     Case: 09-60868     Document: 00511255084          Page: 1    Date Filed: 10/06/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           October 6, 2010

                                       No. 09-60868                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

CLARENCE BLEVINS,

                                                   Defendant-Apellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 5:09-CR-15-1


Before HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Clarence Blevins appeals his conviction under 18 U.S.C. § 373(a) for
solicitation of murder-for-hire. Blevins contends that the district court erred by
admitting evidence of his prior conviction for the same crime, failing to instruct
the jury that actual travel in interstate commerce is required for a violation of
18 U.S.C. § 373(a), and refusing to give an entrapment instruction. Blevins also
argues that the evidence at trial was insufficient to support his conviction.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                    FACTS AND PROCEEDINGS
      In the spring of 2007, while Blevins was incarcerated at the Federal
Correctional Institution Medium at Yazoo City, Mississippi, an inmate named
G.W. sent letters to the Federal Bureau of Investigation (“FBI”) and the Bureau
of Alcohol, Tobacco, and Firearms (“ATF”) stating that Blevins had requested
G.W.’s help in hiring a hit man to murder several individuals who resided in
Florida. At trial, G.W. testified that Blevins had initiated conversations with
other inmates about explosives and that Blevins had broached the subject of the
murders with G.W. after G.W. mentioned that he knew a hit man who might
want to buy explosives. Before the FBI and prison officials could obtain
permission to use G.W. as a confidential informant, Blevins was transferred to
the Federal Correctional Institution Low (“FCI Low”) at Yazoo City.
      After Blevins’s transfer, a Bureau of Prisons (“BOP”) official contacted
C.W., an inmate at the FCI Low who had proven to be reliable in past
government investigations, to ask for his assistance in investigating Blevins.
C.W. wore a concealed wire to record two conversations with Blevins on
September 23, 2008 and November 24, 2008. During the recorded conversations,
Blevins advised C.W. that he wanted someone to kill three individuals in
Florida: his ex-wife, her boyfriend, and her neighbor. Blevins told C.W. that he
would provide C.W. with explosives in exchange for carrying out the murders.
      In the taped conversations, Blevins and C.W. discussed various methods
of killing these individuals. In one conversation, Blevins stated that he wanted
the murders to appear to be a murder-suicide and suggested that C.W. find a
way to plant the neighbor’s fingerprints on the gun. In another conversation,
they discussed making the murders look like home invasions. Blevins told C.W.


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to shoot the victims and instructed C.W. on how to make a silencer from a soda
can filled with Styrofoam. Blevins said that he wanted the murders to happen
while he was still incarcerated so that he would have an alibi. Blevins also
provided C.W. with a detailed description of his ex-wife’s house, including the
address and layout of the house. C.W. asked Blevins several times if he was
serious about wanting his ex-wife killed, and each time Blevins assured C.W.
that he wanted the murder committed. In one of the recorded conversations,
Blevins told C.W. that he could rape his ex-wife prior to killing her if he was
careful not to leave behind any DNA evidence.
      Subsequently, Blevins was arrested and charged with solicitation of
murder-for-hire under 18 U.S.C. § 373(a). At his 2009 trial, Blevins testified that
he started talking to other inmates about his access to explosives to curry favor
with them and to ensure that he would not be harmed in prison. Blevins also
testified that he was gathering the names of inmates who wanted explosives and
that he planned to provide the government with their names after he was
released. Blevins testified that he discussed the murders of his ex-wife, her
boyfriend, and her neighbor with C.W. in order to keep him talking about
explosives. The jury convicted Blevins of solicitation of murder-for-hire.
                                 DISCUSSION
      A. Admission of Blevins’s Prior Conviction
      Blevins argues that the district court erred in admitting evidence of his
prior conviction for solicitation of murder-for-hire under 18 U.S.C. § 373(a).
“This court reviews for abuse of discretion a district court’s decision to admit or
exclude evidence.” U.S. v. Yi, 460 F.3d 623, 631 (5th Cir. 2006) (citing United
States v. Cantu, 167 F.3d 198, 203 (5th Cir. 1999)). “In a criminal case, Rule


