                  UNITED STATES COURT OF APPEALS
                       for the Fifth Circuit

               _____________________________________

                            No. 91-2144
               _____________________________________

                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                               VERSUS

                        HECTOR RAZO-LEORA and
                        EUGENIO BALDERAS, JR.,

                                              Defendants-Appellants.

     ______________________________________________________

          Appeals from the United States District Court
                for the Southern District of Texas
     ______________________________________________________
                          (May 15, 1992)

Before JOHNSON, KING, and DAVIS, Circuit Judges.

DAVIS, Circuit Judge:

     Defendants, Hector Razo-Leora and Eugenio Balderas, appeal

their convictions on various charges relating to a murder-for-hire

conspiracy.   We affirm.

                                I.

     In June 1988 in Houston, Texas, agents of the Drug Enforcement

Agency arrested fourteen individuals, including Baldemar Garcia.

Garcia was a longtime drug dealer who immediately began cooperating

with law enforcement officials.      Evidence Garcia provided led to

the October 1988 arrest and indictment of defendant Razo-Leora's

brother, Antonio Razo, for possession of cocaine with intent to

distribute it.    Trial was set for January 1989.        Garcia was

scheduled to testify at Razo's trial and at the December 1988 trial
of   the   fourteen    individuals   arrested    in   June.      Antonio    Razo

believed that Garcia's information was responsible for his arrest.

      Fermin Cabello lived in Houston for several months in 1981,

when he met Eugenio Balderas, Jr.          Balderas was an acquaintance of

Antonio Razo's.         When Cabello left Houston, he moved back to

Chicago, where he had lived before moving to Texas.             During a visit

to Houston about two years before the events at issue in this case,

someone pointed out Hector Razo-Leora to Cabello as Balderas's

brother-in-law.       Cabello had no other contact with Razo-Leora.           In

early December 1988, Balderas contacted Cabello and told him that

he was having some problems and needed Cabello's help.                   He sent

Cabello money for an airline ticket to Houston.                  When Cabello

arrived in Houston on December 9, Balderas picked him up at the

airport and explained that Balderas and others wanted Cabello to

murder Garcia for "snitching."

      Balderas    and    Cabello     spent   several    hours     that     night

unsuccessfully looking for Garcia's house.            At about 3 a.m., they

gave up for the evening and went to Balderas's house.                     There,

Balderas offered Cabello $5,000 to kill Garcia.               Balderas showed

Cabello a .357 magnum pistol and gave him a car to use for the

weekend and money for a hotel room. The following morning, Cabello

tried to locate Garcia's house on his own.            When he could not, he

returned to Balderas' house and the two men searched for the house

together.    Balderas had given Cabello the .357 magnum by this time

and Cabello had the pistol with him as they searched.            Again unable

to locate Garcia's house, they went to El Charrito, a restaurant


                                       2
owned by Balderas's sister Norma, for lunch.         Later, they returned

to Balderas's house and then to the hotel in which Cabello had

stayed the night before.        Balderas had a nine millimeter pistol

with him while at the hotel that Saturday night.

     The next morning, Sunday, December 11, Cabello again tried

unsuccessfully   to    locate   Garcia's    house.     He   then   went   to

Balderas's house and told Balderas that he had to return to work on

Monday in Chicago.     After telling Cabello to be patient, Balderas

made some phone calls trying to find the house.             Balderas told

Cabello that he was calling a person named Eddie and Balderas's

compadre, Hector.     A common meaning of the Spanish word "compadre"

is godparent. A short time later, two people arrived at Balderas's

house.    Balderas left with them for about forty-five minutes, and

when he returned he told Cabello that Eddie had shown him where

Garcia lived.    Balderas gave Cabello directions and told him that

Garcia drove a blue pick-up truck. Even with these new directions,

Cabello still could not find Garcia's house.         He called Balderas,

who picked Cabello up, drove him to the house and returned him to

the car he had been using.      After Balderas left, Cabello drove back

to Garcia's house where he could see a blue pick-up but could not

determine   whether    Garcia   was   there.     Cabello    went   back   to

Balderas's house.

