                                                     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this opinion should not be published and is not precedent except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
