NOT PRECEDENTIAL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 Distric t Court for the District of New Jersey (D.N.J Crim. No. 3

- 14

- cr - 00 274

- 001 ) District Judge: Hon. Michael A. Shipp

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

February 6, 2017

______________ Before: MC KEE, COWEN, and FUENTES, Circui t 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 Co urt’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 Supers eding 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 i t.” 2 In this case, Cvjeticanin maintains that the conduct the Superseding Indictment
described amounted to no more than a breach of contract between A utomatic Data Processing and Broadridge, on the one hand, and Flowerson, on the other hand, and that
th e 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. T he allegations in this Superseding Indictment were sufficient under Rule 7(c)(1) of the Federal Rules of Criminal Procedu re 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. The se allegations, if proven, “constitute a violation of the law that [Cvjeticanin] [was] charged with violating,” 4 and “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

. H is 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 pla in, concise, and definite written statement of the essential facts constituting the offense charged.” “An indictment is gene rally deemed sufficient if it: 1) contains the elements of the o ffense intended to be charged, 2) sufficiently apprises the defendan t 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) (int ernal 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) (expla ining 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 T ria l.
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 exce ptional
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 a nd 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 C ounts of the Superseding Indictment. 9 Cvjeticanin further claims that the jury li kely 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 posse ssion 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 ne wspapers, 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) (inte r nal quotation marks and citation omit t ed). 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 jur y 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, withou t 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 c ourt’s consideration of a motion for new trial for abuse of discretion, 12 the parties here appear to disagree about the applicable

stan dard of review

. The Government maintains that Cvjeticanin is precluded from challenging the issue at all on appeal becaus e Cvjeticanin, himself, “ invited ” the error. 13 Even if Cvjeticanin can challenge the issue, the Government argues, we should review only for plain error be cause Cvjeticanin raises this for the first time on appeal. Cvjeticanin argues we should review for a buse of discretion.
We do not have to decide th is 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 concl usion that “[t] he mere fact that the jury requested

11 App. 13. 12 See United States v. Pavulak , 700 F.3d 651, 671 (3 d 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

e xhibit 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 be en convicted.” 17
We therefore also affirm the District Court’s denial of Cvjeticanin’s Motion for
New T rial. B. Loss Calculation and Restitution Judgment 1. Loss Calculation Cvjeticanin next argues that the District Court clearly erred in finding tha t 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
O ur review of the District Court’s finding as to the amount of loss is for clear

error. 20 The Government had the burden of showin g 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 leve l increase of 14 levels, while a loss of between $15,000 and $40,000 results in an offe nse level increase of 4 levels. U.S.S.G. § 2B1.1(b)(1). 19 Cvjeticanin’s Brief states that the amou nt is $28,783. We presume that was in error. See S upp. A pp
. 336; App

. 757, 862. 20 United States v. Dullum , 5 60 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 the7

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 in accurate.” 22 The District C ourt “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 C ourt , as he does here, that there was no loss, or any lo ss was , at most $28,775, which was the loss specifically attributable to the
fraudulen t invoices charged in the nine C ounts of conviction. He thus argued that he
deserved either a 0

- or 4

- level loss enhancement. The Government, on the other hand, had arg ued that the loss totaled $1,967,338, warranting a 16

- level enhancement.
T o reach that amount, t he Government identified several categories of loss in an “actual loss chart” it provid ed in a sentencing memorandum submitted to the District
Court . Relyi ng on that chart, t he 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
C ounts of conviction i s 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 i nvoices charged as
substantive C ou nts 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 resti tution 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 offens e. We exercise plenary review over whether restitution was permitted and abuse

- of

discretion 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 Stat es 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 argum ent relies on the wrong statute. T he relevant statute, the Mandatory Victim s 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 it s 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, t he Distr ict Court set an a mount of restitution that the court believed would “make [the law firm] whole, . . . fully compensat e [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 v ictim 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 tha t 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 b y 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 p urpose).10

Finally, we also reject Cvjeticanin’s argument that the firm’s vo luntary involvement with ADP and Broadridge breaks a “causal link” required to find that the
firm was a vic tim for restitution purposes. 32 The District Court ordered Cvjeticanin to pay restitution to ADP and Broadridge for the hundreds of thousands of doll ars 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

w ould not have incurred the related cost. Restitution was appropriat e, 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.