United States v. Joseph Cammarata

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________________

No. 23-2110

_______________________

UNITED STATES OF AMERICA

v.

JOSEPH CAMMARATA,

Appellant

_______________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 2:21-cr-00427-001)

District Judge: Honorable Chad F. Kenney

__________________________

Argued September 19, 2024

Before: RESTREPO, McKEE, and SMITH,

Circuit Judges

(Filed: July 22, 2025)

Peter Goldberger [Argued]

Law Office of Peter Goldberger

P.O. Box 645

Ardmore, PA 19003

Counsel for Appellant

David J. Ignall

Paul G. Shapiro [Argued]

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

__________________________

OPINION OF THE COURT

__________________________

SMITH, Circuit Judge.

“The class action is an ingenious procedural

innovation[,]” wrote Judge Richard Posner in Eubank v. Pella

Corp., 753 F.3d 718, 719 (7th Cir. 2014). As he explained, it

“enables persons who have suffered a wrongful injury, but are

too numerous for joinder of their claims alleging the same

wrong committed by the same defendant or defendants to be

feasible, to obtain relief as a group, a class as it is called.” Id.

Yet no matter how inspired a concept the class action

device may be, it is not entirely resistant to the designs of

fraudsters bent on abusing it—in this case, by imposters

claiming settlement proceeds to which they had no lawful

right.

2

This appeal presents us with issues arising out of a

unique intersection of federal sentencing principles and class

action settlement practice. Joseph Cammarata and two

confederates developed an elaborate scheme by which they

submitted fraudulent claims to administrators of securities

class action settlement funds. None of the three were class

members, yet their efforts yielded them over $40 million. Two

of the men entered guilty pleas pursuant to agreements.

Cammarata, though, proceeded to trial and was found guilty by

a jury of all charges filed against him.

In addressing the issues raised by Cammarata’s appeal,

we uphold all but one of the District Court’s rulings, remanding

for the District Court to allow the Government to move to

amend the Court’s forfeiture order.

I. BACKGROUND

Joseph Cammarata and his business partners, Eric

Cohen and David Punturieri (collectively “Defendants”),

joined forces to create Alpha Plus Recovery, LLC (“Alpha

Plus”) in 2014. Alpha Plus was a claims aggregator,1 with a

1

An extensive search for a formal definition of a class action

“claims aggregator” yielded only a definition from a treatise

which cites the complaint filed against Cammarata by the

Securities and Exchange Commission in a parallel civil case. It

explains that claims aggregators “are companies that solicit

absent class members to provide services, including (i) filing

settlement claims on their behalf, (ii) compiling, where

necessary, documentation or information to support those

claims, and (iii) communicating with the claims administrator

3

business model that revolved around securities class action

settlements. Class actions generally involve hundreds, if not

thousands, of class members. When a class action settles, some

class members may conclude that the time and effort required

to submit a small or modest claim outweigh any potential for

obtaining a meaningful award from the settlement fund. Claims

aggregators seek to remedy that dilemma. In exchange for a

percentage of a client’s monetary recovery, claims aggregators

complete necessary paperwork and then submit aggregated

claims to a settlement administrator on behalf of numerous

class-member clients.

An administrator of a settlement reviews each claim—

whether filed by an individual class member or by an

aggregator—to ensure that the claimant fits within the

definition of a class as set forth in the court order certifying the

class.2 Those who qualify as class members thereby become

to perfect, cure, supplement, or otherwise oversee the claims

filing process through inception to distribution of funds.” Class

Actions and Other Complex Litig.: Ethics § 4.01 (2024) (citing

Compl. ¶¶ 37–38, SEC v. Cammarata, et al., No. 21-cv-4845,

ECF No. 1 (E.D. Pa. Nov. 11, 2021)). While the term “claims

aggregator” may not be generally known in legal practice, a

class action claims administrator who testified at trial in this

case confirmed that claims aggregators are “part of the

industry[.]” App. 547.

2

Federal Rule of Civil Procedure 23, which governs class

actions filed in the federal court system, requires the presiding

district judge to “define the class[.]” Fed. R. Civ. P.

4

entitled to payment from the settlement fund. In a securities

class action, a qualified member is typically a person or entity

who purchased or owned shares of a security issued by an

entity which has been sued under federal securities laws at a

time, or during a period, specified in the class definition. When

aggregators submit claims on behalf of their clients, it becomes

the administrator’s responsibility to investigate whether the

clients satisfy the definitional criteria.

From 2014 to 2021, Alpha Plus submitted hundreds of

claims to administrators who were overseeing nearly 400

securities class action settlements filed in both federal and state

courts. The company did so primarily on behalf of three clients:

Nimello Holding LLC (“Nimello”), Quartis Trade and

Investment LLC (“Quartis”), and Inversiones Invergasa SAS

(“Invergasa”). In its submissions to claims administrators,

23(c)(1)(B). Accordingly, a court’s order certifying a class

must include “a readily discernible, clear, and precise

statement of the parameters defining the class[.]” Wachtel ex

rel. Jesse v. Guardian Life Ins. Co. of Am., 453 F.3d 179, 187

(3d Cir. 2006). Class definitions in securities class actions

ordinarily resemble the following: All persons who purchased

or owned shares of the defendant entity’s stock during a

particular timeframe and who suffered damages as a result of

that purchase or ownership. See, e.g., App. 1979 (defining the

class as “[a]ll Persons who purchased shares of EndoChoice

common stock pursuant or traceable to EndoChoice’s [IPO]

Offering Materials on or before August 3, 2016, and who were

damaged thereby”).

5

Alpha Plus represented that Nimello was a hedge fund located

in Gibraltar, that Quartis was a hedge fund located in the

Bahamas, and that Invergasa was an entity located in

Colombia. Those submissions contained a number of

misrepresentations.

Nimello, Quartis, and Invergasa were not hedge

funds—they were defunct foreign shell companies acquired by

the Defendants. The directors of Nimello and Quartis, along

with Invergasa’s president, were associated with Joseph

Cammarata.3 David Punturieri had incorporated a separate

“Nimello” entity in New Jersey in 2015, named Nimello

Holding LLC (“NJ Nimello”); incorporation documents listed

Erik Cohen and Joseph Cammarata as officers and directors.

And a separate Quartis Trade and Investment LLC (“NJ

Quartis”) had been incorporated by Cohen in New Jersey in

2014. Cohen listed himself and Punturieri as members4 and

added Cammarata as an owner in 2017.5 The Defendants

3

The directors of Nimello and Quartis were not charged in the

indictment, nor was Invergasa’s president.

4

The superseding indictment stated that Cohen and Punturieri

were listed as “members/managers” of NJ Quartis. App. 98.

5

As the Presentence Investigation Report recommended, PSR

¶ 67, Cammarata received a sentencing enhancement because

his offense involved “sophisticated means[,]” such as

“acquir[ing] foreign shell companies” and “portray[ing] these

companies as hedge funds.” App. 2068.

6

subsequently opened bank accounts in the names of NJ

Nimello and NJ Quartis.

In support of the claims that Alpha Plus submitted to

claims administrators, it included falsified spreadsheets

purporting to show that Nimello, Quartis, and Invergasa had

traded in securities of certain companies named as defendants

in actual securities class actions that had been settled. In fact,

the three entities never actually traded in those or any other

securities. When claims administrators sought additional

documentation that might confirm some suspect trades, the

Defendants created and submitted further fabricated reports

which listed fictitious transactions.

Some of those fabricated reports purported to have been

authored by SpeedRoute, a broker dealer Cammarata founded

in 2010, and which he sold in 2015.6 For example, the

Defendants altered real trade data from SpeedRoute and

submitted it to claims administrators representing falsely that

Nimello, Quartis, or Invergasa had made the trades. In other

instances, when Alpha Plus submitted claims on behalf of the

three entities, it identified SpeedRoute as the entities’

brokerage firm and listed Cammarata as SpeedRoute’s point of

contact. When claims administrators pressed for further proof

of trading, Cohen and Cammarata worked together to create

fictitious SpeedRoute reports and submit them to the claims

administrators. SpeedRoute itself was a legitimate entity and

had no role in creating those reports. Most importantly, it never

executed a trade on behalf of Nimello, Quartis, or Invergasa.

6

Cammarata remained SpeedRoute’s CEO until 2018.

7

As scrutiny of the claims submitted by Alpha Plus grew

more intense, the Defendants resorted to other tactics in an

effort to deceive administrators. In 2015, for example, a claims

administrator asked several follow-up questions about

supporting documents for trades ostensibly made by Quartis.

The Defendants responded by falsely suggesting that

SpeedRoute was Quartis’s broker dealer. Cohen created an

email account which he used to pose as the principal of Quartis,

then sent an email to Cammarata purporting to ask for

information that he could provide to the inquiring claims

administrator. Cammarata drafted an email from his

SpeedRoute account which offered a contrived explanation.

Punturieri forwarded that email to the claims administrator,

touting it as a justification for the claim from Quartis’s broker

dealer.

In 2020, the Defendants’ scheme hit a snag. One claims

administrator, KCC, asked to be provided with data that

supported the trades allegedly underlying claims by Nimello

and Quartis. Punturieri, pretending to be an Alpha Plus

employee named “Paul Delfino,” sent KCC two reports

ostensibly authored by SpeedRoute. But Dan Dearden, a

financial crimes investigator employed by the parent company

of KCC, had begun to work with government investigators. He

referred the reports on to SpeedRoute, asking for verification

of their authenticity. SpeedRoute’s Chief Compliance Officer

responded that the company had not produced the reports and

did not recognize Nimello or Quartis as clients. Around this

same time, Dearden made a similar request for further

information about trades supposedly made by Invergasa.

The Defendants’ scheme had begun to unravel.

8

Because SpeedRoute could not verify the trades,

Dearden insisted that he speak with someone at Nimello,

Quartis, and Invergasa. Without such an assurance, Dearden

told Punturieri that he would reject the claims. Desperate to

give the phony claims an appearance of legitimacy, Cohen

impersonated Nimello’s principal in a conversation he had

with Dearden. And the Defendants instructed Cammarata’s

business partner in Colombia as to what he should say on

Invergasa’s behalf in a separate phone call he was to have with

Dearden. When the Invergasa call went poorly, Cammarata

went so far as to suggest to his co-defendants that he personally

go to Dearden’s home and offer him a $1 million bribe. He

elected, though, to abandon such an overture.

The conspirators’ desperation could hardly have been

assuaged when KCC rejected the Alpha Plus claims, and when

other claims administrators did likewise.

All told, claims administrators paid Alpha Plus

approximately $40 million for claims made on behalf of

Nimello, Quartis, and Invergasa from 2014 to 2021. The

Defendants transferred that money to bank accounts they held,

including the NJ Nimello and NJ Quartis accounts,7 for their

personal benefit.

7

The Defendants incorporated NJ Nimello and NJ Quartis so

they could deposit settlement funds into those entities’ bank

accounts. Claims administrators would sometimes send

settlement funds directly to Alpha Plus. In other instances,

claims administrators wrote checks to Nimello Holding LLC

and/or Quartis Trade and Investment LLC, thinking those

9

On October 28, 2021, a grand jury sitting in the Eastern

District of Pennsylvania returned a single-count indictment

charging the Defendants with conspiracy to commit mail and

wire fraud, in violation of 18 U.S.C. §§ 1341 and 1343.