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404(b) evidence must be strictly relevant to the particular offense charged.” Id.
(quoting United States v. Hernandez-Guevara, 162 F.3d 863, 869 (5th Cir. 1998)
(internal quotation omitted)).
      Rule 404(b) prohibits the admission of evidence of other acts to prove the
defendant’s conformity therewith. Fed. R. Evid. 404(b). However, the rule
permits other-acts evidence “for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Id. This circuit follows a two-step test, incorporating Rules
401 and 403, for admission of extrinsic evidence of prior offenses or other
misconduct under Rule 404(b): The extrinsic evidence (1) must be relevant to an
issue other than the defendant’s character and (2) must have probative value
that is not substantially outweighed by its prejudicial effect on the jury. United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc); Fed. R. Evid. 401,
403; see also United States v. Redd, 355 F.3d 866, 879 (5th Cir. 2003).
      “Beechum’s relevancy threshold is satisfied if the evidence is relevant to
an issue other than propensity to commit the act, such as intent, motive, or
plan.” United States v. LeBaron, 156 F.3d 621, 624 (5th Cir. 1998) (citing Fed.
R. Evid. 404(b)). “When extrinsic evidence is offered to prove intent, the
relevancy of such evidence is ascertained by comparing the state of mind in
perpetrating the different offenses.” Id. (citing United States v. Gordon, 780 F.2d
1165, 1173 (5th Cir. 1986)). Blevins’s defense at trial was that, although he
discussed murdering his ex-wife and others, he did not actually intend their
deaths. Blevins’s prior conviction of solicitation of murder-for-hire of his ex-wife
was relevant to his intent and motive to solicit her murder-for-hire.




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      Next, we consider whether the prior conviction’s probative value was
outweighed by substantial prejudice to Blevins. “We consistently have held that
evidence of a defendant’s prior conviction for a similar crime is more probative
than prejudicial and that any prejudicial effect may be minimized by a proper
jury instruction.” United States v. Taylor, 210 F.3d 311, 318 (5th Cir. 2000)
(citing United States v. Harris, 932 F.2d 1529 (5th Cir. 1991); United States v.
Bermea, 30 F.3d 1539 (5th Cir. 1994)). In this case, the district court instructed
the jury that Blevins’s prior conviction was to be considered for the limited
purpose of determining his intent and motive, and not as evidence that he
committed the offense charged. Considering the probative value of the evidence
and the district court’s limiting instruction, the court did not abuse its discretion
in permitting the government to introduce this evidence.
      B. Jury Instructions
      Blevins contends that the district court improperly instructed the jury that
actual interstate travel was not required to find the defendant guilty of violating
18 U.S.C. § 373(a). The standard of review applied to jury instructions is
“whether the court’s charge, as a whole, is a correct statement of the law and
whether it clearly instructs jurors as to the principles of the law applicable to the
factual issues confronting them.” United States v. Sharpe, 193 F.3d 852, 871 (5th
Cir. 1999) (quoting United States v. August, 835 F.2d 76, 77 (5th Cir. 1987)). “A
trial court is given broad discretion to fashion jury instructions” and will be
reversed “only upon a determination that the district court has abused its
discretion.” United States v. Johnson, 872 F.2d 612, 621-22 (5th Cir. 1989).
      To find a defendant guilty of solicitation of murder-for-hire, the jury must
find: (1) that the defendant intended for another person to commit murder-for-


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hire and (2) that the defendant induced or tried to persuade that other person
to commit murder-for-hire. See 18 U.S.C. § 373(a); United States v. Razo-Leora,
961 F.2d 1140, 1148 n.6 (5th Cir. 1992); see also United States v. Cardwell, 433
F.3d 378, 390-91 (4th Cir. 2005). The plain language of the statute indicates
that actual movement in interstate commerce is not required for a solicitation
conviction under 18 U.S.C. § 373(a). C.f. United States v. Blackthorne, 378 F.3d
449, 454 (5th Cir. 2004) (“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.”). After explaining the elements
of 18 U.S.C. § 373(a) and the murder-for-hire statute, 18 U.S.C. § 1958, the
district court instructed the jury:
      It is not required that anyone actually traveled in interstate
      commerce for you to find the defendant guilty of solicitation to
      commit a crime of violence, so long as you find beyond a reasonable
      doubt that the defendant intended to cause another to travel in
      interstate commerce to commit the crime of murder for hire.


