                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 12-1016
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                   ROBERT B. LYNN,
                                                Appellant


                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                        (D.C. Criminal No. 2-09-cr-00279-003)
                        District Judge: Honorable Alan N. Bloch
                                      ___________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  October 26, 2012

    Before:    HARDIMAN, GREENAWAY, JR., and VANASKIE, Circuit Judges.

                             (Opinion Filed: March 11, 2013)
                                      ___________

                                        OPINION
                                       ___________

VANASKIE, Circuit Judge.

       At issue in this appeal is whether the District Court erred in denying Appellant

Robert B. Lynn‟s motion for a mistrial based upon the Government‟s reference to Lynn‟s

ability to testify when arguing an evidentiary objection in the presence of the jury, and

whether the District Court‟s curative instruction regarding the Government‟s comment
was adequate. Also at issue is whether the District Court improperly punished Lynn for

exercising his right to proceed to trial by imposing a lengthier prison term than was

imposed on a co-defendant who pled guilty. Finding no error in the District Court‟s

denial of Lynn‟s motion for a mistrial, curative instruction or sentence, we will affirm.

                                              I.

       Since we write principally for the parties, we set forth only the facts essential to

our analysis.

       Lynn was charged with multiple counts of mail fraud (18 U.S.C. § 1341), wire

fraud (18 U.S.C. § 1343), and bank fraud (18 U.S.C. § 1344), as well as one count of

conspiracy to commit fraud (18 U.S.C. § 1349). The charges against Lynn arose from his

role in an accounting scheme in which he and several of his coworkers at Le-Natures,

Inc. (“LNI”) defrauded banks and investors. The loss exceeded $660 million. In essence,

LNI, a beverage company, kept two separate accounting systems: one that was accurate

and another that was inflated with false records. Lynn and his co-conspirators used the

false records to obtain loans and investments for the company. Lynn served as executive

vice president at LNI and at various times was LNI‟s chief sales officer, chief revenue

officer, general manager, and board member.

       Lynn was the only one of the LNI officials charged in the fraudulent scheme who

did not plead guilty. During his trial, defense counsel cross-examined a Government

witness about the identification of handwritten percentages on the bottom of a production

forecast. The witness, the former manager of production planning and inventory control

at LNI, testified he did not recognize the handwriting. Defense counsel then asked the

                                              2
witness about a possible interpretation of what the handwritten percentages might have

meant. The Government objected and stated: “Objection, Your Honor. The witness

doesn‟t know whose handwriting this is and is asked to be—speculate. And if we had

some factual basis, if Mr. Lynn wants to testify but—.” (App. 780.) At that point,

defense counsel objected and moved for a mistrial, which the District Court immediately

denied.

       After completion of the examination of the witness and the dismissal of the jury,

defense counsel elaborated upon the grounds for his motion for a mistrial, asserting that

the Government‟s reference to Lynn and his ability to lay an evidentiary foundation if he

wished to testify violated his Fifth Amendment right against self-incrimination. The

District Court took the motion under consideration. Before the Court reconvened several

days later,1 Lynn filed a renewed motion for a mistrial, or, in the alternative, for a

curative instruction. While the District Court denied the motion for a mistrial, it granted

the motion for a curative instruction but chose not to use Lynn‟s proposed instruction.

       Out of the presence of the jury, the District Court read the instruction it intended to

give. Lynn did not object to the proposed instruction. When the jury returned to the

courtroom, the District Court gave that same instruction:

                Before we adjourned Tuesday, Mr. Farrell [defense counsel]
                asked a witness, Mr. Waller, some questions regarding
                handwriting on one of the exhibits, which was Government
                Exhibit 4062. In the course of doing so, he asked the
                following question: Quote, now, if you look at these
                percentages, in your experience, do these percentages of 12
                percent, or the fifth entry, or fifth month of the year, was that

       1
           The trial was postponed several days due to the Trial Judge‟s illness.
                                                3
              roughly equivalent to, in your experience, what was sold in
              May as percent of the year?, end of quote. Mr. Cessar
              [Government counsel] objected, stating, quote, objection,
              Your Honor. The witness doesn‟t know whose handwriting
              this is, and is asked to be, and is asked to be -- and then, the
              word “to” was left out, speculate. And if we have some
              factual basis, if Mr. Lynn wants to testify, end of quote. You
              should remember that a defendant has an absolute right not to
              testify. The fact that a defendant does not testify should not
              be considered by you in any way, or even discussed in your
              deliberations. I remind you that it is up to the government to
              prove the defendant guilty beyond a reasonable doubt. It is
              not up to the defendant to prove that he is not guilty.

(App. 800-01.) Lynn did not raise an objection after the curative instruction was

delivered to the jury.

       Because Lynn ultimately chose not to testify at trial, the District Court also

instructed the jury in its final charge:

              Remember that a defendant has an absolute right not to testify
              or offer evidence. The fact that a defendant did not testify or
              offer any evidence should not be considered by you in any
              way or even discussed in your deliberations, I remind you that
              it is up to the government to prove the defendant guilty
              beyond a reasonable doubt. It is not up to the defendant to
              prove that he is not guilty.

