     Case: 15-10785      Document: 00513572129         Page: 1    Date Filed: 06/29/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10785
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 29, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

MICHAEL M. MURRAY,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:11-CR-296-1


Before STEWART, Chief Judge, and DAVIS and GRAVES, Circuit Judges.
PER CURIAM: *
       Michael M. Murray appeals his conviction for communicating false or
misleading information regarding the presence of a biological weapon, in
violation of 18 U.S.C. § 1038(a)(1), and his resulting 37-month sentence. He
argues, for the first time on appeal, that, to obtain a conviction under § 1038,
the Government was required to prove that the recipient of the hoax or threat
had a contemporaneous belief that an imminent threat actually existed.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 15-10785

Murray contends that the evidence was insufficient in his case to show that
any of the intended recipients of his mailing, which contained a white powdery
substance, actually believed that it contained an imminent threat, noting that
the employee who initially opened the mailing testified only that she gave the
envelope to her supervisor, then washed her hands and returned to work.
      As the Government urges in response, Murray arguably invited the
asserted error when he proposed the language used in the district court’s jury
instructions admonishing that, in determining his guilt under § 1038, the jury
could not consider what any witness actually believed but instead must
consider what an objectively reasonable person under the circumstances could
have believed. See United States v. Salazar, 751 F.3d 326, 332 (5th Cir. 2014).
Because Murray invited the error about which he now complains, review is
limited to whether he has shown manifest injustice. See United States v.
Rodriguez, 602 F.3d 346, 350-51 (5th Cir. 2010). However, his argument fails
even under the less strict plain-error standard.             See United States v.
Fernandez-Cusco, 447 F.3d 382, 384-85 (5th Cir. 2006).
      To demonstrate plain error, Murray must show a forfeited error that is
clear or obvious and that affected his substantial rights; if he does, this court
has the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Puckett v. United States,
556 U.S. 129, 135 (2009). Murray fails to make the required showing under
the first two prongs of this test, i.e. he fails to demonstrate that any error,
assuming that there was error, was clear or obvious, as he cites no authority
in support of his argument that § 1038 requires the Government to prove that
the recipient of a terroristic threat contemporaneously believed it. See id.; see
also United States v. Ramos Ceron, 775 F.3d 222, 226 (5th Cir. 2014) (stating
that a defendant could not demonstrate clear or obvious error in the “absence



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                                 No. 15-10785

of case law unequivocally supporting” his position on appeal); United States v.
Trejo, 610 F.3d 308, 319 (5th Cir. 2010) (noting that any claim that is “‘not
entirely clear under the existing case authority’” is “‘doom[ed] . . . for plain
error.’”); cf. United States v. Keyser, 704 F.3d 631, 643 (9th Cir. 2012)
(concluding that § 1038 employs a reasonable-person standard, which is “an
objective one, not based on the actual people involved in th[e] case.”).
      The district court’s judgment is AFFIRMED.




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