                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-3896
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                               v.

WALTER RICHESON, JR.,
                                         Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
     for the Northern District of Indiana, Hammond Division.
            No. 2:01-CR-54—James T. Moody, Judge.
                        ____________
      ARGUED MAY 30, 2003—DECIDED JULY 22, 2003
                    ____________


  Before FLAUM, Chief Judge, and EASTERBROOK and
RIPPLE, Circuit Judges.
   FLAUM, Chief Judge. A jury convicted Walter Richeson,
Jr., of four counts of conspiring to use interstate com-
merce in the commission of a murder for hire, in violation
of 18 U.S.C. § 1958(a). Richeson appeals his conviction on
three grounds, arguing first that the evidence was insuf-
ficient to prove he provided any consideration for the
alleged murder-for-hire, second that the evidence failed
to establish he used a facility in interstate commerce
when he made only intrastate phone calls to plan the
murders, and third that the district court abused its
discretion by admitting unfairly prejudicial evidence of
2                                             No. 02-3896

his plans to murder the state prosecutor, intimidate a
juror, and bribe the trial judge. We affirm.


                    I. BACKGROUND
  In the fall of 1999, Richeson was arrested and charged
in Indiana state court with the murder of Brant Martin.
Eyewitness Bradley Koonce told state investigators that
Richeson killed Martin, and Steve Mucha informed in-
vestigators that Richeson confessed to him that he had
killed Martin. Mucha was released after giving his state-
ment, but Koonce was taken into custody on unrelated
charges and placed in Lake County Jail. Richeson knew
that the state’s case against him was strong, and decided
that the best way to defeat the charges was to have wit-
nesses Koonce and Mucha killed. Since Koonce was in
custody, however, Richeson thought killing him was not
feasible; instead, Richeson devised a plan to kidnap
Koonce’s parents (his mother and step-father) and use
threats of death to them as a way to force Koonce to
recant. Even after Koonce recanted, however, Richeson
still intended to kill Koonce’s parents.
  Richeson next conspired with his wife Jennifer and fel-
low inmates Daniel Wolfe and Curtis Jones to commit
the murders. Richeson wrote letters to Jennifer outlining
his plans and asking her to contact a man named “Dice”
to carry out the actual kidnaping and killings. In one
letter, which Richeson sent to Jennifer with instructions
that it be forwarded to Dice, Richeson begged Dice to
kill Koonce and Mucha and told Dice he would make it up
to him anyway he wanted if Dice did what Richeson
asked him to do. Additionally, Richeson called Jennifer
numerous times from jail asking her to coordinate his
kidnaping and murder plans.
  Richeson also sought help from Wolfe and Jones to
carry out his plan. The three inmates agreed that the first
No. 02-3896                                              3

one to “bond out” would help the others get out; Jones
also agreed that if he bonded out he would help find
weapons to use in the plan to murder Mucha and Koonce’s
parents. At that time Richeson offered to pay Jones be-
tween $700-$1000 if he could get a gun for the murder, but
Jones testified that he told Richeson he wasn’t worried
about the money. Wolfe bonded out first in August 2000,
without help from Jones or Richeson, and once out of jail
he avoided contact with Richeson. Jones made bond in
November 2000, again without help from Wolfe or Richeson;
shortly before Jones left the jail, Richeson asked him if
he was still in on the plan. Jones pointed out that
Richeson had not helped him make bond, as he had prom-
ised to do, but added that he would nevertheless see
what he could do to help. Richeson then sent Jones two
letters in December of 2000, imploring him to help him
kill Mucha and kidnap Koonce’s parents; the second of
the two letters was written in a crude code which was
supposed to be read using the “decoder” contained in the
first letter.
  Unknown to either Jones or Richeson, Wolfe had informed
an agent from the Bureau of Alcohol, Tobacco, and Fire-
arms (“ATF”) of Richeson’s plan to murder Mucha and
Koonce’s parents while Wolfe was still incarcerated.
Although Wolfe had avoided contact with Richeson after
his release from jail in August of 2000, he received a call
from an unidentified person in December of 2000 telling
him that he had better start taking Richeson’s calls. Later
in December, Wolfe accepted a collect call from Richeson,
who wanted to tell Wolfe how to carry out the kidnaping
of Koonce’s parents. Immediately after this call, Wolfe
contacted ATF and told them that Richeson’s plot to kill
and kidnap witnesses was still active and seemingly
genuine; ATF then began taping Richeson’s calls from jail
to Wolfe, Jennifer, and Jones.
4                                               No. 02-3896