(App. 1765.) Lynn did not object after the District Court gave the jury its final charge.

       The jury returned a verdict of guilty on seven counts of wire fraud, two counts of

bank fraud, and the conspiracy count.2 The presentence investigation report prepared by

the Probation Office calculated the United States Sentencing Guidelines range to be 324

to 405 months‟ imprisonment based on a total offense level of 41 and a criminal history


       2
        The jury acquitted Lynn on ten other counts and was unable to reach a verdict on
five counts.
                                             4
category of I. Lynn requested a substantial downward variance, from 324 months to a

prison term of 150 months, a sentence he viewed as comparable to the 120-month prison

term received by Andrew Murin, a co-defendant who pled guilty but did not cooperate

with the Government.3 The District Court did grant the request for a downward variance

based upon Lynn‟s age—he was sixty-seven years old—and his law-abiding prior

history, but declined to go as far as Lynn requested. Instead, the District Court imposed a

prison term of 180 months.4

                                              II.

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

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

                                              A.

       Lynn first argues that the Government‟s reference to his ability to testify at trial

violated his Fifth Amendment privilege against self-incrimination, warranting a mistrial.

In Griffin v. California, 380 U.S. 609 (1965), the Supreme Court held that prosecutors

may not make comments suggesting that a defendant‟s invocation of his or her right not

to testify at trial is evidence of guilt. Id. at 615. “A remark is directed to a defendant‟s

silence when the language used was manifestly intended or was of such character that the

jury would naturally and necessarily take it to be a comment on the failure of the accused


       3
          Two cooperating co-defendants, Donald Pollinger and Jonathan Podlucky,
received prison terms of sixty months. The remaining co-defendant charged in the
indictment along with Lynn, Gregory Podlucky, received a sentence of 240 months‟
imprisonment.
        4
          The District Court also imposed a five-year term of supervised release and
restitution of over $660 million.
                                              5
to testify.” United States v. Brennan, 326 F.3d 176, 187 (3d Cir. 2003) (citation and

internal quotation marks omitted). “In making this determination, we must examine the

challenged prosecutorial remark in its trial context.” Lesko v. Lehman, 925 F.2d 1527,

1544 (3d Cir. 1991) (citations omitted). If the defendant‟s constitutional rights were

violated, we will not reverse the conviction if the error was harmless. Id. at 1546.

       While the Government‟s statement that “if we had some factual basis, if Mr. Lynn

wants to testify but—,” (App. 780), during its foundational objection to defense counsel‟s

question of a witness on cross-examination was not appropriate, we conclude that it did

not rise to the level of a constitutional error under Griffin. The Government objected to

defense counsel‟s question of the witness asking him to interpret handwritten percentages

on a production forecast. The witness had already testified that he could not identify the

handwriting on that document. Therefore, presumably because the witness did not know

the origin of the written percentages, the Government objected on the ground that the

witness‟s interpretation of the meaning of the handwriting would be improper

speculation. Read in context, we do not find that the Government‟s comment about Lynn

being able to provide an evidentiary foundation was “manifestly intended” to be a

comment on Lynn‟s failure to testify. See Brennan, 326 F.3d at 187. Rather, it appears

that the Government intended the comment to demonstrate the lack of foundation on

which the witness could base its interpretation of the handwritten numbers.

       Nor is it evident “that the jury would naturally and necessarily take [the

Government‟s reference to Lynn] to be a comment on” Lynn‟s silence as evidence of his

guilt. See id. As other Courts of Appeals have recognized, “„[t]he question is not

                                             6
whether the jury possibly or even probably would view the remark in this manner, but

whether the jury necessarily would have done so.‟” United States v. Nelson, 450 F.3d

1201, 1213 (10th Cir. 2006) (quoting United States v. Garcia, 13 F.3d 1464, 1474 (11th

Cir. 1994)); accord United States v. Davis, 609 F.3d 663, 685 (5th Cir. 2010); United

States v. Carl, 978 F.2d 450, 452 (8th Cir. 1992). When examined in context, we do not

conclude that the jury necessarily would have viewed the Government‟s remark as a

comment on Lynn‟s failure to testify as evidence of his guilt. Indeed, the Government‟s

statement was not directed to the jury, but was instead made in the context of an

evidentiary objection. The remark was abrupt, being immediately cut off by defense

counsel‟s assertion that the reference to Lynn being able to testify was improper.

       Even if we did construe the Government‟s remark as a comment on Lynn‟s failure

to testify, the District Court‟s curative instruction was sufficient to render any error

harmless. After the District Court initially denied Lynn‟s immediate oral motion for a

mistrial, defense counsel quickly finished his cross-examination of the witness and the

Government conducted a short redirect-examination. At that time, the District Court

dismissed the jury at defense counsel‟s request so that he could explain the basis for his

motion for a mistrial before the District Court adjourned for the day. When the District

Court reconvened after the District Judge‟s illness, the first thing the jury heard, after a

brief explanation of the Judge‟s illness, was the District Court‟s curative instruction. In

that instruction, the District Court directly addressed the Government‟s comment and

reminded the jury of Lynn‟s constitutional right not to testify, that a defendant‟s failure to

“testify should not be considered by you in any way, or even discussed in your

                                              7
deliberations,” and that the Government, rather than the defendant, had the burden of

proof. (App. 800-01.) Clearly implicit in that instruction was the notion that the

Government should not have made such a comment and the jury was to disregard it. If

any ambiguity as to the meaning or interpretation of the Government‟s remark existed,

the District Court‟s curative instruction was sufficient to neutralize any error.

