention that the

district court improperly denied them access to the presentence

reports of their co-defendants.

Prior to trial, Jack son filed a motion requesting all

exculpatory evidence, including a copy of any federal or state

probation or presentence report of any prospective g o vernment

witness. The district court denied the motion pursuant to Rule

32(c)(1) of the Federal Rules of Criminal Procedure and United

States v. Trevino

, 556 F.2d 1265 (5th Cir. 1977). Both Camacho and

Jackson now contend that the Jencks Act, 18 U.S.C. § 3500, required

the government to produce the presentence reports of their codefendants and that the district court erred in denying them access

to the material.

The Jencks Act provides that upon a defendant's motion to a

district court, the court shall "order the United States to produce

any statement (as hereinafter defined) of the witness in the

possession of the United States which relates to the subject matter

as to which the witness has testified." 18 U.S.C. § 3500(b). The

Act defines written statements subject to the Act as a statement

made by the witness that the witness has "signed or otherwise

adopted or approved." 18 U.S.C. § 3500(e)(1).

A presentence report, on the other hand, is not a statement

made by the witness. Instead, it is a statement that a probation-7-

officer makes to aid the court in sentencing a defendant. Once the

probation officer makes the report, he gives a copy to the

prosecution, the defendant, and the court. Pursuant to Rule

10.9(b) of the Local Rules of the Northern District of Texas, the

defendant must either object to the statement in writing or adopt

it. Assuming that their co-defendants in the instant case adopted

their presentence reports, Jackson a nd Camacho argue that their

co-defendants' presentence reports are adopted statements under the

Jencks Act.

In Trevino

, we held that the presentence reports at issue were

not "in the possession of the United States," and, thus, not

subject to the Jencks Act. At that time, Rule 32(c)(3)(D) of the

Federa l Rules of Criminal Procedure required the prosecution to

return its copy of the presentence report to the probation officer

after the court sentenced the defendant. We found that the "United

States" meant the "prosecution" and concluded that the United

States did not possess a copy of the report once the prosecution

returned the report to the probation officer. T revino

, 556 F.2d at

1270-1272. We noted, however, that a "witness's presentence report

held by the prosecution might thus be subject to Jencks Act

production." Id.

Under the current rules of criminal procedure, the prosecution

retains a copy of the defendant's presentence report. As a result,

we must face the question we avoided in Trevino : whether a

defendant's presentence report is a statement within the meaning of-8-

the term as it is used in the Jencks Act. Two other circuits have

a l ready concluded that presentence reports are not statements

discoverable under the Jencks Act. U nited States v. Moore

, 949

F.2d 68, 70-72 (2d Cir. 1991); United States v. Dingle , 546 F.2d

1378, 138 0-1381 (10th Cir. 1976). Still other circuits, without

regard to the Jencks Act, have held that the presentence reports of

co-defendants are not discoverable unless the district court, after

an in camera inspection, concludes that report contains exculpatory

or impeachment material. See United States v. De Vore , 839 F.2d

1330, 1332 (8th Cir. 1988); United States v. Cyphers

, 553 F.2d

1064, 1068-1069 (7th Cir. 1977).

We agree with the result these cases reach. A presentence

report is not a statement made by a defendant; it is a report that

the probation officer makes for the court. Under the local rules

applicable in this case, a defendant must either object to the

report or adopt it. Adopting the report under the local rules,

however, is very different from adopting a statement under the

Jencks Act. The purpose of the local rule is to prevent a

defendant from objecting to the report after sentencing. Adopting

a report under the local rules amounts to little more than failing

to object to the report.

To adopt a statement under the Jencks Act, on the other hand,

a witness must read the entire statement and formally approve the

statement. U nited States v. Newman

, 849 F.2d 156, 16 0 (5th Cir.

1988) (Witness did not adopt a DEA report when he told the DEA-9-

agent that he did not disagree with anything in the report.)

Otherwise, the witness could be impeached with a statement to which

he did not agree. Jackson and Camacho's co-defendants did not

formally approve the statements in their presentence reports; they

only inte rposed no objection to the reports. Thus, they did not

adopt their reports within the meaning of the Jencks Act.

