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

                                                 FILED
                                                                           March 10, 2009
                                     No. 08-40275
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

JAMES WILEY STINNETT, JR

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                            USDC No. 1:07-CR-13-ALL


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       James Wiley Stinnett, Jr., appeals his convictions and sentence for three
offenses arising from his sending a threatening fax to an agent of the
Department of Homeland Security, Bureau of Immigration and Customs
Enforcement (ICE). After Stinnett’s new Russian wife, Natalia, left him, he
sought ICE’s assistance in finding and returning Natalia to him. Becoming
frustrated with ICE’s failure or refusal to go after Natalia, Stinnett composed a
crude and threatening letter to ICE Special Agent James Estes in Texas. The

       *
        Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
                                  No. 08-40275

fax was fashioned as being from Natalia. In rambling, broken English, “Natalia”
threatened to kill Agent Estes with a gun or a bomb planted at the ICE’s
Beaumont office, because Estes knew too much about her.
      Based on his familiarity with Stinnett, Estes suspected that the fax was
from Stinnett. Subsequent investigation appeared to corroborate that theory.
A jury ultimately agreed and convicted Stinnett on four counts arising from his
creation and transmission of the threatening fax. The first count of conviction
charged that Stinnett used a means of interstate commerce to convey a false
bomb threat to the ICE office in violation of 18 U.S.C. § 844(e). The second count
charged Stinnett with threatening to murder Estes, a federal official, in violation
of 18 U.S.C. § 115.    The third count charged that Stinnett transmitted a
communication containing a threat to kill or injure another person, Estes, in
violation of 18 U.S.C. § 875(c). The fourth count, which was dismissed after
trial, charged Stinnett with concealing his criminal activities.        The court
sentenced Stinnett to 37 months of imprisonment, at the bottom of the advisory
guidelines range.
The sufficiency of the evidence
      Stinnett contends that there was insufficient evidence that he created the
threatening fax. ICE agents traced the fax to a FedEx/Kinko’s (Kinko’s) store
in Tulsa and later learned that Stinnett had sent a fax from that store at the
time the threatening fax was sent. The Kinko’s manager positively identified
Stinnett after she remembered offering to help him send the fax. In addition,
agents found in Stinnett’s car a Kinko’s receipt for sending the fax, dated the
same day that the threatening fax was sent. Agent Estes testified that he
believed the fax came from Stinnett because it was consistent with Stinnett’s
obsession with getting ICE to find Natalia and with Stinnett’s insinuations that
Natalia was a terrorist. Estes also testified that ICE investigations indicated
that Natalia was somewhere in New Mexico rather than in Tulsa where the fax
originated. The author of the fax also addressed Estes as “J.R.,” a nickname

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known by Stinnett but not believed to be known by Natalia. This evidence and
the reasonable inferences therefrom, when viewed in the light most favorable to
the verdict, would allow any reasonable jury to conclude that Stinnett created
the fax and caused it to be transmitted from Oklahoma to Estes in Texas. See
United States v. Kay, 513 F.3d 432, 452 (5th Cir. 2007).
      Stinnett contends that the fax did not contain a “true threat” as is required
to distinguish criminal speech from constitutionally protected speech. A statute
punishing pure speech must necessarily punish only true threats and not
constitutionally protected speech, such as political hyperbole. Watts v. United
States, 394 U.S. 705, 707–08 (1969); United States v. Morales, 272 F.3d 284, 287
(5th Cir. 2001). A communication is a true threat if “in its context [it] would
have a reasonable tendency to create apprehension that its originator will act
according to its tenor.” Morales, 272 F.3d at 287.
      The fax contained plain, direct, and repeated threats to kill Estes, either
by exploding a bomb at the ICE building or by shooting him in the head. Estes
testified that he was concerned for his safety and his family’s safety in light of
the threats, which he believed to be from a frustrated Stinnett. Investigators
responded to the threats by conducting a security sweep of the ICE building and
notifying the Beaumont police. Estes was sent home and a security watch was
set up at his house. This evidence was sufficient to allow a reasonable jury to
conclude that the threats created a reasonable apprehension in Estes and ICE.
See Morales, 272 F.3d at 287; Kay, 513 F.3d at 452.
      Stinnett contends that the Government failed to prove that he acted
willfully, as required for a conviction under § 844(e).      The same evidence
establishing that Stinnett created and transmitted the threats also shows that
he did so willfully, and not due to mistake or accident. See Morales, 272 F.3d at
287; Kay, 513 F.3d at 452.
      Stinnett contends that the Government failed to prove a substantial
economic nexus with interstate commerce. The interstate nexus requirement for

