INDEX OF APPENDIX
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`Photocopies of En Banc and Third Circuit Court of Appeals
`
`Judgments ........................................ "All
`
`Copy of the Defense Appellate
`
`Brief....................................................................... "B"
`
`Copies of All Trial Transcripts........................................"C"
`
`Copies of all jury communications ..............................................................
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`Copy of District Court of New Jersey Local Area Rule
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`79.1....................................................."E"
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`

`

`APPENDIX A
`
`APPENDIX A
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`

`

`Case: 16-1422 Document: 003112680280 Page: 1 Date Filed: 07/21/2017
`
`NOT PRECEDENTIAL
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`
`No. 16-1422
`
`UNITED STATES OF AMERICA
`
`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.
`
`

`

`Case: 16-1422 Document: 003112680280 Page: 2 Date Filed: 07/21/2017
`
`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.
`
`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.' A
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`motion to dismiss an indictment is a "challenge to the sufficiency of the indictment," and
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`must therefore "be decided based on the facts alleged within the four corners of the
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`indictment, not the evidence outside of it."'
`
`In this case, Cvjeticanin maintains that the conduct the Superseding Indictment
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`described amounted to no more than a breach of contract between Automatic Data
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`Processing and Broadridge, on the one hand, and Flowerson, on the other hand, and that
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`the District Court therefore erred in not dismissing the Superseding Indictment because it
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`criminalized a civil dispute.
`
`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).
`
`

`

`Case: 16-1422 Document: 003112680280 Page: 3 Date Filed: 07/21/2017
`
`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.
`
`§ 1341.1 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
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`the law that [Cvjeticanin] [was] charged with violating,"' and "could result in a guilty
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`verdict."' 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
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`Cvjeticanin's contention that the allegations amount to a civil contract dispute is
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`meritless. His criminal conduct arose in the context of a contractual relationship (as is
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`true of many mail frauds), but his attempt to redefine that criminal conduct into a mere
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`breach of contract is a frivolous argument the District Court properly rejected.
`
`2. Motion for New Trial
`
`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).
`' United States v. Small, 793 F.3d 350, 352 (3d Cir. 2015).
`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").
`
`

`

`Case: 16-1422 Document: 003112680280 Page: 4 Date Filed: 07/21/2017
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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
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`vacate any judgment and grant a new trial if the interest of justice so requires.' Rule 33
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`motions "are not favored and should be granted sparingly and only in exceptional
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`cases."7
`
`Cvjeticanin claims that he was "unfairly convicted" because the Government
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`improperly removed allegedly exculpatory evidence from the courtroom, thereby
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`thwarting the jury's ability to review evidence it requested pertaining to Counts 1 and 5
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`of the Superseding Indictment.' According to Cvjeticanin, this "misconduct" undermined
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`his ability to present a defense and infected the jury's verdict as to all nine Counts of the
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`Superseding Indictment.' Cvjeticanin further claims that the jury likely held the failure to
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`produce the exhibits against him.
`
`Cvjeticanin argued essentially the same at the District Court. The District Court
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`noted that these claims were "based on [a] mischaracterization of the facts."° The
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`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.
`Appellant's Br. at 2.
`'0 App. 10.
`
`

`

`Case: 16-1422 Document: 003112680280 Page: 5 Date Filed: 07/21/2017
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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."
`
`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
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`standard of review. The Government maintains that Cvjeticanin is precluded from
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`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
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`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
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`raise the issue on appeal, he would not be able to demonstrate that the District Court
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`abused its discretion in denying the motion for a new trial, much less that it committed
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`plain error.
`
`We have just quoted the District Court's able explanation of its reasoning and its
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`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
`
`"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).
`
`

`

`Case: 16-1422 Document: 003112680280 Page: 6 Date Filed: 07/21/2017
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`evidence and then determined it was able to reach a verdict without that evidence does
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`not constitute an error." 4 Moreover, "the misplacing or unintentional brief removal of an
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`exhibit from the courtroom does not constitute prosecutorial misconduct."" Ultimately,
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`Cvjeticanin's arguments on appeal do not come close to suggesting "that there is a
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`serious danger that a miscarriage of justice has occurred" 6 or to convincing us that "an
`
`innocent person has been convicted.""
`
`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
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`caused over $550,000 in loss.'8 He asserts instead that the Court should have limited its
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`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." The Government had the burden of showing the amount of loss by a
`
`14 App. 13.
`'5 App. ll-12n.2.
`16 Johnson, 302 F.3d at 150 (internal quotation marks omitted).
`'7 1d.
`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).
`' 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
`
`

