PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

Nos. 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 Boulevard
2

Two Penn Center Plaza

Philadelphia, PA 19102

Lisa A. Mathewson [ARGUED]

Suite 810

123 South Broad Street

Philadelphia, PA 19109

Counsel for Appellant

Michael T. Donovan

Christopher 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 forprofit education company through which he contracted with 

the School District of Philadelphia to run its Southwest School, 

an institution designed to help some of Philadelphia’s most atrisk 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 right 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 School 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 School 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 “Budget,” it required 

DVHS to “carry out the Work and bill the School District 
4

strictly in conformity with the Contractor’s Budget.” App. 

4847. Within these parameters, DVHS and Shulick had 

authority to manage and run the school. Shulick could 

implement a curriculum 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 whom 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 reduced their salaries even further if 

they elected health 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 salaries. Overall, Shulick represented

to the School District that he would spend $850,000 on salary 

and benefits each year but spent under half of that: about

$396,000 in 2010-11 and about $356,000 in 2011-12. In all, of 

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 the 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 that 

Fattah, Jr. would use the funds to pay off various liabilities

incurred across Shulick’s business ventures, while also 

keeping 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 Shulick 
5

promised to provide. Without security staff on site, teachers 

had to attempt to keep the children safe while also educating

them. Some employees confronted Shulick about his failure to 

pay for these services for Southwest’s students. He would lie

and direct 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 were subsequently dropped.

A year later, Shulick moved to dismiss the indictment, 

asserting his speedy trial rights. The District Court denied his 

motion (and later, 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 fines 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, asserting several 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 his constitutional and 

statutory rights to a speedy trial. The Sixth Amendment 

guarantees “the right to a speedy . . . trial.” U.S. Const. amend. 

VI. To 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 the 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, the server was mistakenly filed with a separate, 

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. The District Court denied his motion, 

saying it was only speculation that the remaining 64 days on 

the 70-day clock 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 would be served by a delay. In a separate order, 

the 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 that characterization, the Court held that

the ends 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 preparation 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 was 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. 

Rivera Constr. 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, stemming from a multi-year investigation

involving millions of pages of 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 requested 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 being 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 violation by continuing the 

trial to avoid prejudicing 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. See 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 

outweighed 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 “lack 
10

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 more 

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, 726-27 (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.”); see 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 the 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, it is well within the district courts’ expertise to 

distinguish between one-off or lesser discovery violations and 

those committed chronically or in bad faith. Leaving these 

matters with the district courts also comports with their general 
11

authority to oversee discovery 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 

Government’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 that the

Government’s untimely production rises 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 Court’s previous 

criticisms of its slow, rolling productions 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 productions, 

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 productions, 

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.

Separate 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 assertion 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.’” Hakeem v. Beyer, 990 F.2d 

750, 759 (3d Cir. 1993) (quoting Barker, 407 U.S. at 533).

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 Government 

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, first, 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 postindictment 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 could 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 preindictment delay.” United States v. Sebetich, 776 F.2d 412, 429 
13

(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)). Asin Dukow, “our 

inquiry on the speedy trial contention is at an end because the 

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. Hakeem, 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 possibility 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 interviewed 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 faith 

defense.” Appellant’s Br. 40. As the District Court correctly 

concluded, a conclusory claim of this sort falls 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 state record that 

shows the [witnesses] would have been able to corroborate his 

presence . . . .”). For example, in 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 prejudiced 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 innocence at trial.” Id. Such a “blanket 

statement,” said the court, “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 the defendant failed 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 argument must be rejected for 

another reason. Even if Shulick’s claims about Wright’s 
15

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, having rejected both his 

statutory and constitutional claims, we conclude that the 

District Court did not violate Shulick’s speedy trial rights.