Authorities arrested Cammarata six days later.8 A grand jury

returned a twelve-count superseding indictment in September

of 2022, charging the Defendants as follows:

• Conspiracy to commit mail and wire fraud, in

violation of 18 U.S.C. § 1349, at count one

against all Defendants;

• Wire fraud, in violation of 18 U.S.C. § 1343, at

counts two through five against all Defendants;

• Conspiracy to commit money laundering, in

violation of 18 U.S.C. § 1956(h), at count six

against all Defendants;

entities were foreign hedge funds and Alpha Plus clients. But

the Defendants would deposit those checks into the bank

accounts of the New Jersey LLCs they had incorporated under

either the Nimello or Quartis names.

8

Cammarata was initially released on bail, with conditions

including requirements that he live with his parents in New

York, abide by a curfew, and wear a location monitoring

device. But the District Court revoked his bail in March 2022

after concluding there was probable cause to believe

Cammarata had committed a federal offense while on release,

and that Cammarata was unlikely to abide by any conditions of

release.

10

• Money laundering and aiding and abetting, in

violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2,

at counts seven through ten against all

Defendants; and

• Money laundering and aiding and abetting, in

violation of 18 U.S.C. §§ 1957 and 2, at counts

eleven and twelve against Cammarata only.

Cammarata’s co-Defendants, Punturieri and Cohen,

pled guilty to counts one and six on October 13 and 14, 2022,

respectively. The day after Cohen entered his guilty plea, the

District Court granted the Government’s motion to dismiss the

money laundering charges at counts seven through ten as to all

three Defendants. Only Cammarata proceeded to trial on the

remaining counts a week later.

Both Punturieri and Cohen cooperated with the

Government and testified at the trial. Punturieri described

Cammarata as the “overseer” of the fraudulent scheme. App.

1326. And both Punturieri and Cohen detailed the false

submissions the Defendants had made to claims administrators

on behalf of Quartis, Nimello, and Invergasa. Several claims

administrators, as well as Dearden, also testified at trial.

Cammarata testified on his own behalf. He conceded

that he had lied to claims administrators by falsely representing

that Quartis, Nimello, and Invergasa had traded the securities

involved in the class action settlements. But by Cammarata’s

telling, the scheme was lawful because he had personally

traded the subject securities and then assigned those trades to

Quartis, Nimello, and Invergasa. The trades were all real, he

claimed, and his assignments rendered the three entities the

11

“beneficial owners” of the trades, entitling them to settlement

funds. App. 1594. Still, Cammarata admitted on cross-

examination that he never informed the claims administrators

that he had made any assignments.

After a six-day trial, the jury found Cammarata guilty

on all counts. The District Court sentenced him on June 6,

2023. The Court calculated Cammarata’s guideline

imprisonment range to be 168 months to 210 months. Despite

Cammarata’s being unrepentant throughout the sentencing

proceeding, the District Court granted him a downward

variance. He was sentenced to 120 months’ imprisonment and

ordered to pay restitution and to forfeit certain property.

This appeal followed.9

II. DISCUSSION

Cammarata raises five issues in this appeal. First, he

claims that the trial evidence and the Government’s closing

argument constructively amended the superseding indictment.

Second, he argues that the District Court violated the Federal

Rules of Evidence by permitting the Government to cross-

examine him about his purchase of a private island and

portions of his tax returns. Third, he contends that the District

Court, in applying the Sentencing Guidelines, erroneously

calculated the amount of loss caused by his offenses. Fourth,

9

The District Court had jurisdiction under 18 U.S.C. § 3231.

Cammarata timely filed a notice of appeal. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a).

12

he avers that the District Court’s restitution order ran afoul of

the Mandatory Victims Restitution Act. And fifth, he claims

the District Court improperly ordered the forfeiture of his

vacation home.

We address each issue in turn.

A. Constructive Amendment

Cammarata argues that a constructive amendment of the

superseding indictment occurred during trial and that his

conviction should therefore be set aside. We are not persuaded.

Our review of a properly preserved constructive

amendment claim is plenary. United States v. Fallon, 61 F.4th

95, 111 (3d Cir. 2023). Yet Cammarata failed to raise his

constructive amendment claim until he filed a post-trial

motion. We therefore review Cammarata’s claim for plain

error. United States v. Vosburgh, 602 F.3d 512, 531 (3d Cir.

2010) (explaining that constructive amendment claims raised

for the first time after trial—e.g., in a post-trial motion—are

reviewed for plain error) (citing United States v. Tiller, 302

F.3d 98, 105 (3d Cir. 2002)). Plain error review hinges on

whether the error prejudiced the defendant.10 United States v.

10

More specifically, to prevail under the plain-error

framework, an appellant must “show (1) a legal error (2) that

is plain and (3) that has affected his substantial rights.” United

States v. Dorsey, 105 F.4th 526, 528 (3d Cir. 2024) (citing

United States v. Olano, 507 U.S. 725, 732–33 (1993)). If those

three prongs are satisfied, we have “discretion to correct the

error if (4) it seriously affects the fairness, integrity, or

13

Greenspan, 923 F.3d 138, 149 (3d Cir. 2019). Because a

constructive amendment is a “per se violation of the fifth

amendment’s grand jury clause[,]” United States v. Castro, 776

F.2d 1118, 1121–22 (3d Cir. 1985), we presume prejudice

when a constructive amendment has occurred, United States v.

Syme, 276 F.3d 131, 154 (3d Cir. 2002).11

A constructive amendment occurs where trial evidence

or arguments “modify essential terms of the charged offense in

such a way that there is a substantial likelihood that the jury

may have convicted the defendant for an offense differing from

the offense” charged in the indictment. United States v.

Daraio, 445 F.3d 253, 259–60 (3d Cir. 2006). This may take

place if the trial evidence or arguments “‘broaden[] the

possible bases for conviction from that which appeared in the

indictment[.]’” United States v. Lee, 359 F.3d 194, 208 (3d Cir.

2004) (emphasis omitted) (quoting United States v. Asher, 854

F.2d 1483, 1497 (3d Cir. 1988)). So our “key inquiry” is

whether “the defendant was convicted of the same conduct for

which he was indicted.” Daraio, 445 F.3d at 260 (internal

quotation marks and citation omitted).

Cammarata advances two constructive amendment

arguments. First, he argues that the trial evidence failed to

reputation of judicial proceedings.” Id. (citing Olano, 507 U.S.

at 732).

11

We also held in Syme that the government can rebut the

presumption that a constructive amendment was prejudicial.

276 F.3d at 154–55. We need not reach that inquiry because

we conclude no constructive amendment took place.

14

prove the superseding indictment’s assertion that all class-

member claimants to those settlements targeted by the scheme

had to show that they purchased shares of the subject security

during the relevant time period, and that they were damaged

thereby.12 Second, he contends that the Government broadened

its theory of fraud when it countered his assignment defense

during closing argument.

Cammarata’s first argument seizes on the factual

complexities of his wire fraud offenses, given the intricacies of

the claims administration process and the numerous securities

class action settlements that were affected. He cherry picks

some testimony from two claims administrator employees,

James Facciolla and Tina Chiango, and contends that that

testimony undermined the need for a class action settlement

claimant to prove that it actually purchased a subject security

and suffered damages from that purchase.

Our reading of Facciolla and Chiango’s testimony does

not substantiate Cammarata’s argument.

12

Cammarata’s argument focuses on paragraph 11 of the

superseding indictment. That paragraph provides that all

claimants to security class action settlements, “including those

represented by claims aggregators such as Alpha Plus,” were

required to show two “essential facts” to qualify for an award

of settlement funds: (1) “that they had bought shares of the

subject security during the time period set forth in the court-

approved settlement agreement[,]” and (2) that “they had

suffered damages as a result of their purchase of securities.”

App. 97.

15

Cammarata claims Facciolla’s testimony disproved the

superseding indictment’s assertion that claimants were

required to demonstrate that they purchased shares of the

subject security to qualify for payment. Facciolla explained

that when submitting claims, aggregators like Alpha Plus must

provide their clients’ trade data and identify “the underlying

beneficial owner[,]” defining a “beneficial owner” as “the

person who has [the] rights to . . . the underlying shares.” App.

504. In Cammarata’s view, that seems to suggest that a claims

aggregator’s clients may not need to be the persons or entities

to actually purchase the subject securities to qualify for

payment of their claims. Yet when the prosecutor focused on

the claims that Alpha Plus had submitted to Facciolla’s

employer, asking Facciolla if “Nimello itself ha[d] to make a

purchase” of the subject security “to make a claim,” Facciolla

responded in the affirmative. App. 510. So Cammarata is

simply wrong, and the testimony is consistent with the

superseding indictment’s allegation that claimants

“represented by claims aggregators such as Alpha Plus” were

required to “demonstrate that they had bought shares of the

subject security during the [relevant] time period[.]” App. 97;

see also App. 1251–52 (another claims administrator testifying

that to qualify for payment, a claimant had “to have bought the

stock during the class period”).

So too with respect to Chiango’s testimony. Cammarata

claims her testimony was contrary to the superseding

indictment’s averment that claimants were required to

demonstrate that they had suffered damages to qualify for

payment. In his view, her testimony demonstrated that

claimants need only show a “recognized loss”—not

damages—to qualify. Opening Br. at 22. Chiango explained

16

that the portion of the settlement fund to which a claimant is

entitled is “based on the recognized loss that was calculated for

the plan of allocation[,]”13 a plan that was approved by a judge

pursuant to the class action settlement. App. 1483. Yet

Chiango went on to explain that if claimants “don’t have

damages, per the plan of allocation that we have to follow, then

they are not entitled to any distribution.” App. 1484. The court-

approved plan of allocation establishes the amount to which all

claimants are entitled based on their recognized losses, but that

does not negate the fact that claimants must still show they

suffered damages if they are to qualify to receive payment.

Chiango’s testimony is entirely consistent with the superseding

indictment’s allegation that claimants “needed to show they

had suffered damages as a result of their purchase of

securities.” App. 97; see also App. 1979 (defining a class as

persons “who purchased shares of” the subject security and

“who were damaged thereby”).

13

“A plan of allocation is a stated methodology by which a

class action recovery is allocated among eligible claimants;

literally, it is a plan for allocating the settlement fund.” Stevie

Thurin, A Guide to Settlement Plans of Allocation in Securities

Class Actions, AM. BAR ASS’N (Nov. 15, 2018),

https://www.americanbar.org/groups/litigation/resources/new

sletters/securities/a-guide-to-settlement-plans-allocation-

securities-class-actions/. Ordinarily, the plan of allocation

provides a formula by which to calculate claimants’ recognized

losses. See App. 1983–86. The ultimate allocation of

settlement funds is based on each claimant’s recognized losses,

as calculated by the plan of allocation.

17

Accordingly, Cammarata’s overly-selective references

to the trial testimony of Facciolla and Chiango fall short of

contradicting averments in the indictment. The testimony of

the two witnesses was consistent with the Government’s theory

of guilt and the means by which class action settlements were

to be administered.

