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

                                                                            FILED
                                                                          March 26, 2012
                                     No. 11-40782
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

HARRY L. KELLEY,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:10-CR-87-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Harry L. Kelley was convicted by a jury of one count of possession of stolen
ammunition (Count 21); one count of conspiracy to commit mail fraud with
respect to obtaining training pistols manufactured by Glock, Inc. (Glock) (Count
22); and one count of conspiracy to commit mail fraud with respect to obtaining
laser sights from Insight Technology, Inc. (Insight) (Count 23).                   The jury
acquitted him of 20 counts of possession of stolen firearms. The district court
sentenced him to concurrent terms of 12 months and one day. Kelley now


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 11-40782

appeals, arguing (1) that the evidence was insufficient to show that he conspired
to commit mail fraud with respect to the Glock pistols; (2) that the evidence was
insufficient to show that he conspired to commit mail fraud with respect to the
laser sights; (3) that the district court erred by giving an instruction on aiding
and abetting; and (4) that the prosecutor made an improper comment on Kelley’s
failure to testify. Finding no error, we affirm.
      Kelley contends that the evidence failed to show (1) a specific intent to
defraud, and (2) an agreement to commit mail fraud, as required to show
conspiracy to commit mail fraud. See United States v. Mann, 493 F.3d 484, 492
(5th Cir. 2007) (elements of conspiracy); United States v. Bieganowski, 313 F.3d
264, 275 (5th Cir. 2002) (elements of mail fraud). We view the “evidence and
inferences that may be drawn from it in the light most favorable to the verdict”
and determine whether “a rational jury could have found the essential elements
of the offenses beyond a reasonable doubt.” United States v. Valdez, 453 F.3d
252, 256 (5th Cir. 2006) (internal quotation marks and citation omitted).
      There was ample evidence on this point. Testimony showed that Kelley
agreed to help Gary Lee, who owned a sporting goods business, obtain the Glock
training pistols and the Insight laser sights because the companies restricted
sales to law enforcement agencies and Lee could not otherwise obtain them.
Kelley, who was then an officer with the Cleveland Police Department (CPD),
submitted a purchase order to Glock in the name of the CPD and a cashier’s
check listing the CPD as remitter, along with a tax-exemption certificate
certifying that the purchase was on behalf of a governmental agency and listing
that agency as the CPD. Lee provided him with cash for the purchase. When
the pistols were delivered to Kelley at the CPD, he delivered them to Lee.
      As for the laser sights, Kelley, then in his capacity as a Liberty County
Deputy Sheriff, signed an agreement required by Insight providing that the
sights were restricted for purchase by military, law enforcement, or
governmental agencies and could not be transferred to individual law

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enforcement or civilian users. The sights were shipped to Kelley at the sheriff’s
office, and he delivered them to Lee.
      Kelley’s argument that there was no evidence that it was unlawful to own
the pistols or sights misses the point. The question is whether Kelley and Lee
entered into a scheme to defraud another using the mails. There was ample
evidence from which the jury could infer that Kelley agreed with Lee to falsely
represent that Kelley was purchasing the Glock pistols on behalf of the CPD,
and that he was purchasing the laser sights on behalf of the Liberty County
Sheriff’s Department, in order to circumvent the restrictions Glock and Insight
placed on sales to non-law enforcement personnel. The sellers testified they
would not have sold their property if the purchase agreements had been truthful.
The jury’s choice between reasonable views of the evidence is entitled to
deference. See United States v. Seale, 600 F.3d 473, 496 (5th Cir.), cert. denied,
131 S. Ct. 163 (2010).
      Kelley relatedly argues that because Glock and Insight were paid, they
suffered no harm to their property within the meaning of the mail fraud statute.
Although couched in terms of sufficiency, Kelley’s challenge raises a legal
argument. See United States v. Loney, 959 F.2d 1332, 1334-35 (5th Cir. 1992).
As Kelley did not make this legal argument in the district court, we review it for
plain error. See United States v. Treft, 447 F.3d 421, 424-25 (5th Cir. 2006).
      The Government need not prove monetary loss in a mail fraud prosecution.
United States v. McMillan, 600 F.3d 434, 450 (5th Cir.), cert denied, 131 S. Ct.
504 (2010). In addition, although we have not confronted whether a scheme to
induce someone by false representations to sell a product that he otherwise
would not have sold constitutes a harm to property rights, other circuits have
done so, with differing results. Compare United States v. Schwartz, 924 F.2d
410, 414, 420-21 (2nd Cir. 1991) (affirming a mail fraud conviction based on false
representations to a manufacturer who placed explicit restrictions on a sale of
night vision goggles to ensure that they were not unlawfully exported), with

