Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-25-2007

USA v. Vitillo
Precedential or Non-Precedential: Precedential

Docket No. 05-4330




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                                            PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                   Nos. 05-4330/4331/4332


              UNITED STATES OF AMERICA

                                v.

      JOHN VITILLO, VITILLO CORPORATION and
            VITILLO ENGINEERING, INC.

                                         Appellants.




       On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                 (D.C. No. 03-cr-00555-1)
          District Judge: Hon. R. Barclay Surrick


                  Argued December 11, 2006

         Before: SMITH and ROTH, Circuit Judges,
                 *IRENAS, District Judge

                (Opinion filed : June 25, 2007)




        *Honorable Joseph E. Irenas, United States District Judge
for the District of New Jersey, sitting by designation.
Henry E. Hockeimer, Jr., Esquire (ARGUED)
Ballard, Spahr, Andrews & Ingersoll
1735 Market Street, 51 st Floor
Philadelphia, PA 19103

                    Counsel for Appellants

Rebecca Y. Starr, Esquire
Hangley, Aronchick, Segal & Pudlin
One Logan Square, 27 th Floor
Philadelphia, PA 19103

                    Counsel for Appellants


Peter D. Hardy, Esquire (ARGUED)
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

                    Counsel for Appellee

Patrick L. Meehan, Esquire
Office of the United States Attorney
Robert A. Zauzmer, Esquire
Office of the United States Attorney
Robert E. Goldman, Esquire
Office of the United States Attorney
504 West Hamilton Street, Suite 3701
Allentown, PA 17901

                    Counsel for Appellee




                             2
                          OPINION


ROTH, Circuit Judge:

       In this white collar criminal case, we address the scope
of 18 U.S.C. § 666, which prohibits theft from programs,
receiving federal funds, by agents of the organizations which
administer those programs. Specifically, we consider whether
an independent contractor with managerial responsibilities may
be an “agent” under § 666.

         John Vitillo, Vitillo Corporation, and Vitillo Engineering,
Inc., were charged with several counts of theft, in violation of §
666(a)(1)(A), and conspiracy. A federal jury convicted each
defendant on all counts. Defendants filed a F ED. R. C RIM. P.
33(a) motion for a new trial based on alleged prosecutorial
misconduct. The District Court denied the motion on April 29,
2005. Through new counsel, and approximately six months
after trial, defendants filed a Rule 12(b)(3)(B) motion to dismiss
the indictment for failure to state an offense. The District Court
denied this motion on July 19, 2005. On September 12, 2005,
the District Court sentenced John Vitillo to imprisonment and
the corporate defendants to probation, and ordered all
defendants to pay $317,760 in restitution. Defendants appeal
the restitution order, as well as the District Court’s April 29 and
July 19 orders.

        Because we find that independent contractors such as
John Vitillo and his corporations, Vitillo Corporation and Vitillo
Engineering, Inc., are not excluded from the § 666(d)(1)
definition of “agent” and because the indictment sufficiently
states a federal offense, we will affirm the District Court’s order
denying defendants’ motion to dismiss the indictment. Because
we find no prejudice with regard to prosecutorial misconduct, as
the evidence of guilt is overwhelming, we will affirm the
District Court’s order denying defendants’ motion for a new
trial. Finally, because we find the restitution figure sufficiently

                                 3
grounded in the evidence, we will affirm the judgment of
sentence.

I. BACKGROUND

       At the relevant times, 1997-2000, the Reading Regional
Airport (the Airport or RRA), located in Berks County,
Pennsylvania, was a small airport that provided services to
private and commuter airplanes. The Airport was owned by the
City of Reading and managed by the Reading Regional Airport
Authority (the Authority or RRAA), a local government agency
that received significant funding from the Federal Aviation
Administration. One of the Authority’s federally-funded
projects was its Terminal Expansion Project.          Of the
approximately $3 million the Authority received from the
federal government between 1997 and 2000, approximately $1.5
million was set aside for this project.