     Balderas told Cabello he would call his "cunado," or brother-

in-law.   After making the call, Balderas told Cabello that it was

Garcia's habit to get up at 6 a.m.        Balderas gave Cabello $50, and

Cabello drove back to Garcia's house where he noticed the blue


                                      3
truck was gone.    Cabello went to get some food and make a phone

call.   He returned to Garcia's street and parked in a lot down the

block from the house.    A short while later, the blue pick-up drove

by and pulled into Garcia's driveway.     Cabello followed the truck,

parked and got out of his car.   When the driver of the pick-up got

out of the truck, Cabello yelled out, "Baldo."         Garcia turned

toward Cabello and Cabello shot him six times.

     As Cabello left the scene of the shooting, he ran a stop sign.

A Harris County Deputy Sheriff pulled him over, found the gun and

realized from the smell that it had been fired recently.          He

arrested Cabello. Later, tests confirmed that this .357 magnum was

the gun which had killed Garcia and that Cabello had fired the gun.

Cabello was indicted for murder by the state.       Antonio Razo and

another man, Eddie Pries, provided bond for Cabello, who returned

to Chicago. Cabello was later indicted on federal firearms charges

and was returned to Houston.   Cabello agreed to plead guilty to the

firearms charges and cooperate with the government so that his

federal and state sentences would run concurrently.

     Balderas's contacts with Cabello continued after Cabello's

arrest.    Federal agents recorded two conversations between Cabello

and Balderas.    The first was a telephone call during which Cabello

complained that he had not been told that Garcia was a federal

witness.    Cabello asked if Hector could put some money away for

Cabello while he was in prison.       Balderas said he had not known

Garcia was a federal witness and told Cabello not to talk about it

on the telephone.      Later, federal agents videotaped a meeting


                                  4
between Cabello and Balderas at a hotel.      Cabello again complained

of not knowing about Garcia's federal witness status and Balderas

again said he had not known of it.      Cabello stated that Hector must

have known, and Balderas agreed that Hector probably did know.

Cabello asked if Hector was going to put away some money for him

and Balderas responded that it would be taken care of.

     Balderas and Razo-Leora were indicted in August 1989 and

charged with conspiring to travel in and use interstate commerce

facilities in the commission of a murder for hire (Count 1), in

violation of 18 U.S.C. §§ 2, 371 and 1958.              Balderas was also

indicted on four additional counts:      aiding and abetting others to

cause Cabello to travel in interstate commerce with the intent that

Cabello commit a murder for hire (Count 2), in violation of 28

U.S.C. §§ 2 and 1958; perjury before a grand jury, in violation of

18 U.S.C. § 1623 (Count 3); solicitation of Cabello to commit

murder for hire, in violation of 18 U.S.C. § 373 (Count 4); and

using   and   carrying   firearms   during   and   in   relation   to   the

commission of the offenses identified in counts 1 and 2 (Count 5).

     A jury convicted Razo-Leora on count 1 and Balderas on all

five counts.    The court sentenced Razo-Leora to sixty months in

prison and three years of supervised release.            In addition, the

district court ordered him to pay a special $50 assessment and to

make restitution to Garcia's widow of $100,000.              Balderas was

sentenced to a total of 360 months in jail and five years of

supervised release, and was ordered to pay a special assessment of

$250. The defendants appeal their convictions on each count. Both


                                    5
defendants argue that the evidence was insufficient to support

their convictions.    In addition, Razo-Leora contends that the

district court erred in ordering him to make restitution to the

victim's family and Balderas contends that the district court erred

in its instruction to the jury on two of the counts against him.

We consider each of these arguments below.

                                II.

                                A.

     We begin our analysis with the issues raised by Razo-Leora.

He argues first that the evidence is insufficient to support the

verdict. In reviewing this claim, we consider "whether a rational

trier of fact could have found the essential elements of the crime

beyond a reasonable doubt."     United States v. Edelman, 873 F.2d

791, 793 (5th Cir. 1989).   Also, we must view the evidence, and all

inferences reasonably drawn from it, in the light most favorable to

the verdict.   Glasser v. United States, 315 U.S. 60, 62 (1942);

United States v. Hopkins, 916 F.2d 207, 212 (5th Cir. 1990); United

States v. Molinar-Apodaca, 889 F.2d 1417, 1423 (5th Cir. 1989).

