                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                                                                      June 14, 2007
                          FOR THE FIFTH CIRCUIT
                          _____________________                  Charles R. Fulbruge III
                                                                         Clerk
                               No. 06-30124
                          _____________________

UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee,

                                   versus

LOVELLE LANG; JAYSON LEE,

                                         Defendants - Appellants.
_________________________________________________________________

          Appeals from the United States District Court
              for the Eastern District of Louisiana
                      USDC No. 2:04-CR-11-2
_________________________________________________________________

Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:1

       In this appeal, Lovelle Lang and Jayson Lee contest their

convictions     for   conspiracy   to    commit   carjacking   and    firearms

offenses and for substantive offenses of carjacking and firearm

crimes.      We affirm their convictions in all respects.

                                        I.

       These defendants and others went on a crime spree in the New

Orleans area in the fall of 2003.            As far as the record reflects,

the rampage began on October 30, 2003, when Lang and an accomplice2

       1
       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this opinion should not be published and is not precedent except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.
       2
           The evidence indicated that the accomplice was not Jayson
Lee.
came upon Thumala Mansour and her mother, Nihaya Mansour, in the

4200 block of Cleveland Avenue in New Orleans.    At gunpoint, Lang

and the accomplice demanded money, stole the Mansours’ purses and

took Thumala’s 2000 Pontiac Grand Am.      When the car was later

discovered abandoned not far from the site of the carjacking,

police found a Nextel two-way radio in the car.          They later

determined that the radio had been issued to Lang by his employer,

TCI Trucking Company.

     The next incident happened just after midnight on November 11,

when Lee and several others3 invaded a house at 526 Chapelle Street

in New Orleans.     Joshua Katz, his fiancée Kay Mary, and her 13-

year-old son Madison lived at that address.   They were accosted as

they got home from a movie.      Kay and Madison were able to get

inside the house and lock the door, but Lee and his accomplices

grabbed Katz and held him at gunpoint.   The criminals demanded that

Kay open the door or they would shoot Katz.    She complied and the

jury found that Lee and an accomplice entered the home, ransacked

it in search of valuables and eventually departed with a Sony

PlayStation and the victims’ Lincoln Continental.       The car was

later abandoned on the front lawn.

     Approximately an hour later, at about 1:30 a.m., airline pilot

West Warren arrived at home at 323 East William David Parkway in

Metairie, Louisiana, in his 1999 Honda Accord.     At gunpoint, Lee


     3
         Lang was acquitted of involvement in this crime.

                                  2
demanded Warren’s keys and asked who was inside his house.       After

being told that Warren’s wife and children were asleep there, Lee

forced Warren to open the door.   He and another accomplice4 entered

the house, took Warren’s wife’s purse and eventually left in the

Accord.

     Some 20 hours later, between 10:00 and 11:00 p.m. on the night

of November 11, Lucius Thompson was carjacked at gunpoint in the

Lakeside neighborhood of New Orleans.   Two gunmen he identified at

trial as Lang and Lee forced him into the backseat of his car, a

1996 Nissan Maxima. They eventually picked up two more accomplices

and at some point the carjackers forced Thompson to get into the

trunk.

     The carjackers continued driving and, at approximately 11:30

p.m., accosted Christy Ruffin and Emile Jones, who were parked in

a Mercury Mountaineer.     After being forced to remove his pants,

Jones fled from the carjackers and was successful in getting a Ford

Mustang driven by Brandi Clavo to stop at a nearby intersection.

To Clavo’s surprise, Jones opened the back door, jumped into the

car and asked Clavo to take him to get help.          Meanwhile the

carjackers in Thompson’s Maxima pursued Jones and rammed the

recently-stolen Maxima into Clavo’s Mustang.    A man identified by

Clavo as Lee jumped out of the Maxima and began firing a semi-

automatic pistol at Clavo, striking the car several times.       Clavo


     4
         Lang was also acquitted of involvement in this crime.

                                  3
was   lightly    injured     by    glass   and    was    grazed       by   one    bullet.

Notwithstanding their fear and the damaged state of the vehicle,

Clavo and her passengers were soon able to escape to a nearby

police station.

      A short time later the Maxima was driven to the vicinity of a

house located at 3666 Metropolitan Street in New Orleans East.

Thompson remained stuck in the trunk.                  Lucille Dace, driving her

car in this area en route to visit her niece Keva Page, was blocked

at the corner of Metropolitan and Elder Streets by the Maxima.

