               UNITED STATES COURT OF APPEALS

                    FOR THE FIFTH CIRCUIT



                         No. 98-30365



UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                             versus

RICHARD D. BARNETT; VIRGIL R. DRAKE,
                                          Defendants-Appellants.


       Appeals from the United States District Court
           for the Western District of Louisiana

                     November 22, 1999
Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges.

POLITZ, Circuit Judge:

    Richard   D.   Barnett   and      Virgil   R.   Drake   appeal

convictions for conspiracy to commit murder for hire in

violation of 18 U.S.C. §§ 371 and 1958, and for aiding

and abetting each other in attempted murder for hire in

violation of 18 U.S.C. §§ 1958 and 2.            For the reasons

assigned we affirm the convictions of Barnett and reverse

the convictions of Drake.

                         Background
       The record establishes that the relevant events began

in early July 1997 in Belize City, Belize where Barnett,

an American citizen, had been working for several months.

He was scheduled to return to the United States on

July    12.    While    in       Belize   he   frequented    a   local

gymnasium, Body 2000, and became acquainted with Rushiel

Bevans, a Belize native, who worked there as a trainer

and bodybuilder.        On July 11, Barnett and Bevans had

dinner    together     at    a    restaurant.1     They     left   the

restaurant in Barnett’s truck.             Just prior to leaving,

Bevans activated a miniature tape recorder hidden in his

clothing, and recorded their conversation.

       While in Barnett’s truck they discussed plans for

Bevans to travel to Lafayette, Louisiana and kill one or

possibly two individuals.            One of the intended victims



  1
    Barnett contends that the purpose of the meeting was to discuss
his plans to start a health food business in Belize and to seek the
participation of Bevans who was holder of the “Mr. Belize”
bodybuilding title. Bevans maintains that the meeting was arranged
the previous day at Body 2000 when Barnett approached him and said,
“I am looking for a son-of-a-bitch to kill someone for me.” Bevans
testified that the July 11 meeting was to discuss this subject. He
brought a tape recorder with him and recorded their conversation.
At trial Barnett proffered the notes of DEA agent Art Elliot
reflecting a call from Bevans on July 10 informing about the
meeting scheduled for the next day.

                                    2
was Ernest L. Parker, a Lafayette attorney who Barnett

claimed had cheated him out of money in a crooked stock

transfer.        Litigation between Parker and Barnett was

pending and Barnett made no secret of his animosity

towards Parker.          Barnett questioned Bevans about his

seriousness in carrying out the homicide.                       He asked

Bevans     if    he    had    a     passport,    gave     him   detailed

instructions on construction of a silencer for use with

a firearm, discussed the amount of money he would pay

Bevans, and offered a “twenty Gs kicker” if the murder

resulted in a prompt settlement of his lawsuit against

Parker.      He advised of Parker’s habits, such as his

travels and the time he arose in the morning.                    He also

told    Bevans    that   he   had     contemplated       committing   the

murder himself and described how he might dispose of his

clothing to prevent the police from finding traces of gun

powder on them.

       Barnett continued the discussion, explaining that he

had    a   “brother”     in   the    United     States    who   had   made

arrangements with a potential assassin but those plans

went awry when that person was arrested on an unrelated

                                      3
matter.     He promised Bevans more information after he

spoke with the “brother” and suggested that they meet the

next day at Body 2000.         Bevans, in turn, boasted of his

time in Leavenworth, told Barnett the preferred method of

contact   between     them,   explained    how    money    should   be

transferred, when he would obtain a firearm, and other

details designed to persuade Barnett of his ability to

break and evade the law.

      The next day Barnett gave Bevans written information,

including     where   Virgil    Drake     could    be     reached   in

Louisiana, and a series of code phrases for contacting

him.2   Barnett then left for the United States.               Bevans

contacted Art Elliot, a DEA agent stationed in Belize,

who contacted the FBI.

      Upon arriving in Lafayette, Bevans contacted Drake as

instructed.     Drake met Bevans and FBI undercover agent



  2
    The note instructed Bevans to call Drake and leave his return
number and a message that he needed Drake to inspect a water well
near Abbeville, Louisiana. Drake was to respond, “Joe, where can
papers on well be inspected?” At that, Bevans was to disclose his
location so that Drake could bring him additional information.
Barnett claims that he went to Bevans’ home in order to terminate
the scheme, and that it was only after Bevans threatened to harm
his children that he brought Bevans the information on how to
contact Drake.

