IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40689

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

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 murderfor-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-forhire 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.

United States Court of Appeals

Fifth Circuit

FILED

February 23, 2015

Lyle W. Cayce

Clerk

 

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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-inlaw 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-forhire 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 murderfor-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 murderfor-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 murderfor-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 

6 Because 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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