Dace testified that she believed that those in the Maxima were

attempting      to   carjack      her,   but    she    managed    to       escape,   and

telephoned her sister, Page’s mother, from her cell phone.                         Page’s

mother called to warn Page, who then called the police.

      Police officers responded very quickly and drove through the

area but apparently stopped at an incorrect house.                    Page, who lived

directly across the street from 3666 Metropolitan Street, testified

that she was outside when the police came through and that she saw

someone   sitting      on   the    porch   of    the    house    at    that      address.

Believing the person to be a juvenile neighbor she knew as Travis,

she said hello as she walked back to her house across the street.5

Page then saw the Maxima pull up in front of the house at 3666

Metropolitan.        She testified that Lee was the only one in the car


      5
       They had a brief conversation during which Page established
that the man was not Travis. Page later identified the man on the
porch as Lang.

                                           4
as it arrived.      He got out and was joined on the porch by four

other young black men, all of whom subsequently entered the house.

     The New Orleans police returned soon thereafter.          They first

noticed that someone inside the Maxima’s trunk was trying to reach

into the backseat in an attempt to free himself.       Officers Desmond

Julian and Devin Joseph helped Lucius Thompson from the car.

Having   received    an   update   from   their   dispatcher   that   the

perpetrators of the attempted Dace carjacking had entered 3666

Metropolitan, Officers Julian and Joseph then approached the house

at that address.

     Officer Julian testified that an older man and woman were

outside and he asked them who was inside the house.            The woman

stated that her 16-year-old son was inside.        She called to him to

come out, which he did, and Officer Joseph took custody of the

juvenile and patted him down for weapons.         At that time, Officer

Julian heard a noise from the side of the house and went to a side

door. He spotted another juvenile male at that door, called to him

to come outside, and then passed him to Officer Joseph’s custody.

Officer Julian testified that from his vantage point at the side

door he then saw another black male apparently asleep on a sofa.

Calling to the man from the doorway, Officer Julian began to enter.

The man on the sofa did not move or respond.         As Officer Julian

crossed the threshold, a red laser sight was pointed at his eyes by

a second man, crouched down to his right near the doorway.        Officer

Julian testified that the suspect said that he was going to kill

                                    5
him.    Julian stated that the suspect, whom he identified at trial

as Lang, tussled with him for the gun with the red laser sight.   At

this point the man on the sofa got up and shot Officer Julian, who

let go of Lang and attempted a tactical retreat through the side

door.    Lang headed for the back of the house, stopping to fire at

and hit Officer Julian in the leg.    Officer Julian fired his weapon

several times, striking and killing the man on the sofa, later

identified as Oscar Martin.

       Officer Joseph was able to help his wounded partner to the

street. Other officers arrived as backup and they eventually found

Lee hiding under a bed in the house and took him into custody.

Lang had escaped via the back door.

       On November 17, at about 8:00 in the evening, Lang carjacked

Jose Hursz’s Dodge Ram truck at gunpoint at a service station on

Chef Menteur Highway in New Orleans East.   Hursz testified that the

gun had a red laser sight which was shining in his left eye when he

was first approached.    Hursz instinctively attempted to turn his

head to see his attacker but at that moment was shot in the face.

He did testify that in the brief time he was able to perceive his

assailant’s face, he could discern that the gunman was a black male

with braided hair and narrow-shaped eyes.      Lang fled in Hursz’s

Ram.    He was captured in the truck after a high-speed chase in

Baton Rouge, Louisiana, on December 2.      The police found in his

possession the same 9-mm. handgun with red laser sight which had



                                  6
been used to shoot Officer Julian and Brandi Clavo’s Mustang on

November 11.

                               II.

     On April 29, 2004, a grand jury in New Orleans returned a

superseding indictment against Lee and Lang.   The first two counts

respectively charged both men with entering into a wide-ranging

conspiracy to commit carjacking crimes and to use firearms during

crimes of violence.   Lang was also charged with six particular

counts of carjacking, six associated counts of using a firearm

during a crime of violence and one count of being a felon in

possession of a firearm.   Lee was charged with three particular

carjacking counts, three associated counts of using a firearm

during a crime of violence and one count of being a felon in

possession of a firearm.   One additional count against Lang was

dismissed as duplicative before trial.

