                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0094n.06

                                           No. 09-5262

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                       FILED
                                                                                      Jan 26, 2012
UNITED STATES OF AMERICA,                            )
                                                     )                         LEONARD GREEN, Clerk
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE
v.                                                   )       UNITED STATES DISTRICT
                                                     )       COURT FOR THE WESTERN
DAVID HERNANDEZ,                                     )       DISTRICT OF TENNESSEE
                                                     )
       Defendant-Appellant.                          )
                                                     )



       BEFORE: COOK, McKEAGUE, and ROTH, Circuit Judges.*


       PER CURIAM. David Hernandez appeals his judgment of conviction.

       A jury found Hernandez guilty of one count of conspiracy to commit mail and wire fraud,

in violation of 18 U.S.C. § 371, eighteen counts of wire fraud, in violation of 18 U.S.C. § 1343, and

three counts of mail fraud, in violation of 18 U.S.C. § 1341. The district court sentenced Hernandez

to twenty months in prison. His convictions arose from the following facts. Hernandez was the

general manager of AirTrans, Inc. (“AirTrans”), a trucking company in Dyersburg, Tennessee. To

cover shortfalls in its daily cash flow, employees of AirTrans created false bills of lading showing

that AirTrans was delivering goods for one of several businesses. The false bills were then

submitted to Allied Carriers Exchange (“Allied”), a cooperative that purchased accounts receivables

from truck lines, which would provide immediate payment to AirTrans.               AirTrans would



       *
        The Honorable Jane R. Roth, Circuit Judge for the United States Court of Appeals for the
Third Circuit, sitting by designation.
No. 09-5262
United States of America v. Hernandez

subsequently provide funds to the business named on the false bill so that it could pay Allied within

its ninety-day payment window.

       On appeal, Hernandez raises two issues: (1) there was insufficient evidence to demonstrate

that he devised, intended to devise, or knowingly participated in the fraudulent scheme; and (2) the

district court improperly questioned a juror concerning whether she concurred in the verdict.

       Because Hernandez failed to renew his motion for judgment of acquittal at the close of the

evidence, he waived any objection to the sufficiency of the evidence. See United States v. Jordan,

544 F.3d 656, 670 & n.10 (6th Cir. 2008); United States v. Price, 134 F.3d 340, 350 (6th Cir. 1998).

Our review of this issue is therefore limited to determining “whether there was a manifest

miscarriage of justice.” Jordan, 544 F.3d at 670 (citation omitted). “A miscarriage of justice exists

only if the record is devoid of evidence pointing to guilt.” Id. (citation omitted).

       The record was not devoid of evidence pointing to Hernandez’s guilt. A witness testified that

Hernandez was present in the office when the fraudulent bills of lading were produced and that he

stated that the bills had to be filled out. Further, the prosecution presented evidence that Hernandez

took part in meetings concerning how much revenue AirTrans needed to generate each day and that

he instructed employees on the amount of money that needed to be made from the bills being

submitted to Allied. In addition, two witnesses testified that Hernandez directed them to forge

signatures on bills of lading, and one of the witnesses stated that Hernandez instructed her to ensure

that the signature looked different from her own handwriting. Finally, the proprietor of one of the

businesses named on the fraudulent bills of lading testified that he spoke with Hernandez about

getting money from AirTrans to pay the bills being sent to him by Allied.




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No. 09-5262
United States of America v. Hernandez

       Hernandez also argues that the district court erred by repeatedly questioning a juror about her

verdict before requiring the jury to continue deliberations. Because Hernandez did not raise this

objection in the district court, we review for plain error only. See United States v. Simpson, 430 F.3d

1177, 1183 (6th Cir. 2005). We conclude that the district court did not err, plainly or otherwise, in

questioning the juror because the questions were aimed at clearing up ambiguity in whether she

agreed with the verdict. See Fed. R. Crim. P. 31(d); King v. Ford Motor Co., 209 F.3d 886, 896 (6th

Cir. 2000). The district court did not improperly force the juror to cast her vote in open court

without further deliberation in the jury room. See King, 209 F.3d at 896.

       Accordingly, we affirm the district court’s judgment.




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