                                  4
Mike    Chatman,      posing      as    Bevans’       former    cellmate    at

Leavenworth, and delivered maps to Parker’s house and to

the    house    of     a    second      target,       Logan    Nichols,     and

biographical data and a photo of Parker.                           Bevans and

Chatman told Drake they needed more money and Drake

agreed to pass that message on to Barnett in Houston.

Shortly thereafter Barnett called Bevans and arranged a

meeting in Orange, Texas that afternoon.

       At   that     meeting      Barnett,        Bevans,       and     Chatman

finalized      plans       for   the    murder.         Barnett       described

Parker’s auto, the golf club Parker frequented, and the

homes of Parker and Nichols and he offered to cover any

additional expenses.             Later that day Drake drove Bevans

and Chatman to Parker’s home and showed them the best

route from it to Interstate 10.

       Barnett and Drake were arrested and charged with

conspiracy to commit murder for hire and with aiding and

abetting each other in attempted murder for hire.                            At

trial,      Barnett    sought      to       explain    all    of   the   taped

conversations as a combination of barroom talk, nervous

chatter,       and     attempts        to     extricate        himself    from

                                        5
situations with Bevans and Chatman in which he felt he

and his family were in danger.3             He claimed that he never

wanted Parker and Nichols killed, and was only feigning

agreement with Bevans in order to placate him.                        He

requested,     but    did        not       receive,     an   entrapment

instruction.     Drake argued that he was not sufficiently

aware of what was going on to support convictions for

conspiracy and aiding and abetting.                   The jury returned

verdicts of guilty on both counts for both defendants.

Barnett received a 60-month sentence on Count I and a

120-month     sentence      on     Count       II,     to    be   served

consecutively.       Drake received a 60-month sentence on

Count I and a 97-month sentence on Count II, to be served

concurrently.     Both timely appealed.

                             Analysis



  3
    Barnett sought to support this claim with evidence that Bevans
was a dangerous character. He questioned Bevans about his time in
prison for gun running activities, his alleged drug activities, use
of an assumed name, alleged sham marriage, dishonorable discharge
from the United States military, deportation from the United
States, current tax deficiency in Belize, and a fistfight with his
boss.   He also claimed Bevans knew where his children lived in
Louisiana, and said that he suspected Bevans of being involved in
a hit-and-run accident in which his daughter was injured.       His
hope, he says, was that if he paid Bevans enough money, Bevans
would simply leave him alone.

                                       6
Entrapment.

          Barnett contends that the district court erred by not

granting his request for an entrapment instruction.                      We

review the refusal to give a requested jury instruction

for abuse of discretion.4             In general, the trial court is

given great latitude in formulating its instructions,5 and

we        will   not   find   an    abuse   of    discretion    where   the

“instructions . . . fairly and adequately cover the

issues presented by the case.”6                  The trial court must be

mindful, however, of the defendant’s right to request and

receive jury instructions regarding the particulars of

his defense which, ultimately, could affect the jury’s

verdict.           “It has long been well established in this

Circuit that it is reversible error to refuse a charge on

a        defense   theory     for   which   there    is   an   evidentiary

foundation and which, if believed by the jury, would be

legally sufficient” to support a verdict of not guilty.7

     4
         United States v. Pennington, 20 F.3d 593 (5th Cir. 1994).
     5
         United States v. Rochester, 898 F.2d 971 (5th Cir. 1990).
     6
         United States v. Mollier, 853 F.2d 1169, 1174 (5th Cir. 1988).
     7
     United States v. Rubio, 834 F.2d 442, 446 (5th Cir. 1987)
(quoting United States v. Lewis, 592 F.2d 1282, 1285 (5th Cir.

