PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

______

No s

. 18

- 3305 & 19

- 1011

______

UNITED STATES OF AMERICA

v.

DAVID T. SHULICK,

Appellant

______
On Appeal from the United States District Court for the Eastern District of Pennsylvania ( D. C. No. 2

- 16

- cr

- 00428

- 001 ) District Judge: Honorable Harvey Bartle, III

______
Argued December 10, 2020
Before: MCKEE, PORTER and FISHER

, Circuit Judges

.

(Filed: November 15, 2021 )

Hope C. Lefeber
Suite 1205 1500 John F. Kennedy Boulevard2 Two Penn Center Plaza Philadelphia, PA 19102

Lisa A. Mathewson [ARGUED]
Suite 810
123 South Broad Street Philadelphia, PA 19109 Counsel for Appellant

Mi cha el T. Donovan
C hristopher J. Mannion
Robert A. Zauzmer [ARGUED] Office of United States Attorney
615 Chestnut Street
Suite 1250 Philadelphia, PA 19106 Counsel for Appellee

______

OPINION OF THE COURT

______

FISHER, Circuit Judge

. Lawyer and businessman David Shulick owned a for

profit education company through which he contracted with the School District of Philadelphia to run its Southwest S chool

, an institution designed to help some of Philadelphia’s most a t

risk children. Under the contract, Shulick received over $2 million to provide teachers, counselors, security, and special
services to the charter school’s students. But instead of spending the money on the students as the contract required,
he embezzled funds for his personal benefit and the benefit of
his co

- conspirator, Chaka Fattah

, Jr . After a complex, multi

-3 year fraud investigation, Shulick was ultimately charged and convicted. He now appeals, alleging a number of errors, ranging from speedy trial r ight violations to errors in evidentiary rulings, faulty jury instructions, and sentencing miscalculations. After careful review of each claim, we conclude there was no reversible error in the proceedings and
will therefore affirm.

Shulick owned and operated Delaware Valley High School Management Corporation (DVHS) , a for

- profit business which provided alternative education to at

- risk
students. DVHS’s business model was to contract with school
districts to handle the operation of their schools.
One of those school districts was the School District of Philadelphia. In early 2010, the School District hired and signed a contract with DVHS and Shulick to operate its
Southwest S chool in Philadelphia, an institution serving at

- risk high school students with attendance, behavioral, emotional, and familial issues, including some who had dropped out of school entirely. The contract provided that DVHS would operate Southwest for the 2010

- 2011 and 2011

- 2012 school

years. The Schoo l District set forth a high

- level plan for Southwest, dictating the number of students enrolled at the school and the services to be provided to them. Specifically,
DVHS had to provide ( 1 ) six teachers at a cost of $45,000 each; ( 2 ) benefits for the staff at a total cost of $170,000 per year; ( 3 ) four security workers totaling $130,000 per year; and ( 4 ) a trained counselor and two psychology externs totaling $110,000 per year. The agreement was not flexible as to budgeted items . In a provision titled “ Budge t, ” it required
DVHS to “carry out the Work and bill the School District4 strictly in conformity with the Contractor’s Budget.” App.
484 7

. Within these parameters

, DVHS and Shulick had authority to manage and run the school. Shulick could implement a curric ulum and program and could hire and fire
staff as he saw fit. Despite the contract’s clear requirements , Shulick failed to provide the services and staff he agreed to. He failed to employ the dedicated security personnel the contract required

. He hired fewer teachers, provided those who m he did hire with
far fewer benefits than the budget allocated , and paid his
educators salaries of only $36,000 a year

— $9,000 less than promised

. Shulick then reduce d their salaries even further if they elected hea lth insurance. He even attempted to lay off teachers at the end of the school year to avoid paying them the
final few months of their salar ies

. Overall, Shulick represent ed

to the School District that he would spend $850,000 on salary and benefits each yea r but spent under half of that: about $ 396,000 in 2010

- 11 and about $356, 000 in 2011

- 12. In all, o f
the over $2 million in funds he received, he spent only $1,186,001 on expenditures designated for Southwest

. Shulick’s failure to spend these funds on Southwest was part of an elaborate conspiracy to embezzle money. Shulick
directed t he unspent funds to co

- conspirator Chaka Fattah

, Jr., an employee and confidante of Shulick and the son of former U.S. Representative Chaka Fattah , Sr

. The two agreed th at Fattah

, Jr. would use the funds to pay off various liabilities
incurred across Shulick’s busines s ventures , while also keep ing a cut of the embezzled money for himself

. At Shulick’s trial, a number of former DVHS employees testified to the harmful effects this scheme had. Teachers explained that students dealing with abuse, addiction, trouble with the law, and other personal and familial hardships never received access to the counseling assistance Shul ick5 promised to provide. Without security staff on site, teachers had to attempt to keep the children safe while also educat ing
them . Some employees confronted Shulick about his failure to pay for these services for Southwest’s students. He would lie
and d irect his staff to misrepresent and misreport to cover up his fraud

.

After a multi

- year investigation, Shulick was indicted on October 11, 2016. He was charged with conspiring with Fattah, Jr. to embezzle from a program receiving federal funds ( 18 U.S.C. § 371); embezzling funds from a federally funded

program ( 18 U.S.C. § 666(a)(1)(A)); wire fraud ( 18 U.S.C. § 1343); bank fraud ( 18 U.S.C. § 1344); making a false statement
to a bank ( 18 U.S.C. § 1014); and three counts of filing false

tax returns ( 26 U.S.C. § 7206(1)). He was arraigned on October 13, 2016. The wire fraud charges w ere subsequently dropped. A year later, Shulick moved to dismiss the indictment, asserting his speedy trial rights. The District Court denied his motion (and late r, renewed motions), and the case ultimately went to trial. Following a three

- week trial, a jury convicted him on May 8, 2018 on all charges.
On the conspiracy, federal program embezzlement, bank fraud, and false statement counts

, Shulick was sentenced

to 60 months’ imprisonment and three years’ supervised
release

. On the three tax fraud convictions, Shulick was
sentenced to 20 months for each count

, to be served consecutively to each other but concurrently with the sentence
on the other convictions , plus a year of supervised release. The District Court also imposed two fine s of $20,000 each and a special assessment of $700. It ordered restitution of $759,735

to the School District and $5,000 to PNC Bank.6 1

Shulick appeals, assert ing sev eral theories to challenge his conviction and sentence. After careful consideration, we reject each.

Shulick first argues his conviction must be reversed
because the District Court violated h is constitutional and statutory rights to a speedy trial. The Sixth Amendment guarantees “the right to a speedy

. . . trial.” U.S. Const. amend.

