United States v. Lacerda

• Citation: 958 F.3d 196
• Decision Date: 05 May 2020
• Docket Number: No. 16-2220,No. 15-2812, No. 15-4023,15-2812
• Parties: UNITED STATES of America v. Adam LACERDA a/k/a Robert Klein, Appellant United States of America v. Genevieve Manzoni, Appellant United States of America v. Ian Resnick, Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

958 F.3d 196

UNITED STATES of America

v.Adam LACERDA a/k/a Robert Klein, Appellant

United States of America

v.Genevieve Manzoni, Appellant

United States of America

v.Ian Resnick, Appellant

No. 15-2812

No. 15-4023

No. 16-2220

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1a March 11, 2019

Filed: May 5, 2020

Mark E. Cedrone, Jesse D. Abrams-Morley, Aubrey C. Emrich, Cedrone & Mancano, LLC, 123 South Broad Street, Suite 810, Philadelphia, PA 19109 Counsel for Appellant Adam Lacerda

Robert L. Tarver, Jr., Law Offices of Robert L. Tarver, JR., 66 South Main Street, Toms River, NJ 08757, Counsel for Appellant Genevieve Manzoni

Michael E. Riley, Law Offices of Riley and Riley, 2 Eves Drive, Suite 109, Marlton, NJ 08053, Counsel for Appellant Ian Resnick

Craig C. Carpenito, Mark E. Coyne, Deborah Prisinzano Mikkelsen, Office of United States Attorney, 970 Broad Street, Room 700, Newark, NJ 07102, Counsel for Appellee

Before: McKEE, PORTER, and ROTH, Circuit Judges

OPINION OF THE COURT

PORTER, Circuit Judge.

The Vacation Ownership Group ("VOG") billed itself as a sort of advocacy group helping victims of timeshare fraud get out of their timeshare debts. After a lengthy and complex trial, a jury determined that VOG had in fact defrauded its customers, and that Adam Lacerda, Ian Resnick, and Genevieve Manzoni were each knowing participants in that fraud. In this consolidated appeal, they now challenge their judgments of conviction, raising several claims of error. For the reasons discussed below, we will affirm their respective convictions and sentences.

I. Background

A. VOG's Fraudulent Activity

A timeshare is a form of shared property ownership in which multiple people own the rights to use a specific vacation or resort property. These properties are often units in a resort condominium, in which each timeshare owner has an allotted period of time to use the property. When one buys a timeshare, he typically makes a down payment on the property and finances the balance of the purchase price. These loans are commonly referred to as "mortgages" in the timeshare industry. In addition to these upfront costs, timeshare owners are also required to pay annual maintenance fees. It is not unusual for timeshare owners to fall prey to high-pressure sales tactics and commit to spending more money than they can comfortably afford. Later, they may seek to settle these debts or cancel their timeshares.

In 2009, while working for Wyndham Vacation Resorts, Inc. (a timeshare sales company), Adam Lacerda and his wife, Ashley Lacerda, founded VOG. VOG marketed itself as a timeshare consulting company and claimed that it could help customers cancel, purchase, or upgrade their timeshares. Lacerda was the president and chief executive officer of VOG, and his wife was the chief operating officer. Together, they exclusively controlled VOG's bank accounts and post office box.

Lacerda created phone scripts for VOG's sales representatives to use when speaking with timeshare owners. One of these scripts was VOG's "bank settlement" pitch. This sales pitch was riddled with misrepresentations. Following this script, the VOG representatives used personal information compiled by VOG in "customer lead sheets" to make unsolicited calls to unsuspecting timeshare owners. The representatives said they were calling on behalf of a property owners’ association to follow up on the owner's recent complaints. This was not true. The representatives also claimed they were working with the bank that held the loan for the owner's timeshare mortgage. This was also not true. They then promised to review the owner's account—which they could not do because they had no access to that account—and then to call the owner back.

During a follow-up call, VOG representatives offered to settle the timeshare owner's debt at a fraction of the remaining balance, for a negotiated fee. Later, during a closing call, the representatives had the timeshare owner electronically sign VOG's contract and pay its fee. The representatives then promised that the "mortgage would be paid off in full" and the timeshare owner would receive a "deed free and clear." But none of that happened. Instead, VOG just pocketed the money.

Lacerda also trained his VOG employees to use a fraudulent phone script for a timeshare "cancellation" sales pitch. Again, VOG representatives made unsolicited calls to timeshare owners and falsely told them that VOG had received their complaints, that VOG would do all the necessary work to cancel the owners’ timeshares, and that cancellation would not damage the customers’ credit ratings.

