NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

_____________

No. 16-1422

_____________

UNITED STATES OF AMERICA

v.

MARIJAN CVJETICANIN,

Appellant

______________

On Appeal from the United States District Court

for the District of New Jersey 

(D.N.J Crim. No. 3-14-cr-00274-001)

District Judge: Hon. Michael A. Shipp 

______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

February 6, 2017

______________

Before: MCKEE, COWEN, and FUENTES, Circuit Judges.

(Opinion filed: July 21, 2017)

_______________________

OPINION*

______________________

 

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

McKEE, Circuit Judge.

Marijan Cvjeticanin appeals the District Court’s dismissal of his Motion to 

Dismiss the Superseding Indictment and the District Court’s denial of his Motion for

New Trial. Cvjeticanin also challenges the District Court’s loss calculation and the 

amount of restitution he was ordered to pay. For the reasons that follow, we will affirm 

the District Court in its entirety. 

I

A. Denial of Cvjeticanin’s Motion to Dismiss the Superseding Indictment and 

Motion for New Trial 

1. Motion to Dismiss Superseding Indictment 

We exercise plenary review over legal conclusions in reviewing denial of a 

motion to dismiss an indictment, and we review factual findings for clear error.

1 A

motion to dismiss an indictment is a “challenge to the sufficiency of the indictment,” and 

must therefore “be decided based on the facts alleged within the four corners of the 

indictment, not the evidence outside of it.”2 

In this case, Cvjeticanin maintains that the conduct the Superseding Indictment 

described amounted to no more than a breach of contract between Automatic Data 

Processing and Broadridge, on the one hand, and Flowerson, on the other hand, and that 

the District Court therefore erred in not dismissing the Superseding Indictment because it 

criminalized a civil dispute. 

 

1 United States v. Huet, 665 F.3d 588, 594 (3d Cir. 2012).

2 United States v. Vitillo, 490 F.3d 314, 321 (3d Cir. 2007). 
3

We disagree. The allegations in this Superseding Indictment were sufficient under 

Rule 7(c)(1) of the Federal Rules of Criminal Procedure to allege a violation of 18 U.S.C. 

§ 1341.

3

 The Superseding Indictment charged nine separate instances of mail fraud, each 

linked to the mailing of a false invoice billing either ADP or Broadridge for thousands of 

dollars of non-existent services. These allegations, if proven, “constitute a violation of 

the law that [Cvjeticanin] [was] charged with violating,”4and “could result in a guilty 

verdict.”5 Indeed, the allegations in this case did result in a guilty verdict for Cvjeticanin. 

The Superseding Indictment never alleges a contract, or a breach thereof, and 

Cvjeticanin’s contention that the allegations amount to a civil contract dispute is 

meritless. His criminal conduct arose in the context of a contractual relationship (as is 

true of many mail frauds), but his attempt to redefine that criminal conduct into a mere 

breach of contract is a frivolous argument the District Court properly rejected.

2. Motion for New Trial 

 

3 Under Fed. R. Crim. P. 7(c)(1), “[t]he indictment . . . must be a plain, concise,

and definite written statement of the essential facts constituting the offense

charged.” “An indictment is generally deemed sufficient if it: 1) contains the elements of 

the offense intended to be charged, 2) sufficiently apprises the defendant of what he must 

be prepared to meet, and 3) allows the defendant to show with accuracy to what extent he 

may plead a former acquittal or conviction in the event of a subsequent prosecution.”

United States v. Rankin, 870 F.2d 109, 112 (3d Cir. 1989) (internal quotation marks, 

citation, and brackets omitted).

4 United States v. Small, 793 F.3d 350, 352 (3d Cir. 2015).

5 United States v. Bergrin, 650 F.3d 257, 268 (3d Cir. 2011). See also United States v. 

Panarella, 277 F.3d 678, 685 (3d Cir. 2002) (explaining that an indictment does not state 

an offense sufficiently if the specific facts that it alleges “fall beyond the scope of the 

relevant criminal statute, as a matter of statutory interpretation”).
4

We also affirm the District Court’s denial of Cvjeticanin’s Motion for New Trial. 

Rule 33 of the Federal Rules of Criminal Procedure instructs that a district court may 

vacate any judgment and grant a new trial if the interest of justice so requires.6 Rule 33 

motions “are not favored and should be granted sparingly and only in exceptional 

cases.”7

Cvjeticanin claims that he was “unfairly convicted” because the Government 

improperly removed allegedly exculpatory evidence from the courtroom, thereby 

thwarting the jury’s ability to review evidence it requested pertaining to Counts 1 and 5 

of the Superseding Indictment.8 According to Cvjeticanin, this “misconduct” undermined 

his ability to present a defense and infected the jury’s verdict as to all nine Counts of the 

Superseding Indictment.9 Cvjeticanin further claims that the jury likely held the failure to 

produce the exhibits against him. 