VI. T o effectuate this constitutional guarantee

, Congress enacted the Speedy Trial Act, 18 U.S.C. § 3161 et seq

. , which
“set [s] specified time limits . . . within which criminal trials
must be commenced.” United States v. Williams , 917 F.3d 195, 199 (3d Cir. 2019) (quoting United States v. Rivera Constr.
Co. , 863 F.2d 293, 295 (3d Cir. 1988)). The Speedy Trial Act requires that trial begin within 70 days of indictment or initial appearance, whichever occurs later. 18 U.S.C. § 3161(c)(1). However, certain periods of time may be excluded , including when a judge grants a continuance “on the basis of his findings that t he ends of justice served by [the continuance] outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). In August 2017, as trial preparation was drawing to a
close

, the Government discovered that years before

, during its lengthy investigation

, one of the servers seized from DVHS
had been filed under the wrong case number. Instead of being

1 The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 to review its final order of conviction, and under 18 U.S.C. § 3742
to review the sentence.7 filed with the investigation into Shulick and Fattah, Jr.’s conspiracy, t he server was mistakenly filed with a separa te, unrelated investigation into former Congressman Chaka Fattah, Sr

. On realizing this mistake, the Government promptly
informed the District Court and made an untimely production of 1.5 million pages of documents and 900,000 emails

. It declined, however, to voluntarily dismiss the indictment.
Shulick , invoking the Speedy Trial Act, moved to
dismiss the indictment . T he District Court denied his motion

, saying it was only speculation that the remaining 64 days on the 70

- day cloc k would expire before the case was ready for
trial

. 2 The Court also stated that, upon an appropriate motion by the parties or sua sponte , it could, if necessary, continue the trial upon making the appropriate findings to support that the ends of justice wo uld be served by a delay . In a separate order,

t he Court did just that. It issued an ends

- of

- justice continuance
under § 3161(h)(7)(A) and moved the previously scheduled October 2, 2017 trial to April 11, 2018.
Shulick argued in the District Court that the Speedy
Trial Act does not permit such a continuance where the delay is caused by a “lack of diligent preparation

. . . on the part of the attorney for the Government.” 18 U.S.C. § 3161(h)(7)(C). Rejecting t hat characterization, t he Court held that

the end s of justice served by granting this continuance outweigh the best interest of the public and defendant in a speedy trial, specifically the case is so unusual or complex due to the nature of the prosecution that it is

2 Six of the 70 days had passed between Shulick’s initial appearance and an order by the District Court deferring the trial based on the complexity of the case and time needed for defense counsel to prepare.8 unreasonable to expect adequate prepar ation by
defense counsel for the trial itself within the time limits otherwise set by the Speedy Trial Act.

App. 46; see 18 U.S.C. § 3161(h)( 7 )(B) (ii) (listing case complexity as one of statutory bases for an ends

- of

- justice continuance).
Shulick now argues that despite the District Court articulating case complexity as its motivating reason, the continuance could only have been granted for one reason

— the Government’s faulty production. The Court’s ruling was therefore in error , says Shulick, because “[t]he reasons stated by the judge ” are required to “ actually have been the factors motivating his decision to grant the continuance

. ” United
States v. Crane , 776 F.2d 600, 606 (6th Cir. 1985)

. Shulick also
contends , as he did below

, that the continuance w as not permissible

, because “[n]o continuance .

. . shall be granted
because of .

. . lack of diligent preparation .

. . on the part of the attorney for the Government.” 18 U.S.C. § 3161( h ) (7)(C). We review a district court’s interpretation of the Speedy
Trial Act de novo ; its fact

- finding for clear error ; and its decision to grant a continuance, after proper application of the statute to the facts, for an abuse of discretion. United States v.
River a Const r . Co. , 863 F.2d 293, 295 n.3 (3d Cir. 1988). Beginning with Shulick’s first argument

, we first note there is ample evidence to support that the case is complex. The prosecution, stemm ing from a multi

- year investigation involving millions of pages o f documents , was designated as complex under 18 U.S.C. § 3161(h)(7)(B)(ii) from the time of arraignment on October 13, 2016. The granting of continuances in response to the various intricacies and knots in
the case is nothing new. In fact, Shulick requeste d and was granted multiple continuances to wade through discovery
materials.9 Beyond that, Shulick’s reliance on Crane is misplaced.
There , the Sixth Circuit concluded that the district judge’s stated reasons for granting a continuance

— case complexity, among other things

— were not the court’s actual motivation.
776 F.2d at 604. But unlike here , the district judge in Crane admitted arranging “ for [a] [ m ] agistrate to impanel a jury ,” despite be ing unavailable to try the case for the following two weeks, in “an inappropriate effort to begin the trial within the 70 days.” Id. at 606 ( citation omitted )

. Shulick has offered no evidence of any similar inappropriateness, only an unsubstantiated claim of pretextuality

. We see nothing to suggest the District Court acted with “ an intent to merely pay the Act lip service,” United States v. Gonzalez , 671 F.2d 441, 444 (11th Cir. 1982) ; rather, it rightfully acted to remedy the
Government’s admitted discovery v iolation by continuing the trial to avoid prejudi cing the defense and by enforcing a previously issued ban on the prosecution from using at trial any documents produced after June 1, 2017. This was a proper remedy

. S ee United States v. Cianciola , 920 F.2d 1295, 1300 (6th Cir. 1990) ( holding that the district court properly granted a continuance when the Government inadvertently failed to timely provide discovery, as “the interests of justice in allowing defense counsel more time to prepare for trial outweig hed the need for a speedy trial”).
Shulick ’s second argument posits that even if the
District Court’s stated reason was the actual reason for the continuance, the Government’s failure to comply with discovery rules categorically prohibits an ends

- of

- justice continuance, because a discovery violation always constitutes a “lack of diligent preparation” under § 3161(h)(7)(C). The
Government responds by citing persuasive authority holding that a discovery violation does not rise to the level of a “lack10 of diligent preparation” unless it was in bad faith or the
violations were chronic. The Speedy Trial Act does not define a “lack of diligent preparation” and we have not yet addressed whether that phrase means any discovery violation or only those of the mor e egregious variety. Requiring a chronic mistake or bad faith does, however, find support in decisions of our sister Circuits and in persuasive district court rulings. See, e.g.

, Cianciola

, 920 F.2d at 1300 (district court rightly excluded delay caused by prosecutor’s inadvertent failure to mail a discovery

response because it was neither in bad faith nor chronic); United States v. Henry , 698 F.2d 1172, 1174 (11th Cir. 1983) (district court did not abuse its discretion in finding delay excludable, where the Government failed to fully comply with all discovery orders

, as “a trial judge must be given broad discretion in attempting to comply with the mandates of the Speedy Trial Act and the exclusions thereto”); United States v. Huff , 246 F. Supp. 2d 721, 726

- 2 7 (W.D. Ky. 2003) (“[I]t would be unfair to classify the United States’ omission as a lack of preparedness especially where the Court found that the
United States acted negligently, not in bad faith or as part of a pattern of chronic discovery abuse.”); se e also United States v.
Jain , No. 19

- cr

- 59 (PKC), 2020 WL 6047812, at *11 (S.D.N.Y. Oct. 13, 2020) (collecting additional cases)

. We are persuaded by these cases. “[T]he Speedy Trial Act was not intended ‘to provide defendants with tactics for ensnaring th e courts into situations where charges will have to
be dismissed on technicalities.’” Cianciola , 920 F.2d at 1298 ( quoting United States v. Bufalino , 683 F.2d 639, 646 (2d Cir. 1982)). Rather, i t is well within the district courts’ expertise t o distinguish between one

- off or lesser discovery violations and
those committed chronically or in bad faith. L eaving these
matters with the district courts also comports with their general11 authority to oversee d iscovery and craft appropriate remedies for discovery violations. See United States v. Lee , 573 F.3d 155, 161 (3d Cir. 2009) (“When a party fails to comply with [Federal Rule of Criminal Procedure 16, which governs discovery and discovery violations], the district court is empowered to order that party to comply with the Rule, grant a continuance, exclude the evidence, or enter other just relief.”). Just as the District Court here fashioned an appropriate continuance and sanction in response to the
Governme nt’s discovery practices , so too will other trial judges craft an appropriate response on a case

