                                 REVISED
                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT
                            _______________

                              No. 96-20945
                            _______________




                       UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                  VERSUS

                          BILLY MAC THOMPSON,

                                                   Defendant-Appellant.

                       _________________________

            Appeal from the United States District Court
                 for the Southern District of Texas
                      _________________________

                            December 4, 1997

Before MAGILL,* SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:


     Billy Thompson appeals his conviction of attempting to murder

a federal judge.    We affirm.



                                    I.

     While in jail, Thompson solicited inmate Stephen Gerber to

kill The Honorable Kenneth Hoyt, an able and respected judge of the

United States District Court for the Southern District of Texas.

      *
         Circuit Judge of the United States Court of Appeals for the Eighth
Circuit, sitting by designation.
Judge Hoyt had sent Thompson to jail on a civil contempt charge

related to a civil case in Judge Hoyt's court in which Thompson was

a party.   In jail, Thompson met Gerber and asked him to hire a hit

man. Thompson expressed outrage that Hoyt had sent him to jail and

was generally displeased with the way his litigation was proceeding

in Judge Hoyt’s court.

     Gerber, an admittedly unsavory character, wrote letters to the

FBI and to Judge Hoyt, alerting each of the threat Thompson posed.

Thereafter, the FBI began an investigation.   Together, the FBI and

Gerber concocted a plan to catch Thompson. At the FBI’s prompting,

Gerber gave Thompson a phone number he could use to call someone

who would kill Judge Hoyt for him.

     When Thompson refused to use the number, because he did not

want anyone to remember his voice, Gerber gave Thompson an FBI post

office box number.   He told Thompson that for $20,000SS$2,000 down

and $18,000 after the hitSSGerber's agents would kill Judge Hoyt.

All Thompson had to do was to have someone send $2,000 to the post

office box.

     Thompson contacted his sister and had her drive to a town

thirty miles away.   There, she sent four $500 money orders to the

post office box via express mail; she signed the return address

“Sam Jones.”

     Subsequently, the FBI arranged a taped conversation between

Thompson and Gerber in the prison library.     During the meeting,

Thompson reiterated his desire to have Gerber’s hit men “cuff

[Judge Hoyt], chain his legs together, put weights on his feet and


                                 2
dump his ass [in the ocean].”             On the tape, Thompson acknowledged

that he had had $2,000 sent to the post office box.                 When Gerber

questioned whether Thompson would regret his decision or would seek

to back out of the deal at the last moment, Thompson repeatedly

stated that he would not.1

      A       few   days   after   the   first   taped   conversation,   the   FBI

attempted a second tape-recorded colloquy between the two inmates.

The tape recording device failed, however, producing only an

electronic noise.2

      At trial, Gerber maintained that Thompson’s statements at the

second meeting were consistent with those at the first.                  Thompson

contends        that   the    second     conversation    was   exculpatorySSthat

Thompson had reached a settlement in his civil case by that time

and thus would have no reason to want to murder Judge Hoyt.                 Given

this evidence, the government obtained an indictment on three

charges:         (1) using the mails to commit a murder for hire, in

violation of 18 U.S.C. § 1958; (2) soliciting the murder of a

federal judge, in violation of 18 U.S.C. §§ 373, 1114; and (3)

attempting to kill a federal judge, in violation of 18 U.S.C.



     1
       Before the first taped conversation, Gerber had received two handwritten
notes cryptically referring to $2,000, the digging of a swimming pool, and
Gerber’s uncle. At trial, a government handwriting expert testified that the
handwriting matched Thompson’s. Gerber testified that the cryptic references
related to Thompson’s solicitation to have Gerber’s agents kill Judge Hoyt.
          2
           There were also mechanical difficulties with the first recorded
conversation. In that conversation, there were two tape recordings: one on an
independent recorder in the library and another on a device transmitting the
conversation to FBI agents outside the prison. The latter tape failed when the
transmitter was unable to send its signal through the thick prison walls. The
former tapeSSafter government experts had enhanced itSSwas authenticated and
entered into evidence.

                                           3
§ 1114.

