PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 15-2812

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UNITED STATES OF AMERICA

v.

ADAM LACERDA a/k/a Robert Klein,

Appellant

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No. 15-4023

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UNITED STATES OF AMERICA

v.

GENEVIEVE MANZONI,

Appellant

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No. 16-2220

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UNITED STATES OF AMERICA

v.

IAN RESNICK,

Appellant

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2

On Appeal from the United States District Court

for the District of New Jersey

(D.N.J. Nos. 1-12-cr-00303-001, 1-12-cr-00303-010, and 

1-12-cr-00303-003)

District Judge: Honorable Noel L. Hillman

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Submitted Under Third Circuit L.A.R. 34.1(a)

March 11, 2019

Before: McKEE, PORTER, and ROTH, Circuit Judges

(Filed:May 5, 2020)

________________

Mark E. Cedrone

Jesse D. Abrams-Morley

Aubrey C. Emrich

CEDRONE & MANCANO, LLC

123 South Broad Street, Suite 810

Philadelphia, PA 19109

Counsel for Appellant Adam Lacerda

Robert L. Tarver, Jr.

LAW OFFICES OF ROBERT L. TARVER, JR.

66 South Main Street

Toms River, NJ 08757

Counsel for Appellant Genevieve Manzoni

Michael E. Riley

LAW OFFICES OF RILEY AND RILEY

2 Eves Drive, Suite 109

Marlton, NJ 08053

Counsel for Appellant Ian Resnick

Craig C. Carpenito

Mark E. Coyne

Deborah Prisinzano Mikkelsen

Office of United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

Counsel for Appellee
3

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OPINION OF THE COURT

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PORTER, Circuit Judge.

The Vacation Ownership Group (“VOG”) billed itself 

as a sort of advocacy group helping victims of timeshare fraud 

get out of their timeshare debts. After a lengthy and complex 

trial, a jury determined that VOG had in fact defrauded its 

customers, and that Adam Lacerda, Ian Resnick, and 

Genevieve Manzoni were each knowing participants in that 

fraud. In this consolidated appeal, they now challenge their 

judgments of conviction, raising several claims of error. For 

the reasons discussed below, we will affirm their respective 

convictions and sentences.

I. Background

A. VOG’s Fraudulent Activity

A timeshare is a form of shared property ownership in 

which multiple people own the rights to use a specific vacation 

or resort property. These properties are often units in a resort 

condominium, in which each timeshare owner has an allotted 

period of time to use the property. When one buys a timeshare, 

he typically makes a down payment on the property and 

finances the balance of the purchase price. These loans are 

commonly referred to as “mortgages” in the timeshare 

industry. In addition to these upfront costs, timeshare owners 

are also required to pay annual maintenance fees. It is not 

unusual for timeshare owners to fall prey to high-pressure sales 

tactics and commit to spending more money than they can 

comfortably afford. Later, they may seek to settle these debts 

or cancel their timeshares. 

In 2009, while working for Wyndham Vacation Resorts, 

Inc. (a timeshare sales company), Adam Lacerda and his wife, 

Ashley Lacerda, founded VOG. VOG marketed itself as a 

timeshare consulting company and claimed that it could help 

customers cancel, purchase, or upgrade their timeshares. 
4

Lacerda was the president and chief executive officer of VOG, 

and his wife was the chief operating officer. Together, they 

exclusively controlled VOG’s bank accounts and post office 

box. 

Lacerda created phone scripts for VOG’s sales 

representatives to use when speaking with timeshare owners. 

One of these scripts was VOG’s “bank settlement” pitch. This 

sales pitch was riddled with misrepresentations. Following this 

script, the VOG representatives used personal information 

compiled by VOG in “customer lead sheets” to make 

unsolicited calls to unsuspecting timeshare owners. The 

representatives said they were calling on behalf of a property 

owners’ association to follow up on the owner’s recent 

complaints. This was not true. The representatives also claimed 

they were working with the bank that held the loan for the 

owner’s timeshare mortgage. This was also not true. They then 

promised to review the owner’s account—which they could 

not do because they had no access to that account—and then to 

call the owner back.

During a follow-up call, VOG representatives offered to 

settle the timeshare owner’s debt at a fraction of the remaining 

balance, for a negotiated fee. Later, during a closing call, the 

representatives had the timeshare owner electronically sign 

VOG’s contract and pay its fee. The representatives then 

promised that the “mortgage would be paid off in full” and the 

timeshare owner would receive a “deed free and clear.” But 

none of that happened. Instead, VOG just pocketed the money. 

Lacerda also trained his VOG employees to use a 

fraudulent phone script for a timeshare “cancellation” sales 

pitch. Again, VOG representatives made unsolicited calls to 

timeshare owners and falsely told them that VOG had received 

their complaints, that VOG would do all the necessary work to 

cancel the owners’ timeshares, and that cancellation would not 

damage the customers’ credit ratings. 

But VOG did not work to cancel the owners’ 

timeshares. Instead, after receiving the timeshare owners’ 

money, VOG sent them an eight-step process for cancelling the 

timeshares themselves and told them to stop making their loan 

payments. Eventually the timeshare owners received default 
5

notices from the timeshare developers. When the owners 

complained to VOG, VOG instructed them to allow the 

developers to foreclose. Typically, this would lead to a 

nonjudicial foreclosure proceeding, which is common in the 

industry. This proceeding, Lacerda knew, would result in the 

cancellation of the owners’ timeshare debt, but at the cost of 

the timeshare deed, any equity the owners had, and, of course, 

the owners’ credit ratings. 

VOG employed additional misrepresentations: Lacerda 

impersonated bank officials on calls, altering his voice and 

using a spoofing device to alter his phone number. And VOG’s 

website falsely displayed the Better Business Bureau seal, 

advertising itself as an A+ rated business, and claimed to be a 

member of the American Resort Development Association. 

Not even the names used at VOG were true. Under 

Lacerda’s direction, VOG representatives used false names 

while interacting with potential customers. These false names 

allowed Lacerda and other former Wyndham employees to 

violate their non-compete agreements and hide their identity 

from former clients at Wyndham. This was important because 

VOG’s customer lead sheets were comprised almost 

exclusively of Wyndham timeshare owners. 

While employed by Wyndham, Ian Resnick sent 

customer lead sheets to VOG and received a kickback for every 

resulting sale. In August 2010, Resnick left Wyndham to join 

VOG full time. Using the bank settlement and timeshare 

cancellation scripts, Resnick defrauded several customers. 

Recognizing Resnick’s talents, Lacerda promoted him to 

Senior Contract Analyst.

Genevieve Manzoni, another Wyndham-alumna, joined 

VOG in October 2010. As a VOG representative, Manzoni 

showed great initiative, inventing her own “settlement” 

numbers on the fly. She, too, assumed a management role, 

overseeing other VOG sales representatives. 

In November 2010, the FBI raided VOG’s offices and 

the Lacerdas’ home. Several VOG representatives left the 

company following the raid, including Resnick. So Lacerda 

convened an office-wide meeting where his lawyers, including 
6

Marc Neff, assured VOG staff that everything was okay. They 

told the employees that only Lacerda was under investigation, 

and that Neff had reviewed the sales scripts and verified that 

everything was legal. VOG abandoned the bank settlement 

pitch and revised the timeshare cancellation pitch to remove 

any references to working with the banks, while leaving many 

other misrepresentations in place. With these assurances and 

changes, many of VOG’s representatives, including Resnick, 

returned and VOG resumed and expanded its operations.

Resnick continued receiving promotions, working as 

VOG’s Director of Training, then Director of Training and 

Compliance, and then Vice President of Sales and Compliance. 

While receiving compensation at VOG, Resnick and Manzoni 

also obtained unemployment benefits from New Jersey.

B. Trial of VOG Defendants

In April 2012, Lacerda, Resnick, Manzoni, and several 

other VOG employees were arrested after being charged with 

various counts of mail and wire fraud. VOG then changed its 

name to VO Financial and continued operations, still using the 

same misrepresentation-riddled sales pitches. Later, a 

superseding indictment was filed charging Lacerda, Resnick, 

Manzoni, and fifteen other VOG employees with conspiracy to 

commit mail and wire fraud. Lacerda was also charged with 

nine counts of mail fraud and three counts of wire fraud arising 

from his VOG scheme, and a final count of mail fraud for 

wrongfully receiving unemployment benefits while he was 

employed and receiving compensation at VOG.1 Resnick was 

charged with two counts of mail fraud and three of wire fraud 

for his work at VOG, and another count of mail fraud for his 

unemployment fraud. And Manzoni was charged with one 

count of wire fraud for her work at VOG and a separate count 

of wire fraud for, allegedly, wrongfully receiving 

unemployment benefits. Other VOG employees received 

similar charges.