Our decision that presentence reports are not statements under

the Jencks Act is heavily influenced by the confidential nature of

those reports. Every court that has looked at this question has

recognized that there is a need to protect the confidentiality of

the information contained in the reports. Accordingly, courts have

required "some showing of special need before they will allow a

third party to obtain a copy of a presentence report." U .S. Dept.

of Justice v. Julian , 486 U.S. 1, 12 (1988). Indeed, defendants

did not obtain the right to see their own presentence reports until

1975, almost twenty y ears after Congress enacted the Jencks Act.

Id.

The defendants' inability to obtain the reports under the

J encks Act, however, does not end the matter. The Supreme Court

has held that the due process clause requires the prosecution to

disclose all evidence favorable to the accused. S ee Brady v.

Maryland

, 373 U.S. 83 (1963); Giglio v. United States

, 405 U.S. 150

(1972). The Court reasoned that our system for the administration

of justice "suffers when any accused is treated unfairly." B rady

,

373 U.S. at 87. The Court concluded that the system treats a-10-

defendant unfairly when it denies him access to favorable evidence.

Id. It follows that a defendant ordinarily has a right to

exculpatory or impeachment material that is contained in the

presentence reports of his co-defendants. See Moore , 949 F.2d at

70-72, De Vore , 839 F.2d at 1332; Cyphers , 553 F.2d at 1068-1069.

Because presentence reports are necessarily confidential, the

district court should examine the report in camera and release any

exculpatory or impeachment material to the defendant while

protecting the confidentiality of the rest of the report.

In the case at bar, the district court examined the

presentence reports at issue and found that: 1) the defendants

already had access to all of the information the reports contained,

and 2) the reports did not contain any evidence that was favorable

to the defendants. The district court, thus, fulfilled its duty

and afforded the defendants all the rights to which they were

entitled.

B

Jackson also contends that the e vidence was insufficient to

support his kidnapping convictions because the government failed to

prove that he transported the victims across state lines or that he

knew, or could reasonably foresee, that his co-def endants would

transport the victims across state lines. He further contends that

we must reverse his conviction for the use of a firearm during the

commission of a felon y because the underlying kidnapping

convictions cannot stand.-11-

Jackson's arguments are ultimately unconvincing. The standard

of review here is whether, based on all the evidence, a reasonable

minded jury must necessarily entertain a reasonable doubt about the

defendant's guilt. U nited States v. Gonzalez

, 617 F.2d 104, 106

(5th Cir. 1980). The federal kidnapping statute provides that:

Whoever unlawfully seizes, confines, inveigles, decoys,

kidnaps, abducts or carries away and holds for ransom or reward or otherwise any person, except in the case of a

minor by the parent thereof, when: (1) the person is

willfully transported in interstate or foreign commerce;

. . . shall be punished by imprisonment for any term of

years or for life.

18 U.S.C. § 1201(a). We have held that before a defendant can be

found guilty of kidnapping under this statute "four elements must

be established: 1) the transportation in interstate commerce 2) of

an unconsenting person who is 3) he ld 'for ransom or reward or

otherwise,' 4) such acts being done knowingly and willfully."

United States v. McBryar

, 553 F.2d 433 (5th Cir. 1977); s ee also

United States v. McInnis

, 601 F.2d 1319, 1324 n.11 (5th Cir. 1979).

Jackson ar gues that the government must establish that he

personally transported the victi ms in interstate or foreign

commerce. The evidence at trial showed that Jackson, Camacho, and

the other defendants went to Wright's house, took $1,500, abducted

Evellyn and Andre Banks, and moved them to another apartment in

Dallas. At that point, Jackson took his share of the money and

left. After Jackson left, Camacho and the other defendants moved

the victims to Oklahoma and killed them. Jackson had parted

company before the other kidnappers moved the victims to Oklahoma.-12-

Thus, Jackson contends that the government failed to establish that

he transported the victims across state lines, and, consequently,

he cannot stand convicted under the federal kidnapping statute.

In support of this argument Jackson quotes language from two

cases that appears to support his position. In a recent case, we

held that:

[t]o establish a violation of 18 U.S.C. § 1201(a)(1), the

government must prove beyond a reasonable doubt that the

defendant 1) knowingly and willfully kidnapped the

victim; 2) held him for ransom, reward or other benefit;

and 3) transported him in interstate commerce.

United States v. De La Rosa

, 911 F.2d 985, 99 0 (5th Cir. 1990)

(citing McBryar , 553 F.2d at 433). It is thus true that in De La

Rosa

, we inartfully restated the elements of kidnap ping we

announced in McBryar

. Under our explication of the kidnapping

statute set out in McBryar , however, the government does not have

to prove that the defendant personally moved the victim in

interstate commerce. Instead, the government only has to establish

that the victim was transported in interstate commerce.