   Wolfe next introduced undercover ATF agent Joe Molina
to Jennifer and Jones, telling them that Molina was his
partner who would help carry out Richeson’s plans. Several
phone conversations between Wolfe, Molina, Jennifer,
Jones, and Richeson were recorded during the month
of January 2001, and these conversations revealed that
Richeson was planning to enlist the help of Jones and
others to kill and intimidate witnesses who would tes-
tify against him at his upcoming trial in February. In
addition to Mucha and Koonce’s parents, Richeson plotted
to murder other witnesses (the O’Neal twins and Bob
Holota) and the state prosecutor; he also planned to
bribe the state trial judge and intimidate a juror by threat-
ening his or her family.
  Neither Richeson nor the government disputes that
Richeson conspired and planned to commit the murders, but
Richeson insists that the government never proved he
conspired and planned to commit a murder-for-hire.
Richeson claims that none of his phone conversations
with Jones, Molina, Wolfe, or Jennifer in which he dis-
cussed obtaining a murder weapon constituted “consider-
ation for a promise or agreement to pay, anything of
pecuniary value” as required by the murder-for-hire stat-
ute. 18 U.S.C. § 1958(a). In contrast, the government
maintains that the conversations between Richeson and
his coconspirators unquestionably reveal Richeson’s intent
to reimburse them for their purchase of a murder weapon
and to involve them in future crimes that would yield
money ($100,000-$200,000 by Richeson’s own account)
for them to share. Moreover, the government contends
that Richeson promised Molina $500 to buy a gun for
himself in exchange for his help with the murders.
   At trial the government introduced evidence, over
Richeson’s Fed. R. Evid. 403 objection, that Richeson had
planned to kill the state prosecutor and steal his case
file, bribe the judge, and identify and intimidate a vul-
No. 02-3896                                               5

nerable juror in order to avoid a conviction for murdering
Brant Martin. Richeson argues this evidence should have
been kept out because it was unfairly prejudicial, in that
its sole purpose was to inflame the jury, and was of
little probative value, given the admission of so much
other evidence of Richeson’s plan to murder Mucha and
Koonce’s parents. The district court allowed the contested
evidence to be introduced because it was highly relevant
to the government’s case against Richeson, and denied
Richeson’s motion for a mistrial based on the admission
of the evidence.
  The government presented its case against Richeson
over four trial days; at the close of evidence on the fourth
day, Richeson moved for judgment of acquittal, claiming
the government had not met its burden of proof regarding
the consideration element of the murder-for-hire statute,
nor had it proven the interstate commerce element with
respect to the intrastate phone calls charged in Counts II
and IV. The court denied his motion, and Richeson rested
without presenting any evidence. Richeson was found guilty
and sentenced to a term of 364 months federal impris-
onment (91 months for each of the 4 counts running
consecutively), which was tacked onto his Indiana state
court sentence for the murder of Brant Martin.


                     II. Discussion
A. Consideration Element
  The federal murder-for-hire statute requires the gov-
ernment to prove that the accused intended for a murder
to be committed “as consideration for the receipt of, or as
consideration for a promise or agreement to pay, anything
of pecuniary value.” 18 U.S.C. § 1958(a). The phrase
“anything of pecuniary value” is defined in the statute
as “anything of value in the form of money, a negotiable
instrument, a commercial interest, or anything else the
6                                               No. 02-3896