1 Lacerda, together with his wife, was also charged with 

conspiracy to commit money laundering and four counts of 

money laundering, but these were dismissed by order of the 

District Court as a matter of law.
7

Most of the VOG defendants negotiated plea 

agreements with the government. But five defendants—Adam 

and Ashley Lacerda, Resnick, Manzoni, and Joseph DiVenti—

took their cases to trial. Relevant to this appeal, about four and 

a half months before trial, the District Court disqualified 

Lacerda’s then-attorney, Neff, as a potential witness and 

denied replacement counsel’s requested continuance. It also 

denied Manzoni’s motion to sever her VOG-related fraud 

charges from her unemployment-related fraud charges. 

The government’s first witness at trial was FBI Special 

Agent John Mesisca, an experienced agent in wire and mail 

fraud investigations and the lead investigator in the case. 

Mesisca was allowed, over appellants’ objections, to provide 

an extensive overview of his investigation. During trial, again 

over appellants’ objections, the District Court also excluded 

certain hearsay evidence and allowed other evidence for 

impeachment purposes. 

The jury returned guilty verdicts on all counts related to 

Lacerda. The District Court sentenced him to 324 months 

imprisonment with three years of supervised release, and it 

ordered him to pay restitution of $2,679,656.09. The jury also 

found Resnick guilty on all counts related to him. The District 

Court sentenced him to 216 months imprisonment with three 

years of supervised release and ordered him to pay restitution 

of $2,735,142.99. While the jury found Manzoni guilty of both 

the conspiracy charge and wire fraud in relation to her work at 

VOG, it acquitted her on the charge of unemployment fraud. 

The District Court entered judgment against Manzoni on the 

conspiracy and mail fraud charges, sentenced her to 42 months 

imprisonment with three years of supervised release, and 

ordered her to pay restitution of $105,422.2 The District Court 

also ordered the forfeiture of all of VOG’s gross proceeds.

This appeal follows. The District Court had jurisdiction 

over the several crimes charged in this case under 18 U.S.C. 

§ 3231. We have jurisdiction over appeals from final 

judgments and orders under 28 U.S.C. § 1291.

2 The jury also found Ashley Lacerda guilty on all 

remaining counts but acquitted Joseph DiVenti.
8

II. Overview Testimony

A. Proper Overview Testimony Is Admissible

Special Agent Mesisca’s testimony, including both 

cross and redirect examination, would extend into the third day 

of trial. On appeal, Lacerda, Resnick, and Manzoni each take 

issue with Mesisca’s testimony, arguing that it constituted 

impermissible overview testimony. We have never addressed 

the permissible scope and limits of overview testimony in a 

precedential opinion. 

Our sister circuits, however, have reviewed overview 

testimony. They have analogized it to summary testimony. See, 

e.g., United States v. Moore, 651 F.3d 30, 55–56 (D.C. Cir. 

2011). The main difference between summary and overview 

testimony is that summary testimony comes at the end of trial 

and overview at the beginning, but both try to connect the dots 

and convey the big picture to the jury in complex prosecutions. 

United States v. Banks, 884 F.3d 998, 1023 (10th Cir. 2018).

Summary evidence may be safer because the evidence 

that the officer is connecting has already been heard by the 

jury. See Moore, 651 F.3d at 56 (citing United States v. Lemire, 

720 F.2d 1327, 1349, n.33 (D.C. Cir. 1983)). Because 

witnesses can change their stories and objections may be 

sustained, some of the testimony relied on during the initial 

overview may never materialize at trial. United States v. Casas, 

356 F.3d 104, 119–20 (1st Cir. 2004).

Vouching is also a problem with overview testimony. 

See Moore, 651 F.3d at 56–57. Under Federal Rule of Evidence 

608(a), a party can only bolster the credibility of a witness after 

that witness’s credibility has been attacked. Because overview 

testimony is the first testimony offered, no witness’s credibility 

has yet been attacked. Vouching for a witness who has not yet 

testified would, therefore, be inappropriate.

Another serious problem with overview testimony is 

that it sometimes relies on anticipated witnesses. Thus, it may 

violate confrontation rights. Testimonial statements cannot be 

offered against a defendant without the opportunity for cross 

examination. Crawford v. Washington, 541 U.S. 36 (2004). If 

overview testimony previews the answers of an anticipated 
9

witness, such a violation is not easily cured if the expected 

witness later fails to testify. 

The D.C. Circuit has explained:

Because a witness presenting an overview of the 

government’s case-in-chief runs the serious risk 

of permitting the government to impermissibly 

“paint a picture of guilt before the evidence has 

been introduced,” and may never be introduced, 

we join the circuits that have addressed the issue 

in condemning the practice.

Moore, 651 F.3d at 60 (citations omitted).

The D.C. Circuit concluded that the government could 

call as its first witness a law enforcement officer, who is either 

familiar with the investigation or was personally involved, to 

explain how the investigation began, what law enforcement 

entities were involved, and what techniques were used. Id. at 

60–61. However, the overview witness could not opine on the 

ultimate issues of guilt, anticipate evidence that the 

government hoped to introduce, or express an opinion about 

the strength of that evidence or the credibility of any potential 

witnesses. Id. at 61; see also United States v. Rosado-Perez, 

605 F.3d 48, 55 (1st Cir. 2010) (cautioning, before government 

has presented supporting evidence, against presenting an 

overview of criminal investigation in which witness did not 

participate); United States v. Brooks, 736 F.3d 921, 930 (10th 

Cir. 2013) (allowing overview based on personal knowledge, 

not on hearsay nor on an opinion of defendant’s guilt); but see 

United States v. Khan, 794 F.3d 1288, 1300 (11th Cir. 2015) 

(overview proper where officer had personal knowledge of 

evidence due to officer’s role as lead investigator and his 

review of evidence).

We join our sister circuits and now hold that overview 

testimony that opines on ultimate issues of guilt, makes

assertions of fact outside of the officer’s personal knowledge, 

or delves into aspects of the investigation in which he did not 

participate is inadmissible. But an officer who is familiar with 

an investigation or was personally involved may tell the story

of that investigation—how the investigation began, who was 
10

involved, and what techniques were used. In addition, with 

proper foundation, he may offer lay opinion testimony and 

testify about matters within his personal knowledge.

B. Summary of Special Agent Mesisca’s 

Overview Testimony

Having determined the applicable rule, we now return 

to the appellants’ objections to Special Agent Mesisca’s 

overview testimony. Evidentiary objections are generally 

reviewed for an abuse of discretion. United States v. Georgiou, 

777 F.3d 125, 143 (3d Cir. 2015). This standard applies to the 

admission of overview testimony. See Rosado-Perez, 605 F.3d 

at 54 (citing Hall, 434 F.3d 42, 56–57 (1st Cir. 2006)). 

However, although district courts are “ordinarily afforded 

broad discretion to determine the manner in which evidence 

will be received,” in light of the pervasive risks of unfair 

prejudice, overview testimony requires closer review. Moore, 

651 F.3d at 58. Nevertheless, even if we find error in the 

admission of overview testimony, we can still affirm if the 

error was harmless. Rosado-Perez, 605 F.3d at 54.

Applying our holding here, the District Court did not 

commit reversible error in admitting Mesisca’s testimony. 

Mesisca testified about his background, experience, and 

qualifications as the lead investigator in this case. He explained 

that the FBI had received a complaint about VOG from a 

timeshare developer, Flagship. Following a meeting with 

representatives of that company, Mesisca opened an 

investigation into VOG. He explained how he had subpoenaed 

VOG’s bank records and explained why certain checks were 

significant to his investigation. 

Mesisca interviewed potential victims, including people 

identified by Flagship and others whose names appeared on the 

checks. He also interviewed former VOG employees and 

conducted several undercover phone calls to obtain evidence 

from VOG. With this evidence, he applied for and obtained 

search warrants for VOG’s headquarters and the Lacerdas’ 

personal residence.

The evidence, collected from Mesisca’s search, 

included purchase agreements, settlement and cancelation 
11

contracts, emails and complaints from concerned victims, 

customer lead sheets, client information forms, and phone 

scripts used at VOG. His testimony provided the foundation 

for admitting this evidence as exhibits, and then, as with the 

bank records, he explained why the evidence was significant to 

his investigation. 

Mesisca testified that both Lacerda and his wife had 

control of VOG’s account. While the account received many 

deposits, no money from the account was used to pay off any 

timeshare debts. Instead, the Lacerdas used the money to buy 

a dog, a swimming pool, and similar things.

Mesisca learned that some former Wyndham customers 

may have been victimized by VOG. One victim had received a 

phone call from “Robert Klein” representing VOG. Mesisca 

subpoenaed the caller’s phone records and discovered that the 

phone number was used by VOG, after incoming calls were 

forwarded to a local number in New Jersey. He also learned 

that “Robert Klein” was an alias for Lacerda. 

At the trial, Mesisca discussed the evidence he obtained 

through execution of the search warrant at VOG’s 

headquarters, laying the foundation for the admission of 

exhibits and explaining their importance to the investigation. 

