NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________

No. 18-2682 __________

UNITED STATES OF AMERICA

v.

NICHOLAS LATTANZIO, Appellant

__________

On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 2-15-cr-00446-001) District Judge: Honorable Kevin McNulty

Submitted Under Third Circuit L.A.R. 34.1(a) June 11, 2019

BEFORE: JORDAN, BIBAS, and NYGAARD, Circuit Judges

(Opinion filed: December 2, 2019)

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OPINION* __________

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

Following Appellant Nicholas Lattanzio’s assurances that he would conservatively

invest and carefully manage their money, BCM Energy, Inc. and HEI Investments, LLC

trusted Appellant with nearly two million dollars. He used the money instead to cover his

personal expenses. A jury found Appellant guilty of two counts of wire fraud. The

District Court denied post-trial motions by Appellant for a judgment of acquittal pursuant

to Federal Rule of Criminal Procedure 29(c), or in the alternative for a new trial pursuant

to Federal Rule of Criminal Procedure 33. Lattanzio raises one issue on appeal, that is

whether the District Court abused its discretion by admitting evidence of Lattanzio’s

extravagant lifestyle which he contends was unduly prejudicial.

Lattanzio argues that the District Court’s decision failed to comply with Federal

Rule of Civil Procedure 403 because the District Court conducted an analysis “in the

abstract.”1 He also alleged the ruling did not properly weigh the potential prejudice of

the evidence and its relevance. We disagree and will affirm.

The District Court’s balancing of the probative value and the prejudice of evidence

in the context of Rule 403 deserves “substantial deference.”2 Judge McNulty properly

concluded that the spending evidence had significant probative value in proving

Lattanzio’s material misrepresentations and his attempt to defraud the investor

companies. This outweighed the minimal potential for any unfair prejudice.

1 Appellant’s Br. 33. 2 United States v. Gatto,

(3d Cir. 1991) (quoting McQueeny v. Wilmington Trust Co.,

. 922 (3d Cir. 1985)). 2 That position was not an abuse of his considerable discretion. The District Court

held that the government had a “significant burden of showing that the [appellant] didn’t

intend to honor [his] representations”3 and that he lied about where the money had gone.

Therefore, the evidence that Lattanzio spent the investor companies’ money on his

personal expenses is very probative of Appellant’s intention to defraud them. Moreover,

the District Court weighed the potential impact of the evidence on fairness to Lattanzio,

its prejudice to him, and the possibility that the jurors had a “prejudice against wealthy

people.”4 After doing so it concluded that the evidence had significant probative value.

The District Court’s analysis was not in the abstract as Lattanzio argues. It

carefully and painstakingly reviewed the parties’ briefs, oral argument, the challenged

exhibits, and the proffered evidence before it denied the motions and determined that the

evidence was indeed admissible.

For all of these reasons, we will affirm.

3 R. at 132. 4 R. at 133. 3