     Case: 12-40972       Document: 00512345203         Page: 1     Date Filed: 08/19/2013




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

                                                                            FILED
                                                                          August 19, 2013
                                     No. 12-40972
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOHN OLIVER MANNING, also known as Fish,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:11-CR-37-2


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       John Oliver Manning appeals from his jury verdict conviction for
conspiracy to commit assault with a dangerous weapon in aid of racketeering
activity (Count One), assault with a dangerous weapon in aid of racketeering
activity (Count Two), using and carrying a firearm during and in relation to a
crime of violence (Count Three), and being a felon in possession of a firearm and
ammunition (Count Four). The district court sentenced him to a total of 355
months of imprisonment and five years of supervised release.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-40972     Document: 00512345203     Page: 2   Date Filed: 08/19/2013

                                  No. 12-40972

      The indictment in this case included 16 general allegations stating that
Manning and codefendant Joshua Bodine were members of the Aryan
Brotherhood of Texas (ABT), detailing the structure and operations of the ABT,
and asserting that Manning’s attack on victim Matthew Fails occurred while
Manning was acting on Bodine’s orders regarding an outstanding debt that Fails
owed to Bodine. Manning argues that the district court erred by failing to grant
his motion for a judgment of acquittal because the Government failed to prove
beyond a reasonable doubt all of the general allegations, which were
incorporated by reference into Counts One and Two. Because the issue was
properly preserved for appeal, we review the district court’s denial of Manning’s
motion for a judgment of acquittal de novo. United States v. Frye, 489 F.3d 201,
207 (5th Cir. 2007). We review the evidence and the reasonable inferences which
flow therefrom in the light most favorable to the verdict. Id. We also “consider
whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Jara-Favela, 686 F.3d 289,
301 (5th Cir. 2012) (internal quotations marks and citation omitted).
      Manning asserts that the Government relied upon those general
allegations as an alternate method of proving that the ABT constituted an
enterprise engaged in racketeering activity, which was one of the elements of
Counts One and Two, but he does not argue that the Government failed to prove
those elements.    Instead, he contends that the inclusion of those general
allegations in that manner required the Government to prove each of those
allegations beyond a reasonable doubt.       To the extent that those general
allegations did not allege the essential elements of the crime, Manning has failed
to show that the Government was obligated to prove them beyond a reasonable
doubt. See United States v. Valencia, 600 F.3d 389, 432 (5th Cir. 2010) (holding
that the government must prove facts alleged in the indictment that meet the
essential elements of the charged crime, and any additional facts alleged that go
beyond the essential elements are treated as mere surplusage).

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                                  No. 12-40972

      Similarly, Manning argues that the district court erred by allowing the
jury to convict him based upon a jury charge that did not require proof beyond
a reasonable doubt as to all of the general allegations contained in the
indictment and incorporated into Counts One and Two. Because Manning
cannot show that the jury charge he desired was a substantively correct
statement of the law as to the Government’s burden to prove the general
allegations, he has not shown that the district court abused its discretion. See
United States v. Porter, 542 F.3d 1088, 1093 (5th Cir. 2008).
      Next, Manning contends that the district court erred by admitting
evidence that he had previously been involved in a prior incident that had some
similarities to the instant offense. We review the district court’s decision to
admit evidence pursuant to Federal Rule of Evidence 404(b)(2) under a
heightened abuse of discretion standard because evidence in a criminal trial
must be strictly relevant to the charged offense. United States v. Templeton, 624
F.3d 215, 221 (5th Cir. 2010). Because the extrinsic evidence admitted at trial
satisfied both prongs of the test set forth in United States v. Beechum, 582 F.2d
898, 911 (5th Cir. 1978), Manning has failed to show that the district court
abused its discretion in this regard.
      Finally, Manning argues that the district court erred by permitting a
witness to testify as an expert regarding the ABT because he was not qualified
to be an expert and his testimony was not sufficiently reliable. Examination of
the record shows that the district court’s ruling that the witness was qualified
as an expert had a sufficient basis for purposes of Federal Rule of Evidence 702.
Because Manning has not shown that the district court’s ruling was manifestly
erroneous, the district court did not abuse its discretion by admitting that expert
testimony. See Valencia, 600 F.3d at 423.
      The judgment of the district court is AFFIRMED.




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