2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-6-2012

USA v. Diego Hernandez

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3466

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________

No. 10-3466

_________

UNITED STATES OF AMERICA

v.

DIEGO HERNANDEZ,

 Appellant

________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 1-08-cr-00629-006)

District Judge: Honorable Garrett E. Brown, Jr.

_______

Submitted Under Third Circuit LAR 34.1(a)

December 12, 2011

Before: SLOVITER, VANASKIE, Circuit Judges

and STENGEL,

* District Judge

(Filed: January 06, 2012)

______

OPINION

______

 

* Hon. Lawrence F. Stengel, United States District Court for the Eastern District of 

Pennsylvania, sitting by designation.
2

SLOVITER, Circuit Judge.

Diego Hernandez was convicted in federal court for participating in an extensive 

telemarketing fraud conspiracy. The jury found Hernandez guilty of wire fraud, 

aggravated identity theft, conspiracy to commit mail and wire fraud, and conspiracy to 

commit bank fraud. On appeal, Hernandez claims that he is entitled to a new trial 

because the prosecutor misrepresented certain evidence during his summation. We will 

affirm.

1

I.

Hernandez was involved in a elaborate banking scheme, headed by Robert Sacks, 

in which Hernandez and several other co-conspirators used confidential bank account 

information to defraud account holders out of millions of dollars over a four-year period. 

While employed as Sacks‟ driver, Hernandez aided in the scheme by opening two bank 

accounts to receive fraudulently acquired funds, attempting to recruit other people to 

open similar accounts, and helping to establish limited liability corporations to further the 

scam. As a result, Hernandez was charged with and convicted of: (1) conspiracy to 

commit mail and wire fraud, contrary to 18 U.S.C. §§ 1341 and 1343 and in violation of 

18 U.S.C. § 1349; (2) conspiracy to commit bank fraud, contrary to 18 U.S.C. § 1344 and 

in violation of 18 U.S.C. § 1349; (3) three counts of wire fraud, in violation of 18 U.S.C. 

§§ 1343 and 2; and (4) three counts of aggravated identity theft, in violation of 18 U.S.C. 

§§ 1028A(a)(1) and 2. 

 

1

The District Court exercised jurisdiction under 18 U.S.C. § 3231. We have 

jurisdiction pursuant to 28 U.S.C. § 1291.
3

At trial, Hernandez did not dispute that he participated in a scheme that defrauded 

thousands of account holders out of their money but contended that, at the time, he did 

not know that the scheme was fraudulent. The Government therefore presented 

substantial circumstantial evidence demonstrating that Hernandez knew the scheme 

involved fraud. First, the Government presented evidence that shortly after Hernandez‟s 

arrest, he stated “I knew you guys would be coming for me sooner or later” and that he 

was “sorry for getting involved in the scheme.” Appellee‟s Supp. App. at 51. 

Additionally, testimony established that Hernandez was present with two of the scheme‟s 

organizers, Sacks and Jan Ludvik, when Ludvik explained the details of the scheme to 

Sacks‟ wife. Likewise, testimony demonstrated that Hernandez was present and 

“partaking lightly” in another discussion among co-conspirators regarding “the details of 

. . . the scam” and “how to tighten it up as much as possible to get the most money.” 

App. at 80a. Finally, the Government presented evidence showing that Hernandez 

understood that the scheme was fraudulent based on his conversations with coconspirators Ludvik, Ronald Sherman, and Peter Affatati.2

 

In the prosecutor‟s summation, he went over some of the key evidence supporting 

Hernandez‟s knowledge that the scheme was fraudulent. Considering these statements to 

 

2

Specifically, Ludvic testified that he developed a “social relationship” with 

Hernandez over the course of the scheme, during which Ludvic “express[ed] some of 

[his] frustrations . . . [with] the scam” to Hernandez and warned him that his “wife could 

get into big trouble” if she opened an account to support the scheme. App. at 89a-91a. 

Sherman testified, among other things, that Hernandez indicated that he was opening a 

telemarketing account “[b]ecause he wanted to make quick money.” App. at 76aa2. 

Affatati testified that Hernandez told him that he was “opening up accounts for Robert 

[Sacks]” and that Sacks had offered him $10,000 a month to do so. App. at 107a. 
4

be misrepresentations of the evidence, Hernandez‟s counsel objected at sidebar. The 

Court assured Hernandez‟s counsel that “[t]he jury‟s recollection will control.” App. at 

136. After the summation, Hernandez‟s counsel repeated the same objection and the 

Court instructed the jurors that “if during the course of the trial in opening statements, 

closing statements, or at any time any of the attorneys here have put forth a version of the 

facts that does not square with your own recollection, you‟re to disregard counsel‟s 

version in favor of your own recollections.” App. at 145. Hernandez‟s counsel did not 

request any further action from the Court regarding the alleged misstatements.3 

 

3 Hernandez‟s counsel did, however, tell the Court at sidebar his concerns about the 

prosecutor, Mr. Katz‟s purported mischaracterizations of the evidence:

MR. HANEY: I‟m concerned that this is an incident specific because frankly, it‟s 

the only evidence against my client. It‟s come down to basically about three 

conversations and if two-thirds of them are wrong in accordance to the 

representation by the government in their closing, I believe that the jury is going to 

have a misunderstanding of what the evidence was and then they may, in fact, rely 

upon Mr. Katz‟s misrepresentation or misleading representation of the evidence.