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United States v. Bruchhausen, 977 F.2d 464, 467-68 (9th Cir. 1992) (holding that
the right to control future disposition of goods sold was not a property right
within the meaning of the wire fraud statute in a case in which the defendants
falsely represented to a manufacturer that goods would remain in the United
States). Given the foregoing state of the law, and that no motion to dismiss, nor
challenge to the mail fraud instructions was submitted, any error was not clear
or obvious for purposes of plain error review. See United States v. Salinas, 480
F.3d 750, 759 (5th Cir. 2007).
      Kelley also argues that the district court erred by giving an aiding and
abetting instruction with respect to Count 21, because Lee was unaware that the
ammunition was stolen. Thus, he could not have aided and abetted Lee. As any
error was harmless, we do not reach whether there was error.
      Lee testified that Kelley approached him with a deal to trade guns for
ammunition that Kelley said he obtained from the federal government. Agents
from Immigrations and Customs Enforcement (ICE) provided Kelley with
thousands of rounds of .40 caliber ammunition every month in exchange for
using the CPD firing range. Former CPD Assistant Chief Henry Patterson
testified that such an exchange was never discussed with ICE, and he was
unaware that Kelley was receiving the ammunition. Kelley supplied Lee with
80,000 rounds over the course of their arrangement, and Kelley received 86 guns
from Lee in return. Customers who purchased guns from Kelley were given
cases of .40 caliber ammunition at little or no cost. Samples of ammunition
provided to Kelley’s customers were identified as having been manufactured for
and sent to ICE. Given the ample evidence that Kelley was guilty as a principal
of possession of stolen ammunition, any error was harmless. See United States
v. Laury, 985 F.2d 1293, 1300-01 (5th Cir. 1993).
      Finally, Kelley argues that the prosecutor improperly commented on his
right not to testify when, during closing arguments, the prosecutor told the jury
that Kelley was greedy, “and that greedy man who betrayed the public trust sits

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there. You have heard uncontradicted and unrebutted evidence from the
[G]overnment.” Although the prosecution may not “comment upon the failure
of a defendant to take the stand, it is well established that one may point out
that the testimony of witnesses is uncontradicted.” United States v. Jefferson,
258 F.3d 405, 414 (5th Cir. 2001). The ultimate question is whether the
comment “was manifestly intended or was of such character that a jury would
naturally and necessarily take it to be a comment on the failure of the accused
to testify.” Id. (internal quotation marks and citation omitted).
      We need not decide whether the remark was improper because we are
satisfied that the remark did not have a “clear effect on the jury.” McMillan, 600
F.3d at 452 (5th Cir.) (internal quotation marks and citation omitted). The
district court gave an immediate curative instruction, telling the jury that Kelley
had no duty to testify or to put on evidence, thus mitigating any harm. See id.
at 453. The acquittal on 20 counts indicates that the jury was not influenced by
the remark and followed the court’s instruction. See id. Finally, the evidence
of Kelley’s guilt was strong, further demonstrating the harmlessness of any
error. See United States v. Johnston, 127 F.3d 380, 398 (5th Cir. 1997).
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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