                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     _____________

                                      No. 16-1145
                                     _____________


                            UNITED STATES OF AMERICA

                                             v.

                                    RALPH MILLER,

                                                               Appellant



                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                        (District Court No. 2-11-cr-00493-001)
                      District Judge: Honorable Cynthia M. Rufe



                      Submitted under Third Circuit L.A.R. 34.1(a)
                                 on February 10, 2017

              Before: MCKEE, RENDELL, and FUENTES, Circuit Judges

                               (Opinion filed: June 6, 2017)


                                      O P I N I O N*




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

       In 2015, Ralph Miller was convicted of money laundering and mail fraud, and

aiding and abetting both offenses, as a result of insurance claims he filed for damages to

his theatre businesses. In 2016, he was sentenced for that conviction. Miller raises two

issues on appeal: one related to the sufficiency of the evidence supporting his conviction,

and another related to a violation of his allocution rights at sentencing. We will uphold

Miller’s conviction, but vacate for re-sentencing in light of United States v. Moreno, 809

F.3d 766 (3d Cir. 2016).

       I. Sufficiency of the Evidence

       Miller claims there was not sufficient evidence to convict him of (1) money

laundering, related to a 2006 flood insurance claim, and (2) mail fraud, related to a 2009

fire and theft insurance claim.1 Miller did not move for a judgment of acquittal based on

the sufficiency of the evidence at the District Court.2 Thus, we review his claim for plain

error. United States v. Wolfe, 245 F.3d 257, 260–61 (3d Cir. 2001).

       Even when a defendant makes a motion for judgment of acquittal based on the

sufficiency of the evidence in the District Court, our standard of review is demanding: we

ask if any rational trier of fact could have found guilt beyond a reasonable doubt based on


1
  The district court had subject matter jurisdiction under 18 § U.S.C. 3231. We have
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
2
  Miller argues on appeal that he preserved his sufficiency of the evidence challenge by a
Fed. R. Crim. Pro. 29 motion for judgment of acquittal at trial. But, as Miller himself
concedes, his motion did not object to sufficiency of the evidence related to intent to
defraud, which is at issue in this appeal. Instead, he raised this motion on a different
ground: that “the government did not prove that [Miller] benefited from the fraud.”
Appellant’s Brief at 3; J.A. 1409–13.
                                             2
the evidence, viewed in the light most favorable to the government. See United States v.

Lore, 430 F.3d 190, 203–04 (3d Cir. 2005). But when, as here, the defendant has not

made such a motion below, our standard for reviewing the verdict is even more

deferential: we will reverse only if the verdict “constitutes a fundamental miscarriage of

justice.” United States v. Gordon, 290 F.3d 539, 547 (3d Cir. 2002) (quoting United

States v. Thayer, 201 F.3d 214, 219 (3d Cir. 1999)). Under either standard of review,

there was more than sufficient evidence to convict Miller.

       Miller first argues that the government failed to establish the elements of

necessary for conviction of wire fraud,3 which was an element of the money laundering

charge against him.4 In short, he claims that there was insufficient evidence to prove that

he intended to defraud anybody. Although Miller admits that there were errors in

insurance submissions related to a 2006 flood, he asserts that these errors were simply

mistakes resulting from the hasty preparation of his claim.



3
  For the jury to find that Miller committed wire fraud, the government was required to
prove beyond a reasonable doubt that Miller (1) knowingly and willfully devised a
scheme to defraud or obtain money or property by materially false or fraudulent
pretenses, representations, or promises, or attempted to do so; (2) acted with intent to
defraud; and (3) that in advancing, furthering, or carrying out the scheme, Miller
transmitted, or caused the transmission of, any writing, signal, or sound by means of a
wire, radio, or television communication in interstate or foreign commerce. See 18 U.S.C.
§ 1343; United States v. Hedaithy, 392 F.3d 580, 590 (3d Cir. 2004).
4
  Under the relevant money laundering statute, 18 U.S.C. § 1957, the government had to
prove (1) Miller engaged or attempted to engage in a monetary transaction in or affecting
interstate commerce; (2) the monetary transaction involved criminally derived property of
a value greater than $10,000; (3) the property was derived from specified unlawful
activity; (4) Miller acted knowingly; and (5) the transaction took place in the United
States. See United States v. Sokolow, 91 F.3d 396, 407–08 (3d Cir. 1996). The “unlawful
activity” at issue was Miller’s alleged wire fraud. J.A. 1460–63.
                                             3
       But the jury was free to find intent to defraud based on the evidence before it:

conflicting statements Miller had given regarding damage to stage lights, and the sheer

number of items included in the claim that were not in fact damaged. While Miller

suggests that he was an innocent, although negligent, bystander in the claims process,

Miller’s handwritten notations on loss summary reports provided a basis for finding

otherwise. App. 733, 1971–86.

       Faced with this evidence, a rational jury could easily have found that the

Government proved the elements of wire fraud, and, in turn, money laundering. See

United States v. Caraballo-Rodriguez, 726 F.3d 418, 424, 430 (3d Cir. 2013). It follows,

then, that his conviction is far from a “fundamental miscarriage of justice,” Gordon, 290

F.3d at 547, such that we would disturb the verdict.

       With respect to the fire insurance claim, Miller presents a variation on the same

argument: he claims that he, or his agents, simply made mistakes, and thus he could not

be convicted of mail fraud,5 as he lacked intent to defraud. But so, too, here, significant

evidence supported the jury’s conclusion that Miller was in fact guilty: multiple claims

for items that had never been damaged, and claims for items that in fact had never been

installed. Although Miller argues that he was simply cooperating with those handling his

claim, the jury heard testimony suggesting that Miller personally reviewed and made



5
  To find that Miller committed mail fraud, the Government had to prove that (1) Miller
knowingly devised a scheme to defraud or to obtain money or property by materially
false or fraudulent pretenses, representations, or promises or attempted to do so; (2) acted
with intent to defraud; and (3) in advancing, furthering, or carrying out the scheme, used
mails or caused mails to be used. See 18 U.S.C. § 1341; Hedaithy, 392 F.3d at 590.
                                              4
changes to insurance submissions. App. 1167–78, 2346. In sum: the jury had more than

enough evidence to convict Miller, and we will not substitute our judgment for theirs.

       II. Allocution

       Miller claims the District Court violated his rights of allocution at sentencing. As

he did not raise this challenge below, we review for plain error. Moreno, 809 F.3d at

773.6 In Moreno, we announced that the prosecution should not be allowed to cross-

examine a defendant during allocution, and that doing so violated a defendant’s

allocution rights. Id. at 779. Six days after we decided Moreno, the District Court judge

invited the prosecution to examine Miller during his allocution. Although the prosecution

asked only three brief questions on a matter of subsidiary importance, we must vacate for

re-sentencing. In Moreno we stated that “a defendant is automatically entitled to

resentencing if the trial court violates the defendant’s right of allocution.” Id. at 780

(quoting United States v. Adams, 252 F.3d 276, 281 (3d Cir. 2001)). Because the trial

court violated Miller’s rights of allocution, we vacate for resentencing.7




6
  We will find plain error where there is (1) an error; (2) that is plain; (3) that affects
substantial rights; and (4) which seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See United States v. Tai, 750 F.3d 309, 313–14 (3d
Cir. 2014).
7
  Miller also challenges the District Court judge’s questioning of Miller at sentencing.
But neither Moreno nor any of our other cases has held that questioning similar to the
District Court judge’s violates allocution rights. Indeed, the questioning in this case
occurred after Miller concluded his allocution statement. Thus, we vacate on the grounds
of the prosecution’s cross-examination alone.
                                               5
