United States v. Nelson ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 24, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
06-60487
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KATHLEEN NELSON; ROOSEVELT WALKER,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Mississippi
(03-CR-30)
Before JONES, Chief Judge, BENAVIDES and STEWART, Circuit Judges.
BENAVIDES:*
The co-defendants, Kathleen Nelson and Roosevelt Walker,
were convicted of conspiring with others to murder their
acquaintance, Ms. Clovis Reed, in 2003. According to the
government, their primary motive was to prevent Reed from
testifying against Nelson and others in a bank fraud case. The
government charged Nelson with several crimes, including
*
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this opinion should not be published and is not precedent except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.
conspiracy to murder. Roosevelt Walker, who was her long-time
boyfriend, was charged only with conspiracy to commit murder.
Several other parties were also involved and have been or will be
charged in connection with the murder, but only Walker and Nelson
were co-defendants below.
Both Nelson and Walker were convicted of conspiracy to
murder and sentenced to life imprisonment. Nelson was also
convicted of conspiracy to commit mail fraud, bank fraud,
conversion of money belonging to the United States, and
obstructing a grand jury investigation. For these additional
crimes, she received sentences of five, thirty, ten and twenty
years, respectively. On appeal, Nelson raises eleven issues;
Walker raises four. After thorough consideration of all their
claims, we AFFIRM the convictions of both appellants.
I. FACTS
In 1999, Kathleen Nelson, Levon Edmond, and Clovis Reed
filed claims in what was known as the “Black Farmers’
Settlement,” or Pigford-Glickman litigation. They claimed to be
African-American farmers who were discriminatorily denied loans
and service by the Farmer’s Home Administration. Only Reed’s
claim was granted, and she was awarded a $50,000 settlement
check. Someone purporting to be Reed sent a letter to the
settlement administrators asking that the check be mailed to
Edmond’s post office box. Nelson, meanwhile, went to Edmond’s
bank and, posing as Reed, had Reed’s name added to Edmond’s
2
account. When the check arrived, someone forged Reed’s name to
it and Edmond deposited it into the Edmond-Reed account. Years
later, on February 5, 2003, Nelson and Edmond, who are sisters,
were indicted and charged with aiding and abetting one another in
the forgery and conversion of Reed’s $50,000 check. Reed would
have been the key witness against them, but she was murdered on
April 2, 2003. On April 7, 2003, the sisters attempted to plead
guilty to one count of conversion stemming from the Black
Farmers’ scheme, but the court refused to accept the pleas.
The government’s view is that Nelson and Edmond conspired
with two men to murder Reed, in order to prevent Reed from
testifying against them. The first of these men is Roosevelt
Walker. Walker and Nelson had been dating for some time, and
Edmond testified at trial that she considered Walker her brother-
in-law. The second man is Walker’s uncle and roommate, Joe
Collins. The sisters were close with Collins as well, and even
called him their uncle. Collins had also participated in the
Black Farmers’ scheme. At the time of the murder, Walker and
Collins were living together in Jackson, Mississippi. Nelson,
Edmond and Reed all lived in nearby Canton, Mississippi. Edmond
accepted a plea bargain in exchange for testifying against Nelson
and Walker.1
1
As of the date this case was argued, Collins had been
indicted but had not yet stood trial. The government indicated
that he was expected to do so soon.
3
At trial, Edmond testified that on the day of the murder,
she, Collins and Walker sat around Edmond’s kitchen table and
discussed killing Clovis Reed in order to “stop her from
talking.” Edmond had given several prior statements to that
effect, and she adopted them piecemeal on the witness stand.
However, when asked whether or not Nelson was present for that
conversation, Edmond equivocated. First she stated that Nelson
was walking “in and out” of the kitchen while the conversation
was taking place. When pressed further on the subject, Edmond
stated that Nelson was not present. The prosecutor then pointed
out the inconsistency and asked if Edmond was trying to protect
her sister. Edmond stated, “Right now I’m worried about myself.”
Edmond testified that one scheme the group concocted to kill
Reed involved ambushing her at her vehicle, knocking out her
window, and beating her up. Additional evidence suggests that
this is indeed what happened. First, Edmond testified that
Nelson called her on the night of the murder and said that
Collins needed some help. Specifically, Nelson asked Edmonds to
help her move Reed’s truck from where Collins said it was parked,
about a half mile from Reed’s house. Nelson and Edmond took
latex gloves and cleaning materials to Reed’s truck and cleaned
it so as to remove any fingerprints. While doing so, Edmond saw
that the passenger side window had been broken out, and there was
glass on the street.