He further explained the sales pitches used by VOG, based on 

the notes, emails, and phone scripts found at the office during 

the search, and illustrated many of the misrepresentations VOG 

representatives had made to victims. 

Mesisca obtained press releases issued by VOG and 

visited its website to collect more information and evidence. 

His testimony provided the foundation to enter this evidence as 

exhibits at trial. He also explained that, during his 

investigation, he met with informants who shared with him a 

video recording of a VOG employee training session. His 

testimony provided the foundation for entering this video 

recording into evidence. He was able to show, from his 

investigation, that Manzoni was working at and receiving 

income from VOG in October 2010, and Resnick was 

receiving income from VOG while collecting unemployment 

benefits in September and October 2010.
12

During the execution of the search warrant, Mesisca 

interviewed Lacerda. Lacerda advised him that he was the 

president and CEO of VOG and, contrary to the company’s 

sales pitches, that VOG was not associated with any bank, that 

it had no ability to pay off anyone’s mortgage or loan, and that 

it did not settle anyone’s debts. Lacerda acknowledged that his 

sales force used aliases but claimed that was only to induce 

outsiders to believe VOG was larger than it really was. Lacerda 

admitted that he used the VOG business account for personal 

expenses but claimed that he took only about $30,000. 

Mesisca’s investigation, showed that number was closer to 

$600,000. Lacerda admitted receiving unemployment benefits 

but claimed he had repaid those. Finally, Mesisca noted that, at 

the end of the interview, Lacerda refused to sign a statement 

that he had been truthful during the interview. 

Mesisca also interviewed Resnick who recounted that 

he worked as VOG’s premier closer: when other employees 

failed to complete a deal with a client, the information was sent 

to him to close it. A couple of weeks later, Mesisca again met 

with Resnick. During that second interview, Resnick 

acknowledged that he, too, had been a former Wyndham 

employee and that he took internal lead sheets from Wyndham 

and used them at VOG to call potential clients. Resnick 

admitted that he had collected unemployment benefits while 

working at VOG but claimed that he planned to repay the 

money.

Mesisca interviewed Manzoni on three occasions. She 

admitted that VOG representatives told potential clients that 

the representatives worked with banks—it was part of the 

script they followed. During her August interview, she told 

Mesisca that, disillusioned with VOG, she had quit.

We have set out Mesisca’s direct examination testimony 

to show that it was proper overview. It was limited to an 

account of his investigation, his personal observations, and his 

beliefs of what the evidence showed based on what he saw and 

heard and did. Also important is the testimony Mesisca did not

offer. Because he was not directly involved in the execution of 

the warrant at the Lacerdas’ home, Mesisca did not tell the jury 

about that portion of the investigation. He only provided the 

foundation to admit evidence found at the Lacerdas’ house that 
13

he had personally reviewed, and then related that evidence to 

bank records he had previously obtained While he noted that 

each of the defendants had been interviewed when the search 

warrant was executed at VOG, he did not discuss the 

statements made that day by Ashley Lacerda, DiVenti, or 

Manzoni because he did not personally conduct those 

interviews. 

C. Special Agent Mesisca’s Overview Testimony 

Was Admissible

On appeal, Lacerda, Resnick, and Manzoni each 

highlight the length of Special Agent Mesisca’s testimony, as 

though that alone proves he gave impermissible overview 

testimony. Not so. This was a complex case in which, as lead 

investigator, he was directly involved in almost every step of 

the investigation.

Lacerda and Manzoni each further assert that Mesisca 

offered conclusory statements of their guilt by referring to 

persons who the government alleged were defrauded by VOG 

as “victims.” The appellants have cited no authority, and we 

are aware of none, prohibiting government witnesses from 

referring to persons as “victims” who are alleged to be victims 

in the indictment. That there had been victims was not even 

disputed—it was highlighted by Lacerda and Resnick during 

their opening statements. Assertions to the contrary 

notwithstanding, whether there were victims was not at issue 

in this case. The issue was whether these defendants had 

defrauded the victims, or otherwise knowingly participated in 

the fraud occurring at VOG. The jury understood this and, 

finding insufficient evidence of guilt for one of the defendants, 

acquitted DiVenti. 

Lacerda also asserts that Mesisca gave conclusory 

testimony, without foundation. For example, he testified that 

“Robert Klein” was Lacerda’s alias. This issue was not 

preserved by any objection, see Fed. R. Crim. Pro. 51(b), and, 

having not attempted to show plain error, Lacerda is not 

entitled to review of this unpreserved issue on appeal. See 
14

United States v. Olano, 507 U.S. 725, 732 (1993).3 But even 

had this issue been preserved, there was in fact foundation for 

Mesisca’s testimony: he testified that, during their execution of 

the search warrant at VOG headquarters, agents had found a 

list of names with aliases at the receptionist’s desk. “Robert 

Klein” was listed as the alias for Lacerda, and Mesisca did not 

find evidence that anyone else ever used that alias. 

We have reviewed the appellants’ other allegations of 

improper overview, e.g., the reason for having duplicate copies 

of client information sheets, whether victims were told about 

non-judicial foreclosure process, whether Lacerda “freaked 

out” when he saw one of VOG’s representatives using the 

“bank pitch” in an email to a victim. etc. After careful review 

and consideration of the permissible limits of overview as set 

out above, we find no abuse of discretion in the admission of 

Mesisca’s testimony. 

In sum, the government may call as its first witness an 

officer who is familiar with, or was personally involved in, the 

criminal investigation, and that officer may testify about all 

matters within his personal knowledge from the investigation. 

Special Agent Mesisca’s testimony was largely confined to 

telling the story of his investigation: how it began, the steps he 

took, the evidence he uncovered, and the interviews with 

defendants he conducted. The District Court did not abuse its 

discretion by allowing this testimony.

III. Objections Raised by Lacerda

Lacerda raises several additional issues on appeal. He 

asserts that the District Court (1) abused its discretion when it 

disqualified his counsel, Marc Neff, based on Neff’s conflict 

of interest; (2) abused its discretion when it denied replacement 

counsel’s motion for a continuance; (3) abused its discretion 

by excluding from evidence an email sent by Lacerda to 

VOG’s former CFO, Jeff Sawyer; (4) abused its sentencing 

3 Lacerda takes issue with additional portions of 

Mesisca’s testimony unpreserved by timely objection but has 

not attempted to show plain error entitling him to review of 

these unpreserved issues. So we decline to address these 

unpreserved issues in this opinion.
15

discretion; and (5) erred by ordering the forfeiture of all VOG’s 

gross proceeds. We will address each issue in turn.

A. Attorney Neff Was Properly Disqualified

Lacerda argues that the District Court arbitrarily 

disqualified his counsel of choice or at least abused its 

discretion by disqualifying Neff. When a defendant challenges 

the District Court’s decision to disqualify his counsel of 

choice, we apply a bifurcated standard of review: first, we 

exercise plenary review when determining whether the District 

Court’s decision was arbitrary, and then, if not arbitrary, we 

review the decision for an abuse of discretion. United States v. 

Stewart, 185 F.3d 112, 120 (3d Cir. 1999). Here, we find that 

the District Court’s decision was neither arbitrary nor an abuse 

of discretion, so we will affirm. 

The Sixth Amendment to the United States Constitution 

guarantees the right of counsel to every criminal defendant. 

That guarantee has generally been understood to encompass a 

right to the counsel of choice. Powell v. Alabama, 287 U.S. 45, 

53 (1932). But the right to counsel of choice is not absolute. 

Wheat v. United States, 486 U.S. 153 (1988). “The essential 

aim of the [Sixth] Amendment is to guarantee an effective 

advocate for each criminal defendant rather than to ensure that 

a defendant will inexorably be represented by the lawyer whom 

he prefers.” Id. at 159 (internal citations omitted). Before 

disqualifying a defendant’s counsel of choice, the trial court 

must balance that defendant’s right to his counsel of choice 

against the fair and proper administration of justice. United 

States v. Voigt, 89 F.3d 1050, 1074 (3d Cir. 1996). When 

“considerations of judicial administration supervene,” such as 

when an attorney has a serious potential conflict of interest, the 

presumption in favor of counsel of choice is rebutted and the 

right must give way. Id. at 1074–75 (citing Fuller v. Diesslin, 

868 F.2d 604, 607 n.3 (3d Cir. 1989)).

Here, the District Court weighed Lacerda’s right to 

counsel of choice against Neff’s serious actual and potential 

conflicts of interest and, ultimately, determined those conflicts 

could neither be waived nor cured by anything short of 

disqualification. That conclusion was neither arbitrary nor an 

abuse of discretion. 
16

After the FBI raid on VOG in November 2010, Lacerda 

retained Neff as his counsel. The following month, Neff met 

with VOG employees to ease any concerns they had, assuring 

them that (1) only the Lacerdas were under investigation by the 

FBI and (2) the post-raid revised phone scripts were lawful. 