     The defendants’ joint trial began on March 7, 2005 and lasted

six days.   In a verdict returned on March 14, the jury acquitted

Lang on counts 3-4 and 7-10.   It found him guilty of counts 1-2

(“the conspiracy counts”), counts 5-6 (“the Mansour carjacking”),

counts 11-12 (“the Thompson carjacking”), counts 13-14 (“the Hursz

carjacking”) and count 15 (firearm possession by a felon).    Lee,

meanwhile, was convicted on all counts naming him, which included

the conspiracy counts, counts 7-8 (“the Katz/Mary carjacking”),

counts 9-10 (“the Warren carjacking”), the Thompson carjacking and

count 16 (firearm possession by a felon).

                                7
     At    a    sentencing   hearing    on    January   25,    2006,       Lang   was

sentenced to a term of 848 months, over 70 years.                           Lee was

sentenced on February 8 to 835 months in prison.                    Each defendant

timely appealed to this court.

                                       III.

     Lang does not contest his convictions and sentences on the

conspiracy      counts,   the   Mansour       carjacking      and    the    firearm

possession count and instead challenges those for the Thompson

carjacking and the Hursz carjacking.           We address his two points of

error in turn.

                                        A.

     Lang argues that his convictions for crimes associated with

the Thompson carjacking are infirm because the trial court allowed

Thompson to make an in-court identification of Lang as one of his

assailants.       Lang argues that because Thompson was apparently

unable to identify him for 16 months between the commission of the

crimes    and   his   appearance   as    a    trial   witness,       his   in-court

identification was unduly suggestive because Lang was present at

the defense table and thus it was obvious to Thompson whom he

should identify. He goes on to contend that this unduly suggestive

identification should not have been admitted because under the

particular facts of this case, there was a substantial risk of

misidentification.

                                        1.



                                        8
      The parties first dispute what standard of review applies to

this issue.     Lang argues that we should apply our normal standard

on evidentiary rulings and review for abuse of discretion.                United

States    v.   Rogers,   126   F.3d   655,   657   (5th   Cir.   1997).     The

government contends that because Lang did not object to Thompson’s

testimony at trial, we should review only for plain error.                 Lang

appears to argue both that Lee’s counsel contemporaneously objected

to   Thompson’s    testimony    and   that    he   himself    had   previously

challenged several in-court identifications.              In the alternative,

Lang argues that even if he did not object, it should not matter

because an objection would have been futile since the district

court had already overruled Lang’s objections to various pre-trial

identifications and to previous eyewitnesses’ identifications of

the defendants during trial testimony.

      From our review of the record, we are persuaded that when

Thompson was asked at trial if he could point out his attackers to

the jury, neither Lang nor Lee objected to the admissibility of his

identifications.6    It appears from the prosecutor’s use of singular

      6
       At a bench conference called at that moment, Lee’s counsel
first objected on the ground that he had not been previously aware
that Thompson was able to identify anyone. Lang’s counsel said
nothing. The relevant exchange was as follows:

PROSECUTOR: Did [the police] ask you to identify anybody [outside
3666 Metropolitan Avenue]?
THOMPSON: Yes.
PROSECUTOR: Were you able to identify anybody?
THOMPSON: Yes.
PROSECUTOR: And do you see that person in the courtroom today?
THOMPSON: Yes.

                                       9
nouns and pronouns that the government may have been referring only

to Lee when it asked the objected-to question.   Lang’s counsel may

also have assumed as much. Yet, when Thompson finally answered the

question, he specifically identified both Lee and Lang.   There is

no reason why Lang’s counsel could not have objected when Thompson

identified Lang and stated whatever reasons he had for such an

objection.   In addition, it is apparent that there would have been

nothing futile about objecting at that time. Although the district



PROSECUTOR: Could you point him out?
LEE’S COUNSEL: Object, Your Honor. May we approach?
THE COURT: Yes.
(Conference at the bench.)
LEE’S COUNSEL: Your Honor, I wanted you to be aware of the
information I had that he couldn’t identify anyone.
PROSECUTOR: He may identify him right now.
LEE’S COUNSEL: He said he wasn’t able to identify someone.
PROSECUTOR: I will rephrase the question.
THE COURT: I didn’t find the question itself objectionable.
LEE’S COUNSEL: I was concerned if he identified someone and I
didn’t have it, but he didn’t. Well I just want to make sure.
THE COURT: Okay.
(Open court.)
THE COURT: Go ahead with the question.
PROSECUTOR: Mr. Thompson, do you see any of the people that
carjacked you that night in the courtroom today?
THOMPSON: Yes.
PROSECUTOR: Could you point him out, please, and describe what he’s
wearing?
THOMPSON: The one with the white shirt on right here and the one
with the white shirt over there.
PROSECUTOR: You say, “white shirt?”
THOMPSON: Right there.
PROSECUTOR: Do they have ties on?
THOMPSON: Pardon me?
PROSECUTOR: Do they have ties or no ties?
THOMPSON: No ties.
PROSECUTOR: Your honor, may the record reflect he’s identified Mr.
Lee and Mr. Lang.
THE COURT: He has.