Nelson drove Reed’s truck to an apartment complex in
4
Jackson, while Edmond followed in her car. Edmond testified that
she heard Nelson talking to someone on the phone during this
trip, and that Nelson stated, “She’s not breathing? Bitch, I
know you don’t have a body in my truck.” The women then
abandoned Reed’s truck at the apartment complex, where it was
discovered the next day.
The government introduced cell phone records for Walker,
Nelson, Collins and Edmond showing that they were communicating
with one another in the vicinity of Reed’s car between 10:03 P.M.
and 11:49 P.M. on April 2. The records show that Nelson, Edmond
and Walker then headed toward Jackson, and that they ended up in
the vicinity of the apartment complex where Reed’s car was
abandoned. A while later, Walker and Collins called one another
while they were in a rural area of Simpson County, near where
Reed’s body was recovered.
Walker’s friend, Larry King, confirmed that Walker and
Nelson were in that same area again on April 3, and that Walker
told him not to tell anyone that Nelson was with him that day:
“If anybody asks, Kathleen Nelson wasn’t down here.” Then, on
April 4, a local beekeeper discovered Reed’s body about 200 or
300 feet from a rural road. Evidence revealed that the cause of
death was blunt trauma to the head, either from a blunt force or
a gunshot. After Reed was dead, someone had removed her head and
hands with a large knife.
Edmond saw reports of Reed’s murder in the local news, at
5
which point she met Nelson, Walker and Collins at a hotel and
told them about the reports. According to Edmond, Collins got
upset and told Walker he had “f****d up.” Apparently Collins was
upset because Walker was supposed to have moved the body. Walker
then “looked stupid and said he should have done it.” Edmond
also testified that, on another occasion Collins and Walker told
her that Collins had cut Reed’s head and hands off while Walker
held Reed’s head.
About two weeks after the murder, Edmond and Nelson asked
Warren Holiday, of Rainbow Collision Center, to replace the
insert bed liner of Nelson’s truck. Holliday testified that the
original liner was still in good shape, and that he found it
unusual that the women took the old bed liner with them after it
was replaced, as most customers allowed Holliday to keep it.
When police began to investigate the four participants,
Walker, Nelson and Edmond all initially lied about their
whereabouts on the night of the murder. According to Edmond, she
and Nelson also convinced Edmond’s daughter, Shunterria Wiggins,
to appear before the grand jury and lie for them by saying they
were at home the night of April 2.
The government elicited these and other facts at trial, and
the jury convicted both Nelson and Walker of conspiracy to
murder. Nelson was also convicted of conspiracy to commit mail
fraud, bank fraud, conversion of money belonging to the United
States, and obstructing a grand jury. She was acquitted of
6
forgery. Both of the defendants are now serving life sentences.
II. DISCUSSION
Nelson and Walker each raise a host of challenges on appeal,
totaling fifteen in all. They are grouped below to avoid
repetition.
A. THE EXAMINATION OF LEVON EDMOND
1. Did the court admit improper hearsay during the
testimony of Levon Edmond?
Nelson first argues that the court improperly admitted one
of Edmond’s prior statements as substantive evidence. Defense
counsel did not make a contemporaneous objection when the
statement was admitted, nor when the government asked about it,
so we review them for plain error only. See FED. R. CRIM. P.
52(b). The government willingly concedes that one of Edmond’s
prior statements was admitted as substantive evidence, namely
Edmond’s sworn testimony at her guilty plea on January 12, 2006.
That is the statement in which Edmond describes the planning
meeting with Walker and Collins on April 2, and says that Nelson
was walking “in and out” during the conversation.
Under FED. R. EVID. 801(d)(1), a statement is not hearsay if
“[t]he declarant testifies at the trial or hearing and is subject
to cross-examination concerning the statement, and the statement
is (A) inconsistent with the declarant’s testimony, and was given
under oath subject to the penalty of perjury at a trial, hearing,
or other proceeding, or in a deposition . . . .” The Advisory
7
Note to subsection (d)(1)(A) explicitly states that such prior
testimony is admissible as substantive evidence, not merely to
impeach. Accordingly, Edmond’s statement of January 12, 2006 was
rightly admitted as substantive evidence, and we find no error.
2. Did the district court err by declaring Edmond a hostile
witness?
Walker argues that the court erred in declaring Edmond a
hostile witness. Decisions regarding the mode and order of
interrogating witnesses, and the use of leading questions, is
committed to the discretion of the trial judge by FED. R. EVID.