primary significance of which is economic advantage.”
§ 1958(b)(1). Not only money, but drugs, insurance policies,
and real estate can constitute consideration for the pur-
pose of satisfying this element. See, e.g., United States v.
Scott, 145 F.3d 878, 884 (7th Cir. 1998) (cash payments
of $5,000 and $75,000); United States v. Washington, 318
F.3d 845, 854 (8th Cir. 2003) (payment of 5 ounces of
heroin); United States v. Hernandez, 141 F.3d 1042, 1057
(11th Cir. 1998) (promise to profit from insurance pro-
ceeds). Here, the government charged Richeson with prom-
ising to pay something of pecuniary value, namely money
and guns, in return for the murders of Mucha and Koonce’s
parents.
   Richeson attacks the sufficiency of the evidence against
him on two fronts, claiming first that the evidence failed
to show that he paid or promised to pay anyone anything
of value to commit the murders; and second, even assum-
ing he made such a promise, the evidence failed to estab-
lish that the charged mailings were made in connection
with a murder-for-hire since they preceded any discussion
of compensation for the murders. We review a challenge
to the sufficiency of the evidence in the light most favor-
able to the prosecution, Jackson v. Virginia, 443 U.S. 307,
319 (1979), and will reverse a jury’s verdict of conviction
only if “there is no evidence from which a jury could con-
vict.” United States v. Hill, 187 F.3d 698, 700 (7th Cir.
1999). Under such a deferential standard of review, and
in light of the uncontroverted facts corroborating Richeson’s
scheme to murder and intimidate adverse witnesses, we
conclude the jury heard ample evidence of Richeson’s intent
to pay for the murders to sustain his conviction.
   Richeson first argues that the government never estab-
lished his intent to pay for the murders. Though he con-
cedes the evidence presented at trial proved that he in-
tended to murder certain witnesses, Richeson insists
that he and his coconspirators never reached an agree-
No. 02-3896                                               7

ment regarding remuneration for their assistance in
committing the crimes. According to Richeson, the evidence
shows only that he intended and conspired to commit
murder, not murder-for-hire. While this court has not yet
defined what consideration means in the context of the
murder-for-hire statute, we have said in other criminal
law cases that consideration retains its contract law
meaning of a bargained-for exchange of something of
value. See, e.g., Gonzalez v. Kokot, 314 F.3d 311, 317 (7th
Cir. 2002) (finding agreement to dismiss criminal charges
in exchange for release of civil claims to be a valid con-
tract supported by consideration). With respect to § 1958,
the language of the statute “undeniably contemplates
a quid-pro-quo (or at least the promise of such)” between
the solicitor and the murderer. Hernandez, 141 F.3d at
1057. Though the use of the word “consideration” in the
statute “does not import all of contract law,” it should be
interpreted in accordance with its plain meaning, which
is “in return for” or “in exchange for.” Id. See also Wash-
ington, 318 F.3d at 854 (“consideration requirement of
the statute has been interpreted in the traditional sense
of a bargained-for exchange”) (citing United States v. Wick-
lund, 114 F.3d 151, 154 (10th Cir. 1997).
  In this case the government presented evidence at
trial showing that Richeson offered to pay both Jones and
Molina to commit the murders of Mucha and Koonce’s
parents. The payment offered took the form of money to
buy the murder weapons, with the promise to allow the
murderer to keep the weapon when he finished the job.
Richeson insists he never directly promised his cocon-
spirators compensation, and even assuming he had, he
never reached an enforceable agreement as to the terms
of payment. In support of his position Richeson relies on
United States v. Ritter, 989 F.2d 318, 321 (9th Cir. 1993),
in which the Ninth Circuit held there was no considera-
tion under § 1958 where the only mention of payment
to commit a murder was vaguely and tentatively prom-
8                                                No. 02-3896

ised by the defendant after being rejected as unnecessary
by the undercover agent posing as a “hit man.” This case
is quite different from Ritter; here, the taped conversa-
tions between Richeson and Wolfe and Molina show that
Richeson, though vague and cautious in his speech, never-
theless was fully aware of his need to compensate his
coconspirators to carry out the murders. The following
excerpts of three phone calls between the men illustrate
this point:
    Call number one
    Richeson:   So, what man, what’s he [Molina] wanting?
    Wolfe:      Well . . . I told him the gameboys [guns]
                and that’s what I told him I had to talk
                to you about. What you willing to offer this
                man? You know. We need, we need
    Richeson:   We need the tools for this job, don’t we?
    Wolfe:      Huh?
    Richeson:   We need the tools for this job
    Wolfe:      Yeah . . . I’m a go this route, don’t worry,
                I’m gonna, but he, he can keep ‘em, right?
    Richeson:   Huh?
    Wolfe:      He can keep ‘em, right?
    Richeson:   For sure.
    Wolfe:      Alright, well at least that’s one of the top
                ...
    Richeson:   However you wanna play it.