Jackson also relies on language in United States v. Bankston

,

603 F.2d 528, 532 (5th Cir. 1979), where we found that "[s]o long

as he [the de fendant] `willfully transports' his victim and, in

doing so, travels in interstate commerce, he need not do so

knowingly." Jackson, however, ignores the very next sentence where

we observe that "we have previously held that the `requirement that

the offender cross state lines merely furnishes a basis for the

exercise of federal jurisdiction and does not constitute an element-13-

of the offense [of kidnapping].'" B ankston

, 603 F.2d at 532

(quoting United States v. Napier

, 518 F.2d 316, 319 (9th Cir.

1975)); see also United States v. Barksdale-Contreras

, 972 F.2d 111

(5th Cir. 1992) (We affirmed the kidnapping convictions of two

defendants who joined a conspiracy after the others had moved the

victim across state lines. We held that the "transportation of a

kidnapped victim in interstate or foreign commerce is necessary to

establish federal jurisdiction.")

In Bankston

, Napier

, and Barksdale-Contreras we recognized

that the transportati on of the victim in interstate commerce is

jurisdictional and not an element of the crime. This principle is

sound . The plain language of the statute only requires that the

victim be "willfully transported" in interstate commerce. It does

not require that the defendant move the victim or that the

def endant know that the victim will be moved in interstate

commerce. In this case, the government proved beyond a reasonable

doubt that the victims were transported in interstate commerce.

That is all the statute requires.

C

We now turn to Camacho's argument that the district court

erred when it denied his motion for acquittal. Camacho contends

that there was a fatal variance between the indictment and the

evidence adduced at trial. According to Camacho, although the

indictment charged one conspiracy to kidnap Evellyn and Andre

Banks, t he government proved, not one, but two separate-14-

conspiracies: one to kidnap Evellyn and Andre, and a second to

murder them.

This argument is without merit. We will not reverse a

conviction for such a variance in the evidence unless 1) the

defendant establishes that the evidence the government offered at

trial varied from what the government alleged in the indictment,

and 2) the variance prejudiced the defendant's substantial rights.

United States v. Richarson , 833 F.2d 1147 (5th Cir. 1987); Berger

v. United States , 295 U.S. 78 (1935). In determining the whether

t he government proved a single conspiracy as charged, we exam ine

the following factors: 1) whether there was a common goal, 2) the

nature of the scheme, and 3) whether the participants in the

various dealings overlapped. Richarson , 833 F.2d at 1153.

In this case, there is a common scheme that united all of the

defendants' actions. Camacho and the other defendants conspired to

kidnap Evellyn and Andre Banks. Although the reasons for

kidnapping them may have changed, the object of the consp iracy--

ki dnapping--remained the same. The defendants went to Wright's

house to collect a drug debt. They recognized from the beginning

that collecting the debt might require them to kidnap Evellyn and

Andre Banks to hold them for ransom. While at Wright's house,

Camacho killed David Wilburn. It then became necessary to cover up

their involvement in the crime by killing the witnesses. This

circumstance did not change the obj ective of the conspiracy; it

only meant that the defendants now had an additional reason for-15-

kidnapping the victims: eliminating the witnesses to the murder.

Eliminating the witnesses after kidnapping them was only one aspect

of the kidnapping conspiracy. Indeed, the members of the

conspiracy worked together continuously, and their activities were

guided by a single person, Camacho. We have found that where one

man directs all the illegal activit y there is one conspiracy.

Richarson

, 833 F.2d at 1154. Even if the conspiratorial crime

established at trial varied from that which the government alleged

in the indictment , the variance did not prejudice Camacho's

substantial rights. S ee Berger

, 295 U.S. at 82. We have long held

that when the indictment alleges the conspiracy count as a single

conspiracy, but the "government proves multiple conspiracies and a

defendant's involvement in at least one of them, then clearly there

is no varia nce affecting that defendant's substantial rights."

Richarson , 833 F.2d at 1155 (citing United States v. L'Hoste , 609

F.2d 796 (5th Cir. 1980)). Because the government proved Camacho

conspired to kidnap Evellyn and Andre Banks, there was no variance

that affected Camacho's substantial rights.

