                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  June 11, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 02-10719


UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

versus

INCREASE EBONG ISANG,

                                               Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                         (3:01-CR-391-1-H)
                       --------------------

Before WIENER and CLEMENT, Circuit Judges and LITTLE, District
Judge.*

PER CURIAM:**

     Defendant-Appellant Increase Ebong Isang, an illegal alien,

appeals his jury conviction for uttering a forged security in

violation of 18 U.S.C. § 513(a), contending that the evidence was

insufficient to support his conviction, that he was entitled to a

mistrial on grounds of prosecutorial misconduct, and that, even if

his conviction is affirmed, the portion of his sentence requiring

restitution should be vacated.   We affirm.


     *
       Honorable F.A. Little, Jr., District Judge of the Western
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this opinion should not be published and is not precedent except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.
                      I. Fact and Proceedings

     Isang was indicted on two counts of making, possessing, or

uttering a forged or counterfeit security of an organization, in

violation of 18 U.S.C. § 513.     Evidence adduced by the government

at trial showed that Isang used aliases and false identifications

to open “doing business as” accounts at Washington Mutual Bank into

which he deposited forged or counterfeit checks drawn on accounts

maintained in other banks by Coca-Cola North America (“Coke”) and

the Dallas Area Rapid Transit Authority (“DART”).           In a third

count, Isang was charged with illegal re-entry subsequent to a

felony conviction, in violation of 8 U.S.C. § 1326.

     After the government presented its case, Isang moved for

judgment of acquittal under Federal Rule of Criminal Procedure 29

(Rule 29), which the district court denied.           Isang put on no

defense, and the jury found him guilty on all counts.

     Isang   filed   objections    to   the    Probation   Department’s

Presentence Investigation Report (PSR).       One of Isang’s objections

opposed upward departure.   When, at sentencing, the district court

denied the government’s upward departure motion, Isang withdrew all

remaining objections to the PSR.

     In addition to imprisonment and supervised release, Isang’s

sentence included an order of restitution totaling in excess of

$85,000, payable to Compass Bank and Wells Fargo Bank.           Isang

timely filed a notice of appeal.

                            II. Analysis

                                   2
     At the close of the government’s case Isang moved for a

judgment of acquittal, contending that the government had failed to

adduce sufficient evidence to prove each element of the crimes

charged beyond a reasonable doubt. Defense counsel’s insufficiency

motion was broadly general but was followed by a particularized

challenge to the sufficiency of the proof of Isang’s involvement in

the alleged offenses —— an “identity” challenge.       In contrast,

Isang’s counsel never mentioned the sufficiency of evidence to

prove that the organizations whose securities were forged or

counterfeited met the interstate commerce element of § 513.     The

government urges appellate review under the standard pronounced in

United States v. Herrera,1 which was decided after Isang’s trial

and after the district court’s denial of his Rule 29 motion; Isang

urges review under our pre-Herrera “any rational trier of fact”

standard.2    As we conclude that, under United States v. Chappell,3

the evidence is sufficient to support each element of the crime,

irrespective of which standard of review is applied, we need not

decide whether Herrera applies to this case.




     1
         313 F.3d 882 (5th Cir. 2002)(en banc).
     2
       United States v. Daniel, 957 F.2d 162, 164 (5th Cir. 1992)
(articulating the standard as “whether, after viewing the evidence
in the light most favorable to the verdict, any rational trier of
fact could have found the essential elements of the offense beyond
a reasonable doubt”).
     3
         6 F.3d 1095 (5th Cir. 1993).

