     Case: 12-10915          Document: 00512303369         Page: 1     Date Filed: 07/10/2013




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

                                                                               FILED
                                                                              July 10, 2013

                                         No. 12-10915                         Lyle W. Cayce
                                                                                   Clerk

UNITED STATES OF AMERICA,

                                                     Plaintiff–Appellee,
v.

BENJAMIN EDWARD NEUNER,

                                                     Defendant–Appellant.



                      Appeal from the United States District Court
                           for the Northern District of Texas
                                USDC No. 4:12-CR-50-1


Before OWEN and HAYNES, Circuit Judges and LEMELLE, District Judge*
PER CURIAM:**


       Defendant-Appellant Benjamin Edward Neuner appeals his conviction and
sentence for illegal possession of a machine gun for an alleged erroneous denial
of his Rule 29 motion for acquittal based on entrapment, erroneous exclusion of




       *
            District Judge of the Eastern District of Louisiana, sitting by designation.

       **
          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not be published and is not precedent except under the limited circumstances set forth in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. 12-10915

documentary evidence of his character to show lack of predisposition,
irreparable harm of giving incorrect jury instructions on reasonable doubt and
burden of proof, and the imposition of an unreasonable sentence.1
We affirm the conviction and sentence for reasons below.
       Viewing as we must the evidence, including reasonable inferences to be
drawn from it, and any required determinations in the light most favorable to
the guilty verdict, the record supports the District Judge's denial of the motion
for judgment of acquittal. A rational jury could find that the government proved
beyond a reasonable doubt either the existence of predisposition or the non-
existence of inducement and all other essential elements of crime. United States
v. Thompson, 130 F.3d 676 (5th Cir. 1997); United States v. Reyes, 239 F. 3d 722
(5th Cir. 2001), cert. denied, 535 U.S. 868 (2001) (Applicable standard of review
is the same which applies to sufficiency of the evidence). The jury discredited
the entrapment defense in favor of contrary testimony from the government's
witnesses.


       1
           Neuner also argues that he should be given, as the target of an undercover
government operation, the exemption afforded to those acting under the authority of the
government to legally possess a machine gun. That argument is rejected as utterly
meritless. Clear statutory language and Congressional intent limited lawful transfer and
possession of machine guns to authorized governmental personnel for use in their official
capacities. 18 U.S.C. § 922(o)(2)(A); United States v. Bailey, 123 F.3d 1381, 1393 (11th Cir.
1997). The statute and legislative history do not except unwary targets of undercover
operations, like Neuner, from criminal liability for possessing machine guns. There is no
official capacity use of such weapons when the declared purpose, as explained to Neuner, is
to harm law enforcement personnel. To find otherwise would be absurd.
         Neuner also cites as error the trial court's denial of his motion to dismiss the
indictment for outrageous governmental conduct. To the extent his argument raises a
Fifth Amendment due process concern over the government's use of an informant who is
arguably more dangerous than him, Neuner fails to show a constitutional violation from
such usage. To the extent Neuner's argument implicates his entrapment defense that
matter will be fully addressed infra.

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                                 No. 12-10915

      Neuner testified that he converted two legal semi-automatic rifles into
illegal automatic rifles using parts and tools supplied by the informant. He
explained the conversions were done out of fear and pressure from the
informant, a fellow gang member with authority over him, and the government's
undercover agent posing as a drug dealer. Neuner further testified about
service in the United States Air Force, an honorable discharge from that service
and obtaining Security ID Access (SIDA) clearance to perform work as an airline
mechanic. He admits to convictions only for traffic offenses. The government's
evidence to rebut entrapment came from testimony by a cooperating informant
and the government's agent. They stated Neuner proposed making the machine
guns for them after revealing he had done so before for others at a price of
$5,000 per weapon. They further testified that upon being told how the weapons
would be used against law enforcement officials, Neuner said "can do it, no
muss, no fuss". Neuner's eagerness to make the machine guns came from his
own words. As examples of this, Neuner said that "his fingers are itching to get
on these weapons," "almost burst out in song and tapped dance" after test firing
the weapons.    He described it "was just the neatest thing."      Government
witnesses also testified that Neuner offered to put together a third automatic
weapon, supplied them with the necessary parts to do so along with the weapon
to be converted, and offered smoke bombs in aid of resisting capture by law
enforcement. The informant and undercover agents denied ever pressuring or
threatening Neuner. There was sufficient evidence from which a reasonable jury
could find beyond a reasonable doubt that Neuner was predispositioned and not
induced to perpetrate the crime. That same evidence also sufficiently showed
him as an active, willing participant in the criminal conduct that led to his


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                                  No. 12-10915

arrest and conviction. As such, the trial court correctly denied his motion to
dismiss based on outrageous government conduct. United States v. Arteaga, 807
F.2d 424, 427 (5th Cir. 1986) (The extremely high burden of establishing
outrageous government conduct is based on showing government over-
involvement combined with a passive role by the defendant); see also United
States v. Wise, 221 F.3d 140 (5th Cir. 2000). Neuner fails on all accounts.
      We also reject Neuner's argument that the trial court erred by excluding
documentary evidence of his honorable discharge and high security clearance -
proof of non-predisposition and inducement. The District Judge's exclusion of
that evidence as cumulative of testimony already presented by Neuner on the
same matters has not been shown to be an abuse of the trial court's discretionary
authority. Fed. R. Evid. 403; See also Winans v. Rockwell, International Corp.,
et al, 705 F.2d 1449, 1456 (5th Cir. 1983) (finding as harmless the exclusion of
documentary evidence that was cumulative to direct testimony). The jury heard
uncontested direct testimony and closing argument about Neuner's military
discharge and security clearance following an FBI background check and drug
screen. Claims that admission of paperwork on uncontested matters would
have altered the jury's verdict are meritless. Cf. United States v. Flores, 640
F.3d 638, 643 (5th Cir. 2011), cert. denied, 132 S.Ct. 336 (2011) (Finding
harmless error when other evidence of guilt is overwhelming, as here).
      At the close of evidence the District Judge orally instructed the jury on the
law to follow in deliberations. The instructions were previously submitted by
parties to the court in written form, including proper instructions on
entrapment, reasonable doubt and burden of proof. After advising the jury at
least 11 times with the correct instructions on burden of proof, the District Judge