VOG continued operations using the phone scripts whose 

legality had been vouched for by Neff. Contrary to Neff’s 

representations, 18 VOG employees, including the Lacerdas, 

were eventually indicted in this criminal case based in part on 

their use of the phone scripts. In proffers to the government, 

several of those defendants told of the December meeting with 

Neff.

In United States v. Merlino, 349 F.3d 144, 151 (3d Cir. 

2003), we recognized that “[a]n attorney who faces criminal or 

disciplinary charges for his or her actions in a case will not be 

able to pursue the client’s interests free from concern for his or 

her own.” We also recognized the potential conflicts that arise 

when counsel realistically could be called as a witness, as “it is 

often impermissible for an attorney to be both an advocate and 

a witness.” Id. at 152. And we noted “that disqualification may 

also be appropriate where it is based solely on a lawyer’s 

personal knowledge of events likely to be presented at trial, 

even if the lawyer is unlikely to be called as a witness.” Id. 

(citing United States v. Locascio, 6 F.3d 924, 933 (2d Cir. 

1993)). Each consideration applies here and was central to the 

District Court’s thorough and well-reasoned decision 

disqualifying Neff.

B. The District Court Did Not Abuse Its 

Discretion in Managing the Trial Calendar

After Neff was disqualified, Lacerda’s new counsel, 

Mark Cedrone, requested a lengthy continuance to prepare for 

trial. The District Court denied this request. Lacerda now 

challenges that denial on appeal. “We review the trial court’s 

refusal to grant a continuance for an abuse of discretion.” 

United States v. Olfano, 503 F.3d 240, 245 (3d Cir. 2007). 

Finding no abuse of the District Court’s discretion, we will 

affirm.

“When presented with a motion for continuance, a court 

should consider the following factors: the efficient 
17

administration of criminal justice, the accused’s rights, and the 

rights of other defendants whose trials may be delayed as a 

result of the continuance.” Olfano, 503 F.3d at 246. The 

District Court considered these factors and, given the time 

Cedrone had had to prepare Lacerda’s defense, denied the 

motion based on the government’s right to a speedy trial, 

efforts to streamline the case, the District Court’s calendar, and 

the need to “protect the rights of the parties in other cases.” 

App. 670:23–671:9.

Lacerda now argues that the District Court abused its 

discretion and prejudiced his defense because, he claims, 

Cedrone had only four months to prepare for trial. But that is 

inaccurate. Cedrone entered his appearance on Lacerda’s 

behalf in November 2012—about eight months before jury 

selection began in July 2013—and Cedrone told the District 

Court in January 2013 that the scope of his representation was 

general and not limited to the disqualification motion. The 

District Court did not abuse its discretion.

C. Lacerda’s 2010 Email to Sawyer Was 

Properly Excluded as Hearsay

In its case-in-chief, the government presented evidence 

showing that Lacerda sometimes used the alias “Robert Klein” 

when contacting VOG customers. During the presentation of 

his defense, Lacerda testified that he was not the only person 

at VOG using that alias. On direct examination, he testified that 

he only began using the Robert Klein alias to respond to 

customer complaints that otherwise weren’t being addressed 

by other employees who would not admit having used the 

moniker. He further claimed that he did not use the alias before 

2010. The government used that assertion to impeach Lacerda, 

confronting him with a check made out to “Robert Klein” in 

2009, which he had deposited into his account. On redirect, 

Lacerda tried to enter a 2010 email he wrote to VOG’s former 

CFO, Jeff Sawyer, asking Sawyer to investigate who else was 

using the Robert Klein alias. But the District Court excluded 

the email as hearsay.

Lacerda now challenges the District Court’s ruling on 

appeal. We review this evidentiary ruling for an abuse of 

discretion. United States v. Frazier, 469 F.3d 85, 87 (3d Cir. 
18

2006). Finding no abuse of the District Court’s discretion, we 

will affirm.

At the time of Lacerda’s trial, a witness’s prior 

consistent statement was admissible as non-hearsay only when 

the witness testified and was subject to cross-examination, and 

the out-of-court statement was offered to rebut a charge of 

recent fabrication or recent improper motive. See Fed. R. Evid. 

801(d)(1)(B) (2011).4 The Supreme Court had explained that 

the purpose of the exception was to rebut a charge of recent 

fabrication. Tome v. United States, 513 U.S. 150, 157–58 

(1995). “Prior consistent statements [could] not be admitted to 

counter all forms of impeachment or to bolster the witness 

merely because she has been discredited.” Id. at 157.

In this case, the government did not accuse Lacerda of 

recently fabricating the claim that he began using the Robert 

Klein alias in 2010. Rather, it employed impeachment by 

contradiction: of course, Lacerda was using the Robert Klein 

alias before 2010; he profited from using the alias in 2009. 

Thus, under the former rules of evidence, Lacerda’s email to 

Sawyer was hearsay, and the District Court properly excluded 

it.

D. Lacerda’s Sentence Was Procedurally Sound

and Substantively Reasonable

The District Court sentenced Lacerda to 324 months’ 

imprisonment for his leading role in VOG’s fraudulent 

enterprise. On appeal, Lacerda challenges his sentence as 

procedurally unsound and substantively unreasonable. Our 

standard of review on sentencing challenges is bifurcated. We 

“must first ensure that the district court committed no 

significant procedural error .... Assuming that the district 

court’s sentencing decision is procedurally sound, the appellate 

court should then consider the substantive reasonableness of 

the sentence imposed under an abuse-of-discretion standard.” 

4 Though the Rule was broadly expanded in 2014 to 

allow for the use of prior consistent statements to rehabilitate 

the witness against other forms of impeachment, see Fed. R. 

Evid. 801(d)(1)(B)(ii) (2014), the former rule, with its 

limitation, applied in Lacerda’s case.
19

Gall v. United States, 552 U.S. 38, 51 (2007). Applying these 

standards, we will affirm the District Court’s sentence.

1. The District Court’s sentence was procedurally 

sound

Lacerda argues that the District Court imposed a 

procedurally unreasonable sentence because, he alleges, it was 

based on a miscalculation of the number of victims of the VOG 

scheme and the total financial loss suffered by those victims. 

The government bears the initial burden of proving loss by a 

preponderance of the evidence. United States v. Ali, 508 F.3d 

136, 145 (3d Cir. 2007). The district court must then calculate 

the amount of loss associated with the crime of conviction and 

any relevant conduct that was “part of the same course of 

conduct or common scheme or plan.” United States v. Siddons, 

660 F.3d 699, 704 (3d Cir. 2011) (quotation omitted). While 

this does not have to be an exact figure, it must be a reasonable 

estimate. Ali, 508 F.3d at 145.

Lacerda first asserts that only those victims who 

testified during trial or whose victimization underlay a specific 

count of the indictment should have been counted as victims, 

claiming that including any other victims in the presentence 

investigative report (“PSR”) was based on “rank hearsay.” 

Appellant Lacerda’s Br. 62–64. Of course, a district court may 

rely on hearsay statements during sentencing, if “they bear 

some minimal indicium of reliability beyond mere allegation.” 

United States v. Smith, 751 F.3d 107, 116 (3d Cir. 2014) 

(internal quotations and citation omitted). Victim statements 

are reliable when they “involve[ ] matters within the 

knowledge of each declarant and were made in the course of 

interviews by one or more law enforcement officials.” Id.

In this case, for each victim identified in the PSR, the 

government submitted the following: 

(1) a declaration of victim losses, completed by 

the victims, executed under penalty of 

perjury, and submitted to the Probation 

Office;

(2) an FD-302 summarizing an officer’s interview with 

the victim; and
20

(3) a canceled check verifying the amount the victim 

paid to VOG.

That is more than mere allegation and enough under Smith to 

show reliability. The District Court’s calculation of victims 

was therefore reasonable.

Lacerda next argues that the District Court’s calculation 

of loss was erroneous because it failed to offset the victims’ 

losses with credits for new timeshares and cancellation of prior 

debts. This argument is unavailing. The supposed cancellation 

of debt was one of the bases for the fraud charges. Cancellation 

was not achieved through VOG’s efforts, but through the 

victims’ credit-destroying defaults with the timeshare 

companies after those victims stopped paying their bills—

relying on VOG’s misrepresentations that their timeshare debts 

had been paid off. And the VOG victims were trying to get rid 

of their timeshares, not acquire new timeshares. Neither of 

these were “services” rendered by VOG; they were part of the 

fraudulent scheme. Perpetrators of fraudulent schemes are not 

entitled to credits against loss for payments made to perpetuate 

their schemes. See United States v. Hartstein, 500 F.3d 790, 

800 (8th Cir. 2007) (“[W]hen a defendant’s only subjective 

intent regarding repayments relates to this illegal purpose of 

perpetuating the scheme, a sentencing court may refuse to 

credit repayments against sums received from the victims.”); 

United States v. Whatley, 133 F.3d 601, 606 (8th Cir. 1998) 

(“[W]e are not inclined to allow the defendants a profit for 

defrauding people or a credit for money spent perpetuating a 

fraud.”); United States v. Blitz, 151 F.3d 1002, 1012 (9th Cir. 

