United States v. Fletcher , 237 F. App'x 991 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS August 13, 2007
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-31002
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMY FLETCHER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(2:05-CR-49-4)
Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Tommy Fletcher challenges his conspiracy conviction, claiming:
there is insufficient evidence to sustain the verdict; the
Government engaged in prosecutorial misconduct; and the district
court erred in both giving a modified Allen charge and denying his
new-trial motion.
In June 2005, Fletcher, with ten others, was charged in
connection with a string of robberies which targeted various
Louisiana railyards. Among other things, the superseding
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
indictment charged: in November 2002, Fletcher, along with his co-
conspirators, burglarized the BNSF Railyard; Fletcher assisted by
procuring materials for the robbery and removing electronic
merchandise from railcars and loading them into one of his co-
conspirator’s vehicles; in December 2002, Fletcher and his co-
conspirators set fire to a telephone junction box at the Southern
Scrap Yard in order to disable its alarm system; and he, along with
his co-conspirators, removed the safe, which contained
approximately $40,000.
In March 2006, Fletcher was found guilty of conspiracy, under
18 U.S.C. § 371, to: commit larceny of goods traveling in
interstate commerce; taking away goods by theft and fraud from an
interstate carrier; and arson of property used in interstate
commerce. (At the time of Fletcher’s trial, all ten of his co-
conspirators had been convicted of, or pleaded guilty to, one or
more crimes charged in the superseding indictment.) In a detailed
order, the district court denied Fletcher’s motion for a new trial
that July. That September, he was sentenced, inter alia, to 15
months imprisonment.
Fletcher first contends the evidence was insufficient to
convict him of the charged conspiracy. In sufficiency-of-the-
evidence challenges, we review the evidence in the light most
favorable to the jury verdict. United States v. Cluck, 143 F.3d
174, 180 (5th Cir. 1998). “All credibility determinations and
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reasonable inferences will be resolved in favor of the verdict, and
the evidence will be found sufficient unless it was not such as
could lead a rational fact-finder to conclude that the essential
elements of the crime had been proved beyond a reasonable doubt.”
Id.To sustain a conspiracy conviction, the Government must
establish that: “(1) two or more persons conspired to pursue an
unlawful objective; (2) the defendant knew of the unlawful
objective and voluntarily agreed to join the conspiracy with the
intent to further the objective; and (3) one or more members of the
conspiracy committed an overt act in furtherance of the objective
of the conspiracy”. United States v. Dadi, 235 F.3d 945, 950 (5th
Cir. 2000). While “mere association” is insufficient to prove
participation, “an agreement may be inferred from concert of
action, voluntary participation may be inferred from a collocation
of circumstances, and knowledge may be inferred from surrounding
circumstances”. United States v. Bieganowski, 313 F.3d 264, 277
(5th Cir. 2002) (internal citations and quotation marks omitted).
While the Government must show the defendant knew and intended to
join the conspiracy, “it need not show that each defendant knew all
the details of the conspiracy”. United States v. Schmick, 904 F.2d
936, 941 (5th Cir. 1990).
Fletcher contends there is no evidence he entered into any
agreement to burglarize BNSF Railyard; he points to the testimony
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of two of his co-conspirators that he showed up as the robbery was
taking place. In this regard, Fletcher notes, he was acquitted of
the substantive offenses of larceny and robbery of the BNSF
Railyard; and he maintains there was no evidence he agreed with his
co-conspirators beforehand to burglarize the railyard. Finally,
in challenging the Southern Scrap Yard burglary, Fletcher contends:
that testimony shows he arrived after his co-conspirators had
already entered the building; therefore, he could not have been
responsible for setting fire to the telephone junction box as the
Government claimed.
Concerning the BNSF Railyard robbery, a co-conspirator
testified: he told Fletcher what they planned to do at the
railyard; and Fletcher assisted in obtaining rope to facilitate the
robbery and worked with his co-conspirators in removing the
televisions, VCRs, and other electronic merchandise from the
railcars and loading that merchandise in one of the co-
conspirator’s house. For the evidence regarding Fletcher’s
involvement in the Southern Scrap Yard burglary, a co-conspirator
testified Fletcher entered in the building in order to help the
others remove the safe and helped transport it to one of the co-
conspirator’s home, where it was opened. Finally, a reasonable
juror could conclude Fletcher was involved in the arson. E.g.,
United States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989) (holding
that jurors may rely their common sense and evaluate facts in the
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light of their common knowledge of the natural tendencies of human
beings). Viewing the evidence in the light most favorable to the
verdict, a rational jury could have concluded Fletcher “knew about
the conspiracy and voluntarily agreed to join”. United States v.