Cvjeticanin argued essentially the same at the District Court. The District Court 

noted that these claims were “based on [a] mischaracterization of the facts.”10 The 

District Court explained: 

Counsel was given an opportunity to review all evidence in the possession 

of the courtroom deputy . . . prior to the evidence going back with the jury 

to deliberations . . . . Additionally, the parties were aware that due to the 

voluminous nature of the newspapers, those exhibits would remain in the 

courtroom during deliberations. As is clear from the jury communications, 

 

6 See United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002). 

7 United States v. Silveus, 542 F.3d 993, 1005 (3d Cir. 2008) (internal quotation marks 

and citation omitted). 

8 Appellant’s Br. at 19–20.

9 Appellant’s Br. at 2. 

10 App. 10. 
5

the jury also understood the newspapers were remaining in the courtroom 

and were available to them upon request. . . . Even after the jury 

communicated that it reached a verdict, but before the newspapers for 

Count Five could be delivered, the Court, in the utmost of caution, did not 

accept the jury’s verdict. Instead, the Court brought the remaining 

newspapers requested to the jury, without instruction, and permitted the 

jury to communicate if it still had reached a verdict. Defendant did not 

object during any of these procedures, except as noted above.

Here, justice does not require a new trial.11

Though we generally review a district court’s consideration of a motion for new 

trial for abuse of discretion,12 the parties here appear to disagree about the applicable 

standard of review. The Government maintains that Cvjeticanin is precluded from 

challenging the issue at all on appeal because Cvjeticanin, himself, “invited” the error.13 

Even if Cvjeticanin can challenge the issue, the Government argues, we should review 

only for plain error because Cvjeticanin raises this for the first time on appeal. 

Cvjeticanin argues we should review for abuse of discretion. 

We do not have to decide this issue because, even assuming that Cvjeticanin could 

raise the issue on appeal, he would not be able to demonstrate that the District Court 

abused its discretion in denying the motion for a new trial, much less that it committed 

plain error. 

We have just quoted the District Court’s able explanation of its reasoning and its 

clarification of what actually happened to the exhibits. There is absolutely no error here. 

We agree with the District Court’s conclusion that “[t]he mere fact that the jury requested 

 

11 App. 13. 

12 See United States v. Pavulak, 700 F.3d 651, 671 (3d Cir. 2012).

13 Appellee’s Br. at 28 (internal quotations and citations omitted). 
6

evidence and then determined it was able to reach a verdict without that evidence does 

not constitute an error.”14 Moreover, “the misplacing or unintentional brief removal of an 

exhibit from the courtroom does not constitute prosecutorial misconduct.”15 Ultimately, 

Cvjeticanin’s arguments on appeal do not come close to suggesting “that there is a 

serious danger that a miscarriage of justice has occurred”16 or to convincing us that “an 

innocent person has been convicted.”17

We therefore also affirm the District Court’s denial of Cvjeticanin’s Motion for

New Trial. 

B. Loss Calculation and Restitution Judgment 

1. Loss Calculation 

Cvjeticanin next argues that the District Court clearly erred in finding that he 

caused over $550,000 in loss.18 He asserts instead that the Court should have limited its 

loss finding to the $28,775.19

Our review of the District Court’s finding as to the amount of loss is for clear 

error.20 The Government had the burden of showing the amount of loss by a 

 

14 App. 13.

15 App. 11–12 n.2. 

16 Johnson, 302 F.3d at 150 (internal quotation marks omitted). 

17 Id. 

18 A loss of between $550,000 and $1,500,000 results in an offense level increase of 14 

levels, while a loss of between $15,000 and $40,000 results in an offense level increase of 

4 levels. U.S.S.G. § 2B1.1(b)(1).

19 Cvjeticanin’s Brief states that the amount is $28,783. We presume that was in error. 

See Supp. App. 336; App. 757, 862.

20 United States v. Dullum, 560 F.3d 133, 137 (3d Cir. 2009); see also U.S.S.G. § 2B1.1 

cmt. n.3(C) (stating that the “sentencing judge is in a unique position to assess the 
7

preponderance of the evidence.21 After the Government made out its prima facie case of 

the loss amount, “the burden of production shift[ed] to [Cvjeticanin] to provide evidence 

that the Government’s evidence [wa]s incomplete or inaccurate.”22 The District Court 

“need[ed] only [to] make a reasonable estimate of the loss. . . . based on available 

information.”23 It clearly did that. 

Cvjeticanin had maintained in the District Court, as he does here, that there was no 

loss, or any loss was, at most $28,775, which was the loss specifically attributable to the 

fraudulent invoices charged in the nine Counts of conviction. He thus argued that he 

deserved either a 0- or 4-level loss enhancement. The Government, on the other hand, 

had argued that the loss totaled $1,967,338, warranting a 16-level enhancement. 

To reach that amount, the Government identified several categories of loss in an 

“actual loss chart” it provided in a sentencing memorandum submitted to the District 

Court. Relying on that chart, the District Court explicitly found that the Government had 

proven a loss amount of $676,000, enough to warrant a 14-level enhancement.