- by

- case basis

— something which Shulick’s categorical approach would preclude. Having rejected Shulick’s categorical rule, we now hold
that he fails to meet his burden of showing th at the Government’s untimely production rise s to the level of a “lack
of diligent preparation” under the facts of the case. 18 U.S.C. § 3161(h)(7)(C) . Shulick contends the Government’s conduct

was “chronic,” pointing to the District Cou rt’s previous criticisms of its slow, rolling production s during discovery

. However, these critiques pertained to earlier productions, not
the August 2017 production at issue. Shulick never asserted any speedy trial claim with respect to these earlier prod uctions, instead using them as grounds for requesting multiple
continuances. 3 Shulick fails to make any non

- cursory argument about why the Government’s admittedly careless discovery
mistake

— a one

- time administrative mishap, which the prosecution promptly admitted and which the District Court

3 This is not to say that a series of slow produc tions, even those concerning different discoverable material, can never support a “lack of diligent preparation.”12 appropriately remedied

— is chronic. The continuance did not violate the Speedy Trial Act

. Sepa rate from his Speedy Trial Act argument, Shulick

argues that his Sixth Amendment right to a speedy trial was
violated. “In assessing a constitutional speedy trial claim, we
consider the ‘ [l]ength of delay, the reason for the delay, the
defendant’s assertio n of his right, and prejudice to the
defendant.’” United States v. Shaw , 891 F.3d 441, 454 (3d Cir. 2018) (quoting Barker v. Wingo , 407 U.S. 514, 530 (1972)). “All factors must be considered and weighed as no one factor is dispositive nor ‘ talismanic. ’” H akeem v. Beyer , 990 F.2d 750, 759 (3d Cir. 1993) (quoting Barker , 407 U.S. at 53 3). Applying the factors, the District Court found no Sixth
Amendment violation . It reasoned that there was an 18

- month delay from indictment to trial attributable to the Gove rnmen t and that Shulick indeed asserted his right

. He failed , however, to establish prejudice. We review the District Court’s factual findings for clear error and legal conclusions de novo

. United
States v. Velazquez , 749 F.3d 161, 174 (3d Cir. 2014). On appeal, Shulick argues, f irst, that the District Court
erred because it did not consider pre

- indictment delay in its
Barker analysis . He relies on United States v. Ingram , in which the Eleventh Circuit held it “appropriate to consider inordinate

pre

- indictment delay in determining how heavily post

indictment delay weighs against the Government.” 446 F.3d 1332, 1339 (11th Cir. 2006). Shulick insists that the Government delayed from the time the investigation began in 2011, and that an indictment c ould have been secured by late
2014. He was not indicted until October 2016. The District Court correctly rejected this argument. Unlike the Eleventh Circuit, we have held that “ [t] he speedy trial guarantee of the Sixth Amendment does not apply to pre

indi ctment delay.” United States v. Sebetich , 776 F.2d 412, 42913 (3d Cir. 1985). 4 This Court has explained that no “ rights under the Sixth Amendment . . . attach to a preindictment, pre

- arrest delay” as “‘the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes

an “ accused, ” an event which occurred in this case only when the appellees [defendants] were indicted . . . .’” United States
v. Dukow , 453 F.2d 1328, 1330 (3d Cir. 1972) (quoting United
States v. Marion , 404 U.S. 307 , 313 (1971) ). As in Dukow , “our inquiry on the speedy trial contention is at an end because th e indictment in this case was handed down within the applicable period of limitations.” Id.
Shulick ’s second Sixth Amendment argument is that the
District Court wrongly rejected his claim of prejudice

— the most important factor in the Barker analysis. Hakee m , 990
F.2d at 760. This factor is to be “assessed in light of certain of the interests which the speedy trial right was designed to protect: preventing oppressive pretrial incarceration, minimizing anxiety and concern of the accused, and limiting the poss ibility that the defense will be impaired. ” Virgin
Islands v. Pemberton , 813 F.2d 626, 629 (3d Cir. 1987)

. Pointing to that final interest, Shulick argues his ability to
present a defense was prejudiced when a witness

, Philadelphia
School District Assistant Superintendent Benjamin Wright

, was rendered unavailable by illness

. The District Court

, however, determined that Shulick failed to offer sufficient

4 Rather, it is “the Due Process Clause of the Fifth Amendment [which] protects defendants against oppressive

pre

- indictment delay within the applicable limitations period.”
Id. at 430. Shulick, however, has only raised a Sixth Amendment claim and has not attempted to “ invoke the
extreme sanction of dismissal

. . . under the Due Process
Clause .” Id.14 factual support for this supposed prejudice

, because he did not explain what Wright’s testimony would be or even that it would be favorable, despite having interview ed him before he
became unavailable

. On appeal, Shulick asserts

— but again fails to
substantiate

— that Wright ’s testimony would have been “important[] to Shulick’s authorization and good fa ith
defense.” Appellant’s Br. 40. As the District Court correctly
concluded

, a conclusory claim of this sort fall s short of what is required of a defendant to successfully establish prejudice. See
Hakeem , 990 F.2d at 763 (“General allegations that witnesses’ memories have faded are insufficient to create prejudice . . . Hakeem has not pointed to any evidence in the st ate record that shows the [witnesses] would have been able to corroborate his

presence . . .

. ”)

. For example, i n United States v. Harris , the Fifth Circuit rejected a vague claim of prejudice similar to Shulick ’s

. 566 F.3d 422, 433 (5th Cir. 2009) . There, the defendant argued he was prejudice d by the loss of a witness
who died twenty months after the indictment

. Id. The defendant, however, backed up his claim with only a conclusory assertion that the witness “ could have supported
defense assertions of inno cence at trial .” Id. Such a “ blanket

statement ,” said the c ourt, “ gives no indication as to the content and relevance of the lost testimony, and how its absence impaired [the] defense .” Id. Shulick’s nonspecific claim of prejudice is inadequate for this very same reason

. The Harris

court also noted that t he defendant fai led to “ explain why he or his attorneys failed to take any steps to preserve [the witness’s] testimony for trial. ” Id. Shulick’ s defense has been similarly neglectful

. Beyond Shulick’s failure to substantiate his claim of prejudice, his Sixth Amendment arg ument must be rejected for
another reason . E ven if Shulick’s claims about Wright’s15 testimony were true, the District Court correctly reasoned that the School District’s (and Wright’s) purported satisfaction with Shulick’s performance is legally irrelevant. “The negligence of the victim in failing to discover a fraudulent scheme is not a
defense to criminal conduct.” United States v. Coyle , 63 F.3d 1239, 1244 (3d Cir. 1995)

. Thus, h aving rejected both his statutory and constitutional claims, we conclude that t he District Court did not violate Shulick’s speedy trial rights.

Shulick next argues that the District Court committed

revers i ble evidentiary and instructiona l errors. We review a decision on the admissibility of evidence for an abuse of
discretion and review on a plenary basis a district court’s interpretation of the Federal Rules of Evidence. United States v. Gonzalez , 905 F.3d 165, 195 (3d Cir. 2018).