        Because the RRA was a small, regional airport, the
Authority did not have a primary engineer on staff. In 1997, the
Authority appointed John Vitillo’s company, the Vitillo Group,
Inc. (later reorganized into the Vitillo Corp. and a subsidiary,
Vitillo Engineering, Inc.), of which he was president, to serve as
the Authority’s “primary engineer and principal engineering
consultant.” Vitillo and his companies, which billed for their
work at an agreed-upon hourly rate, worked for the Authority
from 1997 through 2000. During this time period, Vitillo
managed several projects at the Airport, the largest of which
related to managing the Terminal Expansion Project, which took
over two years to complete.

       On June 19, 2002, Assistant United States Attorneys
(AUSAs) Robert Goldman and Kathleen Rice accompanied
several FBI agents as they executed a search warrant at the
office of Vitillo Corporation. The government suspected that
John Vitillo and his companies were engaged in a massive
overbilling scheme to defraud the Authority. During this search,
the FBI agents seized various time cards and billing records.
Additionally, with the consent of Vitillo’s attorney, whose
presence had been requested, Special Agent Thomas Neeson

                                4
interrogated John Vitillo about his companies’ billing practices.
The interview was not recorded but was conducted in the
presence of the AUSAs, who later served as trial counsel.

        A federal grand jury in the Eastern District of
Pennsylvania returned an indictment1 against Vitillo and his
companies, charging each with three counts of theft from an
organization receiving federal funds, in violation of 18 U.S.C.
§ 666(a)(1)(A), and one count of conspiracy to violate § 666, in
violation of 18 U.S.C. § 371. Defendants pleaded not guilty to
all counts. At trial, the government presented substantial
evidence that Vitillo and his companies – which had been in dire
financial condition prior to contracting with the Authority –
systematically created fraudulent invoices for work that was
never actually performed at the Airport, thus defrauding the
Authority of hundreds of thousands of dollars. Agent Neeson
testified against the Vitillo defendants, as did Vitillo’s own
employees, who described their involvement in the fraudulent
billing scheme; corporate records – parallel sets of phony and
real time cards seized from Vitillo Corporation’s offices –
corroborated their testimony.

       During opening statements and witness examination,
AUSA Goldman made the jury aware that he and his co-counsel,
AUSA Rice, had been present when Agent Neeson interrogated
John Vitillo. Defense counsel objected and unsuccessfully
moved for a mistrial, alleging that the prosecutors were
improperly vouching for Agent Neeson’s credibility. Also,
during cross-examination of Vitillo, AUSA Goldman repeatedly
asked Vitillo to comment on the veracity of Agent Neeson, but
no objections were lodged.

        The jury returned a verdict, finding Vitillo and his
companies guilty on all four counts. The Vitillo defendants filed
post-trial motions for a new trial and to dismiss the indictment,
but both motions were denied. They never filed a motion


      1
       The Second Superceding Indictment is the relevant
indictment in this case.

                               5
challenging the sufficiency of the evidence. The District Court
sentenced John Vitillo to 36 months of imprisonment and two
years of supervised release. The corporate defendants were
sentenced to 5 years of probation. Defendants were also ordered
to pay $317,760 in restitution, jointly and severally. The District
Court based this figure on evidence of loss presented during trial
and in the presentence investigation report.

II. DISCUSSION

      The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. Appeal was timely. We have appellate jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

       A. Sufficiency of the Indictment

        As a preliminary matter, the parties quibble over whether
the Vitillo defendants’ challenge to the indictment is a
“jurisdictional” or “pleading” challenge. Their “Motion to
Dismiss the Indictment for Lack of Jurisdiction” was filed
pursuant to F ED. R. C RIM. P. 12(b)(3)(B), which states that, “at
any time while the case is pending, the court may hear a claim
that the indictment or information fails to invoke the court’s
jurisdiction or to state an offense.” The Vitillo defendants
alleged in the District Court, as they do on appeal, that the
indictment fails to set forth facts establishing that they are an
“agent” of a local government agency receiving federal funds as
that term is defined in 18 U.S.C. § 666(d)(1). They do not assert
that we lack jurisdiction to consider the appeal. They cannot, as
“defects in an indictment do not deprive a court of its power to
adjudicate a case.” United States v. Cotton, 