1998) (same).

2. The District Court’s sentence was substantively 

reasonable

We will not reverse a sentence as substantively 

unreasonable “unless no reasonable sentencing court would 

have imposed the same sentence on that particular defendant 

for the reasons the district court provided.” United States v. 

Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc). Lacerda’s 

Guidelines range was calculated between 324 and 405 months. 

As demonstrated above, Lacerda has shown no error in that 

calculation. The District Court’s sentence of 324 months rests 
21

at the very bottom of the range. When “the sentence is within 

the Guidelines range, the appellate court may, but is not 

required to, apply a presumption of reasonableness.” Gall, 552 

U.S. at 51. We will apply the presumption here. 

Lacerda presents a table of cases showing a range of 

sentences for other fraud cases and argues that his sentence, 

though at the bottom of his Guidelines range, is still “23 times 

greater than the median sentence for his type of offense.” 

Appellant Lacerda’s Br. 67–71. When a defendant seeks to 

argue disparate sentencing, he bears the “burden of 

demonstrating similarity by showing that other defendants’ 

circumstances exactly paralleled his, and a court should not 

consider sentences imposed on defendants in other cases in the 

absence of such a showing by a party.” United States v. 

Iglesias, 535 F.3d 150, 161 n.7 (3d Cir. 2008) (citing United 

States v. Vargas, 477 F.3d 94, 100 (3d Cir. 2007)) (internal 

brackets and quotations omitted). Lacerda has failed to 

demonstrate that any of the other defendants’ circumstances 

exactly paralleled his. So, “[a]ccording great deference” to the 

District Court—as the law requires, United States v. Lessner, 

498 F.3d 185, 204 (3d Cir. 2007)—we hold that Lacerda has 

failed to overcome the presumption that his sentence was 

reasonable.

E. Forfeiture of VOG’s Proceeds Was Not 

Clearly Erroneous

After finding that VOG was a wholly fraudulent 

scheme, the District Court ordered all its gross proceeds 

forfeited under 18 U.S.C. §§ 981(a)(1)(C) & 982(a)(8) and 

28 U.S.C. § 2461(c). Lacerda raises two challenges to the 

District Court’s forfeiture order on appeal. First, he asserts that 

he lacked sufficient notice that the government would seek 

forfeiture upon his conviction because the government cited 

the wrong criminal forfeiture statutes in its superseding 

indictment. Second, he asserts that the District Court’s finding 

that all VOG’s revenues were either directly or indirectly 

attributable to VOG’s fraud, and so subject to forfeiture, was 

clearly erroneous. Because forfeiture orders involve mixed 

questions of law and fact, our standard of review here is 

bifurcated. We review the District Court’s legal conclusions de 

novo and its findings of facts for clear error. See United States 
22

v. Gordon, 710 F.3d 1124, 1165 (10th Cir. 2013). Applying 

this standard, we find no error by the District Court, and we 

will affirm.

1. Lacerda had notice that, upon conviction, the 

government would seek forfeiture

In its superseding indictment, the government gave 

notice that, upon conviction, it would seek forfeiture of “any 

property constituting or derived from proceeds obtained 

directly or indirectly as a result of such offenses” under 18 

U.S.C. §§ 981(a)(1)(D) & 982(a)(2)(A) and 28 U.S.C. 

§ 2461(c). App. 287. Lacerda notes, and the government

concedes, that the cited criminal statutes are not the correct 

statutes for forfeiture of proceeds from mail and wire fraud 

involving telemarketing. The correct statute is 18 U.S.C. 

§ 982(a)(8), the statute under which the District Court ordered 

forfeiture. Lacerda first argues that the forfeiture order cannot 

be based on the civil forfeiture statute because, under our 

precedent in United States v. Vampire Nation, 451 F.3d 189, 

199 (3d Cir. 2006), forfeiture orders can be based on 28 U.S.C. 

§ 2461(c) only when “there is no specific statutory provision 

that permits criminal forfeiture.” Lacerda further argues that, 

by citing incorrect forfeiture statutes for his crimes, the 

government failed to provide the notice required by the Federal 

Rules of Criminal Procedure. Lacerda is mistaken on both 

grounds.

First, Lacerda’s reliance on Vampire Nation is 

misguided. Our Vampire Nation decision was based on the 

language of the prior version of 28 U.S.C. § 2461(c).5 Giving 

5 The applicable statute read:

If a forfeiture of property is authorized in 

connection with a violation of an Act of 

Congress, and any person is charged in an 

indictment or information with such violation 

but no specific statutory provision is made for 

criminal forfeiture upon conviction, the 

government may include the forfeiture in the 

indictment or information in accordance with the 

Federal Rules of Criminal Procedure, and upon 
23

the words of that statute their plain meaning, we concluded that 

“criminal forfeiture is not permitted unless (1) a substantive 

provision exists for civil forfeiture of the criminal proceeds at 

issue; and (2) there is no specific statutory provision that 

permits criminal forfeiture of such proceeds.” Vampire Nation, 

451 F.3d at 199. In 2006, Congress amended the statute and 

eliminated the second requirement.6 The amendment to 

28 U.S.C. § 2461(c) effectively abrogates the portion of 

Vampire Nation upon which Lacerda now relies. Under the 

current version of the statute, the District Court correctly 

conviction, the court shall order the forfeiture of 

the property in accordance with the procedures 

set forth in section 413 of the Controlled 

Substances Act ( 21 U.S.C. 853), other than 

subsection (d) of that section.

28 U.S.C. § 2461(c) (2000) (emphasis added).

6 The statute now reads:

If a person is charged in a criminal case with a 

violation of an Act of Congress for which the 

civil or criminal forfeiture of property is 

authorized, the government may include notice 

of the forfeiture in the indictment or information 

pursuant to the Federal Rules of Criminal 

Procedure. If the defendant is convicted of the 

offense giving rise to the forfeiture, the court 

shall order the forfeiture of the property as part 

of the sentence in the criminal case pursuant to 

to [sic] the Federal Rules of Criminal Procedure 

and section 3554 of title 18, United States Code. 

The procedures in section 413 of the Controlled 

Substances Act (21 U.S.C. 853) apply to all 

stages of a criminal forfeiture proceeding, except 

that subsection (d) of such section applies only 

in cases in which the defendant is convicted of a 

violation of such Act.

28 U.S.C. § 2461(c) (2006).
24

ordered restitution, and Lacerda had notice under the civil 

statute. 

Second, the government provided Lacerda with 

sufficient notice under the criminal rules. Federal Rule of 

Criminal Procedure 32.2 sets forth the notice requirement that 

must be met before forfeiture can be ordered by a district court. 

It states:

A court must not enter a judgment of forfeiture 

in a criminal proceeding unless the indictment or 

information contains notice to the defendant that 

the government will seek the forfeiture of 

property as part of any sentence in accordance 

with the applicable statute.

Fed. R. Crim. P. 32.2(a). This rule does not require the level of 

specificity demanded by Lacerda. Rather, as we have held, “[a] 

conclusory forfeiture allegation in the indictment that 

recognizably tracks the language of the applicable criminal 

forfeiture statute” is sufficient under the rule. United States v. 

Sarbello, 985 F.2d 716, 719 (3d Cir. 1993). We recognize that 

Sarbello specifically addressed then-Rule 7(c)(2), which was 

removed with the 2009 amendments. But that rule was 

removed only because it had become obsolete: “In 2000 the 

same language was repeated in subdivision (a) of Rule 32.2, 

which was intended to consolidate the rules dealing with 

forfeiture.” See Fed. R. Crim. P. 7 note (2009 Amendment). 

We now hold, consistent with Sarbello, that general notice of 

forfeiture is sufficient under Rule 32.2. Thus, Lacerda had 

sufficient notice that the government would seek forfeiture 

upon his conviction.

2. Based on its finding that VOG used its revenues to 

promote and facilitate its fraud, the District Court 

correctly ordered those revenues forfeited

Lacerda next contends that the District Court erred by 

subjecting all VOG’s proceeds to forfeiture rather than limiting 

the order to the losses directly claimed by VOG’s victims. But 

the relevant statute is not so narrow. Rather, addressing the 

crimes committed by Lacerda at VOG, 18 U.S.C. § 982 

requires the court to 
25

order that the defendant forfeit to the United 

States any real or personal property—

(A) used or intended to be used to commit, to 

facilitate, or to promote the commission 

of such offense; and 

(B) constituting, derived from, or traceable to 

the gross proceeds that the defendant 

obtained directly or indirectly as a result 

of the offense.

18 U.S.C. § 982(a)(8). The District Court found that VOG was 

a fraudulent enterprise from beginning to end, and that all its 

gross proceeds were used to further its fraud. Based on those 

findings, the District Court correctly ordered the forfeiture of 

all VOG’s proceeds.