                                       7
          The trial court must charge the jury on a defense

theory if there is sufficient evidence reasonably to find

in        favor   of   the   defendant      thereon.8      To   warrant   an

entrapment instruction the defendant need only show a

basis for reasonable doubt on the ultimate issue whether

the criminal intent originated with the government.9                      The

mere assertion of entrapment does not suffice.10                          The

defendant must present evidence sufficient to sustain a

jury finding on both prongs of the entrapment defense;

that is, “the record must contain sufficient evidence of

both inducement and lack of predisposition to raise an

entrapment         issue;    the   entrapment      issue    need   not    be

presented to the jury if the evidence does not raise the

issue to that degree.”11

          Barnett claims that Bevans induced his participation


1979)).
     8
    United States v. Collins, 972 F.2d 1385 (5th Cir. 1992) (citing
Mathews v. United States, 485 U.S. 58 (1988)).
     9
    United States v. Bradfield, 113 F.3d 515 (5th Cir. 1997) (citing
United States v. Nations, 764 F.2d 1073 (5th Cir. 1985)).
     10
     Mathews v. United States, 485 U.S. 58 (1988); United States v.
Menesses, 962 F.2d 420 (5th Cir. 1992).
     11
          Bradfield, 113 F.3d at 521.

                                        8
in the murder for hire scheme, testifying that the idea

of killing Parker was initiated by Bevans before any of

the taped conversations, and that Bevans prevented his

withdrawal when he went to Bevans’ house.

       Barnett may satisfy the government inducement prong

of entrapment only if Bevans was a government agent at

the time of the alleged inducement.              The defense of

entrapment is not applicable where one is induced to

engage in criminal activity by a private citizen acting

alone.12     Entrapment is available only to the innocent

defendant whom the government seeks to punish for an

offense “which is the product of the creative activity of

its own officials”13 or “born in the minds of government

agents.”14      “Entrapment as a defense occurs only when

criminal conduct is the product of the creative activity

of government officials or those private citizens acting




  12
     United States v. Prieto-Olivas, 419 F.2d 149 (5th Cir. 1969);
Pearson v. United States, 378 F.2d 555 (5th Cir. 1967).
  13
       Sorrells v. United States, 287 U.S. 435 (1932).
  14
     Prieto-Olivas, 419 F.2d at 150 (citing Kivette v. United
States, 230 F.2d 749 (5th Cir. 1956)).

                                  9
under government direction.”15

          Barnett contends that Bevans was an agent of the

government because of his previous contacts with Elliot

and the DEA.            Bevans had known Agent Elliot during the

more than two years that Elliot worked out at Body 2000.

On        one   prior   occasion   Bevans   provided   the    DEA   with

information that someone at the U.S. Embassy in Belize

might be in danger.          Bevans refused to cooperate further

in the investigation, despite being promised that the

government would “take care of him.”             On July 10, the day

Bevans asserts Barnett first suggested the deal, Bevans

called Elliot.           Elliot’s notes of that call reflect that

Elliot told Bevans to call when he had more details.

Bevans and Elliot did not speak again until after Barnett

left Belize on July 12.            Elliot later heard the July 11

tape and put Bevans in contact with the FBI.                 FBI agents

then began to give Bevans directions and promised to fly

him to the United States and help him find his wife in

exchange for his cooperation with the remainder of the

investigation.

     15
          United States v. Dodson, 481 F.2d 656, 657 (5th Cir. 1972).

                                     10
       The district court did not abuse its discretion in

concluding that Barnett’s evidence was insufficient to

establish a jury question as to Bevans’ status as a

government agent prior to July 13, the time Barnett

alleges Bevans induced him to participate in the murder

for hire scheme.        Barnett failed to produce any evidence

that Bevans acted under the direction or supervision of

the government during the initial stages of the scheme.

Agent Elliot’s notes on July 10 reflect only that he

passively received information and asked Bevans to keep

him    informed    of   future   developments.       This      was   an

informal request for future information, not an agreement

that Bevans would work on behalf of the government to

obtain that information.16

       Barnett    correctly   points    out,   however,     that     an

informer may be an agent of the government even if its

officials do not directly orchestrate his activities.