     To establish a conspiracy in violation of 18 U.S.C. § 371,1

1
     Section 371 is the conspiracy statute. It reads, in pertinent
part,
               If two or more persons conspire to commit
          any offense against the United States, or to
          defraud the United States, or any agency
          thereof in any manner or for any purpose, and
          one or more of such persons do any act to
          effect the object of the conspiracy, each
          shall be fined not more than $10,000 or
          imprisoned not more than five years, or both.

Section 1958 describes the "offense against the United States" at
issue in this case and reads, in pertinent part,

                                  6
the Government must prove three things:         1) an agreement between

the defendant and one or more other persons to violate a law of the

United States; 2) an overt act by one of the conspirators in

furtherance of the conspiracy; and 3) the intent on the part of the

defendant to further an unlawful objective of the conspiracy.

United States v. Hopkins, 916 F.2d at 212.

     We now turn to the evidence the government relies on to

support Razo-Leora's single count of conviction, conspiracy to

violate § 1958.     The primary evidence against Razo-Leora is the

testimony of two Government witnesses.          The first is the gunman

Cabello.   According to Cabello, while Balderas and Cabello were

trying to locate Garcia, Balderas sought directions by making a

telephone call to Balderas's "compadre Hector."          This Spanish term

"compadre" is frequently used to mean "godparent."           The evidence

showed   that   Razo-Leora   and   Balderas's   sister    Norma   were   the

godparents of one of Balderas's children.         Later that day, a few

hours before the murder, Balderas made another phone call to

someone whom he referred to as "cunado."        The purpose of this call




           (a)   Whoever travels in or causes another
           (including the intended victim) to travel in
           interstate or foreign commerce, or uses or
           causes another (including the intended victim)
           to use the mail or any facility in 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, or as consideration for a
           promise or agreement to pay, anything of
           pecuniary value, shall be fined not more than
           $10,000 or imprisoned for not more than 10
           years, or both; . . . .

                                     7
was to find out when Garcia might return home.            The term "cunado"

means    "brother-in-law."      Razo-Leora      and   Norma   Balderas       lived

together, and the jury was entitled to conclude that Balderas may

have considered Razo-Leora his brother-in-law.

     Norberto   Castillo     was   the     second   Government   witness      the

prosecution relied on to implicate Razo-Leora. Castillo was a drug

dealer and a business associate of Razo-Leora's and Antonio Razo's.

Castillo    testified   that    before     Garcia's   murder,    he   heard    or

participated in a series of conversations about the possibility of

murdering Garcia. The first occurred in Castillo's home with Razo-

Leora, Antonio Razo and another man. Castillo heard Razo-Leora say

that Garcia's death would serve as an example to others.                       In

another conversation, Castillo heard Razo-Leora say that someone

from Chicago was in charge of the Garcia business or was going to

take care of it and that this person needed money badly and would

do two jobs for the price of one.            Castillo testified that this

conversation took place at the end of November 1988.

     At some later time, Antonio Razo came to Castillo's house

looking for Razo-Leora to find out what they were going to do about

Garcia as the date of Antonio's trial was quickly approaching.

Still another conversation took place in a restaurant where Razo-

Leora,    Castillo,   another    man   and   possibly   Antonio       Razo   were

present. The issue of Garcia came up and Razo-Leora said in effect

that when the right hand does something well, the left hand does

not need to know about it.         Castillo suggested they all forget

about it.


                                       8
     Castillo further testified that Razo-Leora called him late one

night several days before Garcia's murder.          He told Castillo to

find Eugenio Balderas to pick up some money.         Castillo could not

locate Balderas that night, and the next morning Razo-Leora gave

Castillo Balderas's home address.        At that time Razo-Leora told

Castillo to help Balderas find Garcia's house.           Castillo then met

Balderas   and   they   drove   around   looking   for    Garcia's   house.

Eventually, they located it.        This drive took place either the

weekend before or the weekend of Garcia's murder.