We likewise reject Cammarata’s argument that the

Government constructively amended the superseding

indictment during its summation. Our constructive amendment

analysis hinges on whether “an element of the offense for

which [Cammarata] was convicted was different from an

element of the offense for which it appears from the face of the

indictment he was charged.” United States v. Bryan, 483 F.2d

88, 96–97 (3d Cir. 1973). And Fallon reminds us that “[t]rial

evidence, arguments, or the district court’s own instructions

can all form the basis of constructive amendments.” 61 F.4th

at 111.

Cammarata’s theory boils down to his contention that

the Government, during its closing argument, broadened its

claim of fraud in the course of countering his assignment

defense.14 Yet none of the prosecutor’s comments during

summation on Cammarata’s theory of assignment

“‘broaden[ed] the possible bases for conviction’” from those

14

Wire fraud requires the Government to prove beyond a

reasonable doubt that the defendant used interstate wire

communication to engage in a scheme or artifice to defraud for

the purpose of obtaining money or property with a specific

intent to defraud. Nat’l Sec. Sys., Inc. v. Iola, 700 F.3d 65, 105

(3d Cir. 2012).

18

which appeared on the face of the superseding indictment. Lee,

359 F.3d at 208 (quoting Asher, 854 F.2d at 1497)). The

Government simply rebutted the defense theory, pointing out

why Cammarata’s testimony was implausible.

The Government argued, quite understandably, that

Cammarata’s theory that he assigned his personal trades to

Nimello, Quartis, and Invergasa made no sense. If Cammarata

had personally bought securities and was thereby entitled to a

share of settlement proceeds, why, the Government asked the

jury, would he have made up three clients and have pretended

that it was they who had purchased and sold those securities?

The Government acknowledged that if Cammarata was, in fact,

the beneficial owner of a security issued by a company that had

settled any of the relevant class action cases, he was entitled to

submit a claim in his own name. But, as the Government

pointed out, no evidence was presented to show that Nimello,

Quartis, and Invergasa were ever the beneficial owners of

subject securities. And, even if Cammarata had assigned his

personal trades to Nimello, Quartis, and Invergasa, he never

advised the claims administrators of those assignments. To

properly administer the settlement, they were entitled to that

information.

It is always permissible for the Government to

“comment on the weakness of the defense case in closing

arguments.” United States v. Jackson, 540 F.3d 578, 596 (7th

Cir. 2008) (citation omitted). That is simply how the adversary

system works in criminal trials. And as the Seventh Circuit has

explained, rebutting a defense theory does not constructively

amend an indictment. United States v. McAnderson, 914 F.2d

934, 945 (7th Cir. 1990). Countering a weak defense theory

19

was all the Government did here. Its rebuttal cannot reasonably

lead one to believe that Cammarata was convicted for anything

other than the crimes charged.

Cammarata has failed to direct our attention to any

constructive amendment of the superseding indictment during

trial.

B. Evidentiary Challenges

Cammarata claims that two areas of inquiry during his

cross-examination violated Federal Rules of Evidence 403 and

404(b) by unfairly portraying him as a “hugely wealthy

cheat[,]” and by improperly suggesting commission of an

uncharged crime. Opening Br. at 37. We disagree.

1. Cammarata’s Private Island Purchase

Cammarata filed a motion in limine shortly before trial

in which he sought, inter alia, to preclude the Government

from introducing evidence that he owned a private island. The

District Court denied Cammarata’s motion without prejudice,

deferring its ruling until the time of trial.

On the fifth day of trial, the Government informed the

District Court, at sidebar, that it planned to cross-examine

Cammarata about his $5 million purchase of a private island in

2015. The prosecutor explained to the District Court that

Cammarata had sent an email to Cohen stating that he would

have a “decent monthly [financial] burn” if he purchased the

island. App. 1734. Defense counsel objected, citing Federal

Rule of Evidence 403 and arguing that Cammarata had already

testified he had a “burn rate” and that the evidence was unfairly

prejudicial. App. 1648. The District Court overruled the

20

objection. On the witness stand, Cammarata acknowledged

purchasing the island but claimed that the email to Cohen about

a potential financial burn had been falsified.

Cammarata challenges the District Court’s ruling by

arguing that the judge failed to conduct a proper Rule 403

analysis and, at all events, the probative value of the evidence

was outweighed by its tendency to generate class-based

prejudice in portraying him as wealthy.

We review the District Court’s decision to admit

evidence over a Rule 403 challenge for abuse of discretion and

construe such discretion “especially broadly.” United States v.

Scarfo, 41 F.4th 136, 178 n.35 (3d Cir. 2022). Rule 403 permits

courts to exclude otherwise relevant evidence “if its probative

value is substantially outweighed by a danger of . . . unfair

prejudice[.]” Fed. R. Evid. 403. In reaching a Rule 403

determination, a district court is required to balance those two

competing considerations. United States v. Heatherly, 985 F.3d

254, 265 (3d Cir. 2021).

We “strongly prefer” that a district court detail its Rule

403 balancing on the record. Egan v. Del. River Port Auth., 851

F.3d 263, 277 (3d Cir. 2017). But in the absence of a detailed

balancing statement, we may undertake the analysis ourselves.

Id. We have declined to balance the Rule 403 factors “de novo

only where a district court [has] said nothing about particular

evidence’s probative value or prejudicial effect.” Greenspan,

923 F.3d at 151.

The District Court overruled defense counsel’s

objection, pointing out that “there [had been] a suggestion to

the jury, as part of the defense, that [Cammarata] did not need

21

this money, so he did not have to involve himself in this

[criminal] activity.” App. 1649. The Court was correct in

noting that the defendant had “opened the door” to the inquiry,

and that his denial that he needed money clearly spoke to the

probative value of the evidence. But the District Court said

nothing about any risk of unfair prejudice. Because the District

Court failed to conduct the necessary balancing analysis, we

undertake that analysis ourselves. See Egan, 851 F.3d at 277.15

The evidence showed Cammarata had suggested to

Cohen that the $5 million island purchase could cause him

monthly financial strain. He had purchased the island in 2015,

and the superseding indictment alleged he committed wire

fraud in wrongfully obtaining millions of dollars from class

action settlement funds between the years 2014 and 2021. So

the evidence not only rebutted Cammarata’s defense that he

“did not need money[,]” App. 491; it also suggested a financial

motive for his fraud, see United States v. Saada, 212 F.3d 210,

224 (3d Cir. 2000) (explaining that evidence was “highly

probative because it rebutted the defense’s contention”);

United States v. Foster, 891 F.3d 93, 110 (3d Cir. 2018)

(reasoning that the government was “entitled to rebut” the

defendant’s argument “by presenting evidence of his motive”).

The probative value of the evidence was, therefore, significant.

15

We have repeatedly “renew[ed] our admonition that district

courts articulate their Rule 403 reasoning on the record.”

United States v. Heinrich, 971 F.3d 160, 165 (3d Cir. 2020).

“A basic part of the balancing process requires making a

record. It is simple to do and essential to effective appellate

review.” Id.

22

But, as noted above, that does not end our inquiry. We must

ask the question the District Court failed to address: was the

probative value of the evidence substantially outweighed by

any risk of unfairly portraying Cammarata as wealthy?

“Not all prejudice is unfair prejudice, and Rule 403 bars

only the latter.” United States v. Long, 92 F.4th 481, 488 (3d

Cir. 2024). To meet this threshold, admission of the evidence

must unfairly advantage one of the parties. Coleman v. Home

Depot, Inc., 306 F.3d 1333, 1343 n.6 (3d Cir. 2002).

Importantly, we evaluate any prejudicial effect “in the context

of the totality of the evidence produced.” United States v.

Williams, 974 F.3d 320, 357 (3d Cir. 2020).

Cammarata concedes that by the time the evidence was

introduced, it “was undisputed, and otherwise established, that

[he] was wealthy and controlled many businesses.” Opening

Br. at 31. Defense counsel explained in his opening statement

that he had previously asked the jury “if anybody had any

problems with somebody who is wealthy.” App. 495–96. And

counsel went on to state that Cammarata “had money[,]” “nice

things[,]” and “a lot of bank accounts[.]” App. 495–96.

Cammarata himself testified that he had sold businesses

for $31 million, $20 million, and over $3 million. He explained

that at the time of his arrest, he “was literally at the pinnacle of

[his] career”—he “was active in approximately 30 businesses,”

“was the CEO of a public company[,]” and “had just been

named CEO of a two billion dollar social media company.”

App. 1587. When cross-examining Punturieri, it was defense

counsel who elicited testimony that Cammarata owned a house

in the Bahamas.

23

To put it mildly, Cammarata was not shy about

presenting himself to the jury as someone who had enjoyed

considerable financial success.

In summary, the jury was made aware of Cammarata’s

wealth by the defendant’s own testimony and before it heard

that he had purchased a private island. No prejudice could

reasonably have resulted from admission of the private island

evidence, let alone unfair prejudice that could have

substantially outweighed the probative value of that evidence.

See GN Netcom, Inc. v. Plantronics, Inc., 930 F.3d 76, 88 (3d

Cir. 2019) (reasoning that there was no unfair prejudice where

the jury was “already alerted” to the subject matter the

evidence supported); United States v. Johnson, 302 F.3d 139,

152 (3d Cir. 2002).

The District Court did not abuse its discretion in

overruling defense counsel’s Rule 403 objection.

2. Cammarata’s Tax Returns

One of the Government’s trial witnesses was Stacey

Esimai, an auditor who worked in the U.S. Attorney’s Office

for the Eastern District of Pennsylvania. She testified that she

had reviewed financial records covering the period from 2015

to 2020, and that they showed that Cammarata had transferred

some of the money he had improperly obtained from class

action settlement funds to a bank account in the name of PB

Trade, a company he had started around 2007.

When Cammarata testified in his own defense, the

prosecutor asked him whether he had reported the settlement

money Alpha Plus sent to PB Trade on his tax returns.

24

Cammarata responded that he had realized offsetting losses,

leading the prosecutor to show Cammarata his 2017, 2018, and

2019 tax returns.16 Focusing his questions on Cammarata’s

Schedule C submissions for PB Trade in the tax returns, the

prosecutor noted that there was no income attributed to the

company. And when he pressed Cammarata as to whether he

had ever informed the accountant who prepared the tax returns

about the money Alpha Plus sent to PB Trade, Cammarata had

several answers. He responded that he “may have[.]” App.

1740. And also that the company “may have” had offsetting

losses. App. 1739. And also that he did not recall. Id. At one

point during this exchange, defense counsel objected, but only

to the relevancy of the inquiry. That objection was overruled.

Cammarata now claims on appeal that the Government

sought testimony that violated Federal Rules of Evidence

404(b) and 403. According to him, the Government was

improperly suggesting he committed the uncharged crime of

tax fraud without first having complied with Rule 404(b)’s

notice requirement.17 Also, according to Cammarata, the

District Court erred by failing to provide the jury with a proper

limiting instruction. Finally, he argues that any slight probative

16

The Government introduced Cammarata’s tax returns as

marked exhibits, but used them only for cross-examination. It

never sought to admit them into evidence, and so the jury had

no access to them.