611. “The matter clearly falls within the area of control by the
judge over the mode and order of interrogation and presentation
and accordingly is phrased in words of suggestion rather than
command.” FED. R. EVID. 611(c) advisory committee’s note.
Walker’s mistakenly suggests that a party cannot have its
own witness declared hostile unless the party is “surprised” by
that witnesses testimony at trial. This used to be the law in
this Circuit. See United States v. Johnson, 427 F.2d 957, 960–61
(5th Cir. 1970) (holding that to impeach one’s own witness, it is
“fundamental . . . that the party offering the witness be really
surprised at his testimony”) (internal quotation omitted).
However, the Federal Rules of Evidence, which postdate Johnson,
did away with the surprise requirement in the federal courts.
See FED. R. EVID. 607; see also United States v. Dennis, 625 F.2d
782, 795 n.6 (8th Cir. 1980) (explaining transition from common
8
law to Federal Rules, and resulting abandonment of surprise
requirement); United States v. Palacios, 556 F.2d 1359, 1363 (5th
Cir. 1977) (same).
3. Did the district court err by allowing the government to
impeach Edmond with a prior consistent statement never
disclosed to Nelson’s counsel?
Nelson’s cross-examination of Edmond attempted to show that
Edmond had recently fabricated the story of a group meeting at
which she, Collins, Nelson and Walker agreed to kill Reed. The
theory was that she had invented the tale to curry favor with the
government once the court rejected her initial attempt to plead
guilty to conversion on April 7, 2003. Accordingly, Nelson’s
counsel tried to show that, prior to that plea attempt, Edmond
had never mentioned a meeting at which the conspirators decided
to kill Reed. Unfortunately for Nelson, it appears that Edmond
had mentioned such a conversation previously, during a meeting
with her lawyers and their investigator. Once the cross-
examination was complete, the prosecutor asked Edmond about that
prior statement to rebut the implied charge of recent
fabrication. Nelson now complains that the introduction of this
evidence was error because the government had not previously
notified Nelson of this prior statement.
Once again, defense counsel failed to object to the
statement’s introduction, so we review for plain error only. See
FED. R. CRIM. P. 52(b). We find that this argument has no merit.
9
First, Edmond denied making the prior statements on re-direct,
and the prior statements were not introduced into evidence, so
there was no prejudice to Nelson. The only mention of the prior
statement was by the prosecutor, which is not evidence. Second,
Nelson cites no law indicating when, if ever, a prosecutor must
turn over a prior consistent statement that it does not (and
cannot) use as part of its case-in-chief, and we see no reason to
impose such a requirement in this instance.
B. ADDITIONAL EVIDENTIARY RULINGS
1. Should Nelson’s statement to the FBI have been
suppressed?
Nelson made statements to an FBI agent on April 11, 2003.
Knowing that the government would seek to introduce those
statements at trial, Nelson filed a motion to suppress, arguing
that the statements were obtained in violation of her rights
under the Fifth and Sixth Amendments. The district court
conducted a pre-trial suppression hearing and denied Nelson’s
motion. On appeal, Nelson renews her claim that the statements
were illegally obtained and should have been suppressed.
Unfortunately, Nelson did not provide us with the record of the
suppression hearing, nor did she cite to any portion thereof, so
she has apparently forfeited this claim. See United States v.
O’Brien, 898 F.2d 983, 985 (5th Cir. 1990) (“It is appellant’s
responsibility to order parts of the record which he contends
contain error and his failure to do so prevents us from reviewing
10
this assignment of error.”) (citations omitted). In any case,
what we can glean from the record available to us reveals that
this claim is meritless. The agents were conducting an
investigation in its early stages, and inquired of Nelson and
Edmond, jointly and at their own residence, about their
whereabouts during the first week of April. It is plain that
neither woman was in custody at that point, nor was either woman
placed in custody as a result of the interview. The questioning
was preliminary and general in nature. Eventually the women
stated that they wanted to speak to a lawyer, at which time the
interview promptly ceased, and no further questioning was
conducted. From our vantage point, limited though it is, we see
no reason to suspect that Nelson’s rights were violated, nor that
suppression was warranted.
2. Did the district court err by admitting the “to
whom it may concern” letter from the Poorman-Douglas
file?