1. The Di strict Court properly defined “agency” under 18
U.S.C. § 666 and rightfully excluded an agency clause in the

Southwest contract Shulick was convicted under 18 U.S.C. § 666, which
criminalizes theft from organizations receiving federal
fund ing

. Under the st atute, (1) “an agent of an organization ” (2) who “ embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies

, property” (3) that “is valued at $5 ,000 or more” and (4) is

“ owned by, or is under the care, custody, or control of such organization ,” commits a federal offense. 18 U.S.C. § 666(a)(1)(A) . For the statute to apply, the organization must

“ receive [] , in any one year period, benefits in excess of $10,000 under a Federal program .” Id. § 666 (b).16 In seeking to overturn his federal program theft conviction, Shulick targets the requirement that the defendant
be an “agent” of the organization receiving federal funds. Id. § 666(a)(1)(A)

. He argues he was not an “agent” within the meaning of the statute. Under the statutory definition, an “ agent ” is “a person authorized to act on behalf of another person or a government and, in the case of an organization or government, includes a

servant or e mployee, and a partner, director, officer, manager, and representative.” Id. § 666(d)(1). An independent contractor who exercises managerial responsibility can be an “agent.”
United States v. Vitillo , 490 F.3d 314, 323 (3d Cir. 2007) ( stating that § 666(d) (1) ’s list is not exhaustive, as “an ‘agent’ is merely a person with authority to act on behalf of the organization receiving federal funds”). With respect to agency, Shulick posits two errors. First, he argues the District Court wrongly prohibited him fro m presenting evidence of a clause in the Southwest contract which reads: “ Neither the Contractor nor the School District shall have any power to bind the other party in any manner whatsoever to any third party. The Contractor does not function as an agent of the School District in its dealings with any third party.” App. 4946

- 47. The District Court ruled this
clause irrelevant, reasoning that the parties “cannot bind the federal government in a criminal trial . . . by simply saying they’re not agents of one another.” App. 4455. While “the bar for what constitutes relevant evidence
is low,” Forrest v. Parry , 930 F.3d 93, 114 (3d Cir. 2019), it
cannot be said that the District Court’s ruling was an abuse of
discretion

. Indeed, the very cases Shulick cites support exclusion of the clause

. In United States v. Lupton , the Seventh
Circuit pointedly explained the lack of rel evanc e of any such contractual provision :17 Whether Lupton is considered an “agent” for purposes of 18 U.S.C. § 666 is determined by that statute, not by the terms of a private contract.
Parties cannot contract around definitions provided in criminal statute s; even if Lupton could not be considered a common law agent under [the] contract, it is nonetheless possible for him to be an “agent” under the terms of 18 U.S.C. § 666(d)(1). . . . The statutory definition of ‘agent’ is an expansive one.

620 F.3d 790, 80 0

- 01 (7th Cir. 2010); see also United States v.
Hudson , 491 F.3d 590, 594 (6th Cir. 2007) (stating that the contract “does not resolve the inquiry” and rather, the focus should be on “whether [the defendant] satisfies the statute ’ s general definition of an agent

— whether [he] was ‘authorized
to act on behalf of’ the school district ’ ” (quoting 18 U.S.C. § 666(d)(1) ). Here, the District Court did not stumble in disregarding the parties’ contractual delineation of the scope of
Shulick’s authority , especially gi ven the substantial evidence showing that Shulick had the power to act on behalf of the
School District

. He was given significant managerial control over the administration of Southwest, such as the power to hire and fire teachers, establish curriculum, and control day

- to

- day
activities.
Next , Shulick challenges the District Court’s jury
instruction on the agency element . The Court used language from the Third Circuit’s model instruction, but also altered the
model in one respect. The model instruction reads:

A person may be an agent of an organization without being an employee of that organization. An outside consultant who exercises significant managerial responsibility within the18 organization is an agent of that organization if
the consultant is authorized t o act on behalf of the organization.

Third Cir. Model Crim. Jury Instr. 6.18.666A1A

- 1. The
District Court read the first sentence of the model but omitted
the second

. 5 Shulick challenges that omission on appeal

. However , he failed to make this objection i n the District Court

, which “would constitute a waiver of [ his ] right to assert any legal error unless it was of such a magnitude as to constitute plain error.” Karabin v. Petsock , 758 F.2d 966, 969 (3d Cir. 1985). There was no plain error . “[A] model jury instruction itself is neither law nor precedential,” but is “designed to help litigants and trial courts . . . to distill the law correctly.” Robinson v. First State Cmty. Action Agency , 920 F.3d 182, 190 (3d Cir. 2019). Here, the District Court adopted the crux of th e model instruction

— someone outside an organization can also be an agent

— and that statement of the law accords with

our interpretation of § 666(d)(1)

. Vitillo

, 490 F.3d at 323.

5 The Court also correctly instructed the jury that:

An agreement between the parties to a contract . . . does not establish an agency relationship is not binding on the federal government in a criminal prosecution. You must disregard any testimony
or other exhibit as to what the School District of
Ph iladelphia and Shulick, Delaware Valley High School or Unique Educational Experiences has agreed regarding any agency relationship in their contracts. However, you may consider other evidence related to the issue of agency.

App. 4423

- 24.19 2. The District Court properly excluded irrelevant evidence Shulick next argues th at the District Court abused its discretion in excluding evidence that would have shown that he did not, as § 666(a)(1)(A) requires, use funds “without authority”

— i.e. in an “unauthorized or unjustifiable or wrongful” way. United States v. Baroni , 909 F.3d 550, 582 (3d Cir. 2018)

, abrogated on other grounds by Kelly v. United
States , 140 S. Ct. 1565 (2020)

. This evidence included a prior request for proposal put out by the School District

, which arguably suggested that the District placed little importance on

a contract ’s budget by weighting it at only 10% in a ranking system used to evaluate bids for the job . It also included evidence showing that School District employees failed to object to certain expenditures which did not conform to the

cont ract’s budget, thereby ratifying them

, according to
Shulick.
We see no abuse of discretion. The District Court appropriately excluded the request for proposal on relevancy grounds because it was specific to a 2008 bidding process that predated by two years Shulick’s involvement with Southwest
and DVHS’s contract with the School District . On appeal,
Shulick merely re

- ups his disagreement with the Court’s relevancy determination but offers no legal authority or reasoned argument to show reversible error

. The District Court also rightfully barred the evidence suggesting that School District employees failed to affirmatively object to Shulick’s noncompliant expenditures

. As we have already noted, “ [t] he negligence of the victim in failing to discover a fraudulent scheme is not a defense

, ” Coyle

, 63 F.3d at 1244 , so victim inobservance indeed bore no
relevance. The school district’s failure to catch Shulick ’s
crimes do es not negate his fraud

.20 3. The District Court properly excluded the expert testimony

of Fr ederick Hamilton Shulick next challenges the District Court’s exclusion of Frederick Hamilton’s testimony on the ground that he was an untimely

- disclosed expert witness. According to Shulick, the trial court improperly classified Hamilton’s presentation as expert testimony, subject to Federal Rule of Criminal
Procedure 16 ’s disclosure regime, rather than summary
evidence. S ee Fed. R. Evid. 1006 (allowing a “summary, chart, or calculation to prove the content of voluminous writings, recordings, or photograph s that cannot be conveniently examined in court.”).
The record shows otherwise. In a sidebar discussion partway through the trial, District Judge Bartle questioned defense counsel about their plans to call Hamilton as a witness. In this discussion, as reco unted in a judicially

- approved statement under Federal Rule of Appellate Procedure 10(c), the
Government asked the District Court to direct Shulick’s
counsel to fully disclose Hamilton’s expert opinions, bases,
and reasons. See Fed. R. Crim P. 16 (b)(1)(C) (requiring a defendant to, “ at the government’s request, give to the government a written summary ” of any planned expert testimony

, which “must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications.” ). At the time of this conversation, the defense had provided only minimal information on Hamilton, namely,
his curriculum vitae and a shor t description of what he might testify to

— a disclosure which Judge Bartle agreed was insufficient under Rule 16. Importantly, Judge Bartle stated
that if Shulick wanted to offer Hamilton as an expert witness,
the defense would have to make an additional, f ull disclosure of his opinions, bases