D

Camacho also contends that the district court erred whe n it

denied him the forty-five day continuance he requested. The grant

or deni a l of a continuance is a decision left to the sound

discretion of the district court, and our review is limited to

deter m ining whether the district court abused its discretion.-16-

United States v. Shaw

, 920 F.2d 1225, 1230 (5th Cir. 1991); United

States v. Martinez , 686 F.2d 334, 339 (5th Cir. 1982).

The district court did not abuse its discretion. The district

cou rt granted Camacho two continuances. Although the district

court originally set the trial for May 6, the trial did not begin

until June 24. Camacho's sole complaint is that when he requested

a forty-five day continuance on June 12, the district court granted

h im only a seven-day continuance. Camacho contends that--

apparently someti me in early June--while he was reading the

statement of facts from a brief filed in his capital murder appeal,

he realized that there were several leads he needed to explore. He

also alleges that he needed more time to investigate the events

that occurred outside the State of Texas. Nevertheless, Camacho

never explains what he might have discovered with the extra time.

Camacho also complains that, in the absence of a continuance,

the government's late disclosure of Brady material also prejudiced

him. Camacho, however, was able to interview the witnesses

discovered through the Brady material, and they testified on his

behalf at trial. Finally, Camacho argues that the district court

denied the continuance for reasons of t he judge's personal

convenience. This last argument, however, misses the point. It

does not matter why the district court denied the continuance.

Instead, the question is whether the district court abused its

discretion by unreasonably and arbitrarily insisting on an

expeditious trial. United States v. Terrell , 754 F.2d 1139, 1149-17-

(5th Cir. 1985). It did not. The district court granted the

defendant two continuances, which gave him plenty of time to

prepare for trial. Furthermore, the defendant has failed to show

that he was materially prejudiced by the lack of preparation time.

E

Camacho next contends that the government committed reversible

error when it violated the district court's pre-trial order

requiring it to turn over all Brady material by the designated

date. Specifically, he contends that the government failed to

timely disclose: 1) the sworn affidavit of Mr. James Scott, a

witness who had seen the kidnappers leave Wright's home and

indicated that only three men were involved in the kidnapping of

Evellyn and Andre Banks and that the driver of their automobile was

black; 2) a report that a Dallas police officer prepared that

indicated that only three men were involved in the kidnapping; 3)

that the eyewitnesses, Mr. James Scott and Ms. Jane Wallace, had

failed to identify Camacho as one of the kidnappers; and 4) that

Ms. Rose Minter was improperly forced to identify Camacho.

To succeed on a Brady claim, the defendant must establish 1)

the government suppressed the evidence, 2) the evidence favored him

in some w ay, and 3) the evidence was material either to guilt or

punishment. U nited States v. Ellender

, 947 F.2d 748, 756 (5th Cir.

1991) (citing Smith v. Black , 904 F.2d 950, 963 (5th Cir. 1990)).

"[T]he evidence is materia l only if there is a reasonable

probability that, had the evidence been disclosed to the defense,-18-

the result of the proceeding would have been different. A

'reasonable probability' is a probability sufficient to undermine

confidence in the outcome." E llender

, 947 F.2d at 756 (quoting

United States v. Bagley , 473 U.S. 667, 682 (1985)).

Camacho cannot show any prejudice from the government's

failure to comply with the pretrial order. The government provided

Camacho with all of the alleged Brady material in sufficient time

to incorporate it into his defense. He had time to interview the

witnesses and they testified on his behalf at trial. Furthermore,

the witnesses helped Camacho establish his alibi defense. Indeed,

nothing in the record suggests that Camacho would have done

anything differently had the government given him the information

earlier. Accordingly, we reject Camacho's Brady claim.

F

Camacho's next complaint is that the district court erred when

it permitted the government to introduce evidence of a another

kidnapping in which both he and Jackson had participated because

the evidence was allegedly insuf ficient to establish that a

kidnapping had in fact occurred. Our review of the district

court's evidentiary rulings is deferential and, thus, we will only

reverse when the trial court abused its discretion. U nited States

v. Anderson , 933 F.2d 1261, 1267-1268 (5th Cir. 1991).

The district court allowed the government to intr oduce the

evidence under the conditional evidence rule. Fed. R. Evid.