      Thompson presented a two-pronged defense. First, his attorney

adhered to a theory that Thompson had had his sister send $2,000 to

the post office box in an effort to bribe a Supreme Court clerk to

have his appeal docketed.3

      Second,      Thompson’s     attorney   attacked     the   veracity     and

reliability of the government’s key witnessSSGerber.4              The defense

called numerous witnesses to testify that Gerber was a liar, a

conman, and generally not believable. Instead, the defense painted

a picture of Gerber's blackmailing Thompson to make Thompson

solicit Gerber to kill Judge Hoyt.           Apparently, Gerber threatened

that if Thompson withdrew from the agreement to harm Judge Hoyt,

“serious mafia style harm” would befall Thompson's family.5

      The government introduced enhanced tapes of the first recorded

conversation between Gerber and Thompson and properly authenticated

the original tape and the enhanced versions.            The defense moved to

suppress the recordings as unreliable, arguing that the tapes were

inaudibleSSeven      though     enhancedSSand   thus   would    lead   to   jury

confusion.      The court reviewed the enhanced tapes and the original

and concluded that the enhanced tapes were, for the most part,

audible and not unduly confusing. Consequently, the court admitted


      3
          Thompson did not testify.
      4
         Thompson’s attorney also attempted to bolster Thompson's character by
having relatives testify, for example, that he was “a good man” and “went to
church.”
     5
        This theory seems to concede that there was an agreement between the two
men to have Judge Hoyt murdered, and it does not suggest the agreement originally
was the result of duress.

                                        4
the enhanced recording for the jury’s consideration.

       The government also provided a transcript of the enhanced

recording to aid the jury in listening to the tapes.                     The defense

contested the introduction of the transcript, contending that the

jury    would   be   confused      by    the     transcript     and   would    use   the

government’s transcriptSSrather than the tapeSSto make its decision.

Thompson     also    proffered     that    the     government’s       transcript     was

inaccurate.

       The   court    instructed         the     jury    that   the    tapeSSnot     the

transcriptSSwas the evidence for its consideration and that any

inconsistencies it found between the two should be resolved in

favor of the tape.         Moreover, the court told the jury that it was

to use the transcript only when listening to the tape.                         Thompson

never    introduced     his   own       transcription      to   rebut    the    alleged

inaccuracies in the government’s version.



                                           II.

                                           A.

       “Admission     of    tape    recordings          falls   within   the     'sound

discretion' of the trial court.”6                 We will reverse a decision to

admit such evidence only if the court abuses its discretionSSthat

is, if it relies on an incorrect view of the law or on clearly

erroneous factual findings.              We also review the decision to admit



       6
         United States v. White, 116 F.3d 903, 920 (D.C. Cir.) (per curiam)
(citations omitted), cert. denied, 1997 U.S. LEXIS 6650 (U.S. Nov. 3, 1997),
cert. denied, 1997 U.S. LEXIS 6660 (U.S. Nov. 3, 1997); accord United States v.
Lance, 853 F.2d 1177, 1181 (5th Cir. 1988).

                                            5
a transcript of the recording, for use in aiding the jury, for an

abuse of discretion.         See United States v. Wilson, 578 F.2d 67, 69

(5th Cir. 1978).



                                           B.

           Tape recordings are admissible in a criminal trial if they are

reliable. “The government has the duty of laying a foundation that

the tape recordings accurately reproduce the conversations that

took        place,   i.e.,   that   they       are   accurate,     authentic,    and

trustworthy.          Once   this   is   done,       the   party   challenging   the

recordings bears the burden of showing that they are inaccurate.”

See United States v. Carbone, 798 F.2d 21, 24 (1st Cir. 1986)

(citation omitted).7         We will reverse the admission of tapes on the

ground that they are inaudible only if “the inaudible parts are so

substantial as to make the rest more misleading than helpful.”

Gorin v. United States, 313 F.2d 641, 652 (1st Cir. 1963); accord

United States v. Nixon, 777 F.2d 958, 973 (5th Cir. 1985).

           Once recordings are admitted, the defendant can seek to

impeach them by showing, for example, that the voice on the tape is

not his; that the tapes do not recount the entire event; that they

have been altered; or that they are untrustworthy or contradictory.

The point is that the tapes themselves can be used to create a

reasonable doubt in the jurors’ minds.



       7
       Accord United States v. Polk, 56 F.3d 613, 631-32 (5th Cir. 1995); Lance,
853 F.2d at 1181. Hearsay problems are not a concern if the jury believes that the
defendant was one of the participants in the conversation; any statements he made
would be admissible as a statement of a party opponent. See FED. R. EVID. 801(d)(2).

                                           6
                                         C.

                                         1.

      The government properly authenticated the tapes.8                  At trial,

FBI Agent Steger testified that he made the original recording of

the conversation between Thompson and Gerber that took place on

February 13, 1996.        He tested the recording equipment both before

and after the tape was made, and it was operating properly.                      He

placed the recording device in the jail library and turned it on.