Law enforcement authorities may not make promises to

private citizen informants in exchange for their efforts

in instigating crimes and then secure insulation from

  16
       United States v. Busby, 780 F.2d 804 (9th Cir. 1986).

                                  11
charges of entrapment simply by leaving the informers to

their own devices.17             To allow such a practice would

permit     the    type    of   government        overreaching      that    the

entrapment defense was designed to prevent.                            Bevans,

however,        cannot    be   characterized          as   such    a     “paid

government       informer”     or    “active      government       informer”

prior to July 13.          The record contains no evidence that

the government made it Bevans’ “job” to be the instigator

of similar prosecutions.18            Barnett produced no evidence

that Bevans had been promised anything in exchange for

compromising       him.        Bevans      may    have     seen    value    in

ingratiating himself with the authorities because of his

criminal history and his tax difficulties, but that he

may      have     anticipated        compensation          for     providing

information        does    not      make    him       an   agent    of     the

government.19            Barnett    failed       to    produce     evidence

sufficient to sustain a finding that he was induced by

the government to commit any crime, and we must therefore

  17
     Sherman v. United States, 356 U.S. 369 (1958); United States
v. Waddell, 507 F.2d 1226 (5th Cir. 1975).
  18
       Sherman, 356 U.S. 369.
  19
       Busby, 780 F.2d 804.

                                     12
conclude     that     the    district      court    did    not    abuse     its

discretion by declining to give an entrapment charge.

Denial of the Motion for Continuance.

       Barnett next contends that the trial court erred by

refusing to grant his motion for a continuance.                      He made

several requests for Brady20 material prior to trial.

Each of his requests was met with a representation by the

government that no such material existed.                        Then on the

first day of trial, the government delivered a report

from      the    Joint       Intelligence          Coordinating       Center

containing information about Bevans’ criminal history and

his     contacts.           Barnett   claims        that   he      needed     a

continuance in order to investigate Bevans’ background

adequately.

       We review the denial of a motion for continuance for

abuse of discretion.21          To prevail, the movant must show

that the denial resulted in “‘specific and compelling’ or

‘serious’ prejudice.”22          Barnett maintains that he needed


  20
       Brady v. Maryland, 373 U.S. 83 (1963).
  21
       United States v. Krout, 66 F.3d 1420 (5th Cir. 1995).
  22
       Id. at 1436.

                                      13
information on Bevans’ criminal history and criminal

contacts in order to develop his theory that Bevans

entrapped him to ingratiate himself with the authorities.

Bevans was not a government agent.           Whatever his motives,

he therefore could not have entrapped Barnett.                     The

failure to produce the information at an earlier time did

not prejudice Barnett’s defense, and the denial of the

continuance was not an abuse of discretion.              We find no

“specific and compelling” or “serious” prejudice.

Admission of Informant’s Testimony.

       Barnett and Drake both contend that Bevans’ testimony

should     not   have   been   admitted     at   trial   because    he

received $7500 for his participation in the case.                They

assert that the payment violates 18 U.S.C. § 201(c)(2),

which prohibits the giving of anything of value to a

witness in exchange for testimony.               This issue was not

raised at trial and we review for plain error.

       We previously have held that section 201(c)(2) is not

violated when prosecutors offer leniency to a witness in

exchange      for   testimony.23        “‘[N]o   practice   is   more

  23
       United States v. Haese, 162 F.3d 359 (5th Cir. 1998).

                                   14
ingrained      in   our    criminal      justice     system    than   the

practice of the government calling a witness who is an

accessory to the crime for which the defendant is charged

and having that witness testify under a plea bargain that

promises him a reduced sentence.”24                  We have opted to

protect the judicial process from the stain of perjury

with other safeguards, including the prohibition on the

use    of   perjured      testimony,     the   requirement     that   the

government disclose such arrangements, the opportunity

for     defense     counsel    to   engage      in   rigorous     cross-

examination, and the instruction of the jury on the

suspect nature of compensated testimony.                      Because of

these safeguards and because “the compensated witness and

the      witness      promised      a     reduced      sentence       are

indistinguishable in principle and should be dealt with

in the same way,”25 we hold that 18 U.S.C. § 201(c)(2) is

not violated when prosecutors compensate informants for

their cooperation.



  24
     Id. at 366 (quoting United States v. Cervantes-Pacheco, 826
F.2d 310, 315 (5th Cir. 1987)).
  25
       Cervantes-Pacheco, 826 F.2d at 315.