The district court correctly stated the law and did not err in instructing the jury
that actual interstate travel was not required to convict Blevins of solicitation
of murder-for-hire.
      C. Entrapment Instruction
      Blevins also argues that the district court erred in denying his request at
trial for a jury instruction on entrapment. We review de novo a district court’s
refusal to offer a “theory of defense” requested by the defendant. United States
v. Bradfield, 113 F.3d 515, 521 (5th Cir. 1997)). “[W]hen a defendant’s properly
requested entrapment instruction is undergirded by evidence sufficient to
support a reasonable jury’s finding of entrapment, the district court errs


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reversibly by not adequately charging the jury on the theory of entrapment.”
Bradfield, 113 F.3d at 521. A defendant is entitled to an entrapment instruction
when he produces evidence of (1) a “lack of predisposition to commit the offense
and (2) some governmental involvement and inducement more substantial than
simply providing an opportunity or facilities to commit the offense.” United
States v. Gutierrez, 343 F.3d 415, 419 (5th Cir. 2003) (internal quotation marks
omitted); see also Bradfield, 113 F.3d at 522 (“Evidence that government agents
merely afforded the defendant an opportunity or facilities for the commission of
the crime is insufficient to warrant the entrapment instruction.”). The critical
inquiry is whether the criminal intent originally resided in the defendant or
whether the government planted the seed of criminality. Gutierrez, 343 F.3d at
419.
       Blevins’s claim   for an entrapment instruction founders on the
predisposition prong of the entrapment defense. Although Blevins testified at
trial that he did not intend to harm his ex-wife, in two taped conversations
introduced into evidence, Blevins spoke to C.W. about his hostility toward his ex-
wife and discussed plans to kill her. Blevins described in detail the location and
layout of his ex-wife’s house and told C.W. that he could rape her before killing
her. On several occasions, C.W. asked Blevins if he was sure that he wanted his
ex-wife killed, and Blevins assured C.W. that he did. At no time during these
conversations did Blevins express reluctance or uncertainty about the murder
of his ex-wife. In addition, Blevins previously was convicted of soliciting the
murder-for-hire of his ex-wife. The evidence at trial did not raise a reasonable
doubt regarding entrapment, and the district court did not err in denying
Blevins’s request for an entrapment instruction.


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      D. Sufficiency of the Evidence
      Blevins contends that the evidence at trial was insufficient to support his
conviction. Because Blevins properly preserved his sufficiency of the evidence
argument by moving for a judgment of acquittal at the close of the government’s
case and at the close of all evidence, this court’s review is de novo. See United
States v. Shum, 496 F.3d 390, 391 (5th Cir. 2007). “In deciding whether the
evidence was sufficient, we review all evidence in the light most favorable to the
verdict to determine whether a rational trier of fact could have found that the
evidence established the essential elements of the offense beyond a reasonable
doubt.” Id. The court “consider[s] the countervailing evidence as well as the
evidence that supports the verdict in assessing sufficiency of the evidence.”
United States v. Brown, 186 F.3d 661, 664 (5th Cir. 1999) (internal quotations
omitted). The evidence is insufficient to support the verdict “[i]f . . . the evidence
gives equal or nearly equal circumstantial support to a theory of guilt, as well
as to a theory of innocence.” United States v. Ferguson, 211 F.3d 878, 882 (5th
Cir. 2000).
      Blevins attacks the credibility and reliability of the informants as
witnesses. This argument is unpersuasive. The sufficiency of the evidence
standard gives “full play to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S. 307,
319 (1979); see also United States v. Casillas, 20 F.3d 600, 602 (5th Cir. 1994)
(“The jury is solely responsible for determining the weight and credibility of the
evidence; this court will not substitute its own determination of credibility for
that of the jury.”). In short, viewing the evidence in the light most favorable to


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the verdict, a rational jury could have credited the testimony by G.W. and C.W.
See United States v. Restrepo, 994 F.2d 173, 182 (5th Cir. 1993) (“The jury is the
final arbiter of the weight of the evidence, and of the credibility of witnesses”).
      Blevins also argues that the government failed to present evidence of the
use of interstate commerce by Blevins as required by 18 U.S.C. § 1958. However,
Blevins was convicted of solicitation of a crime of violence—in this case, murder-
for-hire—under 18 U.S.C. § 373(a). As discussed above, so long as Blevins
intended that another individual commit all of the elements of 18 U.S.C. § 1958
and induced or tried to persuade that individual to commit all of the elements
of 18 U.S.C. § 1958, he can be found guilty under 18 U.S.C. § 373(a). During
taped conversations, introduced into evidence, Blevins and C.W. discussed C.W.
traveling from Louisiana to Florida to murder Blevins’s ex-wife, her boyfriend,
and her neighbor. Blevins stated several times that he wanted these individuals
murdered and offered C.W. explosives in exchange for their deaths. Viewing all
evidence in the light most favorable to the verdict, a reasonable trier of fact could
find that the evidence established Blevins’s guilt beyond a reasonable doubt.
                                CONCLUSION
      For the reasons stated, we AFFIRM Blevins’s conviction.




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