He also observed the conversation between Gerber and Thompson as it

took place.      The tape began running before Gerber and Thompson

arrived and continued to run after they left.

      Steger made several trips, every few minutes, to check to see

whether Gerber and Thompson were still talking.                The conversation

lasted approximately forty-two minutes.               After Gerber and Thompson

left the library, Steger retrieved the tape and turned it over to

the FBI clerk responsible for maintaining evidence.



                                         2.

      The government then produced evidence to authenticate the

enhanced tapes.       FBI Agent Gregory Major, a signal processing

analyst, testified as an expert in the field of tape enhancement.

He   stated   that   an    enhanced      tape    is   “an   improvement    in   the

intelligibility      of    the   voice        information   over   the    original



         8
            “The Federal Rules of Evidence provide that the requirement of
authentication 'is satisfied by evidence sufficient to support a finding that the
matter is what its proponent claims.'” Polk, 56 F.3d at 631 (quoting FED. R.
EVID. 901(a)).

                                          7
recording through use of audio filters for purposes of playback

before a jury or for transcription purposes.” He testified that he

made an enhanced recording of the recording made by Steger and

explained in detail the procedure by which the tape recordings are

enhanced.   He also stated that the noises that were filtered out of

the original recording were those from a public address system and

occasional knocking against the microphone.

     Major explained that in making the enhanced version of the

recording, he did not add or delete any words.                 Gerber also

testified    that   the   enhanced   tapes    accurately    reflected    the

conversation that took place between him and Thompson in the prison

library.



                                     3.

     The government also presented Steger’s testimony for purposes

of authenticating the transcripts.           He testified that he had

prepared a transcript of the tape recording.9            In preparing the

transcription, Steger stated that he had listened to the tapes

several times and that, as a result, he had updated his transcript

repeatedly.     Nothing indicates that Steger intentionally mis-

transcribed the recorded conversation.



                                     4.

     Thompson challenged the admissibility of the tapes, arguing

      9
         Steger also testified that he had prepared a second transcript with
Gerber’s aid. The court refused to admit this version, leaving the government
to rely on Steger’s first transcription.

                                     8
that they were inaudible.10 The court conducted an in camera review

of the recordings and overruled the objections, stating that

“[d]efendant is correct that parts of the tape are unintelligible,

but other parts, especially of the enhanced tapes, can be easily

understood.”



                                        5.

      Although we give deference to the district court's findings,

we would reach the same result if we were reviewing the tapes de

novo.       Although    we    acknowledge     that   the    unenhanced     tape   is

difficult      to    comprehend,    the       enhanced     version   is    “easily

understood.”        It is possible to discern what was transpiring, even

without a transcript. The listener can hear Thompson talking about

the money orders and about dumping Judge Hoyt in the ocean.                       The

district court properly admitted the enhanced tapes into evidence.11



                                        6.

      Thompson never offered his own transcription to rebut the

accuracy of the government’s, nor did he point to any inaccuracies

in Steger’s work.       Instead, he focused on the fact that Steger had

to listen to the tape many times before he could make a complete

transcription.         This    objection,     however,     is   directed    at    the



       10
          The defense relied on a res ipsa loquitur argument in contesting the
tape’s unreliability. It pointed the district court to no indicia of inaccuracy,
but argued that listening to the tapes showed that they were unreliable and
confusing for the jury.
      11
           The court excluded the original tape.

                                          9
reliability of the tape, not of the transcription.12

      Moreover, the court instructed the jury that if it found any

inconsistencies, the recording controlled; any conflicting part of

the transcript was to be disregarded.          The court did not abuse its

discretion by admitting into evidence the enhanced tapes and the

accompanying transcripts.



                                      D.

      Most of Thompson’s arguments attack the weight the jury gave

the tapes, rather than their admissibility.                 As noted above,

Thompson was entitled to impeach the accuracy of the tape recording

and the transcription in order to create reasonable doubt.                  Not

only could he attack Gerber’s credibilitySSand he didSSbut also he

could have attacked the accuracy of the recording devices, of the

enhancement process, and of the transcription procedure.13              To the

extent that he did so, the jury was entitled to credit the tapes

and Gerber’s testimony and to discredit Thompson’s attempts at

impeachment.



                                     III.

      Thompson claims that the district court violated his due



       12
          The government proffered another version of the transcription that
Gerber had helped to prepare. Thompson objected, and the court refused to admit
the evidence. See supra note 9.
     13
        The defense could have attempted to introduce the original tape in order
to attack the reliability of the enhancement and transcription processes. It did
not. Nor did it offer its own competing version of the transcription. Instead,
it argued that both were per se unreliable.