                                10
court had allowed other witnesses to identify the defendants over

other objections, Thompson was not mentioned in Lang’s pre-trial

suppression   motion.    Furthermore,   there    was   absolutely   no

“intimation by the judge that no objection would be heard,” as

required by our case law to establish a futile objection.7      Taita

Chemical Co., Ltd. v. Westlake Styrene, LP, 351 F.3d 663, 668 (5th

Cir. 2003).   Thus we agree with the government that our review in

this case is for plain error.

      Our review for plain error proceeds in four steps.       United

States v. Avants, 278 F.3d 510, 521 (5th Cir. 2002) (citing United

States v. Olano, 507 U.S. 725, 730-36 (1993)).

           First, we determine whether the district
           court’s conclusion was erroneous. Second, if
           the court erred, we determine if the error was
           clear and obvious under the law as it exists
           at the time of the appeal.          Third, we
           determine if the error affects substantial
           rights. Finally, if all of these conditions
           are satisfied, we have discretion to reverse
           the trial court’s judgment on a forfeited
           error if we conclude that the error seriously
           affects the fairness, integrity or public
           reputation of judicial proceedings.

Id.   (citations and quotation marks omitted).   We thus proceed now

to consider whether it was error for the district court to allow

Thompson to identify Lang.

                                2.



      7
       On the contrary, the district court consistently and
politely allowed the defendants’ counsel to re-urge objections to
prior rulings for the record.

                                11
      An argument that identification evidence is allegedly suspect

and   should    have    been      suppressed     requires     us    to    answer     two

questions:     whether the identification procedure was impermissibly

suggestive     and,    if   so,     “whether    the    procedure     posed    a    ‘very

substantial likelihood of irreparable misidentification.’” Rogers,

126 F.3d at 658 (quoting United States v. Sanchez, 988 F.2d 1384,

1389 (5th Cir. 1993)).              If we determine that such a likelihood

existed, the      admission       of    identification      evidence      constitutes

error.   Id.

      Under our precedent, “it is obviously suggestive to ask a

witness to identify a perpetrator in the courtroom when it is clear

who is the defendant.”              Rogers, 126 F.3d at 658.             The test for

whether an identification posed a very substantial likelihood of

misidentification is governed by the Supreme Court’s decision in

Neil v. Biggers, 409 U.S. 188, 199 (1972).                         There the Court

outlined five factors for our consideration: (1) the opportunity of

the witness to observe the criminal at the time of the crime; (2)

the   witness’s    degree      of      attention;     (3)   the    accuracy   of     the

witness’s prior description; (4) the witness’s level of certainty;

and (5) the time between the crime and the identification.                    Rogers,

126 F.3d at 658.

      Lang argues that four of these factors support his view that

Thompson’s identification should have been suppressed.                            On the

first, he contends that Thompson had a severely limited opportunity

to observe the person he identified as Lang because it was dark, he

                                           12
was accosted by two men at gunpoint (and the guns naturally drew

his attention), he was told to keep his head down while in the back

seat of the car and he spent the bulk of the time with the

perpetrators locked in the Maxima’s trunk.    It is true that it was

night and Thompson did not have more than a few seconds to look at

the gunmen’s faces.      Still, this factor does not weigh in Lang’s

favor because a few seconds would be ample for Thompson to form a

mental image of Lang.

     On the second factor, Lang argues that Thompson’s attention

was diverted. Lang points out that Thompson was frightened for his

life and that he had to get out of the driver’s seat and into the

back. As in Rogers, we agree that while “entirely reasonable under

the circumstances,” profound fear may make a misidentification more

likely.   126 F.3d at 659.        Again, however, there is nothing

inconsistent between these facts and Thompson having trained his

attention on, and formed a mental image of, Lang during the first

few seconds of their encounter.

     With regard to the third Biggers factor, consistency, Lang

points to inconsistencies in Thompson’s trial testimony because

there is nothing in the record concerning Thompson’s pre-trial

descriptions of Lang.8    Although he gave police some description of


     8
       Even if we did agree with Lang that Thompson was not
entirely consistent on the witness stand in his descriptions of
Lang’s hair, skin color and height, the evaluation of this type of
inconsistency is the province of the jury and is not relevant to
the prior consistency factor discussed in Biggers.