    Call number two
    Molina:     What a, hey, you know, B, [Richeson], when
                all this is done, am I going to be taken care
                of?
No. 02-3896                                              9

   Richeson:   Definitely.
   Molina:     Definitely? All right. Cause Dan [Wolfe],
               Dan says you’re straight up, and you know,
               we’re working hard on this. But the game,
               the gameboy tips, they’re the hardest thing.
   Richeson:   Right. See, Danny knows what I got to do to
               obtain the, the money first, though. You
               know what I’m saying?
   Molina:     The money for me? . . .
   Richeson:   Well, actually, it’s for all of us.


   Call number three
   Molina:     You know what I mean? Hey, if we, if we
               get this done, you know we talked about,
               are you compensating me?
   Richeson:   Uh-huh.
   Molina:     I got my eye on a pretty good-looking
               gameboy at one of these gun stores about
               500 bucks. What compensation are you
               talking about, about how much?
   Richeson:   Say that again.
   Molina:     I said we talked earlier about you making
               payment to me.
   Richeson:   Uh-huh . . .
   Molina:     I said I got me, I got my eye on this new
               little gameboy at one of the gun stores
               down here. It’s about 500 bucks. Are we
               talking 500 or so?
   Richeson:   Shit probably, more than that if you want.
10                                            No. 02-3896

  In addition to these and other conversations concern-
ing payment in the form of guns, Richeson admits that
he also talked to Wolfe and Molina about partnering in
future crime sprees, once the murders were committed
and Richeson was released from jail, that would provide
the men with cash profits. Combined with the uncon-
troverted evidence establishing Richeson’s intent to
murder Mucha and Koonce’s parents, this evidence
plainly reveals Richeson’s intent to compensate his cocon-
spirators, with money and guns, in exchange for their
committing the murders while he waited in jail. Despite
the guarded language used by Richeson and the others in
their phone conversations, we can easily discern a prom-
ise by the coconspirators to carry out the scheme to mur-
der in exchange for Richeson’s promise to get them money
for guns, which they would keep, and to involve them in
future crimes, which would yield cash profits. This consti-
tutes a bargained-for-exchange for something of value
and therefore amounts to consideration under the murder-
for-hire statute.
  But Richeson also argues that even if his statements
over the phone amounted to consideration for a murder-for-
hire, the mailings charged in the indictment (Counts I
& III) do not. Richeson maintains that evidence from the
mailings cannot support his murder-for-hire conviction
because the letters contained no mention of remuneration
and preceded the phone conversations in which payment
for the murders was discussed. However, § 1958 does not
require that the mailings themselves prove all the es-
sential elements of the crime, only that they be used “with
intent that a murder-for-hire be committed.” 18 U.S.C.
§ 1958(a). The use of a facility in interstate commerce,
such as the mails, is an essential element of a murder-for-
hire because it justifies federal regulation of the crime.
See United States v. McPartlin, 595 F.2d 1321, 1361 (7th
Cir. 1979) (analyzing Travel Act, under which murder-for-
hire used to be punished, and finding that use of inter-
No. 02-3896                                               11

