IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10785

Summary Calendar

UNITED STATES OF AMERICA,

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.

United States Court of Appeals

Fifth Circuit

FILED

June 29, 2016

Lyle W. Cayce

Clerk

 

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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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