     We disagree with Razo-Leora that the evidence demonstrates

nothing more than his mere association with the conspirators or

approval of the objectives of the conspiracy.               The jury was

entitled to find that Razo-Leora knew that Cabello had been hired

to kill Garcia and supported that decision.           The jury was also

entitled to find that Razo-Leora assisted Balderas locate Garcia's

home where the murder was to be committed.         All of this evidence,

when considered together, supports the jury's conclusion that Razo-

Leora was a member of the conspiracy.

     Razo-Leora attacks Castillo's testimony as unworthy of belief.

He contends that Castillo changed his testimony to conform to facts

given him by the Government, that his testimony conflicted with

other testimony and that it was uncorroborated.           The jury is the

final arbiter of the credibility of a witness.           United States v.

Birdsell, 775 F.2d 645, 654 (5th Cir. 1985), cert. denied, 476 U.S.

1119, and reh. denied, 478 U.S. 1032 (1986).         See also Hindman v.

City of Paris, Texas, 746 F.2d 1063, 1068 (5th Cir. 1984).            Razo-


                                    9
Leora made essentially the same argument to the jury on Castillo's

credibility that he makes to us.           We will not disturb the jury's

credibility findings.

       Our review of the record persuades us that the evidence is

sufficient to support Razo-Leora's conviction.

                                      B.

       As his next point of error, Razo-Leora complains of the

district court's sentencing order that he make restitution in the

amount of $100,000 to Garcia's widow.          He challenges the adequacy

of the factual basis of the order and asserts that he was not given

proper notice that the Government would seek restitution against

him.

       We address the notice issue first.       The record shows that the

issue of restitution first arose a day or two before the sentencing

hearing.    The Presentence Report contained nothing on this issue.

The    attorney   for   the   Government   orally   informed   Razo-Leora's

counsel that the prosecution would move to request restitution at

the sentencing hearing.         We cannot tell from the record whether

defense counsel received this notice a day or so before the hearing

or as late as the morning of the hearing.

       The United States Supreme Court recently examined notice

requirements for upward departures from the sentencing guidelines

in Burns v. United States, 111 S.Ct. 2182 (1991).          The Court held

that a district court may not sua sponte upwardly depart on a

ground not identified in the presentence report or a prehearing

submission by the Government without giving the parties reasonable


                                     10
notice that it is considering doing so.              Id. at 2187.          In United

States v. Mills, 1992 U.S. App. LEXIS 6896 (5th Cir. April 14,

1992),    however,     this    Circuit      held    that    the     Burns     notice

requirements do not apply where the defendant's term of confinement

is not at issue.      LEXIS pg. 6-7.       Restitution is authorized by the

guidelines and is not an upward departure, neither does it involve

confinement. Although the notice received here was quite short, it

was not per se inadequate.

     Furthermore, we cannot say from this record that the notice

received was so inadequate that it rendered fundamentally unfair

the court's procedure for arriving at the restitution award.                     Nor

has Razo-Leora demonstrated any concrete prejudice from the short

notice.   When the prosecution orally moved the court to consider

making a restitution award, defense counsel pointed out that the

Government    had    given    him   late   notice   of     its    intent    to   seek

restitution.    Counsel, however, did not specify when he received

notice.   Although counsel suggested that a hearing should be held,

he did not advise the court what evidence he would adduce at such

a hearing.2    Accordingly, we cannot say that the late notice Razo-

2
     Defense counsel made the following relevant statement to the
court:

                First of all, Your Honor, with regard to
           the restitution. I know Mr. Clark gave it to
           us late.   There is no way, unless they had
           expert evidence as to loss of earnings for
           this gentleman who was a drug dealer. I'm not
           sure that you're entitled under Texas law or
           Federal law to loss of earnings for loss of
           drug proceeds during the life of the 20 years
           or so that this individual, who was a known
           drug dealer was around. I'm not even sure if

                                       11
Leora received undermines the validity of the restitution award.

            We also conclude that the evidence adequately supports

the award.       The prosecution has the burden of demonstrating the

amount of loss sustained by the victim and proving this loss by a

preponderance of the evidence.       18 U.S.C. § 3664(d).        In this case,

the prosecutor introduced a statement by Garcia's widow that Garcia

would have legally earned $950,000 over the next twenty years.