state facilities merely provides the basis for federal juris-
diction). Moreover, § 1958 requires only that the interstate
facility employed in a particular case be useful, not inte-
gral, to the commission or planning of the contract killing.
See United States v. Houlihan, 92 F.3d 1271, 1292 (1st
Cir. 1996) (finding interstate commerce element of § 1958
satisfied where use of interstate facilities simply furthers
or aids the commission of the crime); United States v.
McCullah, 76 F.3d 1087, 1104 (10th Cir. 1996) (uphold-
ing murder-for-hire conviction where defendant did not
know of murder plan at time of interstate travel, but his
codefendants had planned a murder-for-hire and in-
tended that defendant’s interstate travel facilitate their
murder scheme); United States v. Ransbottom, 914 F.2d
743, 746 (6th Cir. 1990) (stating that § 1958 does not re-
quire contract to exist and consideration be provided at
time of interstate travel, so long as travel commenced for
purpose of facilitating the murder-for-hire).
  The evidence in this case shows that Richeson wrote
and mailed several letters discussing his plans to murder
Mucha and Koonce’s parents. These mailings included
a letter to a man named “Dice” in which Richeson offered
to make it up to him any way he wanted if Dice would
help him with the murders, and a letter to Jones in which
Richeson told Jones how he wanted the kidnaping
and murder of Koonce’s parents to occur. Contrary to
Richeson’s assertion, the fact that neither of these letters
makes overt mention of compensation is of no conse-
quence; section 1958 does not require that the mailings
themselves prove all the essential elements of the crime,
only that the mailings be used with the intent that the
murders be committed. In this case there is ample evi-
dence, including the phone calls discussed above and
Richeson’s jailhouse offer to give Jones cash to buy and
keep a suitable murder weapon, showing that Richeson
intended to commit a murder-for-hire. We are confident
that the jury could infer from this evidence that Richeson’s
12                                                 No. 02-3896

letters were mailed with the intent to execute his murder-
for-hire scheme.


B. Interstate Commerce Element
  Richeson next challenges that part of his conviction
(Counts II & IV) which is based on his use of the tele-
phone to commit a murder-for-hire. The murder-for-hire
statute requires the government to prove that the ac-
cused “use[d] or cause[d] another (including the intended
victim) to use the mail or any facility in interstate or
foreign commerce” with intent that a murder be committed.
18 U.S.C. § 1958(a). Richeson argues that because all of
his phone calls were made intrastate, he cannot be found
guilty of using a facility in interstate commerce under
§ 1958. In particular, though he concedes that the phone
lines themselves are facilities “of” interstate commerce,
Richeson insists that he did not use the phones “in” inter-
state commerce because he never placed a call across
state lines. Richeson’s construction would require us to
read “in interstate or foreign commerce” as modifying “to
use” rather than “facility”; or, in other words, to require
that both the facility and its use be in interstate com-
merce. We have not squarely faced this issue in prior cases,
but our sister circuits have. The Fifth Circuit, sitting
en banc, soundly rejected Richeson’s suggested interpreta-
tion of § 1958’s interstate commerce language in United
States v. Marek, 238 F.3d 310 (5th Cir. 2001). Richeson,
however, urges us to find persuasive the Sixth Circuit’s
decision in United States v. Weathers, 169 F.3d 336 (6th
Cir. 1999), where that court opined that the distinction
between “in” interstate commerce and “of” interstate com-
merce is significant in the murder-for-hire statute.1


1
  In fact, the Sixth Circuit has very recently issued an opinion
favorably citing Marek and limiting this part of Weathers to
                                                   (continued...)
No. 02-3896                                                       13

  We believe there is only one way to read the plain
language of the murder-for-hire statute, and that is to
require that the facility, and not its use, be in interstate
or foreign commerce. We wholly agree with the Fifth Cir-
cuit that § 1958’s construction, plain language, context
in the realm of commerce clause jurisprudence, and legisla-
tive history all lead to the conclusion that “it is sufficient
[under § 1958] that the defendant used an interstate
commerce facility in an intra state fashion.” Marek, 238
F.3d at 315. This reading of the statute makes sense
from both a logical and legal standpoint; as noted in Marek,
even the title of the statute, “Use of interstate com-
merce facilities in the commission of murder-for-hire,”
shows that Congress intended “interstate commerce” to
modify “facility” and not “use.” Id. 238 F.3d at 321. More-
over, even if the language of § 1958 was ambiguous (we
believe it is not), the statute’s history indicates that Con-
gress sought to punish contract killings pursuant to its
authority to regulate the instrumentalities of interstate
commerce, identified in United States v. Lopez, 514 U.S.
549, 558 (1995), as one of three broad categories of conduct
appropriately regulated by Congress using its commerce
power. And when Congress elects to regulate under the
second prong of Lopez, “federal jurisdiction is supplied
by the nature of the instrumentality or facility used, not
by separate proof of interstate movement.” Marek, 238 F.3d
at 317.
  Applying this rule to this case, we easily conclude that
the record contains sufficient evidence of Richeson’s use


