                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 18-3125
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                              VISHALLIE VERASAWMI,
                                              Appellant
                                   _____________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. No. 3:17-cr-00254-002)
                    Chief District Judge: Honorable Freda L. Wolfson
                                      _____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 November 22, 2019
                                   _____________

            Before: CHAGARES, MATEY, and FUENTES, Circuit Judges.

                                (Filed November 27, 2019)

                                      ____________

                                        OPINION*
                                      ____________




*
       This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
CHAGARES, Circuit Judge.

      Vishallie Verasawmi was convicted by a jury of one count of conspiracy to

commit mail fraud and three counts of mail fraud. The District Court sentenced her to

forty-eight months of imprisonment. Verasawmi now appeals her judgment of conviction

and sentence. For the following reasons, we will affirm.

                                            I.

      We write solely for the parties’ benefit, so our summary of the facts is brief. In

the summer of 2016, Verasawmi worked with her brother to steal over one million dollars

from Verasawmi’s employer, Robert Wood Johnson University Hospital (“RWJ”).

Verasawmi’s brother set up fake vendors, and Verasawmi directed that these fake

vendors be added to RWJ’s accounts payable system. The two then submitted fraudulent

invoices so that RWJ would pay the fake vendors that they controlled.

      Subsequently, Verasawmi and her brother were charged with one count of

conspiracy to commit mail fraud and three counts of mail fraud. At trial, a jury found

Verasawmi and her brother guilty on all counts.

      The District Court sentenced Verasawmi to forty-eight months in prison, to be

followed by three years of supervised release. The District Court also ordered that

Verasawmi pay $1,066,829.57 in restitution. This timely appeal followed.1




1
        The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

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                                             II.

       In this appeal, Verasawmi contests both her conviction and her sentence. We will

address each in turn.

                                             A.

       Verasawmi’s challenge to her conviction concerns a curative instruction that the

District Court gave after Verasawmi objected to a statement made by the Government

during its summation at trial. In its summation, the Government highlighted a piece of

evidence for the jury: a note that Verasawmi wrote on June 14, 2016 to a clerk in RWJ’s

accounts payable department regarding a fake vendor. See Appendix (“App.”) 703.

During a sidebar after the Government’s summation, Verasawmi objected to the

Government’s reference to this note. She contended that the Government identified the

note as evidence of her intent to defraud, but immediately after referred to the definition

of a materially false statement, a different element of mail fraud. In Verasawmi’s view,

the Government’s statement was improper because it suggested to the jury that the

distinct elements of intent and materiality could be collapsed into one. Verasawmi thus

requested a “curative instruction.” App. 712.

       The District Court, without deciding whether the Government’s reference to

Verasawmi’s note was improper, agreed to give a curative instruction. The District Court

proposed reminding the jurors that the court’s instructions on the law controlled. Neither

party objected to the District Court’s suggested curative instruction. The District Court

also proposed giving the instruction right away and again after closing arguments ended.

The defendant did not object. But the Government made an unopposed objection to an


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immediate curative instruction. The District Court therefore decided to give the curative

instruction only once, after closing arguments. Following closing arguments, the District

Court instructed:

       [C]losing arguments are designed to present to you the parties’ theories about
       what the evidence has shown and what conclusions may be drawn from the
       evidence. What is said in the closing arguments is not evidence.
       Furthermore, obviously, they have drawn to your attention perhaps certain
       evidence or certain views and also may reference the law. I will remind you
       it is my instructions on the law that control your deliberations.

App. 771–72.

       Now, on appeal, Verasawmi argues that she is entitled to a new trial

because the District Court’s curative instruction was insufficient. She asserts that

the content of the curative instruction was vague and confusing because it was not

specifically tailored to address her objection, and that the instruction was given too

late. We disagree.

       Since Verasawmi did not object to the content or timing of the District Court’s

curative instruction at trial, we review for plain error. See United States v. Zehrbach, 47

F.3d 1252, 1260 & n.6 (3d Cir. 1995) (en banc); see also United States v. Brennan, 326

F.3d 176, 182 (3d Cir. 2003). “To establish plain error, the defendant must prove that

there is (1) error, (2) that is plain, and (3) that affect[s] substantial rights.” United States

v. Hakim, 344 F.3d 324, 328 (3d Cir. 2003) (alteration in original) (quotation marks

omitted). “If all three conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the




                                                4
fairness, integrity, or public reputation of judicial proceedings.” Id. (alteration in

original) (quotation marks omitted).

