                                             NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

               Nos. 14-2916 and 14-2939
                    _____________

           UNITED STATES OF AMERICA

                            v.

                   RALPHIEL MACK,
                           Appellant in No. 14-2916


           UNITED STATES OF AMERICA

                            v.

                    TONY MACK,
                 A/K/A HONEY FITZ,
               A/K/A THE LITTLE GUY,
                  A/K/A NAPOLEON

                     Tony F. Mack,
                             Appellant in No. 14-2939

                     _____________

     On Appeal from the United States District Court
               for the District of New Jersey
      District Court Nos. 3-12-cr-00795-001 & 003
     District Judge: The Honorable Michael A. Shipp

    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                    October 6, 2015

Before: FUENTES, SMITH, and NYGAARD, Circuit Judges

                (Filed: December 4, 2015)
                                   _____________________

                                          OPINION*
                                   _____________________

SMITH, Circuit Judge.

       These consolidated appeals concern a public corruption sting operation that

ultimately resulted in the convictions of the Mayor of Trenton––Tony Mack––and his

brother––Ralphiel Mack.        After an eighteen day jury trial, the Mack brothers were

convicted of two counts of violating 18 U.S.C. § 1951(a) and (b)(2) (conspiracy to

commit extortion under color of official right and attempt to do the same), and one count

of violating 18 U.S.C. § 666(a)(1)(B) (accepting a bribe). Tony Mack was also convicted

of two counts of violating 18 U.S.C. §§ 1341 and 1346 (scheme to defraud money,

property, and honest services: wire fraud) and one count of violating 18 U.S.C. §§ 1343

and 1346 (scheme to defraud money, property, and honest services: mail fraud). On

appeal, Tony Mack raises one claim of prosecutorial misconduct, while Ralphiel Mack

raises a plethora of claims that are unsupported by the record.


       I. Tony Mack

       Tony Mack claims that the Government knowingly made a factual

misrepresentation during its rebuttal closing argument that ultimately prejudiced him.

This issue was not raised at trial, and therefore it is reviewed for plain error. United

States v. Berrios, 676 F.3d 118, 134 (3d Cir. 2012). The Court must determine if the


*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute
binding precedent.
                                                  2
“prosecutor’s comments to the jury ‘so infect[ed] the trial with unfairness as to make the

resulting conviction a denial of due process.’” Rolan v. Coleman, 680 F.3d 311, 321 (3d

Cir. 2012) (alteration in original) (quoting Greer v. Miller, 483 U.S. 756, 765 (1987)). In

determining whether prejudice exists, the court must look to (1) the severity of the

conduct; (2) the effect of any curative jury instructions; and (3) the totality of the

evidence against the defendant. Id. Mere misconduct is not grounds for a reversal.

Smith v. Phillips, 455 U.S. 209, 219 (1982).

       In this case, there are no grounds for reversal. The District Court did not find the

misrepresentation at issue here––a reference to a specific time frame on a surveillance

video during the Government’s rebuttal closing argument––to be knowing misconduct, as

it was based on the court reporter’s typographical error. Even if the Government did

commit misconduct, the jury was told by the Government to view the tapes themselves,

and instructed by the District Court that statements of attorneys are not evidence. Finally,

the weight of the evidence against Tony Mack was overwhelming, and any prosecutorial

misconduct did not unfairly prejudice him.

       II. Ralphiel Mack

       Ralphiel Mack raises several claims, all of which we reject as meritless.

       A. Sufficiency of the Evidence

       Ralphiel Mack argues that the Government failed to meet its burden of proof on all

counts. He also claims that the Government knew that it could not meet its burden of

proof, and thus engaged in prosecutorial misconduct by proceeding to trial. We review a

claim for sufficiency of the evidence de novo, and must determine whether, “after
                                               3
viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.”

Gov’t of Virgin Islands v. Vanterpool, 767 F.3d 157, 169 (3d Cir. 2014) (quoting Jackson

v. Virginia, 443 U.S. 307, 319 (1979)).

         In a written order addressing Ralphiel Mack’s post-trial Rule 29 motion, the

District Court noted that “proof of Ralphiel Mack’s knowledge [of the illegality of his

actions] was by no means overwhelming,” but nonetheless concluded “that it was

sufficient to support the jury’s verdict.” We agree that “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Vanterpool,

767 F.3d at 169. Two pieces of evidence pertaining to Ralphiel Mack’s knowledge that

the Court deems particularly persuasive are the discovery of $2,500 in “marked” hundred

dollar bills in his wallet, and his subsequent phone call to a co-conspirator saying that he

hoped that the money had been “switched up.” Because the evidence was sufficient, the

prosecutorial misconduct claim based on the Government’s proceeding to trial with

insufficient evidence is also meritless.1

         B. Giorgianni Recordings

         At trial, the Government introduced several tape recordings of Joseph Giorgianni,

a co-conspirator of the Mack brothers. Before trial, defense counsel stipulated as to the