, and reasons. Judge Bartle then specifically asked defense counsel whether they intended to21 offer Hamilton as an expert . D efense counsel responded that they would not make any further disclosure and that Hamilton
would be offered solely as a summary witness.
But when Hamilton was called to the stand at the opening of the defense case, he attempted to offer expert testimony. Specifically, Hamilton, a CPA who acknowledged
that he had previously served as an expert “ hundre ds of times

, ” App. 4135, was asked why it was appropriate to allocate certain shared costs across Shulick’s business ventures to the budget
for Southwest

— a post

- hoc analysis, involving the application of Hamilton’s own formula s and judgment to facts

. The

D istrict Court ultimately excluded this testimony , accepting the Government’s argument that it w as undisclosed “expert opinion based on his years of accounting experience, based on his forensic background, and based on information that is not
available from the records.” App. 4146

- 47. We agree and reject Shulick’s characterization of Hamilton’s sophisticated analysis as mere summary. I f a purported summary includes “assumptions” and “inferences” that “represent [the witness’s ] opinion, rather than the underlying information,” it is actually expert testimony “subject to the rules governing opinion testimony.” Eichorn v. AT&T Corp. , 484 F .3d 644, 650 (3d Cir. 2007). Here, the
witness’s testimony would have involved him explaining his analytical assumptions and professional opinion , based on his accounting expertise, that it was appropriate to allocate some of Shulick’s general (and even un related) business costs as expenditures for the Southwest school. The apportionments
Hamilton advanced were not contained in any of the documents governing the parties’ relationship . R ather, they would have required the retroactive application of business and accounting principles and Hamilton’s own judgment to the22 facts

— in other words, classic expert testimony , rightly
excluded.

Shuli ck next claims there was reversible error in the
District Court’s jury instruction s on federal program theft . The federal program theft statute makes liable a person who

“ embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies , property.” 18 U.S.C. § 666(a)(1)(A) (emphasis added). Shulick argues the
District Cou rt erred in instructing that a n intentional misapplication within the meaning of § 666(a)(1)(A) can be
found even if the misuse of funds still benefited the victim.
In so stating to the jury , the District Court deployed 3d Cir. Model Jury Inst. 6.18.666A1A

- 3

, stating : To intentionally misapply money or property means to intentionally use money or property of the School District of Philadelphia, knowing that such use is unauthorized or unjustifiable or wrongful. Misapplication includes the wrongful
use of th e money or property for an unauthorized23 [purpose]

, 6 even if such use benefitted the School District of Philadelphia.

App. 4425

- 26 (emphasis added). Shulick contends the emphasized language is bad law

. We exercise plenary review over the question of
wheth er a jury instruction contained an incorrect statement of
law

. Robinson , 920 F.3d at 190 n. 38

. ; United States v.
Friedman , 658 F.3d 342, 352 (3d Cir. 2011). Federal program
theft occurs when the defendant “embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies , property. ” 18 U.S.C. § 666(a)(1)(A) (emphasis added)

. The emphasized phrase is a li miting condition, which would require that the property be used for someone else’s benefit besides the defrauded organization. In other words, if the funds were still used to benefit the “rightful owner”

— as our model instruction provides

— then this conditio n would not be satisfied and federal program theft would not have occurred. However, in parsing the statutory language, we must be
careful to determine which word or words this limiting
condition modifies . Again, federal program theft occurs when
the defe ndant “embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of

6 In reading this instruction, the District Court accidentally substituted the word “person” for “purpose,” saying that “[m]isapplication includes the wrongful use of money or property for an unauthorized person.” App. 4426. After being alerted of this slip of the tongue, t he Court corrected its misstatement, saying “I said ‘unauthorized person.’ I should have said ‘unauthorized purpose,’ and you
will see that in the written instructions

-- that it’s correct, ‘unauthorized purpose.’” App. 4464.24 any person other than the rightful owner or intentionally misapplies , property. ” 18 U.S.C. § 666(a)(1)(A) (emphasis added)

. The disjunctive “or” sug gests that an intentional misapplication of funds is a separate way of satisfying the
statute, apart from the earlier prohibition on conversion, which is subject to the aforementioned limiting phrase

. Under the rule of the last antecedent, that qualificati on should be read only to modify the word it immediately follows : “ converts .” Id. § 666(a)(1)(A); see Lockhart v. United States

, 136 S. Ct. 958,
962 (2016 ) (applying limiting phrase in a statute to only “the antecedent immediately preceding it”). Most importantly for our purposes, it would not narrow the meaning of “intentionally misapplies,” as Shulick would have it.

Use of those words of limitation earlier in § 666(a)(1)(A) also shows that Congress knew how to expressly impose a condition that would r equire the defrauded property to inure to another’s benefit for liability to attach. If Congress wished to subject intentional misapplication to this same condition, it could have included parallel language after intentional misapplication

— for example, dra fting the statute to read: “intentionally misapplies for the use of any person other than the right ful owner, property.” Congress, however, did not
do that. W e generally presume such differences in drafting to be purposeful

. In re Bayer AG , 146 F.3d 188, 1 93 (3d Cir. 1998).
The interpretation we have espoused thus far finds additional support when we compare the current version of § 666(a)(1)(A) to an earlier version of the statute . The prior
version placed the limiting condition after all six statutory

pro hibitions, including willful misapplication , the precursor to the “intentionally misapplies” prohibition

. See Act of Oct. 12, 1984, Pub. L. 98

- 473, 98 Stat. 1837, 2143 (“embezzles, steals, purloins, willfully misapplies , obtains by fraud, or otherwise25 know ingly without authority converts to his own use or to the use of another ”) (emphases added). Under this version of the statute, Shulick would have a better argument that the
condition qualifies all words before it, as a unitary whole. But, by separating th e intentional misapplication offense from that qualifying language in the current text, Congress intended, we believe, to reinforce that this term was not so limited

. See Stone
v. INS , 514 U.S. 386, 397 (1995) ( “When Congress acts to amend a statute, we pr esume it intends its amendment to have
real and substantial effect

. ” ).
Shulick counters this by pointing to words in the legislative history which refer to Congress’ revisions as only a “technical” amendment

. S. Rep. No. 99

- 278, 99th Cong., 2d
Sess. (1986) (accompanying S. 1236, 99th Cong. § 59(a) (enacted bill)), at 7 (1986); H.R. Rep. No. 99

- 797 (1986) (accompanying H.R. 5241, 99th Cong. § 42(a) (House version) (1986)), at 30). But s uch statements, which do not even address
the interpretive question at issue , cannot overcome what the plain text commands. United States ex rel. Mistick PBT v.
Hous. Auth. , 186 F.3d 376, 395 (3d Cir. 1999) (“[R] ecourse to legislative history or underlying legislative intent is unnecessary when a statute ’ s text is clear a nd does not lead to
an absurd result. ”).
Our sister Circuits have also refused to limit intentional misapplication under § 666(a)(1)(A) as Shulick asks us to do.
See United States v. Urlacher , 979 F.2d 935, 938 (2d Cir. 1992) (“The first four prohibitions cover any possible taking of money for one’s own use or benefit,” so “in order to avoid redundancy, [ ‘ intentionally misapplies ’ ] must mean intentional misapplication for otherwise legitimate purposes.”); United
States v. Cornier

- Ortiz , 361 F.3d 29, 37 (1st Cir. 2004) (citing
Urlacher to conclude that using funds for legitimate purposes,
but in violation of conflict of interest rules, is still an intentional26 misapplication); United States v. Frazier , 53 F.3d 1105, 1114 (10th Cir. 1995) (concluding there was a misapplication even though “[t]he funds were [still] used to purchase computers and computer equipment for the educational organization

