                                                              NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                                       ________

                                      No. 10-3466
                                      _________


                           UNITED STATES OF AMERICA

                                           v.

                                DIEGO HERNANDEZ,
                                              Appellant
                                     ________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. No. 1-08-cr-00629-006)
                    District Judge: Honorable Garrett E. Brown, Jr.
                                         _______

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 12, 2011

                   Before: SLOVITER, VANASKIE, Circuit Judges
                            and STENGEL,* District Judge

                                (Filed: January 06, 2012)
                                          ______

                                       OPINION
                                        ______




   *
    Hon. Lawrence F. Stengel, United States District Court for the Eastern District of
Pennsylvania, sitting by designation.

                                            1
SLOVITER, Circuit Judge.

       Diego Hernandez was convicted in federal court for participating in an extensive

telemarketing fraud conspiracy. The jury found Hernandez guilty of wire fraud,

aggravated identity theft, conspiracy to commit mail and wire fraud, and conspiracy to

commit bank fraud. On appeal, Hernandez claims that he is entitled to a new trial

because the prosecutor misrepresented certain evidence during his summation. We will

affirm.1

                                             I.

       Hernandez was involved in a elaborate banking scheme, headed by Robert Sacks,

in which Hernandez and several other co-conspirators used confidential bank account

information to defraud account holders out of millions of dollars over a four-year period.

While employed as Sacks‟ driver, Hernandez aided in the scheme by opening two bank

accounts to receive fraudulently acquired funds, attempting to recruit other people to

open similar accounts, and helping to establish limited liability corporations to further the

scam. As a result, Hernandez was charged with and convicted of: (1) conspiracy to

commit mail and wire fraud, contrary to 18 U.S.C. §§ 1341 and 1343 and in violation of

18 U.S.C. § 1349; (2) conspiracy to commit bank fraud, contrary to 18 U.S.C. § 1344 and

in violation of 18 U.S.C. § 1349; (3) three counts of wire fraud, in violation of 18 U.S.C.

§§ 1343 and 2; and (4) three counts of aggravated identity theft, in violation of 18 U.S.C.

§§ 1028A(a)(1) and 2.


   1
     The District Court exercised jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
                                              2
       At trial, Hernandez did not dispute that he participated in a scheme that defrauded

thousands of account holders out of their money but contended that, at the time, he did

not know that the scheme was fraudulent. The Government therefore presented

substantial circumstantial evidence demonstrating that Hernandez knew the scheme

involved fraud. First, the Government presented evidence that shortly after Hernandez‟s

arrest, he stated “I knew you guys would be coming for me sooner or later” and that he

was “sorry for getting involved in the scheme.” Appellee‟s Supp. App. at 51.

Additionally, testimony established that Hernandez was present with two of the scheme‟s

organizers, Sacks and Jan Ludvik, when Ludvik explained the details of the scheme to

Sacks‟ wife. Likewise, testimony demonstrated that Hernandez was present and

“partaking lightly” in another discussion among co-conspirators regarding “the details of

. . . the scam” and “how to tighten it up as much as possible to get the most money.”

App. at 80a. Finally, the Government presented evidence showing that Hernandez

understood that the scheme was fraudulent based on his conversations with co-

conspirators Ludvik, Ronald Sherman, and Peter Affatati.2

       In the prosecutor‟s summation, he went over some of the key evidence supporting

Hernandez‟s knowledge that the scheme was fraudulent. Considering these statements to


   2
      Specifically, Ludvic testified that he developed a “social relationship” with
Hernandez over the course of the scheme, during which Ludvic “express[ed] some of
[his] frustrations . . . [with] the scam” to Hernandez and warned him that his “wife could
get into big trouble” if she opened an account to support the scheme. App. at 89a-91a.
Sherman testified, among other things, that Hernandez indicated that he was opening a
telemarketing account “[b]ecause he wanted to make quick money.” App. at 76aa2.
Affatati testified that Hernandez told him that he was “opening up accounts for Robert
[Sacks]” and that Sacks had offered him $10,000 a month to do so. App. at 107a.
                                             3
be misrepresentations of the evidence, Hernandez‟s counsel objected at sidebar. The

Court assured Hernandez‟s counsel that “[t]he jury‟s recollection will control.” App. at

136. After the summation, Hernandez‟s counsel repeated the same objection and the

Court instructed the jurors that “if during the course of the trial in opening statements,

closing statements, or at any time any of the attorneys here have put forth a version of the

facts that does not square with your own recollection, you‟re to disregard counsel‟s

version in favor of your own recollections.” App. at 145. Hernandez‟s counsel did not

request any further action from the Court regarding the alleged misstatements.3


   3
     Hernandez‟s counsel did, however, tell the Court at sidebar his concerns about the
prosecutor, Mr. Katz‟s purported mischaracterizations of the evidence:

       MR. HANEY: I‟m concerned that this is an incident specific because frankly, it‟s
       the only evidence against my client. It‟s come down to basically about three
       conversations and if two-thirds of them are wrong in accordance to the
       representation by the government in their closing, I believe that the jury is going to
       have a misunderstanding of what the evidence was and then they may, in fact, rely
       upon Mr. Katz‟s misrepresentation or misleading representation of the evidence.

       THE COURT: Mr. Katz?