                                  3
     We are satisfied that, even under the more defendant-friendly,

pre-Herrera standard of review for sufficiency of the evidence,

each element of the crimes charged —— including the requirement

that the organizations in question be legal entities operating in

interstate commerce or conducting activities that affect interstate

commerce    ——   is     adequately   supported   by   record   evidence,

irrespective of the fact that the government did not parade an

array of witnesses to testify to the obvious, i.e., the interstate

aspects of each organization’s activities.            If nothing else,

Chappell teaches that securities can belong to more than one

organization, such as the bank and its account owner, and, at least

by implication, that banks are, per se, § 513(c)(4) organizations.4

     As for Isang’s claim of entitlement to a mistrial based on

prosecutorial misconduct, we are not persuaded.        His objection to

the prosecutor’s closing argument statement in rebuttal —— “That

thing about the INS deal is the biggest red herring thing I have

seen in my life” —— was followed immediately by the district

court’s statements in open court sustaining Isang’s objection,

labeling the prosecution argument as impermissible, and instructing

the jury to disregard it.            In denying Isang’s motion for a

mistrial, the district court expressly relied on its instruction to

the jury; and the government pointed to trial exhibits showing that

Isang was actually deported within the contested time period.         We


     4
         Id. at 1099.

                                      4
discern no reversible error in the court’s disposition of the

matter.

      Finally, Isang’s complaint about the court’s restitution order

—— which was not objected to in the district court —— is reviewed

for plain error, as conceded by Isang.       It is true that Isang’s PSR

recommended restitution under the Mandatory Victim Restitution Act

of 1996 (MVRA)5 and that, in United States v. Mancillas,6 we held

that “a defendant sentenced under the provisions of the MVRA is

only responsible for restitution for the conduct underlying the

offenses for which he has been convicted.”7            Despite the PSR’s

recommendation that restitution be imposed pursuant to the MVRA,

however, the record of the sentencing hearing contains no mention

of   the   MVRA.    When   the   district   court   ordered   restitution,

admittedly to two banks that were not involved in the transactions

underlying the offenses of conviction, it made no representation

that it was ordering restitution under the MVRA, and no reference

to the MVRA is reflected by the record.

      Generally, when defendants are convicted for commercial crimes

like those at issue here, and have both intended and created

significant losses to victims, the court has wide latitude in

assessing restitution, as to both the amount and recipients of the



      5
          18 U.S.C. § 3663A (2000).
      6
          172 F.3d 341 (5th Cir. 1999).
      7
          Id. at 343 (emphasis added).

                                      5
restitution.     Thus, even if we were to infer that the district

court imposed restitution under the MVRA sub silentio, and were to

agree with at least two other circuits that ordering a defendant to

pay restitution to parties that were not implicated directly in the

offense of conviction constitutes plain error,8 our task still

would not be at an end.    The existence of plain error is only the

penultimate determination:    Once such error is found to exist, we

still must determine (1) whether it affects a substantial right of

the   defendant,   i.e.,   whether       such   error’s   effect   on   the

proceeding’s outcome has prejudiced the defendant, and (2) whether

the nature of the error warrants relief.9        If the defendant cannot

show that the plain error’s effect on his substantial rights has

prejudiced him, no remedy is available.10          Furthermore, when the

defendant’s substantial rights have been affected by plain error,

the decision whether to correct such error remains within the

discretion of the appellate court.11       And, we are instructed by the

Supreme Court that such correction should be made only when the




      8
      See United States v. Tunning, 69 F. 2d 107, 115-16 (6th Cir.
1995); United States v. Wainwright, 938 F.2d 1096, 1098-99 (10th
Cir. 1991).
      9
       United States v. Calverley, 37 F.3d 160, 164 (5th Cir.
1994)(en banc).
      10
           Id.
      11
           Id.

                                     6
error      seriously   affects    the   fairness,     integrity,    or    public

reputation of judicial proceedings.12

      Both the harm intended and the harm actually caused by Isang

greatly exceeded the $85,576.04 that the district court imposed as

restitution.     Even if we assume without conceding that restitution

was implicitly assessed under the MVRA and that plain error thus

occurred, we conclude that Isang has failed to demonstrate that

this putative plain error affected his substantial rights to the

extent of prejudice, much less justifies our correcting such error

in the face of the high hurdle of the “seriously affects” standard.

For   these    reasons,   we     decline    to   disturb   the   trial   court’s

restitution order.

      Isang’s conviction and sentence are, in all respects,

AFFIRMED.




      12
       Id. (citing United States v. Atkinson, 297 U.S. 157, 160
(1936)).

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