Contrary to Cvjeticanin’s argument on appeal, the loss associated with his nine 

Counts of conviction is not, by itself, “determinative as to the amount of loss.”24 In fact, 

we have explained that “[t]he determination of loss and other factors pertinent to a 

 

evidence and estimate the loss based upon that evidence,” so the “court’s loss 

determination is entitled to appropriate deference”).

21 United States v. Jimenez, 513 F.3d 62, 86 (3d Cir. 2008). 

22 Jimenez, 513 F.3d at 86.

23 U.S.S.G. § 2B1.1 cmt. n.3(C); see United States v. Ali, 508 F.3d 136, 145 (3d Cir.

2007).

24 Appellant’s Br. at 29.
8

fraudulent scheme. . . always encompasses all relevant conduct that was ‘part of the same 

course of conduct or common scheme or plan.’”25 The fraudulent invoices accounting for 

the $640,202 in loss—set forth in the actual loss chart on which the District Court 

relied—were undoubtedly part of the same scheme as the nine invoices charged as 

substantive Counts in the Superseding Indictment. Accordingly, the District Court did 

not commit clear error by including the loss amounts for the fraudulent invoices in its 

final loss calculation.

2. Restitution Judgment 

As to the District Court’s $1,254,163.36 restitution judgment, Cvjeticanin levies 

two challenges on appeal: (1) that the District Court erred by not considering his 

financial status, and (2) that the District Court erred by finding that the law firm at which 

he was employed was a victim of his offense. 

We exercise plenary review over whether restitution was permitted and abuse-ofdiscretion review as to the amount of restitution ordered.26

 At the outset, we 

acknowledge that the United States Supreme Court’s recent decision in Manrique v. 

United States raises some questions as to whether we have jurisdiction to hear 

Cvjeticanin’s challenge to the District Court’s restitution order.27 However, there is no 

need for us to settle that issue here, given our foregoing discussion.

 

25 United States v. Siddons, 660 F.3d 699, 704 (3d Cir. 2011) (emphasis added) (quoting 

U.S.S.G. § 1B1.3(a)(2)).

26 United States v. Bryant, 655 F.3d 232, 253 (3d Cir. 2011).

27 See Manrique v. United States, 137 S. Ct. 1266 (2017) (holding that a defendant’s 

“single notice of appeal, filed between the initial judgment and [an] amended judgment” 
9

First, Cvjeticanin’s argument relies on the wrong statute. The relevant statute, the 

Mandatory Victims Restitution Act, as more recently codified at 18 U.S.C. § 

3663A(c)(1)(A)(ii),28 clearly supports the District Court’s decision not to consider 

Cvjeticanin’s financial status in its restitution determination.29

Moreover, under the MVRA, the parties in this case were appropriately considered 

victims. We are not persuaded by Cvjeticanin’s claim that the law firm’s voluntary 

agreement to refile the applications (after Cvjeticanin had improperly filed them) means 

that the law firm was not a victim of the fraudulent scheme. It is obvious that the law 

firm was “directly harmed by [Cvjeticanin’s] criminal conduct in the course of [his] 

scheme.”30 Accordingly, the District Court set an amount of restitution that the court 

believed would “make [the law firm] whole, . . . fully compensate [it] for [its] losses, and 

. . . restore [it] to [its] original state of well-being.”

31

 

is “[in]sufficient to invoke appellate review of the later-determined restitution amount,” 

at least when the government objects to the defendant’s failure to file a notice of appeal 

after the amended judgment). 

28 United States v. Jacobs, 167 F.3d 792, 796 (3d Cir. 1999) (acknowledging that the old 

statute was “replaced”). 

29 See id. (noting that under the MVRA, “the court shall order restitution to

each victim in the full amount of each victim’s losses as determined by the court and 

without consideration of the economic circumstances of the defendant”) (quoting 18 

U.S.C. § 3664(f)(1)(A)); see 18 U.S.C. § 3663A(d). 

30 18 U.S.C. § 3663A(a)(2) (providing that a “victim” is “a person directly and 

proximately harmed as a result of the commission of an offense . . . including, in the case 

of an offense that involves as an element a scheme, conspiracy, or pattern of criminal 

activity, any person directly harmed by the defendant’s criminal conduct in the course of 

the scheme, conspiracy, or pattern”); see United States v. Fallon, 470 F.3d 542, 548 n.12 

(3d Cir. 2005). 

31 United States v. Simmonds, 235 F.3d 826, 831 (3d Cir. 2000) (describing the MVRA’s 

principal purpose). 
10

Finally, we also reject Cvjeticanin’s argument that the firm’s voluntary 

involvement with ADP and Broadridge breaks a “causal link” required to find that the 

firm was a victim for restitution purposes.32 The District Court ordered Cvjeticanin to 

pay restitution to ADP and Broadridge for the hundreds of thousands of dollars they spent 

for advertisements that were never placed. The firm incurred losses by having to 

properly refile those advertisements. But for Cvjeticanin’s fraudulent conduct, the firm 

would not have incurred the related cost. Restitution was appropriate, and the District 

Court did not abuse its discretion in ordering it. 

III 

For the aforementioned reasons, we will affirm the District Court in its entirety. 

 

32 Appellant’s Br. at 40.