                                   13
the carjackers, Thompson apparently said he probably could not

identify them and thus was never asked to review a photographic

lineup. (He was present at a show-up identification of Lee at 3666

Metropolitan Street but did not tell police that he was certain

that this was one of his assailants).            This factor is therefore

inapplicable in this case.      See Rogers, 126 F.3d at 659.

     On   the   fourth   Biggers    factor,   Lang   concedes    Thompson’s

certainty and instead argues that certainty is not particularly

revealing, citing our conclusion in Rogers that certainty did not

outweigh the other factors since “[e]ven the best intentioned among

us cannot be sure that our recollection is not influenced by the

fact that we are looking at a person we know the Government has

charged with a crime.”     126 F.3d at 659.       Whatever this factor is

worth, it is apparent that Thompson was certain of Lang’s identity

during his trial testimony.

     Lang contends that the fifth factor also indicates that the

identification was unreliable since there were 16 months between

the carjacking and Thompson’s appearance at trial.         This length of

time does not mean the identification is per se unreliable, but it

does raise a significant concern.         See Rogers, 126 F.3d at 659 (10

months between the crime and the trial identification).

     With   the   exception    of   the   time   between   the   crime   and

Thompson’s identification of Lang, none of these factors weigh

clearly in Lang’s favor.      Three have no weight or are in equipoise

and another (certainty) is conceded. Considering these factors and

                                     14
our   precedent,     although    it     is      apparent     that      Thompson’s

identification may have been impermissibly suggestive, it did not

pose a very substantial risk of misidentification.

      Furthermore, Lang was able to cross-examine Thompson in some

detail about his in-court identification, which gave the jury ample

opportunity to evaluate his credibility and thus weigh whether the

identity of Lang as one of the carjackers was proved beyond a

reasonable doubt.      That the jury acquitted him of other crimes

indicates that it was fully capable of applying this standard.                 In

sum, given our deference to the jury’s verdict and the requirement

that we view facts in the light most favorable to that verdict,

United States v. Hicks, 389 F.3d 514, 533 (5th Cir. 2004), we do

not   see   any    reason   to   find      an    error     in   this     in-court

identification.

      Without needing to consider the remainder of the plain error

analysis, we thus conclude that there was no plain error in the

district court’s admission of this identification evidence and

affirm Lang’s convictions for the Thompson carjacking.

                                      B.

      Lang’s challenge to his convictions for the Hursz carjacking

is that the evidence was insufficient to support a conviction on

those counts.     More specifically, he argues that his possession of

Hursz’s car and a gun with a red laser sight are not enough to

sustain the convictions because he might have obtained them from a



                                      15
third party sometime after the assault on Hursz.                 He also claims

that he was not adequately identified by Hursz.

       Challenges to the sufficiency of the evidence require us to

ask   “whether,     after    viewing     the   evidence   in    the    light   most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.” United States v. Guidry, 456 F.3d 493, 506 (5th Cir. 2006)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in

original)).

       Lang’s argument, at bottom, is that he was not conclusively

identified by Hursz and that the remaining circumstantial evidence

(his capture in possession of the stolen car and matched gun) is

insufficient to convict beyond a reasonable doubt.               The government

responds that despite the fact the identification is not perfect,9

it    was   very   much    consistent    with   Lang   and     there   was     ample

circumstantial evidence to support the verdict beyond a reasonable

doubt.      See United States v. Ferguson, 211 F.3d 878, 884 (5th Cir.

2000).

       After a thorough review of all the evidence and testimony and

keeping in mind our duty to view the evidence in favor of the

verdict,      we   agree    with   the   government    that    Hursz’s    partial

identification, coupled with the facts that Lang was captured

       9
       Hursz       testified that in a quick glance he was able to
perceive that      his assailant was a black male with braids and narrow
shaped eyes.        He also knew that the assailant was tall enough to
reach through      the high window of his Dodge truck.

                                         16
driving Hursz’s truck and in possession of a gun with a laser sight

that matched Hursz’s description and which Lang used to shoot

Officer Julian, is more than enough to sustain the verdict.         Lang’s

convictions on counts 13 and 14 are therefore affirmed.

                                   IV.

      Jayson Lee was found guilty on all counts that related to him,

namely the conspiracy counts, the Katz/Mary, Warren and Thompson

carjackings and possession of a firearm by a felon.         He challenges

all convictions based on the following arguments: (1) that the

conspiracy counts were duplicitous and thus Lee was entitled to a

pre-trial severance; (2) that there was a fatal variance between

the   indictment   and   the   evidence   introduced   at   trial   on   the

conspiracy counts; (3) that the district court erroneously admitted

evidence of suggestive identifications; and (4) that the district

court erred in not granting Lee a mistrial based on allegedly-

inflammatory comments by the prosecutor during closing argument.10

We consider these arguments in turn.