                                      10
process right to a fair trial when, during its introduction of the

case to the jury, it referred to Thompson and Gerber as having

established a friendship.       “To rise to the level of constitutional

error, the district judge’s actions, viewed as a whole, must amount

to an intervention that could have led the jury to a predisposition

of guilt by improperly confusing the function of the judge and

prosecutor.     The judge’s intervention in the proceedings must be

quantitatively and qualitatively substantial to meet this test.”

United States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994)

(citations omitted).14

      Tellingly, Thompson offers no specifics of the alleged due

process violation. That is because there was none. The government

correctly notes that the court’s comments, when read in context,

are not error.

      Here is the context:       The court gave a brief summary of what

each side was going to present.              The court stated that “the

Government charges in this case . . . that [Thompson] then struck

up a friendship, acquaintanceship, call it what you will, with

another inmate, the man that's calledSS'Gerber' is his name.”

Thompson offers no evidence to show any bias by the court, nor does

he rebut what appears to be a rational explanation for the court's

comments, excerpted above, that Thompson claims are prejudicial.



       14
          It is uncertain what standard of review should apply here. If the
defendant fails to object at trial to the court's statements, plain error review
attaches. See United States v. Tolliver, 61 F.3d 1189, 1208 (5th Cir. 1995),
vacated and remanded on other grounds, 116 S. Ct. 900 (1996). Otherwise, a de
novo standard would seem to apply. In this case, even if we assume that Thompson
did object, his claims do not rise to the level of constitutional error.

                                      11
     Thompson's due process argument is meritless.              There is no

indication of error, let alone the pervasive error needed to

establish a violation of a due process right to a fair trial.



                                     IV.

                                     A.

     Thompson contends that the government committed a due process

violation by failing to preserve and produce a copy of a second

tape-recorded conversation between him and Gerber held a few days

after the first.       The government contends that the tapeSSwhich

captured only an electronic noise because the recording equipment

malfunctionedSSwas made available to the defense and was inspected

by a defense expert.15

     Thompson bears the burden of producing a sufficient record on

appeal.    See United States v. Featherson, 949 F.2d 770, 774 (5th

Cir. 1991).    Because he has failed to show any evidence that he did

not in fact inspect and test the second tape, he has no error of

which to complain.



                                     B.

     The government notes that Thompson's attorney may be confusing

the failed tape in the second recorded conversation with a second

tape that failed in the first recorded conversation.           In the first


      15
         The docket sheet indicates that the court ordered the government to
produce the equipment and tape from the second attempted recording. There are
no further entries reflecting Thompson's attempts to enforce this order. Thus,
either the government complied with the order, or Thompson failed to raise an
objection to the government’s failure to produce in accordance with the order.

                                     12
recorded conversationSSthe subject of part II aboveSSthe government

made two tapes:      one in a recorder in the library, and another in

a transmitter also in the library.              The tape in the transmitter

failed when the transmitter’s signal could not penetrate the thick

prison walls.    See supra note 2.       The tape in the recorder from the

first conversation encountered no mechanical malfunctions, however,

and was properly admitted.          See supra part II.         The tape from the

transmitter was subsequently destroyed by the government.

      For purposes of part IV.B, we will assume that Thompson is

really     arguing        that    the   second      tape   from      the   first

conversationSSthat is, the one in the transmitterSSwas destroyed,

in violation of his due process rights.16             In order to establish a

due process violation from the government’s failure to preserve

evidence, a defendant must show that (1) government officials acted

in   bad   faith;    (2)    the   evidence     is   material    in   showing   the

defendant’s innocence; and (3) there is no alternate means of

demonstrating       the    defendant’s       innocence.        See   Arizona   v.

Youngblood, 488 U.S. 51, 56 (1988) (citing California v. Trombetta,

467 U.S. 479, 488-90 (1984)).

      Thompson has offered no evidence that the second tape of the

first conversation17 was destroyed on account of any bad faith. And


       16
          Again, we are faced with a standard-of-review problem. The error of
which Thompson really claims is no error at all if he got what he wanted (the
second tape) before trial. The hypothetical error we will assume will also
assume a hypothetical objection by Thompson. These assumptions do not affect the
outcome of our analysis.
      17
        Even assuming that Thompson had shown that the FBI had destroyed the
tape of the second conversationSSthe one that recorded only an electronic
                                                                  (continued...)

                                        13
he has pointed to nothing to demonstrate that the second tape of

the first conversation captured exculpatory remarks that the first

tape did not.18      The government committed no due process violation

in this regard.



