USA v. David Hernandez

Filing

Per Curiam OPINION filed :The district court's judgment is AFFIRMED, decision not for publication pursuant to local rule 206. Deborah L. Cook, Circuit Judge; David W. McKeague, Circuit Judge and Jane R. Roth, Circuit Judge.

Case: 09-5262

Document: 006111195190

Filed: 01/26/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0094n.06
No. 09-5262
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID HERNANDEZ,
Defendant-Appellant.

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FILED

Jan 26, 2012
LEONARD GREEN, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF TENNESSEE

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.

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AirTrans would

The Honorable Jane R. Roth, Circuit Judge for the United States Court of Appeals for the
Third Circuit, sitting by designation.

Case: 09-5262

Document: 006111195190

Filed: 01/26/2012

Page: 2

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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Case: 09-5262

Document: 006111195190

Filed: 01/26/2012

Page: 3

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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