Accordingly, we conclude that the District Court did not err in denying Lynn‟s motion

for a mistrial.

                                                 B.

       Lynn also argues that his 180-month prison sentence created an unwarranted

disparity, under 18 U.S.C. §3553(a)(6), with the 120-month sentence of a co-defendant,

Andrew Murin, who pled guilty but did not cooperate with the Government. Lynn

contends that his sentence should have been 150 months, which he asserts would have

been commensurate with Murin‟s sentence save for the reduction Murin received for his

acceptance of responsibility.

       Although the District Court did vary downward from the 324 to 405-month

Guidelines range based on Lynn‟s age and previously law-abiding background, it rejected

Lynn‟s request for a 150-month sentence. The District Court noted that Murin‟s and the

other co-defendants‟ sentences were based on their negotiated agreements with the

Government. The District Court further explained:

                  The defendant chose to put the government to the burden of
                  proving his guilt, rather than accept responsibility for his
                  actions. In this case, that is no small thing, as the month-long
                  trial substantially taxed the resources of the government and
                  the Court.

                                                 8
              He cannot choose to take the risk of trial, and then, assert that
              he is entitled to the benefit of the same sentences his co-
              defendants negotiated with the government. Thus, any
              disparities between the defendant‟s sentence and those of his
              co-defendants are not unwarranted.

(App. 1878.) Based on those comments, Lynn argues that the District Court penalized

him for exercising his right to go to trial.

       We review the procedural and substantive reasonableness of a sentence for abuse

of discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).5 “[I]f

the district court‟s sentence is procedurally sound, we will affirm it unless no reasonable

sentencing court would have imposed the same sentence on that particular defendant for

the reasons the district court provided.” Id. at 568.

       Lynn does not challenge the procedural reasonableness of his sentence. Lynn

argues that his sentence was substantively unreasonable because it was sixty months

longer than a co-defendant who pled guilty but did not cooperate with the Government.

We have held that “a defendant cannot rely upon § 3553(a)(6) to seek a reduced sentence

designed to lessen disparity between co-defendants‟ sentences” because that provision

“does not require district courts to consider sentencing disparity among co-defendants . . .

.” United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006). In addition, because Murin


       5
         The parties dispute whether Lynn preserved this sentencing issue in the District
Court, with the Government asserting that we should employ plain error review and not
the abuse of discretion standard. Because Lynn‟s argument fails even under an abuse of
discretion standard, we need not decide whether to review Lynn‟s sentencing under an
abuse-of-discretion standard or for plain error. See United States v. Miller, 594 F.3d 172,
183 n.6 (3d Cir. 2010) (“We review the sentence imposed by the District Court for abuse
of discretion except where it was imposed without objection, in which case we review
only for plain error.” (citation and internal quotation marks omitted)).
                                               9
pled guilty to one count of mail fraud, and Lynn was convicted of ten felony counts,

including wire fraud, bank fraud, and conspiracy, Lynn and Murin were not similarly

situated, thus precluding Lynn‟s invocation of § 3553(a)(6). Indeed, Murin‟s advisory

Guidelines range was 210 to 262 months, whereas Lynn‟s range was 324 to 405 months,

demonstrating that they were not at all situated alike. Furthermore, if the starting point in

the comparability analysis is the bottom of the respective advisory Guidelines ranges for

Murin and Lynn, a sentence of 180 months reflects a 44% downward adjustment,

comparable to the 43% downward variance from the bottom of Murin‟s advisory

Guidelines range.6

        Furthermore, we perceive the District Court‟s comments merely to have been an

explanation for why it rejected Lynn‟s assertion that his sentence should have been 150

months to avoid an unwarranted disparity with Murin. As the District Court noted,

because Lynn did not plead guilty and instead went to trial, he was not entitled to a

sentence similar to co-defendants who accepted responsibility for their actions. The

District Court‟s explanation of the policy reasons for adjusting defendants‟ sentences

when they accept responsibility does not amount to a “penalty” for Lynn‟s decision to go

to trial.

        We find Lynn‟s 180-month prison sentence to be substantively reasonable. The

Guidelines imprisonment range was 324 to 405 months. The District Court varied

substantially from the bottom end of that range based on Lynn‟s age and previously law-

        6
        The sentence requested by Lynn, 150 months‟ imprisonment, would have
represented a downward variance of 54%, a much greater reduction in relative terms than
Murin had received.
                                             10
abiding history. Given the magnitude of the fraud and loss in this case, we cannot

conclude that “no reasonable sentencing court would have imposed the same sentence on

that particular defendant for the reasons the district court provided.” Tomko, 562 F.3d at

568.


                                            III.

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




                                            11