, 630
(2002); see also Lamar v. United States, 

, 64 (1916)
(rejecting claim that “the court had no jurisdiction because the
indictment does not charge a crime against the United States”).
Rather, they argue that the indictment fails to plead sufficient
facts to establish a violation of a federal offense. We conclude
that Vitillo’s challenge to the indictment is more properly
characterized as a “pleading” challenge than one of
“jurisdiction.” Cf. United States v. Panarella, 

,
682 n.1 (3d Cir. 2002) (“Indeed, we are unsure whether use of

                                6
the term “jurisdictional” to refer to challenges to the sufficiency
of an indictment is anything more than simply a label used to
announce the conclusion that a particular defense survives a
guilty plea.”). Plenary review applies. United States v. Whited,

, 262 (3d Cir. 2002).

        Another threshold issue is whether we should consider
the factual record developed at trial in assessing the sufficiency
of the indictment. This issue arises because of the unusual
procedural posture of this case – the Vitillo defendants
challenged the sufficiency of the indictment long after the jury
returned its guilty verdict. Because the sufficiency of the
evidence is not an issue on appeal (the Vitillo defendants waived
their right to challenge the jury’s verdict by failing to do so
within the 7-day time limit under Rules 29, 33 or 34), the
government argues that our review should be confined to the
four corners of the indictment. In contrast, the Vitillo
defendants argue that it “defies logic to deny the court an
opportunity to consider the complete record before it,” but they
cite no authority for this proposition. Specifically, they argue
that we should consider the Engineering Consultant Agreement
executed by the Vitillo Group, Inc., and the RRAA because the
indictment specifically refers to that contract.

         It is well-established that “[a]n indictment returned by a
legally constituted and unbiased grand jury, like an information
drawn by the prosecutor, if valid on its face, is enough to call for
trial of the charge on the merits. The Fifth Amendment requires
nothing more.” Costello v. United States, 

, 363
(1956) (footnote omitted and emphasis added). Indeed, we have
previously held that, “for purposes of Rule 12(b)(2) [later
superceded by Rule 12(b)(3)(B)], a charging document fails to
state an offense if the specific facts alleged in the charging
document fall beyond the scope of the relevant criminal statute,
as a matter of statutory interpretation.” 

(emphasis added); see also United States v. Taylor, 

, 681 (7th Cir. 1998) (“The validity of an indictment is
not affected by the form of the evidence considered, and an
otherwise valid indictment cannot be challenged on the ground
that the grand jury based it on inadequate or incompetent

                                 7
evidence.”). We conclude that the Vitillo defendants’ Rule
12(b)(3)(B) challenge to the sufficiency of the indictment should
be decided based on the facts alleged within the four corners of
the indictment, not the evidence outside of it.2

       “An indictment is generally deemed sufficient if it: [sic]
(1) contains the elements of the offense intended to be charged,
(2) sufficiently apprises the defendant of what he must be
prepared to meet, and (3) allows the defendant to show with
accuracy to what extent he may plead a former acquittal or
conviction in the event of a subsequent prosecution.” United
States v. Rankin, 

, 112 (3d Cir. 1989) (quotation
marks and citations omitted). An indictment must allege more
than just the essential elements of the offense. See 

(“We are thus constrained to reject the
government's contention that an indictment or information
charges an offense, for purposes of Rule 12(b)(2) [later
superceded by Rule 12(b)(3)(B)], as long as it recites in general
terms the essential elements of the offense, even if the specific
facts alleged in the charging instrument fail to satisfy those
elements.”). An indictment fails to state an offense if the
specific facts alleged in it “fall beyond the scope of the relevant
criminal statute, as a matter of statutory interpretation.” 

Interpretation of § 666


       When interpreting a federal criminal statute, “we must
pay close heed to language, legislative history, and purpose in
order strictly to determine the scope” of the forbidden conduct.
Dowling v. United States, 

, 213 (1985). Any


   2
    If we were to consider facts extrinsic to the indictment, we
would effectively permit the Vitillo defendants to circumvent
the 7-day time limit for challenging the sufficiency of the
evidence, see, e.g. F ED. R. C RIM. P. 29(c)(1) (motion for
judgment of acquittal after jury verdict or discharge), by way of
his Rule 12(b)(3)(B) motion, which has no time limit for filing.