                                        V.

      Thompson challenges the tactics the government used when

dealing with his witnesses, Lawrence Carlton and Paul Gardner.19

Thompson alleges that at a bench conferenceSSoutside the jury’s

presenceSSthe       government's   attorney   told     defense   counsel     that

counsel     would    suborn   perjury   if   Carlton    were   to   testify    as

planned.20     Thompson argues that the government interfered with

Gardner's testimony when, during the FBI's initial investigation of

the plot to kill Judge Hoyt, the agents informed Gardner and his

wife of the consequences of not telling the truth.




(...continued)
noiseSSThompson failed to meet the Youngblood factors. He demonstrated   no malice
for the tape's destruction.         He made no showingSSaside from        his own
allegationsSSthat the tape of the second conversation was exculpatory.    Finally,
he failed to allege that there were no alternate means by which          he could
establish his innocence.
      18
         The third factor is mooted if we find the information sought was not
exculpatory.   But even if we were to find the evidence to be exculpatory,
Thompson offered no evidence to show that he had no alternate means of
demonstrating his innocence.
       19
          Carlton was an inmate with Gerber and Thompson who testified about
Gerber’s bad reputation. Gardner is Thompson’s brother-in-law and testified
about Thompson's good character.
      20
         The government claims that, prior to testifying, Carlton indicated to
the government that what he was going to say was false. Thompson denies the
allegation.

                                        14
                                        A.

      “Just    as    an   accused     has    the    right      to   confront     the

prosecution’s       witnesses   for    the   purpose     of    challenging     their

testimony, he has the right to present his own witnesses to

establish a defense.         This right is a fundamental element of due

process of law.”      Washington v. Texas, 388 U.S. 14, 19 (1967).                To

make a showing that the government has infringed on this right, the

defendant must show that “the government’s conduct interfered

substantially with a witness's 'free and unhampered choice' to

testify.”21   “Because the existence of substantial interference is

a factual question, we may reverse the trial court’s decision only

if it is clearly erroneous.”           Pinto, 850 F.2d at 932 (quotation

omitted).



                                        B.

      The government's conduct with respect to Carlton does not rise

to the level of a constitutional violation.                   The threats reached

only the defense lawyer, and Thompson makes no allegation that the

government    ever    told   Carlton    that   if   he    testified,    it     would

prosecute him for perjury.

      In an adversarial system, a lawyer cannot be immune from

warnings from his adversary.            There is no indication that the

threat ever was transferred from the defense lawyer to the witness.

The threat, thus, could not have chilled Carlton's testimony.                     At


     21
        United States v. Pinto, 850 F.2d 927, 932 (2d Cir. 1988) (quoting United
States v. Goodwin, 625 F.2d 693, 703 (5th Cir. 1980)); accord United States v.
Dupre, 117 F.3d 810, 823 (5th Cir. 1997).

                                        15
the most, it prevented Thompson's lawyer from eliciting answers

that he knew were false.      Because the defense lawyer already had an

ethical obligation to the court not to elicit such responses,

Thompson has failed to establish any causal connection between the

government's actions and the alleged rights violation.

      Even   if   the   government's       warning    to   defense   counsel

constituted an interference with Thompson's right to call his own

witnesses, it is hard to see how it rises to the level of a

constitutional     violation.        The    court    sustained    Thompson's

objections to the government's warning, instructing both lawyers

that the attorney would not be suborning perjury if Carlton were to

testify.     The conversation occurred outside the presence of the

jury and of the witnesses.       Accordingly, any fear defense counsel

had when he proceeded to examine Carlton was not justified.



                                     C.

      Thompson has failed to make the necessary showing that the

government's actions “interfered substantially” with Gardner’s

“'free and unhampered choice' to testify.”           Pinto, 850 F.2d at 932

(quoting Goodwin, 625 F.2d at 703). The defendant bears the burden

of showing that testimony would have been different but for the

government’s actions.22      Thompson has made no such showing.

      Thompson alleges that during one of the FBI's investigatory

interviews of Gardner and his wife, the agents warned them that if


     22
        Cf. United States v. Hatch, 926 F.2d 387, 395 (5th Cir. 1991) (holding
defendant's evidence insufficient to prove that government's actions caused a
defense witness not to testify).

                                     16
they did not tell the truth, they could be arrested and jailed for

perjury.       Thompson claims that these statements prevented Gardner

from giving all the testimony he otherwise would have provided.

      The district court was correct to overrule any objections

Thompson's lawyer made in this regard.23            If anything, the record

shows that Gardner was undeterred by the FBI's statements.                    At

trial, he testified to the same account that he had provided the

FBI investigators when the inquiry began.

