United States v. Adam Lacerda
958 F.3d 196
| 3rd Cir. | 2020Background
- VOG (Vacation Ownership Group), founded by Adam and Ashley Lacerda, marketed timeshare "bank settlement" and "cancellation" services that promised debt payoff or deed cancellation but instead pocketed customers’ fees and directed victims to stop payments, causing defaults and credit harm.
- Lacerda authored sales scripts, controlled VOG accounts, trained reps to use aliases and spoofing, and misrepresented affiliations (banks, BBB, ARDA); Resnick and Manzoni (both ex-Wyndham employees) joined, took lead sales/management roles, and participated in the scheme.
- FBI opened an investigation after developer complaints, executed search warrants in 2010, and produced evidence (bank records, scripts, lead sheets, interviews) tying defendants to the fraud; some employees cooperated or pled guilty, while Lacerda, Resnick, Manzoni, Ashley Lacerda and DiVenti went to trial.
- Trial featured extended overview testimony by FBI SA John Mesisca; defendants objected to scope as improper "overview" testimony and to various evidentiary rulings; some hearsay and impeachment evidence were contested.
- Juries convicted Lacerda, Resnick, and Manzoni on fraud/conspiracy counts (Manzoni acquitted on an unemployment charge); district court imposed long custodial sentences, restitution, and forfeiture of VOG’s gross proceeds.
- On appeal, the Third Circuit affirmed: it articulated limits on permissible overview testimony, upheld counsel-disqualification, evidentiary rulings, sentencing (loss/victim calculations), forfeiture, rejection of Brady claims, joinder and sufficiency rulings affecting the defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of investigator "overview" testimony | Gov’t: lead agent may recount investigation and foundation evidence | Lacerda/Resnick/Manzoni: Mesisca impermissibly vouched, anticipated witnesses, opined on guilt | Court: Overview testimony admissible if limited to personal knowledge and investigatory narrative; Mesisca’s testimony proper |
| Disqualification of counsel (Neff) | Lacerda: arbitrary dequalification of chosen counsel | Gov’t: Neff had potential/actual conflicts; might be a witness; vouching for script legality implicated him | Court: Balanced Sixth Amendment right; disqualification justified and not arbitrary |
| Denial of continuance after counsel change | Lacerda: new counsel needed more time (claimed short prep) | Court/Gov’t: adequate preparation time, court calendar, speedy-trial considerations | Court: No abuse of discretion in denying continuance |
| Exclusion of 2010 email to CFO (prior consistent statement) | Lacerda: email rebutted impeachment re: alias use | Gov’t: email was hearsay under then-existing Rule 801(d)(1)(B) | Court: Properly excluded as hearsay; prior-consistent-statement rule did not apply |
| Sentencing — victim count and loss calculation | Defendants: PSR/PS relied on "hearsay" victims; losses overstated; should credit cancellations/new purchases/refunds | Gov’t: victim declarations, FD-302s, canceled checks sufficiently reliable; no offsets for perpetuating fraud | Court: District court’s loss/victim findings reasonable; no credit for cancellations/refunds used to perpetuate fraud |
| Forfeiture — notice and scope | Lacerda: indictment cited wrong forfeiture statutes and lacked notice; breadth (all VOG revenues) improper | Gov’t: indictment gave general forfeiture notice; 28 U.S.C. §2461(c) and §982(a)(8) authorize forfeiture of gross proceeds | Court: Notice sufficient under Rule 32.2; Vampire Nation limitation abrogated by statute amendment; forfeiture of all VOG proceeds affirmed |
| Brady suppression claim (Resnick) | Resnick: government withheld documents/FD-302 basis and a victim declaration that could impeach agent | Gov’t: key materials disclosed before trial or not imputed to prosecutor; the declaration was inculpatory | Court: No Brady violation; withheld materiality or nondisclosure not established |
| Delay to sentencing (speedy sentencing / due process) | Resnick: >2.5-year delay violated Sixth Amendment / due process | Gov’t/Ct: Betterman ends Sixth Amendment speedy-sentencing right; apply Barker due-process factors | Court: Delay attributable to complexity and defendant’s continuances; no due-process violation |
| Sentencing Guidelines issues (victim counts, refunds, timeframe) | Resnick: inclusion of victims outside trial timeframe, no credit for third-party refunds | Gov’t: victims properly included; refunds not by persons acting jointly before detection | Court: Guidelines application not clearly erroneous; findings affirmed |
| Admissibility of recorded victim call (tampering) | Manzoni: recording unduly prejudicial and hearsay | Gov’t: offered to show witness tampering (non-hearsay purpose) | Court: Properly admitted; probative value (consciousness of guilt) outweighed prejudice; not hearsay when used for non-truth purpose |
| Joinder of VOG fraud and unemployment fraud counts (Manzoni) | Manzoni: charges lacked transactional nexus; misjoinder prejudiced her | Gov’t: employment at VOG was integral to unemployment charge | Court: Even if close, any misjoinder harmless; acquittal on unemployment count shows no prejudice |
| Sufficiency of evidence (Manzoni) | Manzoni: only script-reading, no knowing participation | Gov’t: managerial role, creating settlement figures and inventing payoff numbers showed knowledge | Court: Evidence sufficient; reasonable jury could find she knowingly participated in fraud |
Key Cases Cited
- United States v. Moore, 651 F.3d 30 (D.C. Cir. 2011) (overview/summary testimony limits and cautions)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause prohibits testimonial hearsay without cross-examination)
- United States v. Merlino, 349 F.3d 144 (3d Cir. 2003) (counsel-as-witness conflict and disqualification concerns)
- Wheat v. United States, 486 U.S. 153 (1988) (right to counsel of choice is not absolute; court may balance interests)
- Tome v. United States, 513 U.S. 150 (1995) (prior consistent statements admissible only to rebut recent fabrication theory)
- Gall v. United States, 552 U.S. 38 (2007) (procedural and substantive sentencing review standards)
- Manrique v. United States, 137 S. Ct. 1266 (2017) (must file a timely notice of appeal from deferred restitution order)
- United States v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006) (forfeiture interpretation; later statutory amendment discussed)
- Honeycutt v. United States, 137 S. Ct. 1626 (2017) (purpose of forfeiture: strip ill-gotten gains and restore victims)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of evidence)