                                    A.


      10
       We reject Lee’s argument that his due process rights were
somehow violated because his probation officer spoke to the
Assistant U.S. Attorneys and later testified at trial, because he
does not cite any authority that would prohibit the probation
officer from doing either.      From our review of the record,
moreover, it is apparent that Lee was not denied an impartial
tribunal on this or any other basis.

     We also reject Lee’s contention that the cumulative weight of
all of the errors he asserts requires reversal of his convictions
because, as explained below, we do not find any prejudicial errors.

                                    17
     Lee first argues that the conspiracy counts are duplicitous

because they lump together three separate conspiracies into one

conspiracy:   one to commit crimes prior to November 11, 2003;

another for those committed on that date; and a third for those

committed thereafter, when Lee was incarcerated.   This argument is

supported, Lee says, by the fact that the only overt acts and

charges brought against him were committed on November 11.   Thus,

Lee contends, his trial was improperly joined to that of Lang and

he should have been granted a severance and tried independently.

     Duplicity within an allegation in an indictment is a matter of

law that we review de novo, United States v. Caldwell, 302 F.3d

399, 407 (5th Cir. 2002), as long as it was raised prior to trial.

Lee did raise duplicity in a pre-trial motion.

     An indictment is duplicitous if it joins in a single count two

or more distinct offenses.   United States v. Sharpe, 193 F.3d 852,

870 (5th Cir. 1999).   Several acts may be included within the same

charge as long as those acts comprise a single scheme and the

indictment “(1) notifies the defendant adequately of the charges

against him; (2) does not subject the defendant to double jeopardy;

(3) does not permit prejudicial evidentiary rulings at trial; and

(4) does not allow the defendant to be convicted by a non-unanimous

verdict.”   Id.   “The allegation in a single count of a conspiracy

to commit multiple crimes is not duplicitous, for the conspiracy is

the crime, and that is one, however diverse its objects.”    United



                                 18
States v. Cooper, 966 F.2d 936, 939 (5th Cir. 1992) (citation and

quotation marks omitted).

     Again, Lee is challenging the way the government organized the

conspiracy counts because he contends that he was only allegedly

involved in crimes committed on November 11. The government argues

that the jury’s verdict indicates that it found a single scheme

running from October through December 2003.   It also reminds that

the district court carefully instructed the jury that “proof of

several conspiracies is not proof of the single, overall conspiracy

charged in the superseding indictment.”

     We begin by noting that Lee’s division of the crimes and overt

acts by their calendar dates is rather misleading.   Lee was alleged

to be involved in (and found guilty of) crimes committed in the

early hours of November 11 (the Katz/Mary and Warren carjackings)

and crimes perpetrated nearly a full 24 hours later (the Thompson

carjacking).   More precisely, the indictment charges five separate

outbursts of violent activity and Lee was alleged to have been

involved in two of those.   What is more, it is apparent that there

were different co-conspirators involved in the two episodes Lee

attempts to group on November 11:      the group present for the

Katz/Mary and Warren carjackings included government witness Royal

McField, who was not present for the Thompson carjacking.11



     11
        The jury also found that Lang was not guilty of the
Katz/Mary and Warren carjackings.

                                 19
     More crucial to this appeal, the conspiracy charges here meet

the test laid out in Sharpe.          See 193 F.3d at 870.              First, the

indictment listed in great detail the overt acts that made up the

conspiracy charges.      Second, the two offenses in the conspiracy

charges do not subject Lee to double jeopardy because at least one

distinct element is necessary to prove each crime.                      See United

States v. Delgado, 256 F.3d 264, 272 (5th Cir. 2001).              Third, there

were no prejudicial evidentiary rulings because the government had

every right to attempt to prove a single conspiracy and had to put

on evidence about his co-conspirators’ acts to do so. Finally, the

district court instructed the jury on the importance of unanimity,

which   itself   would   cure   any   error     even   if   the   charges      were

duplicitous.     See United States v. Correa-Ventura, 6 F.3d 1070,

1081-82 (5th Cir. 1993).

     We are thus persuaded that the conspiracy counts were not

duplicitous.     Because Lee’s arguments for improper joinder and

severance rest on this rejected foundation, we reject them as well.

                                      B.