, ” the
victim ) . We too have once stated that § 666 (a)(1)(A) reaches
an unauthorized use of property which nevertheless benefit s the victim. See United States v. Baroni , 909 F.3d 550, 582 (3d Cir. 2018) (“ Misapplication includes the wrongful use of the money or property for an unauthorized purpose, even if the use actually benefitted the Port Authority. ” (quoti ng the District Court’s recantation of 3d Cir. Model Jury Inst. 6.18.666A1A

3 )).
Baroni , however, was reversed by Kelly v. United
States

. 140 S. Ct. 1565 (2020)

. Under Kelly

, says Shulick

, the
rule of Model Instruction 6.18.666A1A

- 3 is no longer good
law. In Kelly

, Bridget Anne Kelly and William Baroni , two officials in the administration of former New Jersey Governor Chris Christie, conspired to shut down toll plaza lanes on the George Washington Bridge to punish the mayor of Fort Lee for refusing to endor se Christie’s reelection bid. Id. at 1569

- 70. A jury convicted Kelly and Baroni under § 666 (a)(1)(A). Reversing their convictions, the Supreme Court held that the federal program theft statute was designed to safeguard only against “ property fraud” and not to “criminaliz[e] all acts of dishonesty.” Id. at 1571. The defendants’ convictions were
therefore improper, because they never sought “to take the government’s property”

— they sought only to divert the State’s regulatory power to injure a p olitical adversary. Id . at 1572.
Shulick argues, as he did below, that Kelly forecloses a
conviction under § 666 (a)(1)(A) where the jury has been instructed that a misapplication of funds may still occur if the defendant’s unauthorized spending still benefited the victim. According to Shulick, the jury, h aving heard this instruction

,27 may have convicted based on a be lief that he did not take funds for his own or Fattah, Jr.’s benefit , but simply spent them inconsistently with the budget yet still benefiting the School
District

. Kelly , however, “ confirms that §666(a)(1)(A)
criminalizes [only] schemes to ‘ obtain ’ a vict im’s property:

‘ taking ’ the property and ‘ converting ’ it to someone else’s

use ,” according to Shulick. Appellant’s Reply 22 (quoting 140 S. Ct. at 1568, 1573

- 74 ). He contends that j ust as Kelly and
Baroni “exercised the regulatory rights of ‘allocation, exclusion, and control’

— deciding that drivers from Fort Lee should get two fewer lanes while drivers from nearby highways should get two more,” 140 S. Ct. at 1573, so too did he exercise
the rights given to him in reallocating the budget

— an act unauthorized by the contract, but not one which § 666 (a)(1)(A)
criminalizes

. We are unpersuaded that t he contested jury instruction

run s afoul of Kelly

. The Kelly Court reversed the defendants’
convictions because the G overnment failed to show that an “object of their fraud was ‘property.’” 140 S.Ct. 1565, 1571 (2020) (quoting Cleveland v. United States , 531 U.S. 12, 26 (2000)). The defendants unquestionably abused their power to
influence how government property (the bridge) would be
used

, but the taking of property was not the object or aim of
their scheme. Id. at 1574. The goal was political retribution. Id. Accordingly , the scheme could not support a conviction under § 666(a)(1)(A). Id. Kelly did not announce a “benefit” rule

— that a § 666(a)(1)(A) violation may never occur unless the defendant
converted property for his benefit and to the detriment of the proper recipie nt of federal funds. Rather, Kelly requires only that property be the “ object ” of the scheme. Id. at 1571. This is an important distinction

. Shulick and his business had secured multiple contracts from the School District of Philadelphia to28 run several of its educational institutions

. Under these contracts, h e ran both the Southwest School from which he is alleged to have embezzled and also another School District
institution

, the Kelly Drive School

. App. 3422. At trial, t he
Government contended that Shulick took property entrusted to him under the Southwest contract and used it to pay other obligations he owed , including some under the Kelly Drive

contract

. For example , the jury heard testimony describing payments made, at Shulick’s direction, t o cover labor costs at the Kelly Drive School , while obligations owed to Southwest were ignored

. E.g., App. 3458 , 3460, 3714

. And, d uring closing arguments, the Government pressed this theory that funds were misappropriated to pay Kelly Drive expenses. App

. 4317 ( “ [M] oney for Kelly Drive kids . . . nothing for the
Southwest kids.” ); App. 4324 (“Kelly kids . . . getting their counselors. Not the Southwest kids.”)

. Shulick’s trial counsel conceded that DVHS “was required to provide, hire, fund and managed a c ertified counselor at each DVHS site” and

, unlike
other DVHS schools, this was not done at Southwest . App

. 4350. C ounsel ’s defense was to shift the blame to Fattah, Jr

. and other of Shulick’s subordinates , while portraying Shulick’s
misconduct as merely a breach of contract . The jury was unpersuaded

. The prosecution’s theory that Shulick schemed to take
funds from the Southwest contract and use them to pay his obligations under another contract with the same s chool d istrict
is consistent with Kell

y

. The object of such a crime is unquestionably property

— the goal is to misapply funds that

were promised to the children at Southwest and spend them at a different institution

. This theory is also consistent with the jury instruction Shulick contests

. As th at instruction reads, Shulick “use[d] [the] money ” under the Southwest contract

“ for an unauthorized [ purpose ] ”

— to pay his liabilities under29 the Kelly Drive contract

— “ even [though] such us e benefitted the School District of Philadelphia

, ” because the Kelly Drive
School was within the same School District. App. 44 26. Taking funds remitted to the School District, but designated for
Southwest

, and using them to pay other debts owed to the
Scho ol District under a wholly separate contract is a property fraud, even though the money still inured to the School
District ’s benefit

. The jury instruction permitting such a conviction, thus, does not violate Kelly

. Even if it did

, Shulick could not prevail . That is because

any error would be harmless. Where a jury has been “‘instructed on alternative theories of guilt and may have relied
on an invalid one ’ ” we apply “ harmless

- error review

. ” United
States v. Riley , 621 F.3d 312, 323 (3d Cir. 2010) (qu oting Hedgpeth v. Pulido , 555 U.S. 57, 58 (2008) (per curiam) ). This

“ doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant ’ s guilt or innocence ” as the rule “ promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of
immaterial error. ” Delaware v. Van Arsdall , 475 U.S. 673, 681 (1986)

. Thus

, we reverse only if the error affects a defe ndant’s “substantial rights.” See Fed. R. Crim. P. 52(a).
Shulick claims the jury instruction is inconsistent with the federal program theft statute as defined by Kelly . This

“ error is harmless when ‘it is highly probable that the error did
not contribute to the judgment.’” United States v. Zehrbach , 47 F.3d 1252, 1265 (3d Cir. 1995) (citing Virgin Islands v. Toto

, 529 F.2d 278, 284 (3d Cir. 1976)). Accordingly

, the jury’s decision is to be upheld where we “possess a ‘sure conviction
that the error did not prejudice’ the defendant.” Id. (quoting
United States v. Jannotti , 729 F.2d 213, 219

- 20 (3d Cir. 1984 )

.30 When we “consider [the purported] error in light of the
record as a whole

, ” as we must, id.