`

`Case: 16-1422 Document: 003112680280 Page: 7 Date Filed: 07/21/2017
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`preponderance of the evidence .2' After the Government made out its prima facie case of
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`the loss amount, "the burden of production shift[ed] to [Cvjeticanin] to provide evidence
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`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. ,21 It clearly did that.
`
`Cvjeticanin had maintained in the District Court, as he does here, that there was no
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`loss, or any loss was, at most $28,775, which was the loss specifically attributable to the
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`fraudulent invoices charged in the nine Counts of conviction. He thus argued that he
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`deserved either a 0- or 4-level loss enhancement. The Government, on the other hand,
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`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
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`"actual loss chart" it provided in a sentencing memorandum submitted to the District
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`Court. Relying on that chart, the District Court explicitly found that the Government had
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`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.1124 In fact,
`
`we have explained that "[t]he determination of loss and other factors pertinent to a
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`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. Au, 508 F.3d 136, 145 (3d Cir.
`2007).
`24 Appellant's Br. at 29.
`
`7
`
`

`

`Case: 16-1422 Document: 003112680280 Page: 8 Date Filed: 07/21/2017
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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.' 1,25 The fraudulent invoices accounting for
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`the $640,202 in loss—set forth in the actual loss chart on which the District Court
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`relied—were undoubtedly part of the same scheme as the nine invoices charged as
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`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
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`final loss calculation.
`
`2. Restitution Judgment
`
`As to the District Court's $1,254,163.36 restitution judgment, Cvjeticanin levies
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`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
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`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 .2' However, there is no
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`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"
`
`

`

`Case: 16-1422 Document: 003112680280 Page: 9 Date Filed: 07/21/2017
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`First, Cvjeticanin's argument relies on the wrong statute. The relevant statute, the
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`Mandatory Victims Restitution Act, as more recently codified at 18 U.S.C. §
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`3663A(c)(1)(A)(ii),28 clearly supports the District Court's decision not to consider
`
`Cvj eticanin's financial status in its restitution determination.29
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`Moreover, under the MVRA, the parties in this case were appropriately considered
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`victims. We are not persuaded by cvjeticanin's claim that the law firm's voluntary
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`agreement to refile the applications (after cvjeticanin had improperly filed them) means
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`that the law firm was not a victim of the fraudulent scheme. It is obvious that the law
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`firm was "directly harmed by [Cvi eticanin's] criminal conduct in the course of [his]
`
`scheme."" Accordingly, the District Court set an amount of restitution that the court
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`believed would "make [the law firm] whole, . . . fully compensate [it] for [its] losses, and
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`restore [it] to [its] original state of well-being.""
`
`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).
`
`

`

`Case: 16-1422 Document: 003112680280 Page: 10 Date Filed: 07/21/2017
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`Finally, we also reject Cvjeticanin's argument that the firm's voluntary
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`involvement with ADP and Broadridge breaks a "causal link" required to find that the
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`firm was a victim for restitution purposes.32 The District Court ordered Cvjeticanin to
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`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
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`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
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`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
`
`

`

`Case: 16-1422 Document: 003112742668 Page: 1 Date Filed: 10/0312017
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`No. 16-1422
`
`UNITED STATES OF AMERICA
`
`V.
`
`MARIJAN CVJETICANIN,
`Appellant
`
`D.N.J. No. 14-cr-00274-001
`
`SUR PETITION FOR REHEARING
`
`Present: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN,
`HARDIMAN, GREENAWAY, JR., VANASKIE, KRAUSE, RESTREPO, COWEN
`and FUENTES*, Circuit Judges
`
`The petition for rehearing filed by appellant in the above-entitled case having been
`submitted to the judges who participated in the decision of this Court and to all the other
`available circuit judges of the circuit in regular active service, and no judge who
`concurred in the decision having asked for rehearing, and a majority of the judges of the
`circuit in regular service not having voted for rehearing, the petition for rehearing by the
`panel and the Court en banc, is denied.
`
`* Judges Cowen and Fuentes vote is limited to panel rehearing
`
`

`

`Case: 16-1422 Document: 003112742668 Page: 2 Date Filed: 10/03/2017
`
`BY THE COURT,
`
`s/ Theodore A. McKee
`Circuit Judge
`
`Dated: October 3, 2017
`sb/cc: Mark E. Coyne, Esq.
`John F. Romano, Esq.
`Lorraine S. Gaulie-Rufo, Esq.
`
`

`

`Additional material
`from this filing is
`available in the
`Clerk's Office.
`
`