     Lee’s    next   argument   is    closely    related    to    the    one   just

discussed.    He contends that there was a fatal variance between the

conspiracy charges in the indictment and what the evidence showed

at trial.    He bases this argument on his assertion that he was only

involved in acts that were committed on one calendar day in the

life-span of the conspiracy.



                                      20
     A variance (also called a constructive amendment of the

indictment) occurs “when the jury is permitted to convict the

defendant    upon   a   factual    basis       that   effectively     modifies   an

essential element of the crime charged.”              United States v. Robles-

Vertiz, 155 F.3d 725, 728 (5th Cir. 1998) (citation omitted).                    We

only find a variance fatal and reverse the district court where

“the trial evidence actually proved multiple conspiracies and ...

the variance affected a substantial right of the appellant.”

Sharpe, 193 F.3d at 866.        This demanding standard is all the more

stringent in this case because Lee did not renew his motion for a

judgment of acquittal under FED. R. CRIM. P. 29 at the close of his

own case.    Thus we review only for plain error.            See United States

v. Burton, 324 F.3d 768, 770 (5th Cir. 2003).             Furthermore, we will

uphold a challenge to the sufficiency of the evidence unless “the

evidence and all reasonable inferences, examined in a light most

favorable to the government, would preclude reasonable jurors from

finding a single conspiracy beyond a reasonable doubt.”                     United

States v. Morrow, 177 F.3d 272, 291 (5th Cir. 1999).

     We have noted Lee’s involvement in two separate episodes of

carjacking and violence with different participants, which is

sufficient    to    establish     that    he    was   involved   in   the   larger

conspiracy and not merely present for one isolated incident.                  Even

if we were more sympathetic to his argument, moreover, “we have

long held that when the indictment alleges the conspiracy count as

a   single    conspiracy,       but      the    government   proves      multiple

                                         21
conspiracies and defendant’s involvement in at least one of them,

then clearly there is no variance affecting that defendant’s

substantial rights.”          United States v. Faulkner, 17 F.3d 745, 762

(5th Cir. 1994) (citations and quotation marks omitted).                       In sum,

from our review of all of the evidence introduced at trial, it is

apparent that Lee has not suffered from any error, much less one

that affected his substantial rights.                     We therefore reject his

fatal variance argument.

                                            C.

     Lee’s     next        argument    is       that     impermissibly       suggestive

identification evidence was admitted in violation of his due

process rights.            He bases this argument not on the in-court

identification by Lucius Thompson and instead he challenges: (1)

lineup    procedures        that    used    a    photo    of    him   that    had   been

prominently displayed in the local media and which presented him as

the only suspect with a tattoo on his face12 and (2) the “show-up”

identifications various witnesses made of Lee immediately after he

was arrested at 3666 Metropolitan Street.

     As we have noted, whether an identification violates due

process     presents       two     questions:      whether      the   identification

procedure was impermissibly suggestive and, if so, “whether the

procedure    posed     a    very    substantial        likelihood     of   irreparable

misidentification.”              Rogers,    126    F.3d    at   658   (citation     and


     12
          Lee’s tattoo is on his cheek.

                                            22
quotation marks omitted).         Lee timely objected to the admission of

all of the admitted identification evidence and thus we review the

district court’s decision using an abuse of discretion standard.

Rogers, 126 F.3d at 657.

      Lee’s first argument is that the victims of the Katz/Mary

carjacking saw his photo in the local media before seeing the same

photo in a police lineup and that that lineup photo was the only

one of six that featured a man with a tattoo on his face.                            He

contends that these facts make their identifications of him in the

lineup   and    at    trial    unduly    suggestive.          He    argues    that    a

substantial likelihood of misidentification arises from the fact

that government witness McField testified that it was a now-

deceased co-conspirator, Stephone Washington (who had a tattoo on

his   forehead       between   his     eyes),   and     not   Lee    who     actually

perpetrated the Katz/Mary carjacking and home invasion.

      Our precedent on this issue is firmly on the side of the

government.      In Sharpe, we upheld an identification where the

witness was shown a newspaper photo of a suspect by his mother.

193 F.3d at 868.       The photo prompted the witness to call police and

report that the photo depicted the suspect he had seen on the night

the crime was committed.         Id.     We held that because the witness’s

encounter      with    the     defendant’s      photo     was      “unplanned    and

unexpected,” it was not impermissibly suggestive.                   Id.