Lacerda does not appear to challenge the District 

Court’s findings on appeal. Instead, he argues that what it 

means for property to be “indirectly” derived, traceable, or 

obtained from an offense is ambiguous, so the rule of lenity 

should govern our interpretation of the forfeiture statute. We 

reject this argument. First, it is irrelevant. The District Court’s 

order focused on the fact that VOG had used all its revenues to 

promote and facilitate its fraud, not on whether those revenues 

were direct or indirect. Second, “[t]he rule of lenity ... is 

inapplicable if there is only a mere suggestion of ambiguity 

because most statutes are ambiguous to some degree.” United 

States v. Cheeseman, 600 F.3d 270, 276 (3d Cir. 2010) 

(internal quotation omitted). Lacerda has failed to show that 

the forfeiture statute is ambiguous—much less sufficiently 

ambiguous—to warrant application of the rule of lenity.

Recently, the Supreme Court of the United States 

explained that the purpose of forfeiture statutes is to separate 

the criminal from his ill-gotten gains, to return, in full, the 

property of defrauded victims, and to lessen the economic 

power of criminal enterprises. Honeycutt v. United States, 137 

S. Ct. 1626, 1631 (2017) (citing Caplin & Drysdale, Ctd. v. 

United States, 491 U.S. 617, 629–30 (1989)). The District 

Court’s forfeiture order here meets those purposes. The District 

Court found that VOG was a thoroughly corrupt criminal 
26

conspiracy from beginning to end, and that its revenue was 

used to promote and facilitate its crimes. That finding is 

supported by substantial evidence and does not appear to be 

challenged by Lacerda on appeal. The District Court correctly 

ordered the forfeiture of all of VOG’s revenues.

IV. Objections Raised by Resnick

Like Lacerda, Resnick also raises several additional 

issues on appeal. He claims that (1) the government suppressed 

material evidence; (2) the District Court miscalculated the 

number of his victims and the loss amount for those victims, 

and so erred at sentencing; (3) his due process rights were 

violated when his sentencing hearing was delayed; and (4) the 

District Court’s restitution order was procedurally unsound and 

substantively unreasonable. We will address each argument in 

turn.

A. The Government Did Not Commit a Brady

Violation

Resnick asserts that the government violated its 

obligations under Brady v. Maryland, 373 U.S. 83 (1963), by 

withholding evidence which he might have used to impeach 

Special Agent Mesisca. Specifically, Resnick claims that the 

government withheld the documents that were the basis of a 

victim’s, Dorothy Gerlach’s, FD-3027and withheld Gerlach’s 

later-produced “Declaration of Victim’s Losses.” Resnick 

preserved this argument by raising it to the District Court in a 

motion for a new trial based on newly discovered evidence. 

The District Court correctly denied that motion.

Under Brady, the government has a duty to disclose 

“evidence that is favorable to the defense and material to the 

defendant’s guilt or punishment.” Smith v. Cain, 565 U.S. 73, 

75 (2012). Thus, there are three prerequisites to a Brady

violation: (1) the government must have failed to disclose 

evidence; (2) that evidence must have been favorable to the 

defendant; and (3) that evidence must have been material. 

7 The FD-302, commonly referred to simply as a “302”, 

is the form commonly used by FBI agents to summarize 

witnesses’ statements and interviews.
27

Evidence is “material” only if there is a reasonable probability 

that its disclosure would have led to a different outcome at trial, 

and so undermines confidence in the verdict. Turner v. United 

States, 137 S. Ct. 1885, 1893 (2017). The evidence Resnick 

claims was withheld fails to satisfy each of the three 

prerequisites.

Contrary to Resnick’s assertions, the government did 

not withhold the evidence. The documents underlying 

Gerlach’s 302, labeled as “DG-3”, were disclosed before trial. 

The Declaration of Victim’s Losses, “DG-2”, was received by 

the probation office in May 2013, but not forwarded to the 

prosecutor until late in 2014. The prosecutor disclosed the 

declaration with other documents in January 2015.

Resnick is correct that the failure to disclose 

information known only to police investigators can still 

implicate the prosecution, even when the prosecutor was 

unaware of the information. Youngblood v. West Virginia, 547 

U.S. 867, 869–70 (2006). But probation officers in the federal 

system are not police investigators; they are “the court’s eyes 

and ears and provide information and recommendations to the 

court.” United States v. Amatel, 346 F.3d 278, 279 (2d Cir. 

2003). We will not impute to the prosecution the Probation 

Office’s failure in 2013 to disclose Gerlach’s “Declaration of 

Losses” to Resnick.

But even if we did impute to the prosecution the 

Probation Office’s failure to disclose, it still would not 

constitute a Brady violation. Far from being material evidence 

that could have undermined Resnick’s conviction, this 

evidence reinforces the jury’s verdict. Resnick admitted that 

“he pitched a bank settlement deal to Ms. Gerlach.” App.

7737:19–21. There were two parts to the bank settlement pitch: 

VOG promised to help the victims pay off their debt and keep 

their timeshare property, and then, in a bait and switch, sold 

them a second timeshare through VOG. Gerlach’s declaration, 

which expresses confusion over not receiving points she was 

promised, highlights that bait and switch. Thus, the declaration 

was not exculpatory; it was inculpatory.

We conclude that the government did not violate its 

obligations under Brady. 
28

B. The Timing of Resnick’s Sentencing Did Not 

Violate His Sixth Amendment or Due 

Process Rights

Resnick next claims that his speedy sentencing rights 

were violated when his sentence was not imposed for more 

than two-and-a-half years following his conviction. We once 

recognized a right to a speedy sentencing hearing under both 

the Sixth Amendment and the Due Process Clause. See 

Burckett v. Cunningham, 826 F.2d 1208, 1219–21 (3d Cir. 

1987). But the Supreme Court of the United States has since 

clarified that the Sixth Amendment guarantees a defendant the 

right to a speedy trial, not a speedy sentencing. Betterman v. 

Montana, 136 S. Ct. 1609, 1613 (2016). “That does not mean, 

however, that defendants lack any protection against undue 

delay at [sentencing].” Id. at 1617. Federal Rule of Criminal 

Procedure 32(b)(1) requires courts to “impose sentence 

without unnecessary delay.” Id. And, the Supreme Court noted, 

the convicted defendant maintains his due process rights. Id.

Thus, while Betterman overruled our speedy sentencing 

precedent under the Sixth Amendment, our precedent under the 

Due Process Clause survives. Under that precedent, we apply 

the same framework adopted by the Supreme Court in Barker 

v. Wingo, considering: (1) the length of the delay; (2) the 

reasons for the delay; (3) the defendant’s assertion of his right; 

and (4) any prejudice suffered by the defendant. 407 U.S. 514, 

530 (1972). Consideration of these factors leads us to the 

conclusion that Resnick suffered no deprivation of his due 

process right to a speedy sentencing.

First, the length of the delay between conviction and 

sentencing—more than two-and-a-half years—was 

substantial. This factor favors Resnick.

But second, as the District Court found, three things 

contributed to the delay in getting to sentencing. (1) This was 

a very complex fraud scheme involving 18 separate 

defendants, and the deliberation necessary to address the 

scheme and its victims required time. (2) Resnick sought 

several continuances of his sentencing. The government, on the 

other hand, never requested a continuance. (3) The District 

Court delayed sentencing to research Resnick’s claims that 
29

some of the purported victims were not really victims. So any 

unnecessary delays, if there were unnecessary delays, are 

mainly attributable to Resnick. None are attributable to the 

government. This factor weighs heavily against Resnick.

Third, Resnick asserted his right to a speedy sentencing 

in a motion filed on March 3, 2016. Ironically, that motion also 

sought leave to serve a Rule 17(c) subpoena to obtain 

additional documents, which would have further delayed 

sentencing. (Id.) Resnick’s sentencing hearing took place on 

April 22, 2016, seven weeks after he filed his request. If this 

factor favors Resnick, it does so with little weight.

Fourth and finally, Resnick asserts that the delays to his 

sentencing prejudiced him because the government was able to 

identify additional victims and adduce sufficient evidence to 

prove their losses by a preponderance of the evidence. We do 

not think this argument is well taken. Allowing the government

time to identify additional victims did not affect his Sentencing 

Guidelines range. Resnick’s victim and loss total—whether 

calculated in 2014 under the initial PSR at 124 victims with 

$1.2 million in losses, or the government’s initial filing of 192 

victims with $2.1 million in losses, or in 2015 under the 

government’s revised filing of 253 victims with $2.7 million in 

losses—always yields a 16-level enhancement. Compare 

U.S.S.G. § 2B1.1(b)(1) (2014), with U.S.S.G. § 2B1.1(b)(1) 

(2015). Thus, Resnick’s Guidelines range was unaffected, and 

he has failed to show prejudice. This factor also weighs heavily 

against Resnick.

Taking the four factors together, we conclude that 

Resnick has failed to show that his due process right to a 

speedy sentence was violated. 