17

Rule 404(b) requires that a prosecutor in a criminal case

“provide reasonable notice of any such evidence that the

prosecutor intends to offer at trial, so that the defendant has a

fair opportunity to meet it[.]” Fed. R. Evid. 404(b)(3)(A).

25

value of questioning him about his tax returns was outweighed

by the risk of unfair prejudice, confusing the issues, and

misleading the jury.

Before reaching the merits of Cammarata’s arguments

that use of the tax returns by the Government was improper,

we must determine whether he properly preserved them for

appeal. See United States v. Sandini, 803 F.2d 123, 126 (3d Cir.

1986). Federal Rule of Evidence 103(a)(1) restricts our review

of evidentiary errors to those in which the complaining party

“state[d] the specific ground” for objection, “unless it was

apparent from the context[.]” Fed. R. Evid. 103(a)(1)(B).

Defense counsel objected to questions regarding Cammarata’s

tax returns solely on relevancy grounds. Counsel mentioned

neither Rule 403 nor Rule 404(b), so any supposed reliance on

those Rules was not apparent from the context of the objection.

See Sandini, 803 F.2d at 126.

Because Cammarata failed to preserve his arguments

for appeal, id., we review for plain error. See United States v.

Mitchell, 365 F.3d 215, 257 (3d Cir. 2004).18

a. Rule 404(b)

Rule 404(b) prohibits the introduction of evidence of

“any other crime, wrong, or act” to “prove a person’s character

in order to show that on a particular occasion the person acted

in accordance with the character.” Fed. R. Evid. 404(b)(1). Its

purpose is to keep from a jury evidence that suggests a person

has a propensity to commit crimes “‘or is otherwise a bad

person[.]’” United States v. Green, 617 F.3d 233, 249 (3d Cir.

18

See supra note 10.

26

2010) (quoting United States v. Taylor, 522 F.3d 731, 735–36

(7th Cir. 2008)).

Rule 404(b) applies only to extrinsic evidence. United

States v. Bailey, 840 F.3d 99, 128 (3d Cir. 2016). It does not

apply to intrinsic evidence, which “does not constitute a prior

bad act at all[.]” Id. As we explained in Green:

[W]e will reserve the “intrinsic” label for two

narrow categories of evidence. First, evidence is

intrinsic if it “directly proves” the charged

offense. This gives effect to Rule 404(b)’s

applicability only to evidence of “other crimes,

wrongs, or acts.” If uncharged misconduct

directly proves the charged offense, it is not

evidence of some “other” crime. Second,

“uncharged acts performed contemporaneously

with the charged crime may be termed intrinsic

if they facilitate the commission of the charged

crime.” But all else must be analyzed under Rule

404(b).

617 F.3d at 248–49 (internal citations omitted).

Because the Government’s use of Cammarata’s tax

returns fits neatly into the first category of intrinsic evidence,

such use was not governed by Rule 404(b). To prove wire

fraud, the Government had to show that the defendant

“‘willful[ly] participat[ed] in a scheme or artifice to defraud,’

with intent to defraud[.]” United States v. James, 955 F.3d 336,

342 (3d Cir. 2020) (quoting United States v. Andrews, 681 F.3d

509, 518 (3d Cir. 2012)). Juries may infer a defendant’s intent

27

to defraud from circumstantial evidence. United States v. Riley,

621 F.3d 312, 333 (3d Cir. 2010).

The failure by Cammarata to report the transfers of

settlement funds from Alpha Plus to PB Trade as income on

his tax returns supported a reasonable inference that he knew

the funds were unlawfully obtained and that he was attempting

to conceal income derived from his fraudulent scheme. Such

an inference would bear on his intent to defraud and thereby

constitute circumstantial evidence offered to prove an element

of wire fraud.19 Because the testimony admitted here was

intrinsic to a charged offense, Cammarata’s Rule 404(b)

challenge must fail. See United States v. Ryan, 213 F.3d 347,

350–51 (7th Cir. 2000) (explaining that evidence of a

defendant’s effort to conceal his participation in a fraudulent

scheme by failing to report fraudulent transactions as income

on his tax returns “constituted circumstantial evidence of intent

to defraud” and was therefore not governed by Rule 404(b))

(internal quotation marks and citation omitted).

b. Rule 403

We likewise reject Cammarata’s Rule 403 challenge.20

The probative value of Cammarata’s failure to report the

19

Indeed, Cammarata concedes that “the failure to declare

income on a return may conceivably indicate consciousness of

guilt with respect to the manner in which the income was

earned[.]” Opening Br. at 33.

20

Because Cammarata never objected to the discussion of his

tax returns on Rule 403 grounds before the District Court, it

28

income he obtained from class action settlement funds on his

tax returns was twofold. First, as discussed above, the evidence

tended to prove Cammarata’s fraudulent intent and knowledge

by giving rise to a reasonable inference of his knowledge that

receipt of the income was illegal. See Williams, 974 F.3d at 357

(“The fact that the evidence is intrinsic establishes its probative

nature[.]”). Second, the evidence rebutted Cammarata’s

assertion that the settlement money derived from Nimello and

Quartis’s claims was rightfully obtained. Just before the

prosecutor turned to Cammarata’s tax returns, Cammarata

stated he had received millions of dollars “for trade data that

[he] owned and supported through claims.” App. 1737.

Pointing out that Cammarata had failed to report allegedly

legitimate income on his tax returns tended to discredit his

defense. See, e.g., United States v. Valenti, 60 F.3d 941, 946

(2d Cir. 1995) (reasoning that the defendant’s tax returns

listing no income “were obviously probative to refute” the

“defense that the contested funds were legitimate”); see also

Ryan, 213 F.3d at 351.

Further, any risk of unfair prejudice posed by cross-

examining Cammarata on his tax returns was minimal, at best.

Cammarata argues that the Government unfairly portrayed him

as a tax “cheat.”21 Opening Br. at 37. That, he now claims,

(understandably) did not conduct a Rule 403 balancing

analysis. We undertake that analysis here.

21

To be clear, prosecutors at no point during trial referred to

Cammarata as a “tax cheat[,]” nor did they make reference to

29

biased the jury against him and tainted its verdict. Intrinsic

evidence “that reveals a defendant’s legal guilt can be highly

prejudicial, but that alone does not make it unfairly so.” Long,

92 F.4th at 488. What is proscribed is unfair prejudice, because

it “speaks to the capacity of some concededly relevant

evidence to lure the factfinder into declaring guilt on a ground

different from proof specific to the offense charged.” Old Chief

v. United States, 519 U.S. 172, 180 (1997) (emphasis added).

The tax return evidence supported an element of the charged

offense of wire fraud, so it was highly probative. Viewing the

trial record as a whole, it was not outweighed by any risk of

unfair prejudice.

Nor are we persuaded by Cammarata’s contention that

the probative value of the Government’s cross-examination as

to his tax returns was substantially outweighed by the risk of

confusing the issues or misleading the jury. He argues that the

propriety of omitting income on a Schedule C is a complex

question the jury could not have properly evaluated without

accompanying explanatory or expert evidence.

Our review satisfies us that the Government’s cross-

examination relative to the Schedule C submissions was

limited and its purpose clear. The Government proffered

Cammarata’s tax returns only after he claimed he had

offsetting losses that justified his failure to report income

transferred from Alpha Plus to PB Trade. The prosecutor

elicited responses from Cammarata which showed that

Cammarata knew the purpose of a Schedule C submission

any of his tax returns during the Government’s closing

argument.

30

before highlighting that the tax returns listed no income for PB

Trade but did list expenses. And the prosecutor repeatedly

asked Cammarata whether he had informed the accountant

who prepared his tax returns about the money he transferred

from Alpha Plus, i.e., the money he fraudulently obtained from

settlement funds.

The Government’s purpose in pursuing this line of

questioning was plain: the relevancy of the omissions on

Cammarata’s tax returns was their tendency to prove efforts to

conceal his fraudulent scheme, not that he was trying to avoid

paying taxes. See Fed. R. Evid. 401(a) (providing that evidence

is relevant if “it has any tendency to make a fact” of

consequence in determining the action “more or less probable

than it would be without the evidence”).22 Even if some risk of

confusing the issues or misleading the jury existed, that risk did

not substantially outweigh the probative value of the intrinsic

evidence. See Blancha v. Raymark Indus., 972 F.2d 507, 516

(3d Cir. 1992) (reasoning that excluding evidence under Rule

403 based on confusing the issues or misleading the jury would

not have been justified where the testimony “tended to prove”

a fact “directly at issue” in the case).

22

As noted, the only ground specifically raised by trial counsel

for exclusion of testimony concerning the tax returns was

relevancy. Cammarata argues before us that the District Court

should have sustained that objection. Our conclusions reached

during plain error review amply foreclose that argument.

31

C. Loss Calculation

Cammarata challenges the District Court’s loss

calculation under the Sentencing Guidelines.23 Again, his

challenge is meritless.

The Government bears the burden of establishing the

amount of loss by a preponderance of the evidence. Free, 839

F.3d at 319. Although the Guidelines themselves define loss

broadly as “the greater of actual loss or intended loss[,]”

U.S.S.G. § 2B1.1, app. n.3(A), this Court has held that loss

under the Guidelines is limited to “the loss the victim[s]

actually suffered[,]” United States v. Banks, 55 F.4th 246, 258

(3d Cir. 2022). “Actual loss” is defined as “the reasonably

foreseeable pecuniary harm that resulted from the offense.”

U.S.S.G. § 2B1.1, app. n.3(A)(i). “Reasonably foreseeable”

means “pecuniary harm that the defendant knew, or . . .

reasonably should have known, was a potential result of the

offense.” Id. § 2B1.1, app. n.3(A)(iv). In arriving at “a

reasonable estimate of the loss,” a district court looks to all

“available information in the record[.]” United States v. Shah,

43 F.4th 356, 366 n.12 (3d Cir. 2022) (citation omitted).

At sentencing, the District Court found that the

Government had proven $40,862,748.30 in actual loss to class

23

We review a district court’s factual findings supporting its

loss calculation for clear error. United States v. Free, 839 F.3d

308, 319 (3d Cir. 2016). We exercise plenary review over a

district court’s interpretation of the Guidelines, including what

constitutes loss. United States v. Shulick, 994 F.3d 123, 145 (3d

Cir. 2021).

32

members. That dollar figure represented the total amount of

settlement funds that claims administrators had paid the

Defendants for the fraudulent claims they had submitted.

Importantly, the District Court found that the trial evidence

proved “the claims administrator[s] had less money to pay

actual legitimate claims because of the Defendant[s’]

fraudulent submissions.” App. 2090. Because the loss was

between $25 and $65 million, Cammarata’s offense level was

increased by 22 levels pursuant to U.S.S.G. § 2B1.1(b)(1)(L).

Cammarata argues that the District Court’s finding

lacks evidentiary support. In his view, the Government failed

to present evidence at trial that any particular class member

was underpaid due to the Defendants’ fraud. And he claims the

District Court misapplied the Guidelines when it concluded

that the over-$40 million fraudulent gain it found resulted in an

equivalent “actual loss” to class members.

The District Court’s factual finding informing its loss

calculation was firmly rooted in the trial testimony. See Shore

Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir.

2004) (“A finding of fact is clearly erroneous when, after

reviewing the evidence, the court of appeals is left with a

definite and firm conviction that a mistake has been

committed.”) (internal quotation marks and citation omitted).