      Here the facts are almost a perfect fit.                     Joshua Katz saw

Jayson’s Lee photo on television and suggested to Kay and Madison

                                         23
Mary that they have a look as well.   They then contacted police to

report that this was their assailant.       Everything about these

victims’ encounter with Lee’s photo in the media was “unplanned and

unexpected” and it is therefore not impermissibly suggestive.13

     Lee’s argument that the fact that the police lineup from which

numerous witnesses selected Lee contained no other photographs of

a man with a tattoo on his face makes it impermissibly suggestive

is similarly unavailing.     The government is not required to fill

a lineup with other photos of men of roughly Lee’s age, hair, and

skin tone, all of whom have tattoos on their faces.     As we have

noted, “[p]olice stations are not theatrical casting offices; a

reasonable effort to harmonize the lineup is normally all that is

required.”     Swicegood v. Alabama, 577 F.2d 1322, 1327 (5th Cir.

1978) (quoting United States v. Lewis, 547 F.2d 1030, 1035 (8th

Cir. 1976)).     Disparity in physical appearance among the lineup

photos is not enough to render an identification suggestive.    Id.

     Lee’s next argument is that the “show-up” identifications

conducted after his arrest at the house at 3666 Metropolitan Street

are impermissibly suggestive.    Police brought Brandi Clavo and at

least two others to the scene and asked them individually if they

recognized Lee, who was being held in handcuffs.



     13
       Indeed, Lee’s argument that somehow the police render such
an encounter “planned” and thereby commit a due process violation
by deliberately publishing a photograph of a criminal suspect is
hard to fathom.

                                 24
     Although we have not held “show-up” identifications of this

type to be per se suggestive, there is certainly room for concern.

The Supreme Court has noted that the “practice of showing suspects

singly to persons for the purpose of identification, and not as

part of a lineup, has been widely condemned.”    Stovall v. Denno,

388 U.S. 293, 302 (1967).   Even assuming arguendo, however, that

the “show-up” identifications here were suggestive, Lee cannot show

that there was a significant risk of misidentification under the

five Biggers factors.    Taking the most important witness as an

example, Clavo had ample opportunity to view the person who exited

the Maxima and fired repeatedly at her car from a very short

distance away. She testified that her attention was trained on his

face for several seconds before she ducked down. Although there is

no record of what Clavo said about Lee’s appearance before the

“show-up,” it is clear that she was both very certain of his

identity and that it was a very short time indeed between her first

encounter with Lee and the identification she made on Metropolitan

Street.     Thus we find no reason to believe that there was any

significant risk of misidentification.

     We therefore reject Lee’s arguments that the district court

abused its discretion by admitting the challenged identification

evidence.

                                D.

     Finally, Lee challenges the district court’s denial of his

motion for a mistrial based on the prosecutor’s statements during

                                25
closing    argument,     alleging     that     these   statements    improperly

appealed to the jury as the conscience of the community and also

appealed to racial bias.        We review this argument for an abuse of

discretion and harmless error when a contemporary objection is

made.     United States v. Williams, 343 F.3d 423, 434 (5th Cir.

2003).     Appeals to the jury to act as the conscience of the

community are permissible, as long as they are not intended to

inflame.     United States v. Duffaut, 314 F.3d 203, 211 (5th Cir.

2002).     In    determining    if   a    prosecutor’s     remarks   constitute

reversible      error,   we   keep   in    mind   three   factors:    “(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.”

United States v. Wyly, 193 F.3d 289, 299 (5th Cir. 1999).

     The comments Lee cites fall far short of reversible error

under this standard.14        We discern no intention to inflame in the

government’s appeal to the jury to make the city safer, especially

given that Lee’s counsel had previously described New Orleans as a

“high-crime city.”       Read in context, the prosecutor’s mention of


     14
       Regarding the prosecutor’s appeal to the conscience of the
community, Lee cites this statement: “New Orleans is a dangerous
city. It is dangerous because of people like this. This is your
chance to make the city a little bit safer.”

     An alleged appeal to racial bias cited by Lee was: “This guy,
Jayson Lee, says, not ‘just get in the trunk,’ but ‘get your white
cracker ass in the trunk.’ The same kind of racial remarks that
you heard before.”

                                          26
the defendants’ racially-tinged language was part of an attempt to

show a common modus operandi among the perpetrators of the various

carjackings and not as an appeal to bias.       In short, we are

confident that the district court did not err in refusing to grant

a mistrial on this basis.

     We therefore affirm Lee’s convictions on all counts.

                                V.

     For the foregoing reasons, the convictions of Lovelle Lang and

Jayson Lee on all counts relevant to this appeal are

                                                         AFFIRMED.




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