                                8
ambiguity in the language of a criminal statute should be
resolved in favor of the defendant. United States v. Bass, 

, 347 (1971). However, Ҥ 666 is extremely broad in
scope,” United States v. Sotomayor-Vazquez, 

, 8 (1st
Cir. 2001) (citing Salinas v. United States, 

, 55-61
(1997)), as that statute seeks to ensure the integrity of vast
quantities of federal funds previously unprotected due to a
“serious gap in the law,” United States v. Cicco, 

,
445 (3d Cir. 1991) (quoting the legislative history of § 666).
See also United States v. Rooney, 

, 851 (2d Cir.
1994) (citing the legislative history of § 666 and concluding that
“Congress intended the terms of the statute to be ‘construed
broadly’”).
       Section 666 prohibits, inter alia, “an agent” of a local
government agency that receives more than $10,000 in federal
funds from stealing from that agency property valued at more
than $5,000.3 The term “agent” is defined as “a person


   3
       Section 666 states in full:

       § 666. Theft or bribery concerning programs
receiving Federal funds

          (a) Whoever, if the circumstance described in subsection
          (b) of this section exists–

                 (1) being an agent of an organization, or of a
                 State, local, or Indian tribal government, or any
                 agency thereof–

                         (A) embezzles, steals, obtains by fraud, or
                         otherwise without authority knowingly
                         converts to the use of any person other
                         than the rightful owner or intentionally
                         misapplies, property that–

                                (i) is valued at $5,000 or more, and

                                                      (continued...)

                                     9
3
    (...continued)
                            (ii) is owned by, or is under the
                            care, custody, or control of such
                            organization, government, or
                            agency; or

                     (B) corruptly solicits or demands for the
                     benefit of any person, or accepts or agrees
                     to accept, anything of value from any
                     person, intending to be influenced or
                     rewarded in connection with any business,
                     transaction, or series of transactions of
                     such organization, government, or agency
                     involving any thing of value of $5,000 or
                     more; or

              (2) corruptly gives, offers, or agrees to give
              anything of value to any person, with intent to
              influence or reward an agent of an organization or
              of a State, local or Indian tribal government, or
              any agency thereof, in connection with any
              business, transaction, or series of transactions of
              such organization, government, or agency
              involving anything of value of $5,000 or more;

       shall be fined under this title, imprisoned not more than
       10 years, or both.

       (b) The circumstance referred to in subsection (a) of this
       section is that the organization, government, or agency
       receives, in any one year period, benefits in excess of
       $10,000 under a Federal program involving a grant,
       contract, subsidy, loan, guarantee, insurance, or other
       form of Federal assistance.

       (c) This section does not apply to bona fide salary,
       wages, fees, or other compensation paid, or expenses
                                              (continued...)

                               10
authorized to act on behalf of another person or a government
and, in the case of an organization or government, includes a


   3
       (...continued)
           paid or reimbursed, in the usual course of business.

          (d) As used in this section--

                 (1) the term “agent” means a person authorized to
                 act on behalf of another person or a government
                 and, in the case of an organization or government,
                 includes a servant or employee, and a partner,
                 director, officer, manager, and representative;

                 (2) the term “government agency” means a
                 subdivision of the executive, legislative, judicial,
                 or other branch of government, including a
                 d epartm ent, ind epen den t establishm ent,
                 commission, administration, authority, board, and
                 bureau, and a corporation or other legal entity
                 established, and subject to control, by a
                 government or governments for the execution of
                 a governmental or intergovernmental program;

                 (3) the term “local” means of or pertaining to a
                 political subdivision within a State;

                 (4) the term “State” includes a State of the United
                 States, the District of Columbia, and any
                 commonwealth, territory, or possession of the
                 United States; and

                 (5) the term “in any one-year period” means a
                 continuous period that commences no earlier than
                 twelve months before the commission of the
                 offense or that ends no later than twelve months
                 after the commission of the offense. Such period
                 may include time both before and after the
                 commission of the offense.