Four claims administrators testified to the role they play, post-

settlement, and also explained how the distribution process is

supposed to unfold. In the ordinary course, a class member

who submits a claim that is approved receives a pro rata share

of the settlement fund based on a court-approved plan of

allocation. As one administrator put it, the “settlement fund is

divided” among all class members based on a “prorated

33

percentage” of their “loss[es.]” App. 1483.24 And, as

Cammarata concedes, it “can be readily seen” from the trial

testimony that the amount a class member receives from a

24

At trial, the Government introduced the Settlement Notice

for In re EndoChoice Holdings Securities Litigation, a class

action litigated in Georgia state court that ultimately settled and

to which Alpha Plus submitted claims. The Government used

the EndoChoice Settlement Notice as an exhibit during its

examination of a claims administrator who was describing the

settlement process. That Notice further illustrates how the

settlement process works. Once notified of a proposed

settlement, class members are required to submit a valid claim

form within a specific time period. If they fail to do so, they

are “forever barred from receiving any distribution” from the

settlement fund. App. 1980. Class members may also choose

to opt out of the class, if it is a Rule 23(b)(3) class, or they may

object to the settlement. States oftentimes have state-law

analogues to Rule 23(b)(3), such as Georgia’s O.C.G.A. § 9-

11-23(b)(3). From there, the court overseeing settlement holds

a hearing and decides whether to approve the settlement. If the

settlement is approved, the claims administrator determines

how much each qualified clamant is entitled to receive.

Payments are “calculated on a pro rata basis, meaning” the

settlement fund is “divided among” class members who

submitted valid claims. App. 1979. Afterwards, Class Counsel

seeks permission from the court to distribute the settlement

fund. If the court approves distribution, the settlement funds

are then distributed according to the claims administrator’s

calculations.

34

settlement fund “depend[s] on the number of claims submitted

to the administrator[.]” Reply Br. at 9.

The mathematical principle underlying the calculation

of settlement claims is eminently straightforward. So is the

impact that fraudulent claims will have on the amount available

for payment to legitimate class members. As one claims

administrator-witness stated, “if there are more claimants,”

everyone “get[s] less money.” App. 1253. And as another

claims administrator who testified put it, the payout of a

fraudulent claim “lowers the amount of money that is

available” to other, legitimate class members. App. 546; see

also App. 659, 1253. The effect of fraudulent claims on the

class as a whole could hardly be simpler.

Against this backdrop, the District Court appropriately

concluded that the legitimate class members “actually

suffered” a loss under the Guidelines. Banks, 55 F.4th at 258.

As a result of Defendants’ $40,862,748.30 in fraudulent

claims, each legitimate class member’s pro rata share of the

settlement fund was proportionally reduced. And the

fraudulent claims created administrative headaches. As one

claims administrator explained, because fraudulent claims

create “issues with the amount that was paid” to class

members, once a fraudulent claim is discovered, claims

administrators must “recalculate” the payment amounts to

“provide losses . . . back to the original claimants who were

wronged.” App. 661.

We hold that under these circumstances, where the trial

testimony showed that the Defendants’ fraudulent scheme

directly reduced the balance available from every settlement

35

fund for payment to legitimate class claimants, the District

Court properly concluded that a “reasonably foreseeable

pecuniary harm . . . resulted from the offense.” U.S.S.G. §

2B1.1, app. n.3(A)(i) (defining “actual loss”). The District

Court’s $40,862,748.30 actual loss determination was

consistent with the Guidelines.

D. Restitution

The Mandatory Victims Restitution Act of 1996

(“MVRA”) provides that restitution must be awarded to the

victims of certain offenses, including offenses “against

property” and “offenses committed by fraud or deceit[.]” 18

U.S.C. § 3663A(c)(1)(A)(ii). Cammarata does not dispute that

the MVRA is applicable to his wire fraud and money

laundering convictions.

At sentencing, the District Court adopted the

Government’s proposed restitution plan, invoking the MVRA

and ordering that restitution be paid jointly and severally by the

Defendants. The restitution order included an attachment,

which identified: (1) over one hundred settlement funds as the

payees; (2) the amounts the Defendants fraudulently obtained

from each fund; and (3) the names of the claims administrators

overseeing those funds that were to be distributed to the

members of the defrauded classes.

Although the District Court attributed a $40 million plus

loss to the class members defrauded by the Defendants’

scheme, the amount of restitution it ultimately ordered was

only $31,275,832.92. In doing so, the District Court acceded to

the Government’s requested amount. The Government’s

rationale for seeking restitution in an amount less than the total

36

loss was that “it may not be economically feasible for some of

the [settlement] funds to distribute restitution payments to their

ultimate beneficiaries.” App. 375; see also App. 2148 (District

Court adopting the Government’s rationale at sentencing).

Cammarata attacks the District Court’s restitution order

on two grounds.25 First, he claims restitution was not directed

to the “victims” of his offenses as that term is defined by the

MVRA. Second, he argues that the District Court improperly

relied upon claims administrators to distribute restitution

funds. We reject both arguments. We conclude that the District

Court abused its discretion by ordering restitution in an amount

that did not fully compensate the victims. But because the

Government did not cross-appeal, Supreme Court precedent

requires us to affirm the District Court’s restitution order.

1. The Defrauded Classes as Victims Under

the MVRA

At various times throughout Cammarata’s sentencing,

the District Court characterized not only the class members as

“victims” of the Defendants’ fraud but also the settlement

funds—and the claims administrators, as well. See, e.g., App.

2067, 2073, 2078. 2148. Ultimately, in its restitution order, the

District Court directed that restitution be paid to the settlement

funds. Cammarata claims that none of these groups, and in

particular the settlement funds, qualify as a “victim” under the

MVRA.

25

“We review the legality of a restitution order de novo and

review specific awards for abuse of discretion.” United States

v. Turner, 718 F.3d 226, 235 (3d Cir. 2013).

37

This presents us with a legal question that our Court has

not previously been called upon to resolve. Who qualifies as a

victim under the MVRA when a defendant has defrauded

hundreds of certified classes, resulting ultimately in individual

harm to an even greater multitude of class members?

A crucial component of our analysis rests upon what

seems a basic question: “just what a class is in a class action.”

ROBERT H. KLONOFF, CLASS ACTIONS AND OTHER MULTI-

PARTY LITIGATION: CASES & MATERIALS 4 (4th ed. 2017)

(emphasis in original). As Professor Klonoff queried: is “a

class simply a convenient way to refer to a collection of

individuals? Or is a class an entity unto itself—analogous

perhaps to a corporation or unincorporated association—that

has legal status apart from its individual members?” Id.

The Supreme Court and our Court have made clear that

the latter is true. When a class is certified by the presiding

district court judge, the “class of unnamed persons described

in the certification acquire[s]” its own “legal status[.]” Franks

v. Bowman Transp. Co., 424 U.S. 747, 753 (1976) (internal

quotation marks and citation omitted). In other words, the

“relevant entity for purposes of the litigation after certification

is the class, not the individuals who make up the class.” Fisher

v. Fed. Express Corp., 42 F.4th 366, 374 (3d Cir. 2022).

Indeed, members are not “plaintiffs,” nor are they

denominated as such. See In re Prudential Ins. Co. Am. Sales

Practice Litig. Agent Actions, 148 F.3d 283, 307 (3d Cir. 1998)

(distinguishing between “the named plaintiffs” and “absentee

class members”). A quick glance at the caption of a putative

38

class action complaint immediately notifies a reader that the

pleading is not initiating a simple A vs. B lawsuit.26

Class actions are representative actions, Neale v. Volvo

Cars of N. Am., LLC, 794 F.3d 353, 364 (3d Cir. 2015), and

that term has profound implications for how this “ingenious

procedural innovation” is litigated, Eubank, 753 F.3d at 719.

Once a class has been certified,27 its members effectively lose

nearly all of their litigative individuality. Counsel for the class

takes over (as do the class representative or representatives).

And their roles vis-à-vis the class and its members impose

upon them fiduciary duties. See In re Fine Paper Litig., 632

26

For example, the caption of the EndoChoice Holdings

securities class action, to which Alpha Plus submitted claims

after settlement was reached, was In re EndoChoice Holdings,

Inc. Securities Litig.

27

“As a practical matter, the certification decision is typically

a game-changer, often the whole ballgame[.]” Marcus v. BMW

of N. Am., LLC, 687 F.3d 583, 591 n.2 (3d Cir. 2012); see also

Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259

F.3d 154, 162 (3d Cir. 2001) (“[D]enying or granting class

certification is often the defining moment in class actions (for

it may sound the ‘death knell’ of the litigation on the part of

plaintiffs, or create unwarranted pressure to settle

nonmeritorious claims on the part of defendants)[.]”).

39

F.2d 1081, 1086 (3d Cir. 1980); Greenfield v. Villager Indus.,

483 F.2d 824, 832 (3d Cir. 1973).28

These bedrock principles of class action jurisprudence

inform the inquiry we now undertake. Because a class assumes

an “independent legal status” once it has been certified, we

must consider here whether the classes entitled to the

settlement funds qualify as MVRA victims and are thereby

initially affected by the Defendants’ fraud. Genesis Healthcare

Corp. v. Symczyk, 569 U.S. 66, 75 (2013). We turn, then, to

whether the classes, settlement funds, or claims administrators

satisfy the MVRA’s definition of victim.

The MVRA defines “victim” as “a person directly and

proximately harmed as a result of the commission of an offense

for which restitution may be ordered[.]” 18 U.S.C. §

3663A(a)(2). For scheme-based crimes such as wire fraud, that

definition is broadened to include “any person directly harmed

by the defendant’s criminal conduct in the course of the

scheme[.]” Id. Though the MVRA’s definition of victim uses

the word “person[,]” our Court and other circuits have held that

entities may qualify as victims under the MVRA. See United

States v. Bryant, 655 F.3d 232, 253 (3d Cir. 2011) (hospital

receiving federal funding); United States v. Richardson, 67

28

Courts have imposed—even on the district court judge who

approves a settlement—a fiduciary duty to the class. See

Ehrheart v. Verizon Wireless, 609 F.3d 590, 594 (3d Cir. 2010)

(“[T]he District Court evaluates the [settlement] agreement as

a fiduciary for absent class members.”); Grant v. Bethlehem

Steel Corp., 823 F.2d 20, 22 (2d Cir. 1987); Reynolds v.

Beneficial Nat’l Bank, 288 F.3d 277, 280 (7th Cir. 2002).

40

F.4th 268, 271 (5th Cir. 2023) (corporation); United States v.

Donaby, 349 F.3d 1046, 1054 (7th Cir. 2003) (police

department).