Evidence    at   trial   also   reflected     that,   in   addition    to   drug

proceeds,    Garcia   received    some    income   from    a   small   trucking

business and rent.       At the time of his death Garcia was in his

twenties.    The $100,000 award to his widow is therefore relatively

conservative and assumes legitimate income by Garcia of only $5000

per year with a work life expectancy of only twenty years.                  Razo-

Leora points to no countervailing evidence in the record.                      We

conclude that the award has adequate support.          See United States v.

Rochester, 898 F.2d 971, 982 (5th Cir. 1990).



                                     III.

                                         A.



            he's entitled to any form of restitution in
            this type of case, or if just giving the Court
            a number would be adequate. I think we'd have
            to have a hearing on it to determine the
            extent the amount, whether it's under law.
            Court can order restitution in this type of
            proceeding.    Would involve some conspiracy
            case, when we don't have any numbers to work
            with.    [Garcia's widow] could have pulled
            anything out of the air with regard to the
            amounts of money.


                                     12
      Eugenio Balderas challenges the validity of each of his five

counts of conviction.        First, he argues that the district court

erred in instructing the jury on the perjury charge.           Count 3 of

the   indictment   alleged    that   Balderas   made   a   false   material

declaration to a Grand Jury by stating that he did not provide the

vehicle or the weapon used by Cabello the weekend of Garcia's

murder.   Balderas correctly points out that this count in the

indictment charges him with making two distinct statements to the

grand jury, one concerning the vehicle and the other the weapon.3

Balderas complains that the court's instruction4 did not require

the jury to reach unanimity on each of the false statements.

3
     Balderas argues on appeal that this charge in the indictment
was duplicitous--that is, that it charged more than one offense in
violation of Fed. R. Crim. P. 8(a). Balderas did not raise this
claim below.    Failure to raise a claim of duplicity in the
indictment prior to trial constitutes a waiver of the claim.
United States v. Baytank (Houston), Inc., 934 F.2d 599, 609 (5th
Cir. 1991). Therefore, we address only his claim that the court
failed to adequately instruct on this charge.
4
      The court's instruction on the perjury charge read as follows:

           So, to establish the offense proscribed by
           that statute, the government must prove each
           of the following elements beyond a reasonable
           doubt:
                First: That the testimony given, or
                the described record or document was
                used, while the defendant was under
                oath before the Grand Jury of this
                Court as charged;
                Second: That such testimony or such
                record or document, was false in one
                or more of the respects charged as
                to some material matter in such
                Grand Jury proceedings; and
                Third: That such false testimony,
                or record or document, was knowingly
                and willfully given or used by the
                defendant as charged.

                                     13
Balderas also points out that half of the jury may have convicted

him on the basis of his statement about the vehicle, while the

other half may have convicted him on the weapon statement.           He

argues that this violates his right to a unanimous jury verdict.

     In United States v. Holley, 942 F.2d 916 (5th Cir. 1991), we

held that the failure to give a unanimity instruction as to each

false statement in a perjury prosecution alleging multiple false

statements   was   reversible   error.   Holley    is   distinguishable,

however, because in that case the defense made a timely objection

to the court's failure to give a unanimity instruction.        Balderas

made no such objection.     We review a failure to give a special

instruction on unanimity only under the narrow "plain error"

standard. United States v. Baytank (Houston), Inc., 934 F.2d 599,

609-10 (5th Cir. 1991).         A plain error is one which is "so

fundamental as to have resulted in a miscarriage of justice."

United States v. Yamin, 868 F.2d 130, 132 (5th Cir. 1989) (citing

United States v. Hernandez-Palacios, 838 F.2d 1346, 1350 (5th Cir.

1988)).   The court's failure to include a unanimity instruction in

this case does not rise to plain error.

                                   B.

     Balderas's second argument also concerns the district court's

failure to give a unanimity instruction.          Count 5 alleges that

Balderas was carrying a firearm during the commission of either 1)

the acts alleged in Count 1 (the conspiracy), or 2) the acts

alleged in Count 2 (aiding and abetting).    Evidence was introduced

that Balderas had two different guns, the .357 magnum and a nine


                                   14
millimeter pistol, during the course of events leading up to the

murder.   He argues that, because no specific unanimity charge was

given, the jury may have convicted him on this charge even if they

did not unanimously agree which gun he was carrying during the

activities constituting either offense.    As in the perjury count,

Balderas did not object to the indictment or the instruction, nor

did he request a specific unanimity charge.   If the court committed

error, which we do not decide, it does not rise to the level of

plain error.