                                  11
servant or employee, and a partner, director, officer, manager,
and representative.” 18 U.S.C. § 666(d)(1).


       The Vitillo defendants argue that, as a matter of statutory
interpretation, the term “agent” does not apply to them as they
are described in the indictment. The indictment alleges that
Vitillo Group, Inc., “was appointed by the Authority as the
primary engineer and principal engineer consultant for the
Authority and the RRA” and that, by written agreement, Vitillo
Engineering, Inc., was made the “construction manager of the
RRA Expansion Project with compensation to [be] paid to
defendant Vitillo Engineering, Inc. based upon the number of
hours worked . . .” (emphasis added).4 The Vitillo defendants


   4
       Count One of the indictment states in relevant part:

                 11. In or about October 1997, Vitillo Group, Inc.
          was appointed by the Authority as the primary engineer
          and principal engineer consultant for the Authority and
          the RRA. In or about April 1998, defendant VITILLO
          ENGINEERING, INC. assumed Vitillo Group, Inc.’s
          duties with the Authority and the RRA. Defendant
          VITILLO ENGINEERING, INC. submitted its bills for
          services to the Authority through defendant VITILLO
          CORPORATION.

                12. On or about December 10, 1998, a contract
          was signed between the Authority and defendant JOHN
         VITILLO making defendant VITILLO ENGINEERING,
         INC. the construction manager of the RRA Expansion
         Project with compensation to paid [sic] to defendant
         VITILLO ENGINEERING, INC. based upon the number
         of hours worked by its employees.

                13. Between in or about February 1998 and in or
         about January 2001, in Berks County, in the Eastern
         District of Pennsylvania and elsewhere, defendants . . .
         and various employees known to the grand jury, acting as
                                                   (continued...)

                                 12
    argue that these specific allegations are insufficient to place
    them within the ambit of § 666(d)(1)’s definition of “agent.” 5
    Specifically, the Vitillo defendants point out that the indictment
    fails to establish that they had any control over any federal
    funds, because Vitillo Engineering, Inc., through Vitillo
    Corporation, had to bill the Authority for services on an hourly
    basis.
            Because § 666(d)(1) does not define an “agent” as
    someone who necessarily controls federal funds, we conclude
    that the Vitillo argument fails. See United States v. Phillips, 

, 422 n.3 (5th Cir. 2000) (Garza, J., dissenting) (“[T]he
    expansive statutory definition of ‘agent’ . . . recognizes that an
    individual can affect agency funds despite a lack of power to
    authorize their direct disbursement.”). According to the
    statutory definition, an “agent” is merely a person with authority
    to act on behalf of the organization receiving federal funds, and
    can include, inter alia, an “employee,” “officer,” “manager” or


           4
               (...continued)
                  agents of the Reading Regional Airport, an organization
                  which received benefits of over $10,000 in any one year
                  period under a federal program involving a grant,
                  contract, subsidy, loan, guarantee, insurance or other form
                  of federal assistance, conspired and agreed together and
                  with other persons known and unknown to the grand jury
                  to embezzle, steal, and obtain by fraud property valued at
                  $5,000 or more, which money was owned by and under
                  the care, custody and control of the Reading Regional
                  Airport Authority, in violation of Title 18, United States
                  Code, Section 666(a)(1)(A).

           Using similar charging language as in Count I and
    incorporating the factual allegations therein, Counts II, III and IV
    charged the same type of fraud under the same statute for
    different time periods. All three defendants were charged with
    all four counts. The jury found all defendants guilty on all
    counts.
       5
1          Vitillo does not challenge any other aspect of the indictment.

                                          13
“representative” of that entity. 18 U.S.C. § 666(d)(1). There is
nothing in the statute to suggest that we should consult extrinsic
sources, such as the Restatement of Agency, in attempting to
further define “agent.” To do so might result in the improper
importation of extraneous language into the statutory text.

n.2 (Garza, J., dissenting) (“We must
interpret § 666(d) as written, and cannot use hornbook agency
principles to restrict the broad definition of ‘agent’ that
Congress provided.”); see also Comprehensive Crime Control
Act of 1983, S. Rep. No. 98-225, S.1762, at 370 (1983)
(“agency . . . [is] defined in [§ 666(d)(1)] and require[s] no
further explication”).