1
   (...continued)
its facts. United States v. Cope, 312 F.3d 757, 771 (6th Cir. 2002)
(“As a matter of statutory construction [of § 1958], we agree with
the Fifth Circuit’s analysis.”). In Cope, the court cites to Marek for
the proposition that the language “in interstate of foreign com-
merce” modifies “facility” and not “mail” or “to use.” Cope, 312
F.3d at 771.
14                                                  No. 02-3896

of a facility in interstate commerce to satisfy the juris-
dictional commerce element of § 1958. In his brief, Richeson
concedes that he used a facility of interstate commerce,
namely the telephone line of a carrier operating in sev-
eral states, to carry out his plan to murder Mucha and
Koonce’s parents; this fact alone establishes federal juris-
diction under the murder-for-hire statute.


C. Rule 403 Evidence
  Finally, Richeson claims that the district court erred
by admitting evidence of his plot to kill the state prose-
cutor, intimidate a vulnerable witness, and bribe the
judge prior to his state court trial. Richeson argues that
this evidence had little probative value and was unfairly
prejudicial, and therefore should have been excluded
under Fed. R. Evid. 403.2 We review the district court’s
refusal to exclude evidence under Rule 403 for abuse of
discretion, and will reverse the court’s ruling only if no
reasonable person could agree with it. United States v.
Thomas, 321 F.3d 627, 630 (7th Cir. 2003). Recognizing
that the balancing of probative value and prejudicial effect
is a highly discretionary exercise, we give the district
court’s evidentiary decisions great deference. Id. With this
in mind, we conclude that the district court did not
abuse its discretion by permitting the government to
introduce evidence of Richeson’s plan to murder the state
prosecutor, intimidate a juror, and bribe the judge in his
federal murder-for-hire trial.
  The government maintains, and the district court pre-
sumably agreed, that the challenged evidence was highly


2
  Rule 403 provides: “Although relevant, evidence may be ex-
cluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”
No. 02-3896                                               15

relevant to Richeson’s overarching scheme to avoid pros-
ecution for his murder of Brant Martin. Specifically, the
evidence revealed Richeson’s back-up plan in case he
could not murder Mucha and force Koonce to recant prior
to his trial. The government explains that Richeson’s “Plan
B” was to murder the state prosecutor and steal his case
file; and if that course of action proved fruitless, he would
find and intimidate a vulnerable juror by threatening his
or her family, or perhaps bribe the judge. Each of these
plots, says the government, is highly probative of
Richeson’s intent to commit the murders-for-hire charged
in the federal indictment. Moreover, even assuming the
admission of this evidence was in error, the government
suggests that it was harmless in light of all the other
evidence presented to the jury establishing Richeson’s
“ruthlessness” in planning the murders-for-hire.
  Though we agree with the government that the chal-
lenged evidence is relevant to show Richeson’s intent to
commit the murders-for-hire for which he was on trial,
we also believe that the evidence could be viewed as
prejudicial and likely to inflame the jury—especially the
testimony regarding Richeson’s plan to intimidate one
of their own by threatening his or her family. Moreover,
there is an abundance of evidence in the record establish-
ing Richeson’s intent to commit the murders of Mucha
and Koonce’s parents, and the addition of evidence relat-
ing to his plans to murder the prosecutor, intimidate a
juror, and bribe the judge could be seen as unnecessary. But
our view of the probative value and prejudicial effect of
the evidence is not relevant where, as here, the district
court’s decision is not entirely unreasonable; the court’s
admission of evidence over Richeson’s Rule 403 objection
simply did not amount to an abuse of discretion.
16                                             No. 02-3896

                    III. CONCLUSION
  The evidence presented at trial was sufficient to prove
all of the essential elements of the federal murder-for-hire
statute, 18 U.S.C. § 1958, including the interstate com-
merce and consideration elements challenged on appeal,
and the district court did not abuse its discretion by
admitting evidence of Richeson’s plan to murder the
state prosecutor, intimidate witnesses, and bribe the trial
judge. His conviction is therefore affirmed.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—7-22-03
