                                                                   NOT PRECEDENTIAL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.
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).

                                                2
       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
       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.

                                              4
       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).

                                              5
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

                                             6
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.

                                              7
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-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 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”

                                              8
       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
         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