, we are indeed sure it did not prejudice Shulick. “ Where there is a clear alternative theory of guilt, supported by overwhelming evidence, a defendant likely cannot show that an instruction permitting the jury to convict on an improper basis was not harmless error. ”
United States v. Andrews , 681 F.3d 509, 521 (3d Cir. 2012)

. While Andrews is a plain error case, “we may properly rely upon both harmless and plain error precedent in deciding whether [Shulick] has shown that the [purported Kelly ] violation affected his substantial rights,” because “[t]he
substa ntial rights inquiry under each [of plain error and clear error review] is essentially identical, with the exception of the burden of proof.” United States v. Vazquez , 271 F.3d 93, 100 (3d Cir. 2001)

. Though the burden rests with the Government,
careful review of the record as a whole shows that any error
was harmless

. At trial, the Government put forth a clear, unquestionably Kelly

- compliant theory of guilt

— Shulick actually embezzled contract funds and used t hem for his own benefit. In other words, his “ aim [was] to obtain money ,” a classic property fraud. Kelly , 140 S. Ct. at 1574

. This “alternative theory”

— which was the Government’s primary theory of the case

— was well

- supported and compelling. First,
the Gov ernment presented overwhelming evidence that Shulick spent only a fraction of the $2,096,000 he received
under the contract on Southwest. He did not hire promised counseling and security personnel, understaffed Southwest’s teaching staff, and cut corners o n salaries and benefits. The records demonstrating these facts were carefully and thoroughly summarized and explained by a credible FBI agent, and the deficiencies were repeatedly confirmed by several former DVHS employees who testified against Shulick. Ev en31 the testimony of Shulick’s expert witness, Hamilton, indicated that he spent only $1,186,001 on items designated for
Southwest. 7 This was not the case of a contractor being a few
dollars short here and there. Next, the Government presented extensive te stimonial and documentary evidence of what happened to the unspent money. Shulick diverted the funds to co

- conspirator Fattah, Jr., who took his cut and paid other of Shulick’s obligations, including some expenses entirely unrelated to Southwest and
the Sc hool District of Philadelphia. Some payments, for example, were remitted to cover the costs of running other
charter schools outside of the School District. Others were used to cover bills, consulting fees, business solicitation services, and public relati ons expenses that Shulick incurred to make his business ventures profitable. These ventures included DVHS but also his personal law firm, the Law Offices of David T. Shulick. In short, the Government showed that contract funds were disbursed in ways which personally benefited Shulick and Fattah, Jr. and which did not benefit the School District of Philadelphia in any way . Accordingly, the object of the conspiracy’s scheme advanced at trial was unquestionably

7 Hamilton explained an exhibi t containing his summation of all expenditures “specific to” Southwest. App. 4240. The total was $1,186,001. The defense sought to increase this figure by having Hamilton explain why it would be appropriate to allocate certain other shared business and non

Southwest expenses to Shulick’s total expenditures on
Southwest

. B ut as we previously concluded, this was undisclosed expert testimony properly excluded by the District
Court. See supra Part II.B.3. The admissible evidence plainly
showed that Shulick fell far short of what the budget required him to spend.32 property

— Shulick took money entrusted to DVHS and
embezzl ed it for the conspirators’ personal benefit.
This is not a case “where evidence on the valid alternative theory is relatively weak, the government relies heavily on the improper theory, and the district court’s instructions on the improper theory are ‘interwoven’ throughout the jury charge.” Andrews , 681 F.3d at 522. As
described above , there was strong evidence that Shulick actually convert ed hundreds of thousands of dollars

. Nor did the Government rely heavily on the theory that Shulick attacks

.33 Rather, prosecutors consistently maintained that Shulick “embezzled” funds for his own gain. 8 The jury charge likewise reflected this core theory. It
identified several ways by which Shulick could be found guilty of misappropriating the money. See App. 44 25 (listing “embezzle,” “obtain by fraud,” and “convert”). The intentional misapplication instruction did not dominate the charge. It was

8 For example, the prosecution frequently and consistently described Shulick’s crime as an embezzlement or theft act in opening and closing arguments. App. 1319

- 20 (“You’re going to hear that [the contra ct funds] went into David Shulick’s pocket . . . Mr. Shulick would put the money into an account and then use that account like his personal piggybank, cutting business checks to pay for personal expenses . . . Now, for his actions, he stands charged with embezzling”); 1325 (“Now, the first thing Fattah Junior did was take his own cut. . . . And the remaining 60,000 went to pay Mr. Shulick’s expenses in other places”); 1330 (“Mr. Shulick is guilty of embezzlement and conspiracy to embezzle”); 4276 (“Here i s a man who is dedicated to stealing money” ); 4276 ( “He embezzled nearly a million dollars” );
4300 ( “we’ll move on to the embezzlement” ); 4306 ( “So, now, we come to counts 1 and 2, the embezzlement of the school district funds. The defendant embezzled $1 m illion . . .” ); 4307 ( “the defendant is charged in a conspiracy with Mr. Fattah Jr. to embezzle school district funds. He’s also charged separately, by himself, in count 2, with embezzling school district
funds.” ); 4310 ( “It’s criminal agreement . . . [t]o embezzle, from a federally funded program . . . So what are the elements
of embezzlement?” ) ; 4317 ( “There’s money to be stolen
here.” ) ; 4326 (“You should find him guilty of his conspiracy with Fattah Jr. and with embezzling $1 million”)

.34 listed once alongside these other statutory prohibitions. A “single [challenged] instruction

. . . may not be judged i n artificial isolation, but must be viewed in the context of the overall charge. ” United States v. Park , 421 U.S. 658, 674 (1975) (internal quotation marks and citation omitted). Viewing the charge in its entirety, it is clear that the disputed
line was no t interwoven throughout the greater whole, repeated, or otherwise emphasized. See Andrews

, 681 F.3d at 522 (upholding conviction even where “ the District Court [incorrectly] referred to ‘ honest services ’ on several occasions in its final instructions, ” bec ause the erroneous term was not

“ interwoven throughout the jury charge. ”). The whole charge placed far greater emphasis on Shulick as a property taker

. See

, e.g. , App. 4442 ( “Count 2 of the indictment charges the defendant, David. T. Shulick, with embezzling funds from the School District of Philadelphia . . .”) (emphasis added). The
District Court also warned the jury “not to single out any one
instruction” but to “consider a s a whole all of the instruction s .” App. 43 9 5 ; s ee United States v. Bryant , 655 F.3d 232, 247 (3d Cir. 2011) ( rejecting a challenge to the wording of a specific
instruction partly because jury was told “to consider all of the ‘instructions as a whole’”).
This case is not like Kelly , where the prosecution’s claim of property fraud rested only on a novel theory that the defendants temporarily “commandeer[ed]” the George Washington Bridge (despite obviously not stealing the massive structure) or caused only i ncidental wage expenses associated with carrying out their regulatory action. 140 S. Ct. at 1572

. Shulick committed a real, tangible taking of money that was rightly owed to the School District and the at

- risk children of
Southwest. That was the Government ’s consistent, chief theory throughout the trial, and the evidence of this reality was overwhelming. See Cupp v. Naughten , 414 U.S. 141, 14735 (1973) (“[A] judgment of conviction is commonly the
culmination of

. . . witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury ” so “ not only is the challenged instruction but one of man y . . . but the process of instruction itself is but one of several components of the trial which may result in the judgment ”). Therefore, even
if Shulick’s reading of Kelly was correct, he still would have been convicted of federal program theft irrespective of the

error.