       The District Court’s curative instruction was not plainly erroneous. Shortly after

closing arguments ended, the District Court clearly explained that the jury should follow

the court’s instructions on the law, notwithstanding any statements made by the parties

about the law. Contrary to Verasawmi’s assertions otherwise, the District Court’s

curative instruction was not vague, confusing, or untimely. And even assuming arguendo

that the Government’s reference to Verasawmi’s note was improper, the curative

instruction adequately addressed Verasawmi’s objection. See id. at 326 (“We generally

presume that juries follow instructions given by the District Court, and the time lapse

between the testimony and the curative instruction here was not long enough to overcome

that presumption.”). As the District Court did not plainly err, we will affirm the

judgment of conviction.

                                              B.

       Next, we consider Verasawmi’s challenge to her sentence. Verasawmi argues that

the District Court erred at sentencing for two reasons. First, she claims that the District

Court sentenced her to forty-eight months in prison to promote her rehabilitation, in

violation of Tapia v. United States, 564 U.S. 319 (2011). Second, she contends that her

prison sentence is substantively unreasonable. Both arguments are without merit.

                                              1.

       We start with Verasawmi’s Tapia argument. Verasawmi asserts that the District

Court ran afoul of Tapia by imposing a term of imprisonment for rehabilitative purposes.


                                               5
In Tapia, the Supreme Court held that 18 U.S.C. § 3582(a) prohibits a district court from

“impos[ing] or lengthen[ing] a prison sentence to enable an offender to complete a

treatment program or otherwise to promote rehabilitation.” 564 U.S. at 335. Verasawmi

thus argues that the District Court impermissibly imposed a term of imprisonment for

rehabilitative purposes by acknowledging her mental health troubles and expressing

concern about her decision-making skills.

       Verasawmi did not raise this argument at sentencing, so we review for plain error.

United States v. Schonewolf, 905 F.3d 683, 686–87 (3d Cir. 2018). We have explained

that a Tapia violation occurs when rehabilitation was “the determining factor in a prison

sentence.” Id. at 691. “Under this standard, rehabilitation may be a factor granted some

weight in selecting a prison sentence, so long as it is not the primary or dominant

consideration.” Id.

       Here, the District Court did not impose Verasawmi’s sentence primarily based on

rehabilitation. To the contrary, the District Court emphasized the seriousness of

Verasawmi’s conduct, her personal history and characteristics, and the need to provide

just punishment for the offense. Therefore, as to the alleged Tapia violation, Verasawmi

has failed to establish that the District Court plainly erred.

                                               2.

       We now turn to Verasawmi’s argument that her forty-eight-month term of

imprisonment is substantively unreasonable. This argument also fails.

       We review the substantive reasonableness of a sentence for abuse of discretion.

United States v. Napolitan, 830 F.3d 161, 164 (3d Cir. 2016). In evaluating substantive


                                               6
reasonableness, we consider “whether the record as a whole reflects rational and

meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United

States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc) (quoting United States v.

Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc)).

      The District Court did not abuse its discretion in imposing a forty-eight-month

term of imprisonment. The prison term, nine months below the bottom of Verasawmi’s

advisory range under the U.S. Sentencing Guidelines, “was premised upon appropriate

and judicious consideration of the relevant factors.” United States v. Young, 634 F.3d

233, 237 (3d Cir. 2011) (quotation marks omitted). For example, the District Court

highlighted, inter alia, the seriousness of Verasawmi’s role in defrauding her employer

out of over one million dollars, Verasawmi’s personal history and characteristics, and the

need for deterrence. We therefore cannot conclude that “no reasonable sentencing court

would have imposed the same sentence on [this] particular defendant for the reasons the

district court provided.” Tomko, 562 F.3d at 568.

                                           III.

      For the foregoing reasons, we will affirm Verasawmi’s judgment of conviction

and sentence.




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