                                    15
Motion to Sever.

       Drake maintains that the trial court erred by denying

his motion to sever.                   He claims that the “spillover

effect”       of        the     evidence    presented        against     Barnett

confused the jury to such a degree that severance was

required          in    order     to   avoid    undue       prejudice    to    his

defense.

       We review the denial of a motion to sever for abuse

of discretion.26              As a general rule, defendants who are

indicted together are tried together.27                          The decision

whether to sever the trials of persons indicted together

is within the discretion of the trial court, and the

denial       of    a     severance     will     not   furnish     grounds      for

reversal unless the defendant can demonstrate specific

compelling prejudice against which the district court was

unable       to        afford    protection.28          A    joint     trial    is

especially appropriate when the defendants are alleged to



  26
     United States v. Faulkner, 17 F.3d 745 (5th Cir.), cert.
denied, 513 U.S. 870 (1994).
  27
       Id.
  28
       United States v. Hernandez, 962 F.2d 1152 (5th Cir. 1994).

                                           16
have     been    participants     in     the    same   conspiracy.29

Severance is necessary only when “there is a serious risk

that a joint trial would compromise a specific trial

right of one of the defendants or prevent the jury from

making a reliable determination of guilt or innocence.”30

       We find that the district court acted within its

discretion in denying Drake’s motion to sever.             Drake was

not prejudiced in the presentation of any defenses as a

result of being tried jointly with Barnett.                  Nor was

severance       required    so    that    the    testimony     of   a

coconspirator could be compelled without violating the

coconspirator’s fifth amendment rights.            In fact, Drake’s

only alleged coconspirator, Barnett, testified at trial,

was cross examined by Drake’s attorney, and generally

gave     information       that   supported      Drake’s     defense.

Stripped to its essentials, Drake simply argues that the

quantum of evidence against Barnett and the chilling

nature of the taped conversations between Barnett and

Bevans made it impossible for the jury to decide his case


  29
       Faulkner, 17 F.3d 745.
  30
       United States v. Bermea, 30 F.3d 1539, 1572 (5th Cir. 1994).

                                  17
fairly.     Even if Drake’s defense had been tainted to some

degree by the evidence against Barnett, however, the

existence of some spillover effect ordinarily does not

require severance.31         In this case, any prejudice that

might have resulted from Drake’s being tried with Barnett

was neutralized by the trial court’s instruction to the

jury that it must consider the charges and evidence

against Barnett and Drake separately.32

Sufficiency of the Evidence.

       Finally, Drake argues that there was not sufficient

evidence      to   support   his    conspiracy   and   aiding-and-

abetting convictions.           We review a claim of insufficient

evidence to determine whether a rational trier of fact

could have found that the evidence proved the essential

elements of the crime beyond a reasonable doubt.33               The

evidence presented at trial is viewed with all reasonable



  31
       Faulkner, 17 F.3d 745.
  32
     United States v. Lindell, 881 F.2d 1313 (5th Cir. 1989)
(holding that defendant must show that he suffered “specific and
compelling prejudice” that could not be mitigated by lesser
measures than severance, including a proper limiting instruction).
  33
       United States v. Ramirez, 145 F.3d 345 (5th Cir. 1998).

                                    18
inferences made in support of the jury’s verdict.34

       Drake argues, and the government concedes, that in

order     to   obtain   a   conviction   for    either   crime,   the

government must show beyond a reasonable doubt that Drake

acted with the intent that a murder be committed in

violation of the laws of any state or of the United

States.

       It is a cardinal rule of conspiracy law that one
       does not become a coconspirator simply by virtue
       of the knowledge of a conspiracy and association
       with conspirators. . . .        To connect the
       defendant to a conspiracy, the prosecution must
       demonstrate that the defendant agreed with
       others to join the conspiracy and participate in
       the achievement of the illegal objective.35

In order to convict a defendant of conspiracy to violate

a federal statute, “the Government must prove at least

the     degree    of    criminal    intent     necessary   for    the

substantive offense itself.”36           Likewise, in order to

sustain its case that the defendant aided and abetted in

the violation of a federal statute, the government must

  34
       United States v. Thomas, 120 F.3d 564 (5th Cir. 1997).
  35
     United States v. Grassi, 616 F.2d 1295, 1301 (5th Cir. 1980)
(citations omitted).
  36
     United States v. Feola, 420 U.S. 671, 686 (1975); United
States v. Osgood, 794 F.2d 1087 (5th Cir. 1986).

