USA v. Marijan Cvjeticanin

Filing

NOT PRECEDENTIAL OPINION Coram: MCKEE, COWEN and FUENTES, Circuit Judges. Total Pages: 10. Judge: MCKEE Authoring.

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NOT PRECEDENTIAL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.

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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
2

United States v. Huet, 665 F.3d 588, 594 (3d Cir. 2012).
United States v. Vitillo, 490 F.3d 314, 321 (3d Cir. 2007).
2

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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,”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. 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”).
3

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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).
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.
7

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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.
See United States v. Pavulak, 700 F.3d 651, 671 (3d Cir. 2012).
13
Appellee’s Br. at 28 (internal quotations and citations omitted).
12

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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.
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
15

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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.
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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”
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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).
9

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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.
10