          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                   May 13, 2009
                                 No. 08-10872
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

JAMES R HAMILTON

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                              3:07-CR-370-ALL


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      James R. Hamilton appeals his jury trial conviction for theft of mail
matter by an officer or employee in violation of 18 U.S.C. § 1709. Hamilton
argues that the district court erred in overruling his objection to the prosecutor’s
statement during closing argument that the mail in question was delivered by
a mail carrier to Hamilton in the Mesquite, Texas post office on February 17. He
argues that the prosecutor’s statement was improper because there was no



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                    No. 08-10872

evidence introduced at trial to establish that the mail was delivered to him on
that date. He also argues that the district court’s error affected his substantial
rights.
      In closing arguments, a prosecutor may only discuss properly admitted
evidence and any reasonable inferences or conclusions that can be drawn from
that evidence.1 “A prosecutor may not directly refer to or even allude to evidence
that was not adduced at trial.” 2
      We review a claim that a prosecutor made an improper argument in two
steps.3    First, we determine whether the prosecutor’s remark was “legally
improper.”4 If the remark was legally improper, we determine whether the
remark “prejudiced the defendant’s substantive rights.” 5 “The determinative
question is whether the prosecutor’s remarks cast serious doubt on the
correctness of the jury’s verdict.” 6 To determine whether to reverse a conviction
for improper prosecutorial argument, we consider “(1) the magnitude of the
prejudicial effect of the prosecutor’s remarks, (2) the efficacy of any cautionary
instruction by the judge, and (3) the strength of the evidence supporting the
conviction.”7




      1
          United States v. Mendoza, 522 F.3d 482, 491 (5th Cir. 2008).
      2
          Id. (quoting United States v. Murrah, 888 F.2d 24, 26 (5th Cir. 1989)).
      3
          Mendoza, 522 F.3d at 491.
      4
          Id.
      5
          Id. (citing United States v. Morganfield, 501 F.3d 453, 467 (5th Cir.
2007)).
      6
        United States v. Virgen-Moreno, 265 F.3d 276, 290 (5th Cir. 2001)
(quoting United States v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989)).
      7
       Virgen-Moreno, 265 F.3d at 290-91 (quoting United States v. Palmer, 37
F.3d 1080, 1085 (5th Cir. 1994)).

                                         2
                                 No. 08-10872

      We see no error in the court’s permitting the prosecutor to claim that the
mail in question was delivered to Hamilton on February 17, as opposed to some
other date, because this was a reasonable inference based upon the evidence
introduced at trial. Even if the comment about that date was improper, the
error did not prejudice Hamilton’s substantive rights. The jury was cautioned
before trial and in the final jury charge that the lawyers’ statements were not
evidence. Given the cautionary instructions by the court, the fact that defense
counsel made clear during his closing argument that the February 17 date had
not been established by the evidence, and the strength of the evidence
supporting Hamilton’s conviction, any error by the prosecutor does not cast
serious doubt on the correctness of the jury’s verdict.
      AFFIRMED.




                                        3