The government sought to introduce a letter from Clovis Reed
to the Poorman-Douglas Corporation, administrator of the Black
Farmers’ settlement. Nelson objected that the letter was
hearsay, and the government argued that the letter was admissible
as a business record under FED. R. EVID. 803(6), and also that it
was admissible under the forfeiture-by-wrongdoing provisions of
FED. R. EVID. 804(b)(6). Nelson says that the court used the
latter basis to admit the letter, but required proof of
wrongdoing by a preponderance, rather than by clear and
11
convincing evidence. In fact, the court did not state
specifically the basis for admitting the letter, but in any case
the preponderance standard is the correct one. Nelson’s
authority to the contrary, United States v. Thevis, 665 F.2d 616,
631 (5th Cir. 1982), was overruled by FED. R. EVID. 804(b)(6), so
now only proof by a preponderance is required.2 In any case,
Nelson makes absolutely no mention of any prejudice that might
have resulted from the introduction of the letter. Accordingly,
we need not consider her argument further.
3. Did the district court violate Nelson’s rights
under the Confrontation Clause by limiting Nelson’s
cross-examination of three government witnesses?
In two instances, Nelson was prohibited from offering her
exhibits or pursuing her line of questioning because she sought
to elicit expert testimony from witnesses who had not been
certified as such. In neither case did Nelson then seek to
certify the witnesses as experts. Nelson also complains that she
was not allowed to introduce a map of cellular towers during her
cross-examination of Scott Baxter, an expert witness on cellular
technology. Nelson challenges these three rulings. We note that
2
This is true so long as the objection is rooted in the
Federal Rules of Evidence and not the Confrontation Clause. The
standard of proof required for a Confrontation challenge may well
be higher. See Davis v. Washington, 547 U.S. __, 126 S.Ct. 2266,
2280 (2006) (distinguishing between forfeiture on evidentiary and
constitutional grounds, and taking “no position on the standards
necessary to demonstrate such forfeiture” when constitutional
concerns exist).
12
although she mentions the Confrontation Clause in her brief, her
argument is evidentiary, not constitutional, in nature.
Evidentiary rulings of this sort are reviewed for abuse of
discretion. United States v. Davis, 393 F.3d 540, 548 (5th Cir.
2004) (“[A] judge’s discretionary authority to limit the scope of
cross-examination comes into play only after the defendant has
been permitted . . . sufficient cross-examination to satisfy the
Sixth Amendment.”) (citations omitted). To demonstrate an abuse
of discretion, the defendant must show that the court’s
limitation was clearly prejudicial. Id. (citation omitted).
Nelson has made virtually no effort to illustrate any prejudice
that resulted from these rulings, and her argument as to the
relevance of the proffered exhibit is not persuasive. It is
completely unclear how the prohibited questions and exhibit would
have helped her case. The district court was well within its
discretion to rule as it did.
4. Did the district court err by excluding the
transcript of Nelson’s earlier plea hearing?
Nelson wanted to introduce the transcript of her April 7,
2003 plea hearing, at which she attempted to plead guilty to
theft of Reed’s check. Nelson wanted to admit the evidence to
show that Nelson was willing to plead guilty to the very offense
for which Reed’s testimony would have incriminated her, and thus
that Nelson had no motive to kill Reed. The court was reluctant
to admit the testimony for fear that it was being offered to show
13
that Nelson intended to plead guilty. Nelson’s intent, the judge
said, was a fact question for the jury. Instead, the court
suggested that the parties stipulate to the fact that a hearing
occurred, the purpose of which was for Nelson to plead guilty,
but that the court did not accept the guilty plea. The parties
agreed to this stipulation, and thus the defense had its evidence
that Nelson attempted to plead guilty. In light of this
resolution, we see no way in which Nelson was prejudiced by the
court’s decision not to admit the actual transcript, and Nelson
has failed to show otherwise.
5. Did the district court err in permitting the
government to offer a “showing” of Joe Collins in the
courtroom with no opportunity for cross-examination?
During the testimony of Levon Edmond, the government asked
permission to bring Joe Collins into the courtroom for a showing
and an identification. The court agreed. Neither party made a
contemporaneous objection. The government asked Edmond to
identify Collins a single time, and then said, “That’s all I
need, your honor.” The government apparently wished to use
Collins’ physical appearance as evidence that he was not strong
enough to kill Reed and transport her body by himself, so he must
have had help.
During Nelson’s cross-examination of Edmond, Walker moved
for a mistrial based upon Collins’ appearance in the courtroom.