404(b). Extrinsic evidence of other crimes is not admissible-19-

unless a reasonable jury could find, by a preponderance of the

evidence, that the defendant committed the offense. A nderson

, 933

F.2d at 1269. The victim in the earlier crime, and several of

Camacho's co-defendants as well, testified that the earlier

kidnappin g occurred. Based on this evidence, the district court

found that a reasonable jury could conclude that Cama cho and

Jackson participated in the earlier kidnapping. Jackson's evidence

suggesting that the cr ime never occurred only goes to the

credibility of the witnesses. Credibility determinations belong to

the finder of fact. Furthermore, the district court instructed the

jury not to consider the evidence of the earlier kidnapping unless

it believed beyond a reasonable doubt that the defendants

part icipated in the crime. We, therefore, reject Camacho's

argument that the evidence was insufficient to establish that a

kidnapping had in fact occurred.

G

We have dealt with all of the defendants' trial complaints

that relate to the verdict itself. We are now ready to discuss the

defendants' arguments that relate to their sentences and the

districts court's restitution awards.

(1)

Both de fendants contend that the district court improperly

sentenced them under the guideline for murder. The sentencing

guide line for kidnapping provided, at the time of the instant

offense, that "[i]f the victim was kidnapped, abducted or-20-

unlawfully restrained t o facilitate the commission of another

offense: (A) increase [the base offense level of 24] by four

l evels; or (B) if the result of this guideline is less than that

resulting from application of the guideline for such other offense,

apply the guideline for such other offense." United States

Sentencing Commission, Guidelines Manual

, § 2A4.1(b)(5) (Nov.

1990). Here, the district court concluded that the defendants

kidnapped Evellyn and Andre Ban ks to facilitate their murders.

Accordingly, it sentenced them under the guideline for murder.

A district court can determine a criminal defendant's sentence

based both on facts that the gove rnment proved at trial beyond a

reasonable doubt and on facts it believes the government has proven

by a preponderance of the evidence. U nit ed States v. Casto , 889

F.2d 562, 570 (5th Cir. 1989). While we review application of the

guidelines to facts for clear error, questions concerning the

interpretation of the guidelines are questions of law subject to de

novo review. U nited States v. Shano

, 955 F.2d 291 (5th Cir. 1992);

see also 18 U.S.C. § 3742(e).

It is true that the jury found Jackson and Camacho guilty only

of kidnapping. As we note above, however, under the guidelines if

the defendant kidnaps the victim "to facilitate the commission of

another offense," the defendant can be sentence under the guideline

for the other offense. U.S.S.G. § 2A4.1; see also United States

v. Galloway , 963 F.2d 1388, 1391 (10th Cir. 1992) (The government

convicted the defendant of kidnapping and then sentenced him under-21-

the guideline for sexual abuse); United States v. DePew , 932 F.2d

324 (4th Cir. 1991) (The government convicted the defendant of

kidnapping and sentenced him under the guideline for murder.)

With respect to Camacho, the district court's conclusion that

he kidnapped the victims to facilitate their murders is easily

supported by the facts. As noted above, Camacho knew from the

beginning that collecting the debt from Wright might require him to

kidnap Evellyn and Andre Banks. While at Wright's house, he killed

David Wilburn, and Evellyn and Andre witnessed the murder. It then

became necessary to cover up the murder. Thus, Wilburn's death

gave Camacho an additional reason for kidnapping the victims:

eliminating the witnesses to the murder. Indeed, shortly after

murdering Wilburn, Camacho ordered Jackson to shoot Wright, which

suggests that collecting a debt from Wright had ceased to be the

immediate objecti ve of the kidnapping. Furthermore, he did not

even attempt to ransom the victims. All of this evidence strongly

supports the district court's conclusion that at least one of the

reasons Camacho kidnapped the victims was to murder them.

We now turn to Jackson's sentence. The following established

facts bear di rectly on Jackson's sentence. Jackson fully

participated in the kidnapping of Evellyn and Andre Banks. He was

an accomplice to Camacho when Camacho killed Mr. Wilburn. He knew

that Evellyn and Andre had witnessed the murder. When Camacho

ordered Jackson to shoot Wright, Jackson was on notice that

collecting the debt had, at best, faded as the immediate motive for-22-

the kidnapping. He knew that now there were new reasons for the

kidnapping and that, as an accomplice to the Wilburn murder, he had

v irtually as much to gain as Camacho from the elimination of the

witnesses. The district court found that a reasonable person in

Jackson's situation would have known that the other kidnappers were

going to kill Evellyn and Andre Banks once they witnessed the

murder of David Wilburn. The district court thus concluded that

Jackson participated in the kidnapping of the victims to facilitate

their murder. This finding is not clearly erroneous.