We agree with Cammarata’s contention that the District

Court incorrectly characterized both the settlement funds

themselves and the claims administrators as “victims” under

the MVRA. That both the “settlement funds” and the “claims

administrators,” in a cause-and-effect sense, were affected by

the Defendants’ fraud—albeit, in profoundly different ways—

is indisputable. But the effects experienced by each hardly

rendered them “victims” as that statutory term of art is intended

under the MVRA. A “fund” is merely “a sum of money[,]”

Fund, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th

ed. 2003), which is what we understand each of the settlement

funds proffered here to be.29 By itself, such a fund bears none

29

The Fifth Circuit, in United States v. Arledge, 553 F.3d 881,

899 (5th Cir. 2008), categorized a settlement fund to which the

defendant submitted fraudulent claims as a victim under the

MVRA. In that case, however, the defendant did “not dispute

that a restitution order was permitted by law;” he only

contested the amount of restitution ordered and the schedule of

repayment. Id. at 897. So the Fifth Circuit was not presented

with a disputed issue as to whether the district court’s

conclusion that the settlement fund qualified as a victim under

the MVRA was correct. Here, by contrast, Cammarata directly

challenges the District Court’s determination of the MVRA

victim. Nothing in the Arledge opinion changes our conclusion

that the settlement funds in this case do not qualify as victims

under the MVRA.

41

of the incidents of the corporal or the corporate; it is neither a

person nor a business entity. And the claims administrators

retained in the underlying class actions are the antithesis of

“victims.” Their job was “the process of processing, reviewing

and verifying the validity of all Claim Forms received.” App.

1980. While the Defendants’ fraudulent actions surely caused

them inconvenience, they have made no claim for monetary

loss. And, importantly, they were compensated for the tasks

they performed.

By contrast, the defrauded classes easily meet the

MVRA’s definition of “victim.” The losses that were suffered

as a result of the Defendants’ fraudulent scheme were

experienced directly by the classes as they were defined in the

nearly four hundred class actions that were targets of

illegitimate claims. Accordingly, under the unique facts of this

case as the Government developed them at trial, the victims of

the Defendants’ fraud were the classes entitled to settlement

funds. See Fischer v. Fed. Express Corp., 42 F.4th 366, 374

(3d Cir. 2022). But for the Defendants’ fraudulent claims, the

class settlement funds would have maintained larger balances

which would then have been distributed to members with valid

claims. Accordingly, the Defendants “directly and proximately

harmed” the classes by reducing the amount of settlement

funds that class members would ultimately receive. 18 U.S.C.

§ 3663A(a)(2).

Because we conclude that the defrauded classes were

the victims, Cammarata is wrong when he contends that the

District Court ran afoul of the MVRA by declining to identify

each class member in its restitution order. See United States v.

Ben Zvi, 242 F.3d 89, 100 (2d Cir. 2001) (holding that a district

42

court did not abuse its discretion by declining to identify the

individual members comprising the “unified entity” to which

restitution was ordered).

The District Court did not list the defrauded classes as

the entities to which restitution was to be paid in its restitution

order; it instead listed the settlement funds. But considering the

District Court’s restitution plan, we disagree with

Cammarata’s contention that this lack of precision means that

restitution “was not directed” to the victims of his crimes such

that the restitution order must be reversed. Opening Br. at 46.

The District Court viewed the defrauded class members

as the “true victims” under the MVRA. Reply Br. at 11

(internal quotation marks omitted). And the District Court’s

restitution plan made clear that the class members, not the

settlement funds or claims administrators, were the ultimate

recipients of restitution. While restitution would be initially

paid to the settlement funds, the District Court expected the

claims administrators associated with those funds to “distribute

restitution . . . payments to their ultimate beneficiar[ies]”—the

members of the defrauded classes. App. 2148. Thus, in

ordering restitution, the District Court effectively directed

restitution in a manner that assured it would ultimately be paid

out to the members of the victim classes.

And given the appropriate focus of the District Court’s

restitution plan, we decline to reverse the District Court’s

43

restitution order simply because it listed the settlement funds

as the payees.30

2. The District Court Did Not Err By Relying

On Claims Administrators to Distribute

Restitution Funds

Cammarata further argues that the District Court

improperly “delegate[d]” the task of distributing restitution.

Opening Br. at 45. Cammarata essentially complains that the

District Court relied upon the claims administrators initially

responsible for distributing settlement funds to class members

to also distribute monies recovered pursuant to the MVRA to

those same class members. In his view, instead of engaging in

this “creative circumvention of the governing” statute, the

District Court should have foregone restitution entirely

because distributing it would have been impracticable and/or

excessively burdensome. Id. We disagree. Given the unusual

circumstances of this case, we conclude that the District

Court’s approach complied with the MVRA.

As discussed, the District Court’s restitution plan

sought to effectuate the MVRA’s purpose of “compensat[ing]

the victim[s] for [their] losses and, to the extent possible, . . .

mak[ing] the victim[s] whole.” United States v. Diaz, 245 F.3d

294, 312 (3d Cir. 2001). The District Court directed the

30

We stress, however, that when faced with similarly complex

facts that require intricate restitution schemes, a district court

should be careful to explicitly identify victims and accurately

outline its plan for distributing restitution to those victims in its

restitution order.

44

Defendants to return the money they fraudulently obtained

from settlement funds so the claims administrators overseeing

those funds could distribute individualized payments to

affected class members. Courts have affirmed more attenuated

approaches to providing restitution to victims under the

MVRA.

In United States v. Gee, 432 F.3d 713 (7th Cir. 2005),

the defendant pleaded guilty to conspiring to defraud the

United States, in violation of 18 U.S.C. § 371. Id. at 714.

Although the Seventh Circuit recognized that the MVRA

“victim” in an 18 U.S.C. § 371 prosecution was actually the

United States, it nonetheless affirmed the terms of the district

court’s restitution order directing that a nonprofit organization

was ultimately entitled to receive $200,000. Id. at 715. It

reasoned that the organization was “a proxy for the federal

interest because it was a recipient of federal funds[.]” Id.

We endorsed a similar approach in Bryant, 655 F.3d at

253–54. In that case, the defendants were convicted of honest

services fraud31 and mail fraud pursuant to 18 U.S.C. §§

666(a), 1341, 1343, and 1346. Id. at 236. The defendants’

fraudulent scheme involved a quid pro quo exchange that

financially harmed a university. Id. at 237, 253.32 We affirmed

31

As we explained in Bryant, honest services fraud “is fraud

that results in a loss to the public of its right to the honest

services of its public servants[.]” 655 F.3d at 254.

32

More specifically, one defendant gave the other a “low-

show” job—“meaning he provided only minimal or nominal

services”—at the university’s school of osteopathic medicine.

45

the district court’s restitution order directing payment to the

university. Id. at 253. Unlike the settlement funds in the case

before us, we held that the university itself qualified as a victim

under the MVRA. Id. Still, we recognized the “intangible

losses” to the public caused by the defendants’ honest services

fraud. Id. at 254. We explained that the university being

awarded restitution was “a proxy for the State’s interests,

including its citizens’ interest in the honest services of its

public servants[,]” because it was a recipient of taxpayer funds.

Id. Providing restitution to the university, we reasoned,

“indirectly compensate[d] the public for its loss[es.]” Id.

Here, the settlement funds and the claims administrators

listed in the District Court’s restitution order did not serve as

did the “proxies” in either Gee or Bryant. Neither the funds nor

the administrators were paid restitution for their own benefit

with the understanding that such payments would “indirectly

compensate[]” victims of the Defendants’ fraud. Id. Instead,

the funds were the repositories for monies to which the classes

were entitled, and the claims administrators were tasked with

simply fulfilling the roles they had been given to administer the

class action settlements pursuant to a process envisioned by

Federal Rule of Civil Procedure 23 and as directed by the

settlement agreements that had received court approval.

Bryant, 655 F.3d at 237. In exchange, the defendant who

obtained the job leveraged his position as a New Jersey State

Senator to funnel state funding to the school. Id. The scheme

diverted over $2 million from the university’s budget for direct

allocation to the school of osteopathic medicine. Id. at 253.

46

Relying upon an entity with the means and expertise

required to distribute restitution under circumstances similar to

those presented in this case is not only appropriate but well-

advised. Consider Herzfeld v. United States District Court, 699

F.2d 503, 507 (10th Cir. 1983), in which the Tenth Circuit

upheld the creation of a receivership to distribute restitution.

The defendant in that case had engaged in a widespread

fraudulent scheme that had harmed numerous investors. Id. at

504. The Tenth Circuit explained that “[i]n a scheme like this

one, where substantial sums of money are involved, the

appointment of a receiver to . . . distribute the money is both

necessary and beneficial to accomplish restitution.” Id. at 506.

It reasoned that the “usual practice of directing a probation

officer to accomplish restitution is desirable where there are

few claimants and where the amount of money is not great.”

Id. But where “the number of claimants is large and a pro rata

distribution of a large fund is necessary,” the court concluded

that “a person with more specialized training is required.” Id.

Like the receivership in Herzfeld, the “functions to be

performed” in distributing restitution to the victim classes in

the case before us “are typically those of a” claims

administrator. Id. at 506. The Presentence Investigation Report

explained that restitution funds would be distributed to the

victim classes by the claims administrators, “given their

familiarity and expertise in making distributions.” PSR ¶ 54.

The District Court’s restitution order went only so far as listing

the amounts the Defendants owed to the victim classes.

Determining the amount of restitution to which each class

member is entitled to receive the entirety of their pro rata share

of the settlement fund, and then distributing those funds,

should be within the province of claims administrators. Indeed,

47

as one claims administrator testified at trial: when a fraudulent

claim is discovered, the claims administrator must

“recalculate” the amount distributed to class members to

“provide losses . . . to the original claimants who were

wronged.” App. 661. To achieve the MVRA’s purpose of

making victims whole, the District Court correctly relied upon

claims administrators to perform their core function—

distributing settlement funds to class members on a pro rata

basis.

Given both the facts and complexity of this case, as well

as the procedural posture of the numerous class actions, it was

not up to the District Court to fashion a restitution order and

also assume the function of a settlement administrator.

Finally, we reject Cammarata’s assertion that the

District Court, instead of relying on claims administrators to

distribute restitution funds, should have foregone restitution

under 18 U.S.C. § 3663A(c)(3). That provision provides that

mandatory restitution “shall not apply” where: (1) “the number

of identifiable victims is so large as to make restitution

impracticable; or” (2) “determining complex issues of fact

related to the cause or amount of the victim’s losses would

complicate or prolong the sentencing process to a degree that

the need to provide restitution to any victim is outweighed by

the burden on the sentencing process.” Id. § 3663A(c)(3)(A)–

(B).

Whether to forego restitution under § 3663A(c)(3) is

within “the exercise of” the District Court’s “sound

discretion[.]” United States v. Zangari, 677 F.3d 86, 93 (2d Cir.

2012). And “[d]eference to the district court’s consideration of

48

the issue is . . . typically warranted if ‘the record indicates that

the district court, although aware of the difficulties involved in

ordering restitution[,] . . . considered restitution an essential

part of [the defendant’s] sentence.” United States v. Gushlak,

728 F.3d 184, 193 (2d Cir. 2013) (quoting United States v.

Catoggio, 326 F.3d 323, 328 (2d Cir. 2003)).

Here, the District Court invoked § 3663A(c)(3) and

properly explained that under that provision, it must “weigh

. . . the burden [of] awarding restitution” against the victims’

“interest in receiving restitution.” App. 2147; see Gushlak, 728

F.3d at 192. The Court acknowledged potential difficulties in

distributing restitution, but as to the $31,275,832.92 in

restitution it ultimately ordered,33 the Court reasoned that such

difficulties did not render distribution in that amount infeasible

or unduly burdensome. And as just explained, the District

Court did not err in relying on claims administrators to

distribute that restitution. Moreover, the record shows that the

Court regarded restitution as an essential component of

Cammarata’s sentence. See Catoggio, 326 F.3d at 328; App.