Walker argued that it was “nonverbal testimony to associate the
14
defendant, Roosevelt Walker, to Joe Collins to attempt to
corroborate the statements of the witness, Levon Edmond.” Nelson
joined in the motion for a mistrial. The court responded:
I don’t understand the thrust of the motion. The
government asked permission to bring Joe Collins into the
courtroom, which I did. He came in. He was dressed in
a pair of pants and what looks like a pullover. And he
did nothing except stand there as he was identified by
the witness. The court discerns nothing about his
appearance that would have visited any prejudice upon the
defendants. And, therefore, the motion is denied.
On appeal, neither Walker nor Nelson have cited a single case,
statute, or other legal basis for the proposition that the
showing was error, and we can find none. This argument must
fail.
6. Did the district court err by precluding Roosevelt
Walker from introducing various pieces of evidence
related to his defense theory?
Walker’s main defense theory was that Joe Collins acted
alone in killing Reed. Toward that end, Walker sought to call
two witnesses, Fannie Jones and Trudy Berry, who would testify
from personal experience about Collins’ temper, character for
violence, and prior possession of a gun. The district court
considered the proffered evidence but ruled it irrelevant to the
question of whether or not Walker and Nelson were guilty. We
agree. The fact that Collins has a history of violence does not
make it more or less likely that Nelson and Walker might have
been involved in the crime as well. In any case, the court
considered the matter at length, offered defense counsel ample
15
opportunity to present its arguments, and ultimately ruled that
the evidence was not relevant. This was not an abuse of
discretion.
C. NELSON’S REMAINING ARGUMENTS
1. Is the obstruction statute, 18 U.S.C. § 1512(c)(2),
unconstitutionally vague and overbroad?3
Nelson argues that the obstruction statute under which she
was convicted, 18 U.S.C. § 1512(c), is unconstitutionally vague
and overbroad. She raises this argument for the first time on
appeal, and provides no authority for this view, save a general
citation to Wood v. Georgia, 370 U.S. 375 (1962), a wholly
inapposite Supreme Court case that says nothing whatsoever about
vagueness or overbreadth. Nelson’s argument is unavailing and
rejected.
2. Did the government prove all of the elements of
bank fraud under 18 U.S.C. § 1344(2)?
Nelson argues that the government failed to prove all the
elements of bank fraud under 18 U.S.C. § 1344(2), and seems to
think that the government was trying to prove the elements of
another statute, 18 U.S.C. § 1014, instead. The government
responds that it did prove all of the elements of § 1344.4 This
3
In her brief, Nelson erroneously attacks “18 U.S.C. §
1412(c)(2),” which does not exist. We assume she meant to attack
§ 1512(c)(2).
4
18 U.S.C. § 1344 reads: “Whoever knowingly executes, or
attempts to execute, a scheme or artifice—
(1) to defraud a financial institution; or
16
point of error therefore amounts to a sufficiency of the evidence
challenge with regard to the bank fraud conviction. In
considering sufficiency challenges, this Court “must interpret
the evidence in the light most favorable to the government.”
United States v. Stephens, 779 F.2d 232, 235 (5th Cir. 1985)
(citation omitted). The conviction must be sustained if “a
reasonable trier of fact could find that the evidence established
guilt beyond a reasonable doubt.” Id. (internal quotation
omitted).
18 U.S.C. § 1344 exists to protect financial institutions
from fraud, or, more accurately, to protect the government that
insures the deposits at those financial institutions. Therefore,
to secure a conviction under that statute, it is not enough to
show that the defendant defrauded another person, say, by
depositing that person’s funds into the wrong bank account.
Rather, the government must show that the defendant defrauded or
intended to defraud a financial institution. See United States
v. Laljie, 184 F.3d 180, 189–90 (2nd Cir. 1999); United States v.
Loeffel, 172 Fed.Appx. 612, 618–19 (5th Cir. 2006) (unpublished
(2) to obtain any of the moneys, funds, credits, assets,
securities, or other property owned by, or under the
custody or control of, a financial institution, by means
of false or fraudulent pretenses, representation, or
promises;
shall be fined not more than $1,000,000 or imprisoned not more than
30 years, or both.”
17
opinion). That is, the financial institution must bear the risk
of loss.
The issue, then, is whether a reasonable trier of fact could
conclude that Nelson’s actions knowingly subjected Bank Plus, and
not merely Clovis Reed, to a risk of loss. If so, the conviction
should stand. At trial, the government introduced a copy of the
$50,000 check, made out to Clovis Reed, which Edmond and Nelson
sought to deposit into Edmond’s account at Bank Plus.5 The
government also introduced a letter from Fleet National Bank to
Bank Plus, stating that the $50,000 deposit was fraudulent, and
demanding that Bank Plus return the funds. Lucia Heath, a vice-
president at Bank of America (formerly Fleet National Bank),
testified to that effect and explained the letter to the jury.