      Thompson's challenge is also flawed because it assumes that

the government       cannot   tell   a    witness   of   the   consequences   of

committing perjury. That is not the law. “Granted, the government

told the witnesses that they had to testify truthfully and, if not,

they would go to jail.        That procedure, however, even if carried

out in a caustic manner, is no cause to dismiss the indictment

against the defendants.”        United States v. Hayward, 6 F.3d 1241,

1257 (7th Cir. 1993) (citation omitted).            “There is nothing wrong

with the government informing witnesses of the consequences of

breaking the law.”24



                                         VI.

      Thompson attacks the sufficiency of the evidence supporting


          23
            The record does not indicate whether Thompson indeed objected.
Nevertheless, for ease of explanation, we will assume that he did and thus that
the clear error standard of review applies. This assumption does not affect the
outcome of our analysis.
     24
        United States v. Hayward, 772 F. Supp. 399, 406 (N.D. Ill. 1991), aff'd,
United States v. Hayward, 6 F.3d 1241 (7th Cir. 1993); accord United States v.
Viera, 839 F.2d 1113, 1115 (5th Cir. 1988) (en banc) (“A prosecutor is always
entitled to attempt to avert perjury and to punish criminal conduct.”).

                                         17
his convictions.      We will affirm if a reasonable trier of fact

could conclude that the elements of the offense were established

beyond a reasonable doubt, viewing the evidence in the light most

favorable to the verdict and drawing all reasonable inferences from

the evidence to support the verdict.           The evidence presented at

trial need not exclude every reasonable possibility of innocence.

See United States v. Faulkner, 17 F.3d 745, 768 (5th Cir. 1994).

The evidence more than supports the convictions on all three

counts.



                                      A.

     On the first count, under 18 U.S.C. § 1958, a reasonable jury

could conclude beyond a reasonable doubt that Thompson (1) had

caused another to use the mails (2) with intent that a murder be

committed in violation of the laws of the United States (3) as

consideration   for   the   receipt    of   pecuniary   value.   The   jury

legitimately could credit Gerber's testimony and the tape recording

and disregard Thompson's attacks on both. In both, Thompson states

that he had his sister sendSSvia the mailsSSfour $500 money orders

to a post office box.       It is evident from his comments to Gerber

that this money is a down payment on the murder of Judge HoytSSa

federal judgeSSin violation of 18 U.S.C. § 1114.



                                      B.

     On the second count, under 18 U.S.C. §§ 373 and 1114, a

reasonable jury could conclude beyond a reasonable doubt that


                                      18
Thompson had (1) solicited another (2) with intent (3) to kill a

federal judge.     The jury was entitled to credit Gerber's testimony

and the tape recording and to discredit Thompson's attempts at

impeachment.       The evidence shows Thompson purposefully seeking

Gerber out to have Gerber kill Judge Hoyt.



                                      C.

       The evidence supports a conviction for the attempt charge

under 18 U.S.C. § 1114.           “The crime of attempt requires the

Government to prove that the defendant (1) intended to commit the

underlying offense, and (2) took a 'substantial step,' beyond mere

preparation, toward committing that crime.”25             As noted above, a

rational    jury   could    credit   Gerber's    testimony      and   the   tape

recording to conclude, beyond a reasonable doubt, that Thompson

intended to commit the underlying crime.            See supra part VI.B.

       Thompson argues that his actions did notSSas a matter of

lawSSform a substantial enough step to constitute attempt.                  This

objection is meritless.       The agreement called for $2,000 down and

$18,000 after the murder. Thompson sent the $2,000, then expressed

his   desire   that   the   murder   take   place   as   soon    as   possible.

According to Gerber, and on the tape, Thompson expressed neither

interest in backing out of the deal nor regret.            The deal required

no more actions from Thompson in order for the murder to occur.

       Thompson’s actions were not mere preparation.            He went to the


      25
        United States v. Polk, 118 F.3d 286, 291 (5th Cir. 1997) (quoting United
States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974)).

                                      19
very brink of carrying out his plan.               “Liability for attempt

attaches if the defendant's actions have proceeded to the point

where, if not interrupted, would culminate in the commission of the

underlying crime.”         Polk, 118 F.3d at 291.          A rational jury,

therefore, could conclude beyond a reasonable doubt that Thompson's

actions constituted an attempt on the life of Judge Hoyt.



                                     VII.