                                   19
prove that the defendant “shared in the criminal intent

of the principal.”37 Here, the underlying federal statute

requires proof of “intent that a murder be committed in

violation         of   the    laws   of      any   state   or   the   United

States. . . .”38             Drake argues that he blindly followed

Barnett’s instructions and that he was never made aware

of what Barnett was up to or the reason why Barnett had

asked Bevans and Chatman to come to Lafayette.

          The government’s evidence on this issue essentially

is        two   recorded     meetings     between    Drake,     Bevans,   and

Chatman that took place at the hotel in Lafayette and in

Drake’s truck while driving through Lafayette.                        At the

hotel, Drake delivered a package containing maps to the

homes of Parker and Nichols.                  Drake’s fingerprints were

on the maps.           Drake appeared to be nervous during that

meeting, suggesting consciousness of guilt.                      When asked

directly about the extent of his knowledge by Chatman,

Drake admitted that he knew “a lot of it” but was “not

gonna say I know anything and I’m not gonna tell you I


     37
          United States v. Ortiz-Loya, 777 F.2d 973, 980 (5th Cir. 1985).
     38
          18 U.S.C. § 1958.

                                        20
know everything.”       Later that evening, Drake drove Bevans

and Chatman to Parker’s home.            It was clear that Drake

knew    that    their     objective    involved   Parker,   because

neither Bevans nor Chatman mentioned Parker’s name or

asked to be taken to his home.                Drake stated that he

formerly had been involved in law enforcement and that

“this” meant that he would have been on “both sides of

the fence.”       He knew a lot of people in the town of

Jennings and refused to be seen there with Bevans and

Chatman.        After   taking    them   to    Parker’s   house,   he

instructed them on the quickest way to get to I-10.                The

government also avers that because Drake and Barnett were

close friends, Drake must have known of Barnett’s intense

hatred for Parker.         Finally, telephone records indicate

that Drake and Barnett were in close contact during the

relevant time period.

       The foregoing is compelling evidence of the fact that

Drake knew that Bevans and Chatman had been hired to

perpetrate some unlawful act against Parker and Nichols.

It does not, however, represent evidence that Drake knew

that    the    unlawful    act   was   murder.     The    government

                                  21
concedes that Bevans and Chatman did not use words like

“kill,” “murder,” “death,” “hit,” or “contract” when

talking with Drake as they had with Barnett.                         Nor did

they       discuss,       or   otherwise       indicate,    that   they   were

carrying or intended to use any instrument that might be

employed to carry out a murder.                   The evidence presented

by        the       government   is   equally      consistent      with    the

possibility that Drake believed that Bevans and Chatman

intended to kidnap or threaten Parker or a member of his

family, or to vandalize or burglarize his house, or to

obtain information about Parker that Barnett could use to

extort          a    favorable   settlement       from     him.    The    jury

reflected confusion on this very point when it asked,

“must we consider conspiracy to commit a crime or must we

specifically consider a conspiracy to commit ‘murder for

hire’       to       make/come   to   a    decision      according   to    the

charges?”39            The government’s evidence that Drake was




     39
     In response to this question, the trial judge simply referred
the jury to the indictment and the instructions. Drake does not
question the propriety of this response; we need not consider it to
decide this appeal.

                                          22
aware that some crime was afoot is not sufficient.40

Because the record is devoid of evidence that Drake

intended to conspire in or aid and abet the commission of

murder for hire, we must reverse Drake’s conviction on

both counts.

       Barnett’s convictions for aiding and abetting and

conspiracy    to   commit   murder     for   hire   are   AFFIRMED.

Drake’s    convictions      for    aiding    and    abetting    and

conspiracy to commit murder for hire are REVERSED.




  40
     United States v. Jordan, 627 F.2d 683 (5th Cir. 1980); United
States v. Ritter, 989 F.2d 318 (9th Cir. 1993).

                                  23
