                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                     UNITED STATES COURT OF APPEALS                 August 13, 2007
                              FIFTH CIRCUIT
                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 06-31002
                             Summary Calendar


                       UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                  versus

                             TOMMY FLETCHER,

                                                   Defendant-Appellant.


              Appeal from the United States District Court
                  for the Eastern District of Louisiana
                              (2:05-CR-49-4)


Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Tommy Fletcher challenges his conspiracy conviction, claiming:

there    is   insufficient   evidence   to   sustain    the    verdict;     the

Government engaged in prosecutorial misconduct; and the district

court erred in both giving a modified Allen charge and denying his

new-trial motion.

     In June 2005, Fletcher, with ten others, was charged in

connection with a string of robberies which targeted various

Louisiana     railyards.     Among   other    things,    the     superseding


     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
indictment charged: in November 2002, Fletcher, along with his co-

conspirators, burglarized the BNSF Railyard; Fletcher assisted by

procuring    materials   for    the   robbery      and   removing   electronic

merchandise from railcars and loading them into one of his co-

conspirator’s vehicles; in December 2002, Fletcher and his co-

conspirators set fire to a telephone junction box at the Southern

Scrap Yard in order to disable its alarm system; and he, along with

his   co-conspirators,         removed       the   safe,    which    contained

approximately $40,000.

      In March 2006, Fletcher was found guilty of conspiracy, under

18 U.S.C. § 371, to:           commit larceny of goods traveling in

interstate commerce; taking away goods by theft and fraud from an

interstate carrier; and arson of property used in interstate

commerce.    (At the time of Fletcher’s trial, all ten of his co-

conspirators had been convicted of, or pleaded guilty to, one or

more crimes charged in the superseding indictment.)             In a detailed

order, the district court denied Fletcher’s motion for a new trial

that July.    That September, he was sentenced, inter alia, to 15

months imprisonment.

      Fletcher first contends the evidence was insufficient to

convict him of the charged conspiracy.               In sufficiency-of-the-

evidence challenges, we review the evidence in the light most

favorable to the jury verdict.           United States v. Cluck, 143 F.3d

174, 180 (5th Cir. 1998).          “All credibility determinations and


                                         2
reasonable inferences will be resolved in favor of the verdict, and

the evidence will be found sufficient unless it was not such as

could lead a rational fact-finder to conclude that the essential

elements of the crime had been proved beyond a reasonable doubt.”

Id.

      To   sustain   a   conspiracy   conviction,   the    Government    must

establish that: “(1) two or more persons conspired to pursue an

unlawful    objective;    (2)   the   defendant   knew    of   the   unlawful

objective and voluntarily agreed to join the conspiracy with the

intent to further the objective; and (3) one or more members of the

conspiracy committed an overt act in furtherance of the objective

of the conspiracy”.      United States v. Dadi, 235 F.3d 945, 950 (5th

Cir. 2000).     While “mere association” is insufficient to prove

participation, “an agreement may be inferred from concert of

action, voluntary participation may be inferred from a collocation

of circumstances, and knowledge may be inferred from surrounding

circumstances”.      United States v. Bieganowski, 313 F.3d 264, 277

(5th Cir. 2002) (internal citations and quotation marks omitted).

While the Government must show the defendant knew and intended to

join the conspiracy, “it need not show that each defendant knew all

the details of the conspiracy”. United States v. Schmick, 904 F.2d

936, 941 (5th Cir. 1990).

      Fletcher contends there is no evidence he entered into any

agreement to burglarize BNSF Railyard; he points to the testimony


                                      3
of two of his co-conspirators that he showed up as the robbery was

taking place.       In this regard, Fletcher notes, he was acquitted of

the substantive       offenses      of    larceny    and   robbery     of    the    BNSF

Railyard; and he maintains there was no evidence he agreed with his

co-conspirators beforehand to             burglarize the railyard.            Finally,

in challenging the Southern Scrap Yard burglary, Fletcher contends:

that testimony shows he arrived after his co-conspirators had

already entered the building; therefore, he could not have been

responsible for setting fire to the telephone junction box as the

Government claimed.

     Concerning       the    BNSF       Railyard    robbery,    a     co-conspirator

testified:       he told Fletcher what they planned to do at the

railyard; and Fletcher assisted in obtaining rope to facilitate the

robbery    and     worked    with   his    co-conspirators      in     removing     the

televisions,       VCRs,    and   other    electronic      merchandise       from   the

railcars     and    loading       that    merchandise      in   one    of    the    co-

conspirator’s       house.        For    the    evidence   regarding        Fletcher’s

involvement in the Southern Scrap Yard burglary, a co-conspirator

testified Fletcher entered in the building in order to help the

others remove the safe and helped transport it to one of the co-

conspirator’s home, where it was opened.                   Finally, a reasonable

juror could conclude Fletcher was involved in the arson.                           E.g.,

United States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989) (holding

that jurors may rely their common sense and evaluate facts in the


                                            4
light of their common knowledge of the natural tendencies of human

beings).   Viewing the evidence in the light most favorable to the

verdict, a rational jury could have concluded Fletcher “knew about

the conspiracy and voluntarily agreed to join”.                   United States v.