2146 (“[L]et me put on the record the need to provide

33

As we explain next, the District Court abused its discretion

by awarding restitution in this amount, as it did not fully

compensate the victims’ losses. But because the Government

did not cross-appeal, that abuse of discretion cannot justify

vacatur and remand for recalculation. So with the restitution

award effectively capped at the $31 million figure, we consider

whether the District Court abused its discretion by not

foregoing restitution in that amount, i.e., the amount it actually

ordered.

49

restitution.”). Because this determination “requires a detailed

understanding of and sensitivity to the facts of each case[,]”

Gushlack, 728 F.3d at 193, we defer to the Court’s analysis and

conclude that it did not abuse its discretion by not foregoing

restitution under § 3663A(c)(3), cf. United States v. Malone,

747 F.3d 481, 487 (7th Cir. 2014) (perceiving no abuse of

discretion where “although [the district court] did not expressly

explain [its] balancing of the relevant complexity exception

factors, [it] clearly considered those factors and exercised [its]

discretion not to apply the exception in this case”).

3. Although the District Court Abused Its

Discretion by Failing to Award Full

Restitution to Each Victim Class, We Will

Not Disturb Its Restitution Order

Having rejected Cammarata’s arguments with respect to

the MVRA victims and the District Court’s approach to

distributing restitution, we turn to the amount of restitution

ordered, i.e., the Court’s decision to order only $31 million in

restitution after finding a more than $40 million loss.34 In doing

34

In a now vacated opinion, we observed that although

Cammarata’s argument was less than clear to us, he seemed to

be pointing to the $9 million reduction from loss found to

restitution ordered as a reason the District Court ran afoul of

the MVRA. See Opening Br. at 45 (highlighting the

“adjustment” and contending that “[t]he [restitution] award

thus lacked any credible evidentiary basis and bears no rational

relationship to its articulated rationale”) (internal quotation

marks omitted). We agreed, vacated the restitution order, and

remanded with instructions to the District Court to either

50

so, the Court ran afoul of the MVRA. Nevertheless, because

the Government did not cross-appeal, and in fact requested

restitution in that underinclusive amount, we will affirm the

District Court’s restitution order.

The MVRA contemplates that ordering restitution is an

all-or-nothing approach. A district court must “order restitution

to each victim in the full amount of each victim’s losses[.]” 18

U.S.C. § 3664(f)(1)(A) (emphasis added). “Thus, there is no

restitution range under . . . § 3664(f)(1)(A) that starts at zero

and ends at the full amount of each victim’s losses; rather, the

single restitution amount triggered by the conviction under the

MVRA . . . is the full amount of loss.” United States v. Leahy,

438 F.3d 328, 337–38 (3d Cir. 2006) (internal quotation marks

omitted); see also id. at 337 (“[W]hen the court determines the

amount of loss, it is merely giving definite shape to the

restitution penalty born out of the conviction.”).

Here, the District Court ordered restitution to only 115

of the 397 classes victimized by the Defendants’ fraudulent

forego restitution entirely under 18 U.S.C. § 3663A(c)(3) or

adjust the restitution award to fully compensate the victims’

losses. Cammarata petitioned for panel rehearing. He clarified

that he had not challenged the $9 million reduction as a basis

for reversing the restitution order as underinclusive. He also

raised, for the first time, the Supreme Court’s decision in

Greenlaw v. United States, 554 U.S. 237 (2008). We granted

panel rehearing on this basis, and we address Greenlaw’s

import below.

51

scheme.35 And the amount awarded to those 115 classes fell

well below the over-$40 million loss suffered by all the victim

classes. By ordering less-than-full restitution, the District

Court abused its discretion. See United States v. Alalade, 204

F.3d 536, 540–41 (4th Cir. 2000) (holding that the MVRA does

not vest district courts with discretion to reduce the amount of

restitution below the full amount of each victim’s losses).

We previously concluded that this abuse of discretion

required us to vacate the restitution order and remand for the

Court to reconsider its restitution award consistent with the

requirements of the MVRA. Now, with the benefit of briefing

at the panel rehearing stage, we conclude that the Supreme

Court’s decision in Greenlaw v. United States, 554 U.S. 237

(2008), precludes such a remedy in this case.

Greenlaw provides that under the “cross-appeal rule,”

an “appellate court may not alter a judgment to benefit a

nonappealing party.” Id. at 244. In that case, the defendant

appealed his sentence, claiming it was excessive, and the

government did not cross appeal. Id. at 242. The Eighth

Circuit, after rejecting the defendant’s arguments, vacated the

35

The list of 115 settlement funds was provided by the

Government and incorporated into the District Court’s

restitution order. The Government apparently determined “for

each fund a threshold amount of recovery below which it

would not be feasible to make further distribution.” App. 2148.

The list of funds in the restitution order excluded the settlement

funds from which the Defendants fraudulently obtained

amounts less than the Government’s unidentified threshold.

52

defendant’s sentence and remanded for the district court to

increase the sentence by 15 years to accord with the applicable

statutory mandatory minimum. Id. at 242–43. The Supreme

Court reversed. It held that “absent a Government appeal or

cross-appeal, the sentence [the defendant] received should not

have been increased.” Id. at 240. That same principle controls

here, and without a cross-appeal from the Government, it

prevents us from remanding to the District Court for further

proceedings that might enlarge Cammarata’s restitution

obligation.

Greenlaw dealt with an increase to a defendant’s term

of imprisonment, not as here, a restitution award under the

MVRA. But we have little trouble concluding that Greenlaw

applies in this context. After all, MVRA restitution is “a form

of criminal penalty” that is “imposed as an integral and

necessary part of sentencing[.]” United States v. Edwards, 162

F.3d 87, 91 (3d Cir. 1998). Greenlaw’s mandate that “the

sentence [a defendant] received should not” be increased

without a government cross-appeal, therefore, necessarily

encompasses restitution under the MVRA. Greenlaw, 554 U.S.

at 240.

Accordingly, and although the District Court abused its

discretion by failing to fully compensate the victims of

Cammarata’s offenses, the Government’s failure to cross-

appeal requires that we affirm the District Court’s restitution

order. See United States v. Greenlaw, 538 F.3d 830, 831 (8th

Cir. 2008) (affirming the defendant’s sentence on remand); In

re Amy Unknown, 701 F.3d 749, 774 (5th Cir. 2012) (en banc),

vacated and remanded sub nom. Paroline v. United States, 572

U.S. 434 (2014), and cert. granted, judgment vacated sub nom.

53

Wright v. United States, 572 U.S. 1083 (2014) (affirming a

similarly underinclusive restitution award under Greenlaw in

the absence of a government cross-appeal).

E. Forfeiture

Finally, Cammarata claims the forfeiture of his vacation

home (the “Poconos property”) violated Federal Rule of

Criminal Procedure 32.2. Whether forfeiture of the Poconos

property complied with Rule 32.2 is a question of law over

which we exercise plenary review. See United States v. 6109

Grubb Rd., 886 F.2d 618, 621 (3d Cir. 1989).

The superseding indictment included a forfeiture

allegation pursuant to 28 U.S.C. § 2461(c)36 and 18 U.S.C. §

981(a)(1)(C),37 directing the Defendants to forfeit “any

property, real or personal, that constitutes or is derived from

36

Section 2461(c) provides that if a defendant is convicted of

an offense for which criminal forfeiture is authorized, the

district court “shall order the forfeiture of the property as part

of the sentence in the criminal case pursuant to the Federal

Rules of Criminal Procedure[.]” 28 U.S.C. § 2461(c). “The

federal rule referenced in § 2461(c) is Rule 32.2[.]” United

States v. Lo, 839 F.3d 777, 790 (9th Cir. 2016).

37

Section 981(a)(1)(C) provides that “[a]ny property, real or

personal, which constitutes or is derived from proceeds

traceable to a violation of” certain offenses, including mail and

wire fraud, “is subject to forfeiture to the United States[.]” 18

U.S.C. § 981(a)(1)(C) (incorporating 18 U.S.C. §§ 1956(c)(7)

and 1961(1)).

54

proceeds traceable to the commission” of the charged wire

fraud offenses, “including, but not limited to the sum of

$40,000,000[.]” App. 116. The forfeiture allegation also stated

that the Government intended to “seek forfeiture of any other

property of the [D]efendants up to the value of the property

subject to forfeiture” pursuant to 21 U.S.C. § 853(p). Id.

At the charge conference on the final day of trial, the

District Court asked the Government whether the jury needed

to consider any forfeiture issues, inquiring: “it’s not a notice of

forfeiture as to specific property, right?” App. 1802. In posing

that query, the District Court complied with Rule

32.2(b)(5)(A), which requires a court to “determine before the

jury begins deliberating whether either party requests that the

jury be retained to determine the forfeitability of specific

property if it returns a guilty verdict.” Fed. R. Crim. P.

32.2(b)(5)(A). Cammarata essentially concedes that the Court

complied with the Rule. Because the Government advised that

it was seeking a “money judgment only[,]” neither party

requested that the jury address forfeiture. App. 1802.

Months after trial and a week before Cammarata’s

sentencing was to occur, the Government filed a motion for

forfeiture, seeking both a money judgment and forfeiture of the

Poconos property. The Government averred that the Poconos

property was traceable to fraudulent proceeds and thus subject

to forfeiture under § 981(a)(1)(C). To that end, it attached a

declaration executed by a government investigator which

traced Cammarata’s purchase of the Poconos property to three

payments Alpha Plus had fraudulently received from class

action settlement funds.

55

At sentencing, Cammarata objected to forfeiture of the

Poconos property, arguing that the Government failed to

provide him with sufficient notice. Such failure, he claimed,

deprived him of his right to have a jury determine the

property’s forfeitability. Rather than ruling on Cammarata’s

objections, the District Court determined that the Government

had proved by a preponderance of the evidence that the

Poconos property was traceable to fraudulent proceeds. And by

an order issued on June 6, 2023, the Court directed Cammarata

to forfeit both $16,493,939.73, the amount he personally

gained through the fraudulent scheme, and the Poconos

property itself.

Cammarata claims the District Court erred by ordering

the Poconos property’s forfeiture. He re-asserts his notice

argument and contends that the Government waived its ability

to seek the property’s forfeiture when it represented at trial that

it would seek only a money judgment. And he argues that he

was deprived of the jury trial right afforded to him by Rule

32.2(b)(5)(A).

We reject Cammarata’s notice and waiver arguments.

We conclude, however, that ordering forfeiture of the Poconos

property as traceable to fraudulent proceeds without affording

Cammarata a right to the jury trial afforded by Rule

32.2(b)(5)(A) was error subject to harmless error review.

While reversal is not warranted under that standard, remand is.

On remand, the Government should move to amend the

forfeiture order to reflect that the Poconos property is

forfeitable as “other property” under 21 U.S.C. § 853(p), not

as property derived from criminal proceeds under 18 U.S.C. §

981(a)(1)(C).