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                                 No. 12-10915

twice misstated the law regarding reasonable doubt and burden of proof. The
court mistakenly told the jury they could find Defendant guilty upon proof by a
preponderance of the evidence. Upon trying to correct that remark, the court
misread the instruction by telling the jury they should find Defendant not guilty
if it finds beyond a reasonable doubt that the Defendant did not commit the
offense. Again, at request of counsel, the court immediately corrected its errors
and gave the proper instruction on reasonable doubt and burden of proof to the
jury. The court also misread a portion of the law on entrapment by saying the
Defendant could be guilty of entrapment. Again the court corrected itself and
gave the proper instruction on how the Defendant could be the victim of
entrapment. In each instance, the jury was sufficiently informed about the error
and pertinent correction.
      Neuner cites Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124
L.Ed. 2d 182 (1993) for the proposition that reversal of a conviction is mandated
regardless of actions taken by the trial court to correct erroneous statements
while instructing the jury on reasonable doubt. We reject the invitation to
extend Sullivan to the present circumstances. In that case the erroneous
reasonable doubt instruction was never corrected prior to or during jury
deliberations. Here, no party disputes that corrective actions were taken by the
District Judge upon acknowledging each error to provide proper jury
instructions. The corrections came prior to jury deliberations in a timely
fashion after each of two misstatements on reasonable doubt and burden of
proof. Notably, the District Judge also gave proper instructions on entrapment
during deliberations in written response to a jury question. Later during jury




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                                       No. 12-10915

deliberations the District Judge gave a written Allen2 charge that again
contained the correct statement on the government's burden of proving guilt
beyond a reasonable doubt. In reviewing the full context in which this jury was
advised and based on the jury instructions as a whole, including the cited
portions in particular, the instructions neither misled the jury nor create a
substantial and ineradicable doubt as to whether the jury was properly guided
in its deliberations. See United States v. Klein, 543 F.3d 206, 210 (5th Cir. 2008);
United States v. Lance, 853 F.2d 1177, 1182 (5th Cir. 1988) (Cannot consider a
trial judge's erroneous remarks to the jury in isolation but must view the
proceedings as a whole). Under the circumstances presented, the stray remarks
at issue are not "unquantifiable and indeterminate structural errors" that
present a "reasonable likelihood" of jury confusion. Sullivan, 508 U.S. at 280-
82; Tyler v. Cain, 533 U.S. 656, 658, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001);
United States v. Sanders, 37 F.3d 632 (5th Cir. 1994) (unpublished opinion), cert.
denied, 513 U.S. 1172 (1995).           (Sullivan mandate not applicable where a
deficient reasonable doubt instruction is later corrected- the harmless error
standard would still apply). The error is harmless in view of prompt remedial
action by the District Judge. Cf. United States v. Berry, 326 F. App'x 715 (5th
Cir. 2009) (No plain error where, as here, the District Judge corrected an
improper jury instruction after acknowledging the error). Lastly, there was no
abuse of discretion in giving jury instructions orally during noted misreads.
Even so, written instructions on the particular ones at issue were later provided


       2
         Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Absent here
is any suggestion that the modified Allen charge was "so prejudicial and coercive as to require
reversal." United States v. Bottom, 638 F.2d 781, 787 (5th Cir. 1981)(citing United States v.
Bailey, 468 F.2d 652 (5th Cir. 1972), aff'd en banc, 480 F.2d 518 (5th Cir. 1973).

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                                      No. 12-10915

during jury deliberations. For reasons noted above, there is no reasonable
likelihood that the subsequently corrected misstatements had any impact upon
the jury's verdict.
      Finally, Neuner argues that due to personal characteristics, history and
the offense conduct, among other factors, the 97 month guidelines sentence is
unreasonable. There is no indication in the record that the sentencing court
failed to consider all required sentencing factors. Neither party contests the
calculated guidelines range on appeal.3 The record also shows that the District
Judge conducted a fair and thorough sentencing hearing, allowing witness
presentations and argument from parties' counsel.                  After considering all
sentencing factors under 18 U.S.C. § 3553(a), the court pronounced a custodial
sentence at the low-end of the guidelines range. Neuner has not rebutted the
presumptive reasonableness of this properly calculated within - guidelines
sentence. United States v. Candia, 454 F. 3d 468 (5th Cir. 2006).




                                  *        *         *
      AFFIRMED.




      3
          Neuner's recent request to apply Alleyne v. United States, _U. S._, 2013 WL
2922116 (2013) to this advisory guidelines sentence is misplaced. The Alleyne decision
applies to inappropriate increases in statutory mandatory minimum sentences. Unlike the
statutory framework in Alleyne's mandatory minimum sentence, Neuner's statutory
penalties did not expose him to a mandatory minimum sentence and none was pronounced.
The record shows that awareness by the District Judge.

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