Krenning, 93 F.3d 1257, 1265 (5th Cir. 1996).

      Fletcher also contends the Government failed to prove all

necessary elements for the conspiracy-to-commit-arson claim because

they did not show the destroyed telephone junction box was being

used in interstate commerce, as required under 18 U.S.C. § 844(I).

The   Government    satisfied        that       element,    however,    by    showing

BellSouth Corporation’s use of the telephone junction box to engage

in interstate communication and commerce.

      For his prosecutorial-misconduct claim, Fletcher contends

that,   during   closing   argument,            the   Government    made     improper

comments   by    expressing     an     opinion        as   to   Fletcher’s     guilt;

specifically, the jury was told that the other co-conspirators had

already pleaded guilty and that the Government would not have

prosecuted Fletcher if he were not guilty.                      Fletcher asserts:

because the Government’s case was solely based upon the testimony

of two co-conspirators, the Government’s actions were an improper

attempt to bolster the credibility of those witnesses.

      “Criminal convictions are not to be lightly overturned on the

basis of a prosecutor’s comments standing alone.” United States v.

Pineda-Ortuno, 952 F.2d 98, 106 (5th Cir. 1992).                       A court must


                                            5
evaluate the statement’s prejudicial effect, whether any cautionary

instruction was given, and the strength of the evidence of the

defendant’s guilt.    United States v. Gallardo-Trapero, 185 F.3d

307, 320 (5th Cir. 1999).        “The ultimate question before us,

however, is not the impropriety of the prosecutor’s remarks but

whether these remarks were so inflammatory that they entitle the

defendant to a new trial.        A prosecutor’s remarks to the jury

constitutes reversible error only when they are both inappropriate

and harmful.”   United States v. Lowenberg, 853 F.2d 295, 301 (5th

Cir. 1988) (internal citations and quotation marks omitted).

     The   district   court   gave       instructions     to    mitigate   the

prejudicial effect of the Government’s remarks, cautioning the jury

that statements by counsel are not evidence.             Furthermore, even

assuming the remarks were improper, they were not “so pronounced

and persistent that [they] permeate[d] the entire atmosphere of the

trial”.    United States v. Martino, 648 F.2d 367, 388 n. 10 (5th

Cir. 1981) (internal citations and quotation marks omitted). There

was sufficient evidence of Fletcher’s guilt that, notwithstanding

the statements, he would still have been convicted.

     Fletcher   contends   the   district     court     erred   by   giving   a

modified Allen charge to the jury only four and a half hours after

it began deliberation.     The jury had informed the court it was

unable to come to a unanimous decision; and, after the modified

Allen charge, they returned a verdict approximately six hours


                                     6
later.       Fletcher asserts the modified charge coerced the jurors

into     finding      him     guilty    even    after   they    stated   further

deliberations would not help.

       Giving a modified Allen charge is reviewed for abuse of

discretion.        United States v. Rivas, 99 F.3d 170, 175 (5th Cir.

1996).       A court has broad discretion to determine whether an Allen

charge will coerce the jury into returning a verdict it would

otherwise not reach.          United States v. Gordon, 780 F.2d 1165, 1177

(5th Cir. 1986).

       Fletcher did not object to the language of the charge but only

to     its    being   given     early    in    deliberations.      Despite   his

contentions, however, he has produced no evidence that the charge

had a coercive effect.            E.g., United States v. Allard, 464 F.3d

529, 536 (5th Cir. 2006).               Consequently, and due to the broad

discretion we give district courts in this matter, his contention

fails.

       Finally, Fletcher contends the district court erred in denying

his new-trial motion.           “A district court’s decision to grant or

deny a motion for a new trial pursuant to Rule 33 is reviewed for

an abuse of discretion.”          United States v. Wall, 389 F.3d 457, 465

(5th Cir.       2004).      Fletcher raised two grounds for relief in his

new-trial motion:           insufficient evidence; and the above-discussed

statements during closing argument. As discussed, Fletcher has not

shown “there would be a miscarriage of justice or ... the weight of

                                          7
evidence preponderates against the verdict”.      United States v.

O’Keefe, 128 F.3d 885, 898 (5th Cir. 1997) (internal citations and

quotation marks omitted).   Accordingly, the district court did not

abuse its discretion in denying the motion.

                                                       AFFIRMED




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