      Thompson claims that the evidence is insufficient to support

a jury finding that he had not been entrapped.           “When a jury, which

was fully charged on entrapment, rejects the defendant’s entrapment

defense, the applicable standard of review is the same as that

which applies to sufficiency of the evidence.”              United States v.

Rodriguez, 43 F.3d 117, 126 (5th Cir. 1995) (citation omitted).26

      “Entrapment     is   an   affirmative    defense     that   requires    a

defendant to show he was induced to commit a criminal act by a

government agent and that he was not predisposed to commit the act

without the inducement.”27       Once the defendant makes a prima facie

showing on these two elementsSSno predisposition and governmental

inducementSSthe court will give the entrapment instruction.                 The

government then bears the burden of showing beyond a reasonable



     26
        The district court gave the jury the Fifth Circuit’s pattern entrapment
instruction.
      27
         United States v. Pruneda-Gonzalez, 953 F.2d 190, 197 (5th Cir. 1992);
accord United States v. Wolffs, 594 F.2d 77, 80 (5th Cir. 1979). A successful
entrapment defense essentially negates the intent element of an intent-based crime,
thus making conviction impossible. Because we deal here only with an intent-based
crime, we need not consider entrapment issues concerning non-intent-based crimes.

                                      20
doubt that the defendant was not entrapped.                     See United States v.

Byrd, 31 F.3d 1329, 1335 (5th Cir. 1994).

      Because     entrapment     is    the       result    of   a   jury   finding   of

governmental inducement and no predisposition, see Wolffs, 594 F.2d

at   80,    a   jury   must   necessarily        find     non-entrapment     when    the

government proves beyond a reasonable doubt either the existence of

predisposition or the non-existence of inducement.28                        “That the

government bears the entire burden does not affect the fundamental

truth that entrapment can be disproved in one of two ways, either

by proving beyond a reasonable doubt that the defendant was not

induced, or by proving beyond a reasonable doubt that he was

predisposed to commit the crime.”                El-Gawli, 837 F.2d at 147.29



                                            A.

                                            1.

      On    the   first   count,      the    evidence      supports    a   finding    of

Thompson's predisposition. “The active, enthusiastic participation

on the part of the defendant is enough to allow the jury to find

predisposition.” Rodriguez, 43 F.3d at 126-27.30 A reasonable jury

     28
        See United States v. Cervante, 958 F.2d 175, 178 (7th Cir. 1992); United
States v. El-Gawli, 837 F.2d 142, 147 (3d Cir. 1988)
     29
        Arguably, this court's pattern jury entrapment instruction misstates the
law: “If, then, you should find beyond a reasonable doubt . . . the defendant
was ready and willing to commit a crime . . . and that government officers . . .
did no more than offer the opportunity, then you should find that the defendant
is not a victim of entrapment.” FIFTH CIR. PATTERN JURY INSTRUCTIONS § 1.28, at 40
(West 1997) (emphasis added). Given the components of the law of entrapment, see
Pruneda-Gonzalez, 953 F.2d at 197, the instructions might more properly insert
an “or” for the emphasized “and.”
      30
           In United States v. Knox, 112 F.3d 802, 808 (5th Cir. 1997), a panel
                                                                      (continued...)

                                            21
could   conclude    beyond    a   reasonable     doubt   that    Thompson    was

predisposed (1) to use the mails (2) with intent that a murder be

committed in violation of the laws of the United States (3) as

consideration for the receipt of pecuniary value.

      There is more than enough evidence to support the jury’s

finding of Thompson's predisposition with regard to the second two

elements of the “use of the mails” count.              The jury could credit

Gerber's testimony and the tape recording (and the letters), and

discredit Thompson's attacks on that evidence.            Gerber's testimony

and the tapes provide ample support for the inference that Thompson

was ready and willing to pay someone to kill Judge Hoyt.31

      The   defendant's    predisposition       with   regard    to   the   first

elementSSthe actual using of the mailsSSpresents a more complex

question.    Thompson did not think up the sending of money orders

through the mails on his own.         Rather, the government offered him

that opportunity by giving him a post office box address, and he

used it.

      Although    this   question    is     somewhat   closer,   the   evidence



(...continued)
held that “we must look not only to the defendant's mental state (his
'disposition'), but also to whether the defendant was able and likely, based on
experience, training, and contacts, to actually commit the crime (his
'position').” This holding is arguably in tension with the rule we announced two
years earlier in Rodriguez, stated in the text. The Knox predisposition holding
has been vacated pending review by the en banc court. See United States v. Knox,
120 F.3d 42 (5th Cir. 1997); 5TH CIR. R. 41.3.
     31
        A rational jury could have found beyond a reasonable doubt that Thompson
intended to have Judge Hoyt killed. After all, the core theory of the defense
was that Thompson had sent the $500 money orders to the post office box to commit
another illegal actSSbribing a Supreme Court clerk. A jury could credit this
willingness to commit a crime and discredit the defense's explanation of the
crime that Thompson intended to commit.