(2)

Jackson also contends that the distri ct court erroneously

believed that it was wi thout authority to make a downward

adjustment in his sentence. This argument is based on the district

court's comments during sentencing that it regretted imposing the

same sentence on both Jackson and Camacho when Jackson was less

culpable. Contrary to Jackson's contention, the district court did

recognize its ability to mak e a downward departure in Jackson's

sentence but found no facts u pon which to base such a departure.

We will uphold the district court's refusal to depart from the

guidelines unless the refusal was in violation of the law. U nited

States v. Buenrostro , 868 F.2d 135, 139 (5th Cir. 1989). The

district court's conclusions are not in violation of law.

(3)

We now turn to the defendants' contention that the district

court erred in ordering Jackson and Camacho to pay restitution to-23-

the estate of Evellyn Banks. The court ordered Jackson to pay

$250,000 in restitution and o rdered Camacho to pay $1,000,000 in

restitution. Recognizing that this was a highly publicized case,

the court reasoned that the defendants might someday receive income

from a book or movie concerning the kidnapping. The court

concluded that the victims of the crime should benefit from such

income before the defendants.

The defendants argue that the statute does not authorize the

restitution order and that the order is inconsistent with the First

Amendment and, therefore, unconstitutional. S ee Simon & Schuster,

Inc. v. Members of the New York State Crimes Bd.

, U.S. , 112

S.Ct. 501 (1991).

The district court made the orders pursuant to the Victim and

Witness Protection Act, 18 U.S.C. § 3663. The statute provides

that the court may order the defendant:

(2) in the case of an offense resulti ng in bodily

injury to the victim--

(C) reimbur se the victim for income lost by such

victim as a result of such offense;

(3) in the c ase of an offense resulting in bodily

injury also results in the death of a victim, pay

an amount equal to the cost of necessary funeral

and related services . . .

The sta tute grants the district court wide discretion in

determining the appropriate amount of restitution. United States

v. Anglian , 784 F.2d 765 (6th Cir. 1986). The district court has

the authority to award restitution in an amount greater than that

alleged in the indictment even if the d efendant is unable to pay-24-

the amount of restitution when the court awards it. U nited States

v . Pomazi , 851 F.2d 244, 249 (9th Cir. 1988); s ee also United

States v. Ryan

, 874 F.2d 1052, 1054 (5th Cir. 1989) (The court can

award restitution even when the defendant is indigent at the time

the award is made.)

In this case, the district court has the authority to order

the defendants to pay the victims' estates an amount equal to

victims' lost income and the victims' funeral expenses.

Nevertheless, the amount of the restitution must be supported by

the evidence and related to the victim's losses. Pamazi 851 F.2d

at 249; United States v. Hill

, 798 F.2d 402, 406 (10th Cir. 1986).

In this case, the district court did not make any factual findings

concerning the amount of the victims' losses. In fact, the award

appears to be related to the defendants' income instead of the

victims losses. We, therefore, must set aside the district court's

restitution order and remand to the district court for factual

determinations that are supported by a preponderan ce of the

evidence.

Finally, the district court's award must take into account

certain constitutional rights of the defendant as noted in Simon &

Schuster

. S imon & Schuster concerned a New York restitution law

that sought to take the money criminals earned on books and movies

associated with their illegal activities and to direct it to the

victims of the crimes they committed. The Court held that the law

unconstitutionally imposed a financial burden on criminals because-25-

of the content of their speech. The Court recognized that New York

had a powerful interest in compensating the victims of crime, but

held that the New York law was not narrowly tailored to meet that

objective. S imon & Schuster

, 112 S.Ct. at 512. Under the Supreme

Court's holding in Simon & Schuster

, the district court cannot

limit a restitution order solely to the income the defendants earn

on speech associated with their criminal activities.

IV

We summarize our holdings as follows: We AFFIRM the

convictions of both Jackson and Camacho. We also AFFIRM the

sentences the district court gave both J ackson and Camacho.

Finally, we REVERSE the restitut ion orders for both Jackson and

Camacho and REMAND to the distric t court for proceedings not

inconsistent with this opinion.

AFFIRMED in part, REVERSED in part, and

REMANDED.