       MR. KATZ: Your Honor, with regard to the conversation in the car [with Sacks‟
       wife], it was clear that fraud was being discussed. Now, whether the word fraud
       was used or not, quite honestly I don‟t even remember the words that I used in my
       summation. The record will set that clear. But the notion is – the testimony, to
       my recollection, was quite vivid that Diego Hernandez was within feet of Robert
       Sacks and –

       THE COURT: When they were discussing fraud, whether the word was used or
       not –

       MR. KATZ: Whether the word fraud was used or not is really, I think, of no
       moment.

       THE COURT: Jurors‟ recollection will control.
                                              4
After the jury found Hernandez guilty on all counts, Hernandez filed a motion for an

acquittal and a motion for a new trial.4 The District Court denied these motions and

sentenced Hernandez to sixty-one months imprisonment and $52,877 in restitution.

Hernandez timely appealed.

                                             II.

        Because Hernandez did not request a mistrial based on the prosecutor‟s alleged

misstatements before the District Court, we review the Court‟s failure to order a mistrial

for plain error.5 See United States v. Riley, 621 F.3d 312, 338-39 (3d Cir. 2010). “In

order to be plain error, an error must not only be „obvious,‟ it must also „have affected the

outcome of the District Court proceeding.‟” United States v. Bethancourt, 65 F.3d 1074,

1079-80 (3d Cir. 1995) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)).

“[W]e may reverse only if we find an error in the prosecutor‟s comments so serious as to

„undermine the fundamental fairness of the trial and contribute to a miscarriage of

justice.‟” United States v. Pungitore, 910 F.2d 1084, 1126 (3d Cir. 1990).




        App. at 141a-143a.
   4
       Hernandez argued that the evidence was insufficient to support his conviction.
   5
     Hernandez argues that the prosecutor‟s alleged misstatements are subject to
harmless error review. We disagree. Hernandez‟s counsel objected to the prosecutor‟s
remarks at sidebar on two occasions but never requested a mistrial. Counsel instead
requested that the Court “give [the] jury the opportunity to rely on its own recollection,”
and the Court instructed the jury accordingly. App. at 136a.
                                              5
       Here, the prosecutor‟s summation did not constitute plain error. Rather, the

prosecutor was merely drawing the reasonable inference that Hernandez understood the

scheme‟s fraudulent nature.

       Hernandez challenges the prosecutor‟s comment that “Diego knows from before

the conversations he had with Mr. Ludvik, Mr. Affatati, [and] Mr. Salomon . . . that this

is a fraudulent endeavor,” App. at 140a, since Scott Salomon never mentioned Hernandez

in his testimony.6 Additionally, Raymond Jackson, an employee at Bank of America‟s

corporate security department, testified that the bank‟s records indicated that the account

was closed because of “fraud.” App. at 67a. As a result, the prosecutor, in his

summation, stated to the jury, “[y]ou heard from Ray Jackson . . . that the personal

account, the business account was shut down for fraud, and that that information was

relayed back to Vivian Hernandez.”7 App. at 138a. As Hernandez highlights, however,

Jackson “did not testify that Vivian or [Diego Hernandez] were notified that the closing

of the . . . accounts was for „fraud.‟”8 Appellant‟s Br. at 33.

       Assuming arguendo that these misstatements constitute obvious error, the

challenged remarks did not “undermine the fundamental fairness of the trial and


   6
     The Government concedes that the prosecutor mistakenly mentioned Scott Salomon
in discussing conversations involving Hernandez. See Appellee‟s Br. at 13.
   7
      The prosecutor also stated, “[y]ou heard from Ray Jackson, this account was closed
because of fraud and the people, Vivian Hernandez, Diego Hernandez, were notified of
that fraud.” App. at 140a.
   8
      Appellant did not object to the prosecutor‟s comments regarding Raymond Jackson
at trial. Thus, we also review those comments for plain error. See Pungitore, 910 F.2d at
1125-26.
                                              6
contribute to a miscarriage of justice.” Pungitore, 910 F.2d at 1126. The District Court

gave clear instructions to the jury that their recollections controlled. Moreover, in

defense counsel‟s summation, he also addressed the jury regarding the alleged

misstatements:

       It is your recollection of the evidence that counts. . . . And in this regard I‟ll just
       point out that contrary to [the prosecutor‟s] recitation, my recollection of the
       limousine ride where the alleged statements of the plan or explanation of the plan
       to Robert [Sacks‟] wife allegedly occurred, contrary to [the prosecutor‟s]
       recollection, I don‟t believe that the word fraud was ever used. And as to another
       conversation cited as proof against Mr. Hernandez, one supposedly involving a
       Scott Salomon. . . . Mr. Salomon never mentioned Diego Hernandez in his
       testimony.

Supp. App. at 211. These clarifications, combined with the fact that the prosecution

presented significant evidence against Hernandez over the course of a four-week trial,

demonstrate that Hernandez was not deprived of a fair trial. For instance, despite the

prosecutor‟s imprecise statements that Bank of America notified Hernandez and his wife

that their account was closed because of fraud, that inference was otherwise supported by

Sherman‟s testimony that a Bank of America official told Appellant that “something

didn‟t smell right” about the account. App. at 76aa3. Thus, overall, there was no

miscarriage of justice in Appellant‟s case.

                                              III.

       For the foregoing reasons, we will affirm the District Court‟s judgment.




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