                                 C.

     Balderas next challenges the sufficiency of the evidence

supporting all five counts on which he was convicted.   Count 1, the

conspiracy count, charged an agreement between Balderas, Razo-Leora

and Cabello to travel in and use interstate commerce facilities in

the commission of a murder for hire.   We have discussed the law and

evidence on this issue extensively in connection with Razo-Leora

and will not repeat it in detail here.        The evidence against

Balderas was overwhelming. The jury was entitled to infer from the

evidence that:   Balderas asked Cabello to come from Chicago to

Houston to murder Garcia; Balderas paid or offered to pay Cabello

for his services; Balderas provided the weapon and automobile for

Cabello to use in murdering Garcia.       Balderas and others found

Garcia's home.   This evidence supports Balderas's convictions on

Counts 1 (conspiracy), 2 (aiding and abetting)5 and 4 (soliciting)6.

5
     Count 2 charged Balderas with aiding and abetting others in
causing Cabello to travel to Houston to commit murder for hire. To
prove this offense under 18 U.S.C. § 2, the Government must first

                                15
The jury was also entitled to conclude that Balderas lied to the

grand   jury   when    he   denied   providing    the    weapon    or   vehicle.

Evidence that Balderas delivered the .357 magnum pistol to Cabello

supports his conviction on Count 5 which charged him with carrying

or using firearms in connection with and during the commission of

Counts 1 and 2.7      The evidence was sufficient to support Balderas's

conviction on all counts.

     Balderas     contends    that    the   Government      was    required    to

establish that he intended to use interstate commerce facilities in

connection     with    Garcia's   murder.        The    record    evidence    was

sufficient to allow the jury to conclude that Balderas arranged

with Cabello to come to Houston from Chicago to kill Garcia.                  The

jury was not required to believe Cabello's description of the

telephone arrangements Balderas made with Cabello to come to


demonstrate that the substantive offense occurred. United States
v. Hall, 845 F.2d 1281, 1285 (5th Cir.), cert. denied, 488 U.S. 860
(1988). There is overwhelming evidence that Cabello traveled to
Houston and murdered Garcia. In addition, the Government must show
that 1) the defendant associated with a criminal venture, 2) he
participated in the venture, and 3) he sought by action to make the
venture succeed. United States v. Medina, 887 F.2d 528, 532 (5th
Cir. 1989) (citation omitted).
6
     Count 4 charged Balderas with soliciting Cabello to commit
murder. To convict for solicitation under 18 U.S.C. § 373, the
Government must prove that the defendant intended for another
person to engage in conduct which violates Title 18, and that the
defendant induced or tried to persuade that other person to commit
the crime. United States v. McNeill, 887 F.2d 448, 450 (3rd Cir.
1989), cert. denied, 493 F.2d 1087 (1990); United States v.
Buckalew, 859 F.2d 1052, 1053 (1st Cir. 1988).
7
     Balderas also challenges his conviction on Count 5 on the
ground that the Government did not sufficiently prove the
underlying offenses. Because we have concluded that the evidence
supported his convictions on these counts, this challenge also
fails.

                                      16
Houston to "rough somebody up."       Moreover, Balderas misunderstands

the interstate travel requirement of 18 U.S.C. § 1958.           In United

States v. Edelman, 873 F.2d 791, 794-95 (5th Cir. 1989) (examining

predecessor statute to § 1958), this court made clear that travel

in or use of interstate commerce facilities is a jurisdictional

requirement only and that the Government need only prove specific

intent   to   commit   the   underlying    offense.    The   evidence   is

sufficient    to   establish   that    Balderas   specifically    intended

Garcia's murder.

                                IV.

     For the reasons stated above, we affirm the convictions and

sentences of both Razo-Leora and Balderas.

     AFFIRMED.




                                      17