But VOG did not work to cancel the owners’ timeshares. Instead, after receiving the timeshare owners’ money, VOG sent them an eight-step process for cancelling the timeshares themselves and told them to stop making their loan payments. Eventually the timeshare owners received default notices from the timeshare developers. When the owners complained to VOG, VOG instructed them to allow the developers to foreclose. Typically, this would lead to a nonjudicial foreclosure proceeding, which is common in the industry. This proceeding, Lacerda knew, would result in the cancellation of the owners’ timeshare debt, but at the cost of the timeshare deed, any equity the owners had, and, of course, the owners’ credit ratings.

VOG employed additional misrepresentations: Lacerda impersonated bank officials on calls, altering his voice and using a spoofing device to alter his phone number. And VOG's website falsely displayed the Better Business Bureau seal, advertising itself as an A+ rated business, and claimed to be a member of the American Resort Development Association.

Not even the names used at VOG were true. Under Lacerda's direction, VOG representatives used false names while interacting with potential customers. These false names allowed Lacerda and other former Wyndham employees to violate their non-compete agreements and hide their identity from former clients at Wyndham. This was important because VOG's customer lead sheets were comprised almost exclusively of Wyndham timeshare owners.

While employed by Wyndham, Ian Resnick sent customer lead sheets to VOG and received a kickback for every resulting sale. In August 2010, Resnick left Wyndham to join VOG full time. Using the bank settlement and timeshare cancellation scripts, Resnick defrauded several customers. Recognizing Resnick's talents, Lacerda promoted him to Senior Contract Analyst.

Genevieve Manzoni, another Wyndham-alumna, joined VOG in October 2010. As a VOG representative, Manzoni showed great initiative, inventing her own "settlement" numbers on the fly. She, too, assumed a management role, overseeing other VOG sales representatives.

In November 2010, the FBI raided VOG's offices and the Lacerdas’ home. Several VOG representatives left the company following the raid, including Resnick. So Lacerda convened an office-wide meeting where his lawyers, including Marc Neff, assured VOG staff that everything was okay. They told the employees that only Lacerda was under investigation, and that Neff had reviewed the sales scripts and verified that everything was legal. VOG abandoned the bank settlement pitch and revised the timeshare cancellation pitch to remove any references to working with the banks, while leaving many other misrepresentations in place. With these assurances and changes, many of VOG's representatives, including Resnick, returned and VOG resumed and expanded its operations.

Resnick continued receiving promotions, working as VOG's Director of Training, then Director of Training and Compliance, and then Vice President of Sales and Compliance. While receiving compensation at VOG, Resnick and Manzoni also obtained unemployment benefits from New Jersey.

B. Trial of VOG Defendants

In April 2012, Lacerda, Resnick, Manzoni, and several other VOG employees were arrested after being charged with various counts of mail and wire fraud. VOG then changed its name to VO Financial and continued operations, still using the same misrepresentation-riddled sales pitches. Later, a superseding indictment was filed charging Lacerda, Resnick, Manzoni, and fifteen other VOG employees with conspiracy to commit mail and wire fraud. Lacerda was also charged with nine counts of mail fraud and three counts of wire fraud arising from his VOG scheme, and a final count of mail fraud for wrongfully receiving unemployment benefits while he was employed and receiving compensation at VOG.¹ Resnick was charged with two counts of mail fraud and three of wire fraud for his work at VOG, and another count of mail fraud for his unemployment fraud. And Manzoni was charged with one count of wire fraud for her work at VOG and a separate count of wire fraud for, allegedly, wrongfully receiving unemployment benefits. Other VOG employees received similar charges.

Most of the VOG defendants negotiated plea agreements with the government. But five defendants—Adam and Ashley Lacerda, Resnick, Manzoni, and Joseph DiVenti—took their cases to trial. Relevant to this appeal, about four and a half months before trial, the District Court disqualified Lacerda's then-attorney, Neff, as a potential witness and denied replacement counsel's requested continuance. It also denied Manzoni's motion to sever her VOG-related fraud charges from her unemployment-related fraud charges.

The government's first witness at trial was FBI Special Agent John Mesisca, an experienced agent in wire and mail fraud investigations and the lead investigator in the case. Mesisca was allowed, over appellants’ objections, to provide an extensive overview of his investigation. During trial, again over appellants’ objections, the District Court also excluded certain hearsay evidence and allowed other evidence for impeachment purposes.

The jury returned guilty verdicts on all counts related to Lacerda. The District Court sentenced him to 324 months imprisonment with three years of supervised release,...