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Stinnett’s crimes is satisfied by the use of a telephone, even in intrastate
commerce. United States v. Marek, 238 F.3d 310, 318–19 & n.35 (5th Cir. 2001)
(also listing other communication devices).
      Stinnett fails to show that the Government’s proof was lacking as to any
element of any crime of conviction. The evidence was therefore sufficient to
convict Stinnett on all counts for which he was sentenced.
The Government’s closing argument
      Stinnett contends that the Government’s attorney made a highly
prejudicial remark in his closing argument. James Van Stephens, an ICE agent,
testified that the Kinko’s manager identified Stinnett partly by looking at his
driver’s license photo which Stephens showed her. The defense cross-examined
Stephens about why he showed only one photo instead of an array of photos.
Immediately after Stephens was excused, the Government recalled him to the
stand where he testified that he intended to present a multi-photo array to the
Kinko’s manager but that technical problems prevented him for obtaining other
photos for a photo line-up.
      The defense asserted in its closing argument that Stephens had lied about
his photo identification practices. The Government’s attorney responded by
telling the jury,“As [Agent Stephens] was leaving, testifying, he wanted to make
sure that I had him explain to you why he showed one [photo.]” The defense
immediately objected on grounds that the prosecutor’s statement about what
Stephens told him was an assertion of a fact not in evidence.         The court
sustained the objection and admonished the jury to ignore the Government’s
assertion about what anyone might not have told the prosecutor. The court
denied Stinnett’s motion for a mistrial.
      We determine whether the Government’s remarks were improper and
“whether they prejudicially affected substantive rights of the defendant.” United
States v. Parker, 877 F.2d 327, 332 (5th Cir. 1989). To determine whether the
prosecutor’s comments affected the defendant’s substantial rights, we examine

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“(1) the magnitude of the statement’s prejudice, (2) the effect of any cautionary
instructions given, and (3) the strength of the evidence of the defendant’s guilt.”
United States v. Tomblin, 46 F.3d 1369, 1389 (5th Cir. 1995) (internal quotation
marks and citation omitted); Parker, 877 F.2d at 332.
      The Government’s assertion that Stephens wanted to explain why he
showed Seville only one photograph was a reference to facts not in evidence.
Nonetheless, any connection between Stinnett’s guilt and the issue of whether
the explanation of the identification process was Stephens’s idea or the
prosecutor’s was, at most, tenuous and remote. In addition, the trial court
promptly instructed the jury to disregard the statement, and the jury is
presumed to have done so. Tomblin, 46 F.3d at 1390. Moreover, there was
ample evidence of guilt. The effect of Government’s innocuous remark was
negligible and provides no basis for reversing Stinnett’s conviction.
The district court’s Allen charge
      Stinnett contends that the district court’s Allen charge was coercive. After
deliberating for about four hours, the jury stated that it had reached a verdict
on three counts but was deadlocked on one count. The Government asked the
court to give this circuit’s modified Allen charge urging the jurors to continue
deliberating. See Allen v. United States, 164 U.S. 492, 501 (1896) (approving of
supplemental instruction that basically urged the jurors to consider each others’
opposing views in order to reach a unanimous verdict). The defense objected.
The court gave the charge.
      We review the giving of the Allen charge for abuse of discretion. United
States v. Winters, 105 F.3d 200, 203 (5th Cir. 1997). We ask whether any
deviation from our approved Allen charge was prejudicial enough to require
reversal and whether the circumstances surrounding the charge were coercive.
Id.
      The district court’s charge was substantively indistinguishable from this
court approved pattern charge. See F IFTH C IRCUIT P ATTERN J URY I NSTRUCTIONS

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(C RIMINAL), § 1.45 (West 2001); Winters, 105 F.3d at 204. Accordingly, there is
no prejudicial difference between the given charge and the approved Allen
charge. Further, nothing in the record or in Stinnett’s argument reveals any
coercive circumstance surrounding the charge. The district court did not abuse
its discretion by giving the charge.
The reasonableness of the sentence
      Stinnett contends that his sentence is unreasonable. He does not contend
that the advisory guidelines range was incorrect. Rather, he argues that the
guidelines sentence should not be entitled to a presumption of reasonableness
because it gives undue weight to the Sentencing Guidelines. A sentence within
a properly calculated guidelines range is presumed reasonable. United States
v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also Gall v. United States, 128
S. Ct. 586, 597 (2007) (permitting appellate presumption of reasonableness). In
addition, the district court engaged in a thorough discussion of the sentencing
factors of 18 U.S.C. § 3553(a), including mitigating factors. Stinnett fails to
show that his sentence is unreasonable.
      The judgment of the district court is AFFIRMED.




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