## Facts

- An armed robber took about $16,611 from the McGregor State Bank in Minnesota on May 28, 1987.
- Tellers described the robber as about 5'8", wearing a long coat, jeans, and a hat that obscured the face.
- Steven Earl Neumann was arrested on August 1, 1987, as a suspect in the robbery.
- Officers executed a search warrant on Neumann’s pickup truck and camper and recovered about $4,000 in cash and receipts tied to purchases made soon after the robbery.
- At trial, the central dispute was identity rather than whether a robbery occurred.
- During jury instructions, the trial judge commented on the evidence in a manner Neumann later claimed conveyed the judge’s view of guilt on certain elements.
- Defense counsel did not object to the court’s comments when the instructions were given.
- Neumann challenged the search warrant pretrial, but did not object when the seized cash and receipts were introduced at trial.
- In rebuttal closing argument, the prosecutor made remarks Neumann claimed shifted the burden of proof and unfairly prejudiced the jury.
- The jury convicted Neumann of armed bank robbery and using a firearm during the robbery; the court imposed consecutive terms of five and twenty years.

## Issues

1. Whether the trial judge’s comments during jury instructions improperly usurped the jury’s factfinding role and constituted reversible error, given the lack of a contemporaneous objection.
2. Whether Neumann preserved appellate review of his search-warrant challenge when he failed to object at trial to admission of evidence previously challenged pretrial.
3. Whether the prosecutor’s rebuttal closing argument constituted misconduct, including burden shifting, that deprived Neumann of a fair trial.

## Decision

- The court of appeals affirmed the convictions and sentence.
- The court held that, viewed as a whole, the jury instructions and judicial comments did not amount to plain error and did not relieve the government of proving each element beyond a reasonable doubt.
- The court held Neumann forfeited review of the search-warrant issue by failing to renew his objection when the evidence was offered at trial.
- The court held the prosecutor’s rebuttal remarks, considered in context and in light of the court’s burden-of-proof instructions, did not warrant reversal.

## Legal Principles

- A federal trial judge may comment on the evidence, but may not mislead the jury, direct a verdict, or displace the jury as the sole finder of fact.
- When a defendant fails to object to jury instructions at trial, appellate review is for plain error, requiring an obvious error affecting substantial rights and resulting in a miscarriage of justice.
- In assessing alleged instructional error based on judicial comment, courts evaluate the charge in its entirety, including repeated reminders that the government bears the burden to prove every element beyond a reasonable doubt.
- A party who loses a pretrial motion seeking exclusion of evidence generally must object when the evidence is offered at trial to preserve the issue for appeal.
- Prosecutorial comments in closing argument warrant reversal only if improper and so prejudicial, in the context of the full trial and instructions, that they deprive the defendant of a fair trial; rebuttal remarks may be permitted as a response to defense argument.

## Conclusion

The Eighth Circuit affirmed because the challenged jury comments, read with the full instructions, did not constitute plain error; the suppression claim was not preserved without a trial objection; and the prosecutor’s rebuttal did not, in context, shift the burden of proof or render the trial unfair.


United States v. Neumann, 887 F.2d 880 (8th Cir. 1989)