THE COURT: Mr. Katz?

MR. KATZ: Your Honor, with regard to the conversation in the car [with Sacks‟ 

wife], it was clear that fraud was being discussed. Now, whether the word fraud 

was used or not, quite honestly I don‟t even remember the words that I used in my 

summation. The record will set that clear. But the notion is – the testimony, to 

my recollection, was quite vivid that Diego Hernandez was within feet of Robert 

Sacks and –

THE COURT: When they were discussing fraud, whether the word was used or 

not –

MR. KATZ: Whether the word fraud was used or not is really, I think, of no 

moment.

THE COURT: Jurors‟ recollection will control. 
5

After the jury found Hernandez guilty on all counts, Hernandez filed a motion for an 

acquittal and a motion for a new trial.4 The District Court denied these motions and 

sentenced Hernandez to sixty-one months imprisonment and $52,877 in restitution. 

Hernandez timely appealed. 

II.

Because Hernandez did not request a mistrial based on the prosecutor‟s alleged 

misstatements before the District Court, we review the Court‟s failure to order a mistrial 

for plain error.5 See United States v. Riley, 621 F.3d 312, 338-39 (3d Cir. 2010). “In 

order to be plain error, an error must not only be „obvious,‟ it must also „have affected the 

outcome of the District Court proceeding.‟” United States v. Bethancourt, 65 F.3d 1074, 

1079-80 (3d Cir. 1995) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). 

“[W]e may reverse only if we find an error in the prosecutor‟s comments so serious as to 

„undermine the fundamental fairness of the trial and contribute to a miscarriage of 

justice.‟” United States v. Pungitore, 910 F.2d 1084, 1126 (3d Cir. 1990). 

 

App. at 141a-143a.

4 Hernandez argued that the evidence was insufficient to support his conviction.

5 Hernandez argues that the prosecutor‟s alleged misstatements are subject to 

harmless error review. We disagree. Hernandez‟s counsel objected to the prosecutor‟s 

remarks at sidebar on two occasions but never requested a mistrial. Counsel instead 

requested that the Court “give [the] jury the opportunity to rely on its own recollection,” 

and the Court instructed the jury accordingly. App. at 136a. 
6

Here, the prosecutor‟s summation did not constitute plain error. Rather, the 

prosecutor was merely drawing the reasonable inference that Hernandez understood the 

scheme‟s fraudulent nature. 

Hernandez challenges the prosecutor‟s comment that “Diego knows from before 

the conversations he had with Mr. Ludvik, Mr. Affatati, [and] Mr. Salomon . . . that this 

is a fraudulent endeavor,” App. at 140a, since Scott Salomon never mentioned Hernandez

in his testimony.6 Additionally, Raymond Jackson, an employee at Bank of America‟s 

corporate security department, testified that the bank‟s records indicated that the account 

was closed because of “fraud.” App. at 67a. As a result, the prosecutor, in his 

summation, stated to the jury, “[y]ou heard from Ray Jackson . . . that the personal 

account, the business account was shut down for fraud, and that that information was 

relayed back to Vivian Hernandez.”7 App. at 138a. As Hernandez highlights, however, 

Jackson “did not testify that Vivian or [Diego Hernandez] were notified that the closing 

of the . . . accounts was for „fraud.‟”

8

 Appellant‟s Br. at 33.

Assuming arguendo that these misstatements constitute obvious error, the 

challenged remarks did not “undermine the fundamental fairness of the trial and 

 

6

The Government concedes that the prosecutor mistakenly mentioned Scott Salomon 

in discussing conversations involving Hernandez. See Appellee‟s Br. at 13.

7

The prosecutor also stated, “[y]ou heard from Ray Jackson, this account was closed 

because of fraud and the people, Vivian Hernandez, Diego Hernandez, were notified of 

that fraud.” App. at 140a.

8 Appellant did not object to the prosecutor‟s comments regarding Raymond Jackson 

at trial. Thus, we also review those comments for plain error. See Pungitore, 910 F.2d at 

1125-26. 
7

contribute to a miscarriage of justice.” Pungitore, 910 F.2d at 1126. The District Court 

gave clear instructions to the jury that their recollections controlled. Moreover, in 

defense counsel‟s summation, he also addressed the jury regarding the alleged 

misstatements:

It is your recollection of the evidence that counts. . . . And in this regard I‟ll just 

point out that contrary to [the prosecutor‟s] recitation, my recollection of the 

limousine ride where the alleged statements of the plan or explanation of the plan 

to Robert [Sacks‟] wife allegedly occurred, contrary to [the prosecutor‟s] 

recollection, I don‟t believe that the word fraud was ever used. And as to another 

conversation cited as proof against Mr. Hernandez, one supposedly involving a 

Scott Salomon. . . . Mr. Salomon never mentioned Diego Hernandez in his 

testimony.

Supp. App. at 211. These clarifications, combined with the fact that the prosecution 

presented significant evidence against Hernandez over the course of a four-week trial, 

demonstrate that Hernandez was not deprived of a fair trial. For instance, despite the 

prosecutor‟s imprecise statements that Bank of America notified Hernandez and his wife 

that their account was closed because of fraud, that inference was otherwise supported by 

Sherman‟s testimony that a Bank of America official told Appellant that “something 

didn‟t smell right” about the account. App. at 76aa3. Thus, overall, there was no 

miscarriage of justice in Appellant‟s case.

III.

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