C. The District Court Correctly Applied the 

Sentencing Guidelines In Fashioning 

Resnick’s Sentence

Resnick next challenges several of the District Court’s 

findings at sentencing. We “review factual findings relevant to 

the Guidelines for clear error and ... exercise plenary review 

over a district court’s interpretation of the Guidelines.” United 

States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007).
30

First, Resnick claims that by adopting the government’s 

proposed timeline for VOG’s operations the District Court 

allowed the government to inflate its victim and loss figures. 

He argues that, because the government limited the timeframe 

for its evidence at trial, any victims found outside of that 

limited timeframe should not count. Of course, because the 

VOG-conspirators continued operations during their trial—

through 2014—some victims arose after the government’s 

limited timeframe. It was appropriate for those victims to be 

included. And we again note that the government’s calculation 

of victims’ losses did not affect Resnick’s ultimate Guidelines 

range. 

The Sentencing Guideline that applies to Resnick’s 

fraud is § 2B1.1, covering various forms of theft. Following 

the 2015 amendment, a six-level enhancement should be

applied when the crime “resulted in substantial financial 

hardship to 25 or more victims.” U.S.S.G. § 2B1.1(b)(2)(C). 

That is the highest-level enhancement for number of victims. 

The definition of “substantial financial hardship” includes 

“suffering substantial harm to his or her ability to obtain 

credit.” See U.S.S.G. application notes § 4(F)(vi). As the credit 

ratings of all the victims of VOG were severely damaged by 

VOG’s schemes, Resnick began on the wrong side of that 

threshold. That the government ultimately identified more than 

250 victims was immaterial for the Guidelines calculation. 

And, as discussed in section IV(B), whether using the initial 

victim and loss estimates in 2014, or the more comprehensive 

totals following the 2015 amendment, Resnick’s victims’ loss 

total yields the same 16-level enhancement.

Second, Resnick challenges the District Court’s finding 

that VOG was a fraudulent enterprise from beginning to end. 

Resnick argues that not all VOG’s employees knew that they 

were part of a fraudulent scheme, so there must have been some 

non-fraudulent work at VOG. This conclusion does not follow 

from Resnick’s premise because those employees’ alleged 

ignorance is not imputed to Resnick and his co-defendants. A 

conviction for mail or wire fraud requires both objective 

misrepresentations and the defendant’s subjective knowledge 

of the misrepresentations. See 18 U.S.C. §§ 1341, 1343. The 

jury found that Resnick knowingly participated in VOG’s 
31

fraud, so the argument based on others’ alleged knowledge 

does not help him. 

Resnick also argues that the finding is inconsistent with 

the District Court’s willingness to consider his argument that 

not all VOG victims were equally victimized. The District 

Court noted that VOG had engaged in various types of fraud. 

That the Court recognized that some instances of VOG’s fraud 

were more flagrant than others does not undermine the District 

Court’s overall finding that VOG was a wholly fraudulent 

enterprise. Rather, having carefully reviewed this case, we 

conclude that the Court’s finding was supported by substantial 

evidence and will be affirmed.

Third, like Lacerda, Resnick argues that services like 

debt cancellation and the sale of new timeshares should be 

credited against the victims’ losses. We addressed this 

argument in section III(D)(1), and our analysis applies equally 

to Resnick. Cancellation was achieved only because the 

victims defaulted on their loans, not because of some valueadding intervention from VOG. The defaults impacted the 

victims’ credit ratings in significant and negative ways. The 

District Court was correct to not credit VOG’s alleged 

“services” against the losses suffered by Resnick’s victims. 

And like Lacerda, Resnick is not entitled to credit against his 

victim’s losses for payments VOG made to perpetuate its 

fraudulent schemes. See Hartstein, 500 F.3d at 800; Whatley, 

133 F.3d at 606; Blitz, 151 F.3d at 1012.

Fourth and finally, Resnick argues that, under U.S.S.G. 

§ 2B1.1, refunded monies by third parties should be credited 

against his victim’s losses. The Guidelines provides that the 

victim’s loss “shall be reduced by ... [t]he money returned ... 

by the defendant or other persons acting jointly with the 

defendant, to the victim before the offense was detected.” 

U.S.S.G. § 2B1.1(3)(E)(i) (emphasis added). Resnick argues 

that he is entitled to credit for refunds to victims made by 

“escrow compan[ies] utilized to procure third party 

timeshares” and other “timeshare developers.” Appellant 

Resnick’s Br. 71. But there is no evidence that the escrow 

agents and timeshare developers were “acting jointly” with 

Resnick, or that the refunds were made “before the offense was 
32

detected.” The District Court correctly denied any credits 

against Resnick’s victims’ losses.

D. Resnick Forfeited His Objection to the 

District Court’s Restitution Order

Because of the many complexities of this case, 

restitution was delayed until sometime after sentencing. While 

Resnick filed a timely notice of appeal from his judgment and 

sentence, he never appealed from the later-entered order of 

restitution. Resnick now raises various challenges to the 

District Court’s award of restitution entered against him under 

18 U.S.C. § 3663A. But the government contends that we must 

dismiss Resnick’s challenges because of his failure to file a 

separate notice of appeal from the restitution order. The 

government is correct.

This issue raises a jurisdictional question, over which 

we exercise plenary review. Hamilton v. Bromley, 862 F.3d 

329, 333 (3d Cir. 2017). Resolution of this question is 

controlled by Manrique v. United States, 137 S. Ct. 1266, 1274 

(2017), in which the Supreme Court held “that a defendant who 

wishes to appeal an order imposing restitution in a deferred 

restitution case must file a notice of appeal from that order.” 

Deferred restitution cases, the Supreme Court explained, 

involve two appealable judgments, not one. Id. at 1273; see 

also Dolan v. United States, 560 U.S. 605, 616–18 (2010). 

Both the statute and rules governing appeals “contemplate that 

the defendant will file the notice of appeal after the district 

court has decided the issue sought to be appealed.” Manrique, 

137 S. Ct. at 1271 (emphasis original). So notices of appeal 

filed before the restitution order cannot be “for review” of the 

restitution order and are not filed timely from that order. Id. 

The Supreme Court held that filing a timely notice of appeal 

from an order of restitution was at least a mandatory claimprocessing rule, id. at 1272 (citing Greenlaw v. United States, 

554 U.S. 237, 252–53 (2008)), and when the government raises 

the failure to timely file the notice, our duty to dismiss the 

appeal is also mandatory, id. (citing Eberhart v. United States, 

546 U.S. 12, 15, 19 (2005)).

Resnick did not file a timely notice of appeal from the 

order of restitution, and the government has raised this failure 
33

on appeal. Thus, under Manrique, Resnick at least violated a 

mandatory claim-processing rule and we have a mandatory 

duty to dismiss this issue.

V. Objections Raised by Manzoni

In addition to Manzoni’s challenge to Special Agent 

Mesisca’s overview testimony, she also argues that (1) the 

District Court abused its discretion by allowing the prosecution 

to impeach a codefendant with an audio recording that 

implicated her; (2) the District Court erred when it joined the 

charges arising from her participation in the fraudulent 

activities at VOG and her charge of alleged unemployment 

fraud; and (3) there was insufficient evidence presented to the 

jury to sustain her fraud and conspiracy convictions. We will 

address each of these issues in turn.

A. The District Court Did Not Abuse Its 

Discretion in Admitting Evidence of a Phone 

Call to a Victim

During trial, it came to light that some defendants had 

engaged in witness tampering. The government sought to enter 

the recording of a phone call between one of the defense 

witnesses, Dennis Nadeau, and a victim, David Jasper, 

showing an attempt at such tampering. Manzoni objected to 

admission of the recording on two grounds. At first, she argued 

that it was unduly prejudicial under Federal Rule of Evidence 

403 because, though the evidence of tampering was not being 

offered against her, she was the subject of the victim’s 

complaint. But this was not apparent from the phone call itself; 

Manzoni was never actually named by the victim. So she also 

argued that the phone call should be excluded as hearsay. She 

presents these same arguments on appeal.

1. The District Court did not abuse its discretion 

under Rule 403

Manzoni asserts that the District Court abused its 

discretion under Rule 403 by allowing the recording of the 

phone call into evidence. “We generally review a district 

court’s evidentiary findings for abuse of discretion.” United 

States v. Bailey, 840 F.3d 99, 117–18 (3d Cir. 2016). Rule 403 

allows relevant evidence to be excluded when its probative 
34

value is substantially outweighed by the potential for unfair 

prejudice. Id. at 117. When a district court conducts an on-therecord weighing of probative value against unfair prejudice, its 

evidentiary decision is entitled to great deference. Id. “In order 

to justify reversal, a district court’s analysis and resulting 

conclusion must be arbitrary or irrational.” Id.