Krenning, 93 F.3d 1257, 1265 (5th Cir. 1996).
Fletcher also contends the Government failed to prove all
necessary elements for the conspiracy-to-commit-arson claim because
they did not show the destroyed telephone junction box was being
used in interstate commerce, as required under 18 U.S.C. § 844(I).
The Government satisfied that element, however, by showing
BellSouth Corporation’s use of the telephone junction box to engage
in interstate communication and commerce.
For his prosecutorial-misconduct claim, Fletcher contends
that, during closing argument, the Government made improper
comments by expressing an opinion as to Fletcher’s guilt;
specifically, the jury was told that the other co-conspirators had
already pleaded guilty and that the Government would not have
prosecuted Fletcher if he were not guilty. Fletcher asserts:
because the Government’s case was solely based upon the testimony
of two co-conspirators, the Government’s actions were an improper
attempt to bolster the credibility of those witnesses.
“Criminal convictions are not to be lightly overturned on the
basis of a prosecutor’s comments standing alone.” United States v.
Pineda-Ortuno, 952 F.2d 98, 106 (5th Cir. 1992). A court must
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evaluate the statement’s prejudicial effect, whether any cautionary
instruction was given, and the strength of the evidence of the
defendant’s guilt. United States v. Gallardo-Trapero, 185 F.3d
307, 320 (5th Cir. 1999). “The ultimate question before us,
however, is not the impropriety of the prosecutor’s remarks but
whether these remarks were so inflammatory that they entitle the
defendant to a new trial. A prosecutor’s remarks to the jury
constitutes reversible error only when they are both inappropriate
and harmful.” United States v. Lowenberg, 853 F.2d 295, 301 (5th
Cir. 1988) (internal citations and quotation marks omitted).
The district court gave instructions to mitigate the
prejudicial effect of the Government’s remarks, cautioning the jury
that statements by counsel are not evidence. Furthermore, even
assuming the remarks were improper, they were not “so pronounced
and persistent that [they] permeate[d] the entire atmosphere of the
trial”. United States v. Martino, 648 F.2d 367, 388 n. 10 (5th
Cir. 1981) (internal citations and quotation marks omitted). There
was sufficient evidence of Fletcher’s guilt that, notwithstanding
the statements, he would still have been convicted.
Fletcher contends the district court erred by giving a
modified Allen charge to the jury only four and a half hours after
it began deliberation. The jury had informed the court it was
unable to come to a unanimous decision; and, after the modified
Allen charge, they returned a verdict approximately six hours
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later. Fletcher asserts the modified charge coerced the jurors
into finding him guilty even after they stated further
deliberations would not help.
Giving a modified Allen charge is reviewed for abuse of
discretion. United States v. Rivas, 99 F.3d 170, 175 (5th Cir.
1996). A court has broad discretion to determine whether an Allen
charge will coerce the jury into returning a verdict it would
otherwise not reach. United States v. Gordon, 780 F.2d 1165, 1177
(5th Cir. 1986).
Fletcher did not object to the language of the charge but only
to its being given early in deliberations. Despite his
contentions, however, he has produced no evidence that the charge
had a coercive effect. E.g., United States v. Allard, 464 F.3d
529, 536 (5th Cir. 2006). Consequently, and due to the broad
discretion we give district courts in this matter, his contention
fails.
Finally, Fletcher contends the district court erred in denying
his new-trial motion. “A district court’s decision to grant or
deny a motion for a new trial pursuant to Rule 33 is reviewed for
an abuse of discretion.” United States v. Wall, 389 F.3d 457, 465
(5th Cir. 2004). Fletcher raised two grounds for relief in his
new-trial motion: insufficient evidence; and the above-discussed
statements during closing argument. As discussed, Fletcher has not
shown “there would be a miscarriage of justice or ... the weight of
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evidence preponderates against the verdict”. United States v.
O’Keefe, 128 F.3d 885, 898 (5th Cir. 1997) (internal citations and
quotation marks omitted). Accordingly, the district court did not
abuse its discretion in denying the motion.
AFFIRMED
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