By the time Bank Plus could have returned the funds, Nelson and
Edmond had already withdrawn them from the account. On this
evidence, a reasonable trier of fact could have found that Nelson
knowingly subjected Bank Plus, and not merely Clovis Reed, to a
risk of loss. Stephens, 779 F.2d at 235.
3. Did the district court err by refusing to sever the
trials of Nelson and Walker?
FED. R. CRIM. P. 8(b) authorizes joinder of defendants “if
they are alleged to have participated in the same act or
transaction, or in the same series of acts or transactions
5
Bank Plus was insured by FDIC at the time the check was
stolen.
18
constituting an offense or offenses.” “If defendants have been
properly joined, the district court should grant a severance only
if 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.”
United States v. Bermea, 30 F.3d 1539, 1572 (5th Cir. 1994).
Denial of a motion for severance is reviewed for abuse of
discretion. United States v. Mulderig, 120 F.3d 534, 541 (5th
Cir. 1997). We have considered Nelson’s argument for severance
and find it unavailing. She claims that she was prejudiced by
the joint trial because much of the government’s evidence was
directed against Walker individually. She offers no specific
reasons why severance was required in this case, and fails to
illustrate any prejudice that resulted to her. We find no abuse
of discretion.
D. WALKER’S REMAINING ARGUMENT: Did the district judge
impermissibly focus the jury on conviction while explaining
the law of conspiracy?
During deliberations, the jury sent a question to the court
requesting an explanation of the law on conspiracy. The court
called the jury in and explained the law using language that the
parties had previously agreed upon. The court then elaborated:
So if you are persuaded that there was no conspiracy to
kill Clovis Reed, you must find the defendants not guilty
of this Count 1. If you were to find that there was a
conspiracy between two or more persons to kill Clovis
Reed as charged in the indictment, but that a defendant
did not join that conspiracy, you have to find the
19
defendant not guilty. . . .
Walker hangs his hat entirely on the court’s use of the word
“persuaded,” which he says impermissibly shifted the government’s
burden of persuasion onto the defendants. Walker reads too much
into the court’s isolated use of this word in the course of a
series of instructions. “The correct standard of review to be
applied to challenges to jury instructions is whether the court’s
charge, as a whole, is a correct statement of the law and whether
it clearly instructs jurors as to the principles of law
applicable to the factual issues confronting them.” United
States v. August, 835 F.2d 76, 77 (5th Cir. 1987) (citations
omitted). It is undisputed that the judge gave the standard
instruction on the burden of proof, which places it squarely on
the government. It would be an inversion of our rule to ignore
the full instruction and instead view one small snippet of it in
isolation, and we decline the invitation to do so. Taken “as a
whole,” we are satisfied that the district court correctly
instructed the jurors on the law.
E. SUFFICIENCY OF THE EVIDENCE
The lone remaining argument from both parties attacks the
sufficiency of the evidence as a whole. Neither party points to
anything specific that was lacking from the government’s case.
Rather, the parties make conclusory allegations that the evidence
against them was merely circumstantial, and that the testimony of
20
the government’s key witness, Levon Edmond, is too unreliable to
be believed. However, as noted earlier, when this Court
considers sufficiency challenges, it “must interpret the evidence
in the light most favorable to the government.” United States v.
Stephens, 779 F.2d 232, 235 (5th Cir. 1985) (citation omitted).
The conviction must be sustained if “a reasonable trier of fact
could find that the evidence established guilt beyond a
reasonable doubt.” Id. (internal quotation omitted). Given this
standard, we find that the evidence was sufficient to validate
the jury’s verdict. Neither Nelson nor Walker have pointed to
anything that would indicate otherwise, except for the
inconsistencies in Edmond’s testimony over time. While we agree
that Edmond’s credibility is suspect, the jury “retains the sole
authority to ‘weigh conflicting evidence and evaluate the
credibility of the witnesses.’” United States v. Holmes, 406
F.3d 337, 351 (5th Cir. 2005) (citation omitted) (emphasis
added). We see no reason to disturb their finding on that basis.
III. CONCLUSION
The convictions of Kathleen Nelson and Roosevelt Walker are
hereby AFFIRMED.
21