Further challenging the jury instructions o n federal program theft

, Shulick next postulates error when the District
Court refused to instruct on § 666(c), a safe harbor provision excluding from criminal liability “bona fide salary, wages, fees, or other compensati on paid, or expenses paid or reimbursed, in the usual course of business.” 18 U.S.C. § 666(c). We review a refusal to give a specific jury instruction
for an abuse of discretion. Friedman , 658 F.3d at 352. A
defendant is entitled to an instruction on a the ory of defense “ if (1) he proposes a correct statement of the law; (2) his theory is supported by the evidence; (3) the theory of defense is not part of the charge; and (4) the failure to include an instruction of the defendant’s theory would deny him a fa ir trial.” United States v. Hoffecker , 530 F.3d 137, 176 (3d Cir. 2008) (citation omitted). Shulick fails to show that his theory is supported by the evidence. He offers only a cursory, single paragraph as to why
he was entitled to a safe harbor instructi on. He says, in effect,
that while his expenditures fell short for certain items in the budget

, he exceeded the budget for other items and other of his spending benefited the School District

. However, Shulick cites36 no case law in support of his position an d

, as the Government aptly notes

, he has not even attempted to identify the salary, wages, fees, compensation, or expenses that would supposedly
fit within the safe harbor. Nor has he provided this missing
information in his reply brief , even after the Government pointed out the deficiency. See Doeblers ’ Pa. Hybrids, Inc. v.
Doebler , 442 F.3d 812, 820 n.8 (3d Cir. 2006) (“Judges are not like pigs, hunting for truffles buried in the record.”) (internal quotation marks and citation omitted ). The District Court did
not abuse its discretion in declining to provide the instruction

.

Shulick asserts several errors in the District Court’s
cal culations at sentencing. We review an interpretation of the sentencing guidelines, including what constitutes loss

, de novo

, and factual findings for clear error. United States v. Napier

, 273 F.3d 276, 278 (3d Cir. 2001).
He first contends the District Cou rt erred in computing a fraud loss of $795,735 for the § 666 counts. The District
Court calculated the School District’s loss by subtracting the
amount that Shulick actually spent on various budgeted items from the amount the budget required him to spend. In performing this calculation, the Court referenced Note 3(F)(ii) to Sentencing Guideline § 2B1.1 . It provides that “[i]n a case involving government benefits (e.g., grants, loans, entitlement program payments),” the loss is “the value of the benefits
obt ained by unintended recipients or diverted to unintended uses, as the case may be.” U.S.S.G. § 2B1.1, cmt. n.3(F)(ii). Shulick argues that Note 3(F)(ii) does not apply here, and should not have been relied upon, because DVHS’s
management of Southwest was a “fee

- for

- service business deal” and not a “a case involving governmental benefits.”37 Appellant’s Br. 72

- 73. The District Court , says Shulick, should
have used the general definition of fraud loss set forth in Note 3(A) : “the greater of actual loss or intended loss.” U.S.S.G. §
2B1.1 cmt. n. 3(A). We agree with the Government that whether the moneys are “governmental benefits” or not does not matter under the
facts of this case and the calculation performed . In calculating the fraud loss, the District Court properly applied our precedent, United States v. Nagle , 803 F.3d 167, 180 (3d Cir. 2015) . There , we explained that “[w] e need not decide whether the [disadvantaged business enterprises] program is a ‘government benefit’ and, therefore, whether Note 3(A) or Note 3(F)(ii) applies .” Id. at 180. “[U] nder either application
note, ” we said, “ the amount of loss [the defendants] are responsible for is the face value of the contracts

. . . minus the
fair market value of the servic es

. . . provided under the

contracts. ” Id. at 180. Nagle confirms that the challenged computation

— the contract’s face value less the value of services Shulick actually provided

— is in fact correct. Th is
difference constitute s the actual pecuniary loss the School District suffered when Shulick spent only a fraction of the
contract funds on its students.
Shulick next argues that the District Court erred in calculating credits against loss. Note 3(E)(i ) instructs that the fraud loss is to “be reduced by the value of the services rendered by a defendant to the victim.” U.S.S.G. § 2B1.1, cmt. n.3(E)(i). Shulick claims that the Court reduced the loss figure by some, but not all, of the value of the service s he rendered to
Southwest

. It was Shulick’s burden to show that he was entitled to specific offsets, because the Government made out a prima facie case of the loss amount. United States v. Jimenez , 513 F.3d 62, 86 (3d Cir. 2008). The District Court held t hat he38 failed to meet that burden

. It rejected the calculations of Shulick’s accounting expert

, Hamilton , who allocated to
Southwest ( 1 ) 34% of expenditures that also covered Shulick’s law office and three other schools; ( 2 ) DVHS’ s income taxes

, accounting expenses, and insurance premiums ; ( 3 ) substantial payments to Fattah, Jr.; and ( 4 ) a number of payments to persons not provided for in the Southwest contract, including the salaries of employees of other schools and a car and benefits package for DVHS’s b ookkeeper, who se responsibilities also included working on Shulick’s personal finances. Declining to calculate the offsets as Hamilton proposed was not clearly erroneous. Shulick simply did not carry his burden to show that additional money was spent for

t he benefit of Southwest. Lastly, Shulick challenges the District Court’s
restitution and forfeiture calculations

. He first argues that the Mandatory Victims Restitution Act limits restitution to “pecuniary loss” suffered as a “direct and proximate” result of the defendant’s conduct. 18 U.S.C. § 3663A(c)(1)(B), (a)(2)).
His argument merely re

- ups the same theories which he unsuccessfully advanced above and which also fail here; the District Court properly calculated the actual loss suffered
under Nagle . As t o forfeiture, Shulick argues the District Court failed to expressly find that Shulick acquired the funds. But it
did. The Order of Forfeiture states: “ Based upon the facts and arguments set forth in the government’s Memorandum Regarding Fraud Loss . . . an d the record as a whole, the sum of $649,735 .00 represents the value of property the defendant obtained directly or indirectly

. . . . ” District Ct. Dkt. #216 at 2

.

Shulick ’s final argument attacks the District Court’s decision to supplement the record with a binder that defense39 expert Hamilton relied upon while testifying at Shulick’s sentencing. Hamilton brought the binder to the stand with him

, but Shulick’s counsel did not ask about it on direct
examination. When Shulick’s counsel concluded, the District Court permitted the Government to review the binder and during cross

- examination, the Government questioned
Hamilton about various materials in the binder. Although the
District Court stat ed that the binder “was referred to, so we may want to put it in the record

, ” App. 4658 , this was not done at
the time

. Instead, t he Court instructed Hamilton to provide
prosecutors with a copy of the binder , which they agreed to accept instead of having i t formally entered into the record. A

copy never arrive d, so the Government moved to supplement
the record. The District Court granted the motion.
We review the District Court’s decision to supplement
the record for an abuse of discretion. Arrowpoint Capit al Corp. v. Arrowpoint Asset Mgmt. , LLC , 793 F.3d 313, 32 7 n.16 (3d Cir. 2015)

. A district court may supplement the record if “anything material to either party is omitted from or misstated in the record by error or accident.” Fed. R. App. P. 10(e)(2)(B). Here, the District Court determined that the binder had been omitted by error, b ecause the defense had not delivered a copy as instructed. The binder was material, according to the District Court, as it contained information supporting the foundation for Hamilton’s fraud loss calculation

— an issue which Shulick
himself raises on appeal . In light of the discretion afforded to
the District Court o n this matter, we cannot say that it abused its discretion in supplementing the record. The binder was not “new evidence,” having been relied upon by a testifying expert and specifically referenc ed by the Government on cross

examination ; supplementation was, thus, for the proper purpose of “correct[ing] inadvertent omission.” In re Adan

, 437 F.3d 381, 389 n.3 (3d Cir. 2006).40 For the foregoing reasons , we will affirm.