In this case, the District Court conducted an on-therecord Rule 403 analysis—both orally and in a later written 

order. The District Court found that the phone call’s “probative 

value as to the consciousness of guilt” outweighed any 

prejudice. App. 5015:3–5. But it also recognized that there

could be some spillover effect for Manzoni, so it acted to 

mitigate that unfair prejudice by offering multiple curative 

instructions—including one drafted by Manzoni. The District 

Court’s analysis and its conclusion were neither arbitrary nor 

irrational. We therefore find no abuse of the District Court’s 

discretion under Rule 403, and we will uphold the District 

Court’s decision to allow the recording into evidence.

2. Because the phone call was offered for a nonhearsay purpose, it was not hearsay

Manzoni next argues that the phone call was hearsay. 

“Whether a statement is hearsay is a legal question subject to 

plenary review.” United States v. Price, 458 F.3d 202, 205 (3d 

Cir. 2006). Under Federal Rule of Evidence 801(c), “hearsay” 

is any statement that a declarant makes outside of court and 

that is offered to prove the truth of the matter asserted in the 

statement. Statements offered for non-hearsay purposes are not 

hearsay. See Price, 458 F.3d at 211. As the advisory 

committee’s notes to the rule make clear, statements that are 

offered merely to show that they happened are not offered for 

a hearsay purpose. See Fed. R. Evid. 801 note (subdiv. (c)) 

(citing Emich Motors Corp. v. General Motors Corp., 181 F.2d 

70 (7th Cir. 1950), rev’d on other grounds 340 U.S. 558 

(1951)). The recording of the phone call between Nadeau and 

Jasper was not offered to prove the truth of any of Jasper’s 

assertions, but to show that Nadeau had in fact contacted some 

of the victims. So the phone call was not hearsay, and Manzoni 

has failed to show that the District Court abused its discretion 

by allowing it into evidence.
35

B. Manzoni Was Not Prejudiced by the Joinder 

of Her VOG-Fraud and Employment-Fraud 

Charges

In separate counts, Manzoni was charged with fraud and 

conspiracy for her participation in the VOG scheme, and with 

fraud for allegedly collecting unemployment benefits from the 

State of New Jersey while she was employed at VOG. Manzoni 

moved to sever the charges under Federal Rule of Criminal 

Procedure 8. Although the District Court recognized that the 

propriety of joinder here was a close question, it denied her 

motion. Manzoni argues that it was error to join her VOG-fraud 

and unemployment-fraud charges because they lacked a 

sufficient nexus and were not part of the same transaction. The 

appeal of a denial of a motion under Rule 8 is a claim of legal 

error, which we review de novo. United States v. Jimenez, 513 

F.3d 62, 82 (3d Cir. 2008). 

Joinder is controlled by Rule 8. Generally, Rule 8(a) 

addresses joinder of offenses and Rule 8(b) joinder of 

defendants. But Rule 8(a) only applies to prosecutions 

involving a single defendant; “in a multi-defendant case such 

as this, the tests for joinder of counts and defendants is merged 

in Rule 8(b).” United States v. Irizarry, 341 F.3d 273, 287 (3d 

Cir. 2003) (internal quotations omitted). “Although the 

standards of Rule 8(a) and Rule 8(b) are similar, in that they 

both require a transactional nexus between the offenses or 

defendants to be joined, Rule 8(a) is more permissive than Rule 

8(b) because Rule 8(a) allows joinder on an additional ground, 

i.e., when the offenses are of the same or similar character.” Id.

at 287 n.4 (citations and internal quotations omitted); see also 

Jimenez, 513 F.3d at 82 (“[J]oinder of defendants under Rule 

8(b) is a stricter standard than joinder of counts against a single 

defendant under Rule 8(a).”). For joinder of Manzoni’s cases 

to have been proper under Rule 8(b), they either would have 

had to originate “in the same act or transaction,” or have 

otherwise been integral to one another. See United States v. 

Riley, 621 F.3d 312, 334 (3d Cir. 2010).

The District Court determined that joinder was proper 

because Manzoni’s employment in the VOG scheme was 

integral to the unemployment-fraud charge: she was charged 

with fraudulently collecting unemployment benefits while she 
36

was employed by, and receiving compensation from, VOG. 

But the opposite is not necessarily true. Rather, Manzoni 

suggests, allegations that she illicitly collected unemployment 

benefits would not have been integral to her participation in the 

VOG scheme, so joinder was improper. But even assuming, 

arguendo, that Manzoni is correct, the District Court still did 

not commit reversible error.

Under Federal Rule of Criminal Procedure 52(a), we 

must disregard “[a]ny error, defect, irregularity, or variance 

that does not affect substantial rights ....” We have explained 

that “an error involving misjoinder affects substantial rights 

and requires reversal only if the misjoinder results in actual 

prejudice because it had substantial and injurious effect or 

influence in determining the jury’s verdict.” Jimenez, 513 F.3d 

at 83 (brackets and internal citations omitted). Here, any 

potential misjoinder would have been harmless because the 

record shows that the joinder did not influence the jury’s 

verdict against Manzoni; after all, she was acquitted of the 

allegedly misjoined charge. 

Because Manzoni’s employment at VOG was integral 

to the unemployment-fraud charges, unfair prejudice in this 

case can only flow in one direction. That is, it would have been 

proper for the jury to conclude that, because Manzoni was 

employed and receiving compensation with the VOG scheme, 

she was committing fraud by receiving unemployment benefits 

from the State of New Jersey. It would have been improper, 

however, for the jury to conclude that, because Manzoni 

committed unemployment fraud, she must also have 

participated in the VOG fraud. But the jury did not reach that 

conclusion; rather, it convicted Manzoni of her role in the VOG 

scheme despite acquitting her of unemployment fraud. So 

joinder of the fraud counts did not affect the jury’s verdict and 

any error in joining the charges was harmless.

C. Manzoni’s Conviction Was Supported by 

Sufficient Evidence

Finally, Manzoni challenges the sufficiency of the 

evidence to support her fraud and conspiracy convictions. Our 

standard of review on a challenge to the sufficiency of the 

evidence is plenary. United States v. Boria, 592 F.3d 476, 480 
37

(3d Cir. 2010). But that plenary review is greatly tempered by 

giving substantial deference to the jury’s finding of guilt. See

Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). Employing 

that deference, and applying the applicable legal standards, we 

find the evidence was sufficient to support the jury’s guilty

verdict.

The Supreme Court of the United States has explained: 

[T]he critical inquiry on review of the 

sufficiency of the evidence to support a criminal 

conviction must be ... to determine whether the 

record evidence could reasonably support a 

finding of guilt beyond a reasonable doubt. But 

this inquiry does not require a court to ask itself 

whether it believes that the evidence at the trial 

established guilt beyond a reasonable doubt. 

Instead, the relevant question is whether, after 

viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could 

have found the essential elements of the crime 

beyond a reasonable doubt.

Jackson, 443 U.S. at 318–19 (internal quotations and citations 

omitted). In conducting this review, all reasonable inferences 

must be drawn in favor of sustaining the verdict. United States 

v. Anderskow, 88 F.3d 245, 251 (3d Cir. 1996). Reversal of a 

conviction is only appropriate where there is “no evidence, 

regardless of how it is weighted, from which the jury could find 

guilt beyond a reasonable doubt.” United States v. Mussare, 

405 F.3d 161, 166 (3d Cir. 2005).

Manzoni was charged with conspiracy to commit wire 

fraud under 18 U.S.C. § 1349 and wire fraud under 18 U.S.C. 

§ 1343. To prove wire fraud, the government had to show that 

Manzoni had the intent to commit fraud. See 18 U.S.C. § 1343. 

So the question here is whether Manzoni’s participation in the 

VOG scheme was knowing or intentional.

Manzoni argues that the evidence presented at trial at 

most showed that she said things as a VOG representative that 

were not true, not that she was a knowing participant in the 

fraud. She claims that this case should be controlled by United 
38

States v. Pearlstein, 576 F.2d 531, 542–43 (3d Cir. 1978), in 

which we reversed the fraud convictions of lowly sales 

representatives who only read from a sales script, without 

knowing that the script contained false statements. In light of 

the evidence admitted at trial, we find that Pearlstein does not 

apply.

First, Manzoni was no lowly sales representative—she 

was one of the managers at VOG. From her position as a 

manager, and her long experience in the timeshare industry, a 

jury could reasonably infer that she knew that statements in 

VOG’s phone scripts were false. Second, even before she was 

a manager, while working as one of VOG’s closers, Manzoni 

did more than just mechanically read false statements from a 

controlled sales script. She showed initiative by inventing fake 

payoff amounts for the customers, without approval—much 

less direction—from her supervisors, and then creating 

urgency by imposing arbitrary deadlines by which these (fake) 

offers had to be accepted before they expired. Based on this 

evidence, as the District Court correctly found, a reasonable 

jury could conclude beyond a reasonable doubt that Manzoni 

was “a knowing, even integral part, of [the] fraud scheme.” SA 

1151.

VI. Conclusion

For all of the reasons discussed above, we will affirm 

the judgments of conviction and sentences entered against 

Lacerda, Resnick, and Manzoni.