1
    For the same reasons, Ralphiel Mack’s claim that there was a variance between the facts
alleged in the indictment and those proven at trial is meritless. This claim relies on
statements of denial made by co-conspirator Joseph Giorgianni when he was first
apprehended. Giorgianni later confessed and corroborated the facts alleged in the
indictment.
                                              4
authenticity of the recordings. However, neither the Government nor the Mack brothers

called Giorgianni as a witness, despite his availability to testify for either party. Ralphiel

Mack argues that the District Court erred when it did not allow him to play certain

recordings of Giorgianni for the jury. He also argues that the Government’s failure to

call Giorgianni as a witness, and thus be available for cross-examination, violated the

Confrontation Clause.2

       The District Court’s evidentiary ruling is reviewed for abuse of discretion as to the

admissibility of the recordings, and the review is plenary as to the proper interpretation of

the Federal Rules of Evidence. United States v. Georgiou, 777 F.3d 125, 143 (3d Cir.

2015). Similarly, the ruling concerning the Confrontation Clause is reviewed for abuse

of discretion, but, to the extent that it was based on an interpretation of the law, this Court

exercises plenary review. United States v. Bobb, 471 F.3d 491, 497-98 (3d Cir. 2006).

       The recordings were properly used by the Government pursuant to Federal Rule of

Evidence 801(d)(2)(E), which provides that a co-conspirator’s statement is not hearsay.

When Ralphiel Mack’s attorney sought to use the recordings, the District Court properly

held that Rule 801(d)(2)(E) does not allow the use of co-conspirator statements to be used

against the Government in a criminal trial. United States v. Kapp, 781 F.2d 1008, 1014

(3d Cir. 1986).

       The introduction of the recorded conversation between Giorgianni and Charles

Hall also did not violate the Confrontation Clause. Ralphiel Mack claims that Giorgianni


2
  Ralphiel Mack also claims that Government witnesses were allowed to
improperly interpret Giorgianni’s statements. A review of the record reveals that
                                              5
was aware that Hall was wearing a wire, and thus was aware that his statements would be

used at trial. This argument was raised at the District Court, which found the claim to be

“wholly unsubstantiated” by the record. We do not find an abuse of discretion in the

District Court’s evidentiary ruling, and thus the recorded statements were not testimonial

and were admissible. United States v. Berrios, 676 F.3d 118, 128 (3d Cir. 2012).

       C. Presumption of Innocence

       Ralphiel Mack also claims that his presumption of innocence was infringed when

the Government made certain remarks as part of its opening and closing statements. In

its opening statement, the Government told the jury to “pay careful attention to what the

defendants say . . . but also pay careful attention to how they say things; pay careful

attention to the questions they don’t ask; and pay careful attention to what they

demonstrate they understand by not asking those questions.” Similar statements were

made during closing arguments. Taken out of context, this statement appears to be

commenting on gaps in the in-court testimony of the Mack brothers, but the immediately

preceding statement, telling the jury to “evaluate this evidence, in particular, the recorded

conversation,” makes it clear that the Government was referring to the recorded

conversations of the Mack brothers that it was planning to introduce into evidence, not to

any statements that it expected the Mack brothers to make on the witness stand. Thus,

this claim has no support in the record.

       D. Jury Instructions

       Ralphiel Mack also argues that the District Court gave several improper jury


in such cases, the witnesses were speaking
                                         6 from personal knowledge.
instructions and erred in ignoring several proposed instructions.         Review of jury

instructions is plenary as to whether the District Court misstated the law and for abuse of

discretion as to the wording of instructions. United States v. Moreno, 727 F.3d 255, 261-

62 (3d Cir. 2013). If counsel fails to object, the standard of review is for plain error.

United States v. Dobson, 419 F.3d 231, 236 (3d Cir. 2005). “Merely proposing a jury

instruction that differs from the charge given is insufficient to preserve an objection.”

Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 339 (3d Cir. 2005).

       Defense counsel wanted an instruction on the testimony of alleged accomplices

possibly being perjured or unreliable. The District Court properly instructed the jury that

such testimony should be reviewed “with great care and caution.” No further instruction

was necessary.3 United States v. Bobb, 471 F.3d 491, 500 (3d Cir. 2006). Ralphiel Mack

failed to object to the remaining instructions that he contests, and we find no plain error.

We note that several of the instructions Ralphiel Mack claims were erroneously excluded,

were included. Furthermore, Ralphiel Mack now challenges one instruction that he

previously agreed to during the charge conference.

       E. Improper Guideline Calculation

       Lastly, Ralphiel Mack claims that his offense level was improperly calculated at

sentencing.    Specifically, he objects to the 8-level enhancement under U.S.S.G.

§ 2B1.1(b)(E) for a loss of more than $70,000. He argues that the largest part of the

calculated loss was $100,000, which he claimed was part of the honest services charges


3
 At the charging conference, defense counsel only objected to the use of the word
“great” instead of the word “greater.”
                                             7
of which he was acquitted. He states that he was found with only $2,500, and that no

more than $5,000 should be attributed to him. However, Counts 1-3 of the Indictment, of

which he was found guilty, specifically refer to the $100,000 that he claims should not be

attributed to him. Thus, it was properly attributed to him at sentencing.

       For the reasons stated herein, the judgments of the District Court will be affirmed.




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