                                       22
supports a finding of predisposition on this element of the use-of-

the-mails count.     “Predisposition focuses on whether the defendant

was . . . willing to commit the offense before first being

approached by government agents.”               United States v. Bradfield,

113 F.3d 515, 522 (5th Cir. 1997) (emphasis omitted).

      The stark facts of this case show that Thompson was fully in

control of his options on how to proceed in the murder plot.                   When

given a phone number to call, Thompson had refused.                  Instead, he

intimated that he would prefer a more secure means to hire the

hitmen.      As a result, the government agents offeredSSand Thompson

acceptedSSthe use of a post office box to which Thompson could send

the money to have Judge Hoyt killed.

      The defense never offered any countervailing evidence to raise

a reasonable doubt that Thompson was not inclined to use the mails.

Thus, the jury could find that Thompson was willing to use the

mails before the government suggested it.32



                                        2.

      Even    if   the   evidence      failed    to    support   a   finding    of

predisposition     on    the   first   count,    the    jury's   finding   of   no



      32
         Even under Knox's the “predisposition-plus” standard, Thompson loses in
this case. A rational jury could conclude beyond a reasonable doubt that he had
the experience and the contacts “to actually commit the crime.” Knox, 112 F.3d
at 808. Gerber testified, and Thompson stated on the tape, that Thompson had
hired people before “to beat up bad people.” Indeed, in this case, Thompson
offers no evidence to show that he was not predisposed. Arguably, therefore, he
was not even entitled to the entrapment instruction in the first place.
      In any event, the government proved beyond a reasonable doubt that there
was no governmental inducement. See infra part VII.A.2. That is enough to
negate the entrapment defense. See El-Gawli, 837 F.2d at 147.

                                        23
governmental inducement is supported by the evidence.             “Government

inducement consists of the creative activity of law enforcement

officials in spurring an individual to crime.”              See id. (citation

omitted).

     The FBI's providing Thompson with a post office box does not

amount to a “creative activity of law enforcement officials.”

Although      the   government's   activity   “need    not    overpower      the

defendant's will,” see id., it must at least “spur” him to commit

a crime.

     The government merely offered Thompson the opportunity to

carry out his plan.        That the government gave him an avenue to

commit   an    illegal   actSSan   avenue   itself   that    happened   to   be

illegalSSdoes not constitute inducement.             Instead, under these

circumstances, the finding of inducement was a question of fact

properly left for the jury.          Given the evidence presented, the

finding of no inducement is supported by the evidence.33



                                      B.

                                      1.

     The evidence also supports the finding of predisposition on

the second and third counts.        The predisposition issue hereSSthat

the evidence supports a jury finding that Thompson was already

disposed to pay someone to kill Judge HoytSSwas addressed and



      33
         Because the second and third elements of the first charge are similar
to those forming the basis for the second and third charged counts, the jury's
finding of no governmental inducement on those elements is discussed below in
part VII.B.2.

                                      24
discussed above.      See supra part VII.A.1 and note 31.



                                       2.

      A rational jury could also find beyond a reasonable doubt that

the government did not induce Thompson to commit the actions

charged   in   the   second    and   third   counts.34      The   government's

presentation of an opportunity for a defendant to commit a crime,

without more, is not inducement.            See Jacobson v. United States,

503 U.S. 540, 550 (1992); Bradfield, 113 F.3d at 522.                        The

government gave Thompson the chance to carry out his plan to have

Judge Hoyt killed.      Government agents arrived and arranged to have

Gerber present Thompson with the opportunity to purchase a hit on

Judge Hoyt only after Thompson had indicated a willingness to

accept the deal.35      There is no credible evidence to suggest that

government agents “spurred” Thompson to solicit and to attempt a

murder of Judge Hoyt.           To the contrary, the record strongly

supports an inference that Thompson, not governmental agents, was

the motivating force behind the means, terms, and goal of the deal.

      AFFIRMED.




      34
         We also include in the discussion the second and third elements of the
first charged count. See supra note 33.
     35
       Gerber testifiedSSand a reasonable jury could concludeSSthat Thompson had
solicited Gerber in the murder-for-hire scheme before Gerber had notified the FBI
and had become a government operative.

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