Shulick next argues that the District Court committed 

reversible evidentiary and instructional 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 District 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 

funding. Under the statute, (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 employee, 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 from 

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 relevance 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 statutes; 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, 800-01 (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 given 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 the 
18

organization is an agent of that organization if 

the consultant is authorized to 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 in 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 the 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 

Philadelphia 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 that 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 

contract’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 does not negate his fraud.
20

3. The District Court properly excluded the expert testimony 

of Frederick 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. See Fed. R. Evid. 1006 (allowing a “summary, chart, 

or calculation to prove the content of voluminous writings, 

recordings, or photographs 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 recounted 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 short 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, full disclosure 

of his opinions, bases, and reasons. Judge Bartle then 

specifically asked defense counsel whether they intended to 
21

offer Hamilton as an expert. Defense 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 “hundreds 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 formulas and judgment to facts. The

District Court ultimately excluded this testimony, accepting 

the Government’s argument that it was 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. If 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 unrelated) business costs as 

expenditures for the Southwest school. The apportionments 

Hamilton advanced were not contained in any of the 

documents governing the parties’ relationship. Rather, they 

would have required the retroactive application of business and 

accounting principles and Hamilton’s own judgment to the 
22

facts—in other words, classic expert testimony, rightly 

excluded.

Shulick next claims there was reversible error in the 

District Court’s jury instructions 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 Court erred in instructing that an 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 the money or property for an unauthorized 
23

[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 

whether 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 limiting 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 condition 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 defendant “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, the 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” suggests 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 qualification 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 require 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, drafting the statute to 

read: “intentionally misapplies for the use of any person other 

than the rightful owner, property.” Congress, however, did not 

do that. We generally presume such differences in drafting to 

be purposeful. In re Bayer AG, 146 F.3d 188, 193 (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 

prohibitions, 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 otherwise 
25

knowingly 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 the 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 presume 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 such 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 and 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 intentional 
26

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 benefits

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.” (quoting the District 

Court’s recantation of 3d Cir. Model Jury Inst. 6.18.666A1A3)).

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 endorse 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 political 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, having heard this instruction,
27

may have convicted based on a belief 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 victim’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 just 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 the contested jury instruction 

runs afoul of Kelly. The Kelly Court reversed the defendants’ 

convictions because the Government 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 recipient 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 to 
28

run several of its educational institutions. Under these 

contracts, he 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, the 

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, to cover labor costs at 

the Kelly Drive School, while obligations owed to Southwest 

were ignored. E.g., App. 3458, 3460, 3714. And, during 

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 certified counselor at each DVHS site” and, unlike 

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

4350. Counsel’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 school district 

is consistent with Kelly. 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 that instruction reads, 

Shulick “use[d] [the] money” under the Southwest contract

“for an unauthorized [purpose]”—to pay his liabilities under 
29

the Kelly Drive contract—“even [though] such use benefitted 

the School District of Philadelphia,” because the Kelly Drive

School was within the same School District. App. 4426.

Taking funds remitted to the School District, but designated for

Southwest, and using them to pay other debts owed to the 

School 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) (quoting 

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 defendant’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 

substantial 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 them 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 Government 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 on 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. Even 
31

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 testimonial 

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 School District of Philadelphia. Some payments, for 

example, were remitted to cover the costs of running other 

charterschools outside of the School District. Others were used 

to cover bills, consulting fees, business solicitation services, 

and public relations 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 exhibit 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 nonSouthwest expenses to Shulick’s total expenditures on 

Southwest. But 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

embezzled 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 converted 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. 4425 (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 contract 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 is 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 million . . .”); 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 in 

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 not 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,” because 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 as a whole all of the instructions.” 

App. 4395; see 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 incidental 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, 147 
35

(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 many . . . 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 on 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 compensation 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 theory 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 fair 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 instruction. 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 cites 
36

no case law in support of his position and, 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 

calculations 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 Court 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 

obtained 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 services . . . 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. This

difference constitutes 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 services 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 that he 
38

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 bookkeeper, whose

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 

the 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 to 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 . . . and 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 defense 
39

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 stated 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, the Court instructed Hamilton to provide 

prosecutors with a copy of the binder, which they agreed to 

accept instead of having it formally entered into the record. A

copy never arrived, 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 Capital Corp. 

v. Arrowpoint Asset Mgmt., LLC, 793 F.3d 313, 327 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, because 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 on 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 referenced by the Government on crossexamination; 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.