56

1. The Government Provided Adequate

Notice

The general notice provided by the Government in the

superseding indictment was sufficient under 28 U.S.C. §

2461(c) and Rule 32.2(a). Section 2461(c) states only that “the

Government may include notice of forfeiture in the indictment

. . . pursuant to the Federal Rules of Criminal Procedure.” And

Rule 32.2(a) requires the Government to provide notice in an

indictment that it “will seek the forfeiture of property as part of

any sentence[.]” Fed. R. Crim. P. 32.2(a); Lo, 839 F.3d at 790.

Such notice “need not identify” the specific property or the

amount of money subject to forfeiture. Fed. R. Crim. P.

32.2(a).

The superseding indictment made plain the

Government’s intention to seek the forfeiture of “any property,

real or personal,” as part of Cammarata’s sentence. App. 116.

Neither Rule 32.2(a) nor § 2461(c) required more. See United

States v. Lacerda, 958 F.3d 196, 217 (3d Cir. 2020) (holding

that nearly identical language in an indictment was sufficient

under Rule 32.2).

2. The Government Did Not Waive Its Right

to Seek Forfeiture of the Poconos Property

Cammarata further argues that the Government waived

its right to seek forfeiture of the Poconos property when it

represented during the charge conference that it was seeking

only a money judgment. He claims the District Court

committed reversible error when it nonetheless disregarded his

objection at sentencing and ordered the property’s forfeiture.

The basic flaw in Cammarata’s argument is that he did not

57

object on the ground that the Government had waived its right

to seek forfeiture of specific property. App. 2071–73, 2089.

Accordingly, we review Cammarata’s waiver argument

for plain error. See United States v. Watson, 482 F.3d 269, 274

(3d Cir. 2007). We again recite that the plain error doctrine

requires that “an appellant . . . show (1) a legal error (2) that is

plain and (3) that has affected his substantial rights.” Dorsey,

105 F.4th at 528 (citing Olano, 507 U.S. at 732). Only if these

requirements are met, may we exercise our discretion to correct

the error, and then only if allowing the error to stand would

“seriously affect[] the fairness, integrity or public reputation of

judicial proceedings.” Olano, 507 U.S. at 732 (internal

quotation marks and citations omitted).

Cammarata fails to cite a single case supporting his

waiver argument. Though “lack of precedent alone” does not

categorically “prevent us from finding plain error[,]” we will

do so only if “absolutely clear legal norm[s]” compel that

conclusion. United States v. Jabateh, 974 F.3d 281, 299 (3d

Cir. 2020) (internal quotation marks and citations omitted).

Cammarata cannot show that any error here meets such a

demanding test.

Notably, the Government claims that it was not aware,

even by the time trial concluded, that the Poconos property was

forfeitable as traceable to fraudulent proceeds. While the

Government suggests that its “forfeiture submissions should

have clarified that its tracing had only occurred post-trial[,]”

Response Br. at 60 n.8, that fact is apparent in the declaration

underpinning the Government’s forfeiture motion. The

declaration, executed months after trial, explained that the

58

investigator-declarant concluded that the Poconos property

was traceable to fraudulent proceeds only after reviewing trial

testimony and exhibits.

Waiver requires the “‘intentional relinquishment or

abandonment of a known right.’” Hamer v. Neighborhood

Hous. Servs., 583 U.S. 17, 20 n.1 (2017) (quoting Olano, 507

U.S. at 733). We fail to see, then, how the Government could

have waived any right to seek forfeiture of property the

forfeitability of which it was unaware when it represented to

the District Court that it would seek only a money judgment.

See Magouirk v. Warden, 237 F.3d 549, 553 (5th Cir. 2001)

(agreeing in a habeas proceeding that state prosecution did not

waive its ability to later advance an argument it “did not know

of” at the time of trial).

Moreover, forfeiture of property traceable to criminal

proceeds is mandatory upon conviction, so long as the

Government provides sufficient notice in the indictment. See

18 U.S.C. § 981(a)(1)(C); 28 U.S.C. § 2461(c); United States

v. Hernandez, 803 F.3d 1341, 1343 (11th Cir. 2015)

(explaining that because forfeiture was authorized under 18

U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c), and “the

government included notice of the forfeiture in [the

defendant’s] indictment, the district court was required by §

2461(c) to order forfeiture as part of his sentence”).

As explained, the Government provided sufficient

notice here. To conclude that it later waived its ability to seek

the Poconos property’s forfeiture during the charge conference

would be contrary to the mandatory nature of criminal

forfeiture and the facts of this case.

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3. Deprivation of the Jury Right Afforded by

Rule 32.2(b)(5)(A) Constituted Procedural

Error That Merits Remand

Finally, Cammarata claims his inability to submit the

issue of the Poconos property’s forfeitability to the jury

constituted a fundamental violation of Rule 32.2(b)(5)(A). In

his view, this error requires us to reverse the District Court’s

forfeiture order as to the Poconos property.

Rule 32.2(b)(5)(A) is plainly directed at district courts,

not litigants. It provides that “the court must determine”

whether either party requests that the jury be retained to

determine the forfeitability of specific property. Fed. R. Crim.

P. 32.2(b)(5)(A). As Cammarata concedes, the District Court

heeded the Rule’s mandate when it inquired of the Government

at the charge conference whether it was seeking forfeiture of

specific property. So the District Court did not violate Rule

32.2(b)(5)(A). See United States v. Fisher, 943 F.3d 809, 814

(7th Cir. 2019) (explaining that Rule 32.2(b)(5)(A) “is violated

when a judge does not determine if a party wants the jury to

decide whether certain property is forfeitable”). Nor can we

ascribe any intentional error to the Government when it

provided sufficient notice in the superseding indictment. Rule

32.2(b)(5)(A) does not govern the Government’s conduct. And

even if it did, the record indicates that it was not aware until

after the jury had rendered its verdict that it had a basis to seek

forfeiture of the Poconos property.

That said, we cannot ignore that Cammarata was

deprived of the jury right afforded to him by Rule

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32.2(b)(5)(A). That deprivation of process constituted

procedural error.

As both parties recognize, that procedural error is

subject to harmless error review on appeal.38 See Fed. R. Crim.

P. 52(a). And it is the Government’s burden to demonstrate that

the error was harmless. United States v. Titchell, 261 F.3d 348,

354 (3d Cir. 2001). Because a violation of Rule 32.2(b)(5)(A)

is not of constitutional dimension,39 reversal is “not warranted

38

The Supreme Court’s recent decision in McIntosh v. United

States, 601 U.S. 330 (2024), bolsters this conclusion. There,

the Court held that Rule 32.2(b)(2)(B)—mandating the entry

of a preliminary order of forfeiture prior to sentencing—is a

“time-related directive that, if missed, does not deprive the

judge of her power to order forfeiture against the defendant.”

Id. at 342. McIntosh’s reasoning compels the same conclusion

here with respect to Rule 32.2(b)(5)(A). See id. at 341–44;

United States v. Williams, 720 F.3d 674, 700–01 (8th Cir.

2013) (holding that Rule 32.2(b)(5)(A) is “merely a time-

related directive deadline” that is “legally enforceable but does

not deprive a judge . . . of the power to take the action to which

the deadline applies if the deadline is missed”) (internal

quotation marks and citation omitted). Still, failure to abide by

a time-related directive is “subject to harmless-error principles

on appellate review[.]” McIntosh, 601 U.S. at 338.

39

Cammarata’s contention that a deprivation of Rule

32.2(b)(5)(A)’s jury right is “structural error” requiring

automatic reversal lacks merit. As he appears to concede,

Supreme Court precedent forecloses his argument. See Libretti

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if it is ‘highly probable that the error did not contribute to the

judgment.’” United States v. Browne, 834 F.3d 403, 416 (3d

Cir. 2016) (quoting United States v. Brown, 765 F.3d 278, 295

(3d Cir. 2014)).

The Government’s harmlessness argument is that even

if the jury had found that the Poconos property was not

forfeitable, Cammarata would nonetheless have had to forfeit

it as substitute property under 21 U.S.C. § 853(p). That

provision allows the Government to seek forfeiture of

“property untainted by the crime[,]” i.e. substitute property, so

long as it can prove one of five conditions listed in § 853(p)(1).

Honeycutt v. United States, 581 U.S. 443, 451 (2017). These

conditions include when, “as a result of any act or omission of

the defendant”, forfeitable property has been “transferred or

sold to, or deposited with, a third party”; “placed beyond the

jurisdiction of the court”; or “commingled with other property

which cannot be divided without difficulty.” 21 U.S.C. §

853(p)(1)(B), (C), (E).

We are mindful that the superseding indictment put

Cammarata on notice of the Government’s intention to seek

forfeiture of substitute property under § 853(p). In the

declaration supporting the Government’s forfeiture motion, its

v. United States, 516 U.S. 29, 49 (1995) (“[T]he right to a jury

verdict on forfeitability does not fall within the Sixth

Amendment’s constitutional protection.”); Opening Br. at 49

& n.16 (acknowledging that “the ‘structural error’ rubric does

not apply to a jury right conferred by statute rather than by the

Constitution itself” and “[r]ecognizing that this Cou[r]t is

bound by the precedent set in Libretti”).

62

investigator concluded that “much of the” nearly $16.5 million

in fraudulent proceeds Cammarata obtained had been

transferred to a third party, used to pay for real property outside

the United States, and/or commingled with other property.

App. 330. In its forfeiture order, the District Court concluded

that “one or more conditions in 21 U.S.C. § 853(p) have been

met” and authorized the Government to seek forfeiture of

substitute property. App. 16–17. And under Rule 32.2(e), upon

the Government’s motion, a district court “may at any time

enter an order of forfeiture or amend an existing order of

forfeiture to include” substitute property without the

involvement of a jury. Fed. R. Crim. P. 32.2(e)(1), (3).

We acknowledge the practicality of the Government’s

harmlessness argument. Insofar as Cammarata would have

forfeited the Poconos property as substitute property in any

event, it is highly probable that the procedural error did not

contribute to the judgment. So reversal is not warranted. See

Browne, 834 F.3d at 416. But we decline the Government’s

invitation to affirm, without amendment to the forfeiture order,

simply because Cammarata would have forfeited the Poconos

property under a process distinct from the one it pursued before

the District Court.

As we explained in United States v. Voigt, where “all

that is at issue is the process by which the government may

seize property in satisfaction of the” forfeiture amount to which

it is legally entitled, the solution “is to give effect to the

substitute asset provision.” 89 F.3d 1050, 1088 (3d Cir. 1996).

Accordingly, we will vacate the District Court’s forfeiture

order to the extent it reaches the Poconos property. And we will

remand for the limited purpose of allowing the Government to

63

move to amend the forfeiture order under Rule 32.2(e) to

reflect that the Poconos property is forfeitable as a substitute

asset. See id. (remanding for a similar amendment of a

forfeiture order where the district court erroneously concluded

that specific property was forfeitable as traceable to criminal

proceeds).

III. CONCLUSION

In sum, we will affirm Cammarata’s conspiracy, wire

fraud, and money laundering convictions, as well as the

District Court’s restitution order. We will vacate the forfeiture

order in part and remand for further proceedings consistent

with this opinion.

64