        The Vitillo defendants propose a second dubious
interpretation. They argue that, because the term “independent
contractor” – which would apply to the Vitillo defendants
according to the facts alleged in the indictment – is not a term
listed in § 666(d)(1), the Vitillo defendants are by definition
excluded from the statute’s coverage. We reject this argument
as well because the § 666(d)(1) list that “includes” the terms
“servant,” “employee,” “partner, director, officer, manager, and
representative” is, by its own plain language, not exhaustive.


       We therefore conclude that, as a matter of statutory
interpretation, § 666(d)(1) does not by definition exclude an
independent contractor who acts on behalf of a § 666(b) entity
as a manager or representative of that entity.


         2. Construction of the Factual Allegations in the
             Indictment


        Having concluded that an independent contractor may be
covered by § 666, we consider whether the indictment alleges
facts sufficient to demonstrate that the Vitillo defendants acted
on behalf of the Authority or Airport as managers or
representatives of those entities. In doing so, we construe the
factual allegations in the indictment liberally. That is because

                               14
“‘indictments which are tardily challenged are liberally
constructed in favor of validity.’” United States v. Wander, 

, 1259 (3d Cir. 1979) (citing United States v. Pheaster,

, 361 (9th Cir. 1976)); see also United States v.
Watkins, 

, 478 n.2 (7th Cir. 1983). Although the
failure of an indictment to state an offense is “a fundamental
defect which can be raised at any time,” judicial interests
“require that such challenges be made at the earliest possible
moment.” 

. One interest is in
avoiding the needless waste of limited judicial resources. Id.;
see also United States v. Panarella, 

, 686 (3d Cir.
2002) (criticizing the rule permitting a defendant who enters an
unconditional guilty plea to challenge on appeal the charging
instrument’s failure to allege facts sufficient to state an offense).
Another important interest is in discouraging tactical delays by
defendants seeking “a convenient ground of appeal” in the event
of a guilty verdict. 

; see also

(citing 4 Wayne R. LaFave et al.,
Criminal Procedure § 19.1(d), at 741 n.50 (2d ed. 1999) (“The
facts of various cases indicate that the practice of sandbagging,
by deliberately postponing the objection, continues as to these
defects, particularly the failure to charge an offense.”)). We will
uphold the indictment against Vitillo “unless it is so defective
that it does not, by any reasonable construction, charge an
offense” under § 666. United States v. Childress, 

,
720 (D.C. Cir. 1995) (quotation marks and citations omitted).


       Applying this principle along with the requirement of
F ED. R. C RIM. P. 7(c)(1) that an indictment be “a plain, concise,
and definite written statement of the essential facts constituting
the offense charged,” we address whether the indictment alleges
facts sufficient to establish that the Vitillo defendants were
“agents” under § 666. The indictment alleges that John Vitillo
was president of Vitillo Group, Inc.; that Vitillo Group, Inc.,
became Vitillo Engineering, Inc.; that John Vitillo created
Vitillo Corporation and Vitillo Engineering, Inc., became a
subsidiary of Vitillo Corporation; that Vitillo Engineering, Inc.,
was the primary engineer and principal engineer consultant for
the Authority and the RRA; that Vitillo Engineering, Inc.,


                                 15
submitted its bills to the Authority through Vitillo Corporation;
and that John Vitillo signed the contract with the Authority on
behalf of Vitillo Engineering, Inc., making Vitillo Engineering,
Inc., the construction manager of the RRA Expansion Project.


       Section 666(d)(1) defines an “agent” as, inter alia, a
“manager” of the § 666(b) entity receiving federal funds.
Therefore, in light of the statutory interpretation we have
conducted above, we conclude that the indictment alleges facts
sufficient to establish that the Vitillo defendants were “agents”
under § 666. The indictment thus properly states the federal
offense for which the Vitillo defendants were convicted.


       B. Prosecutorial Misconduct

        John Vitillo alleges that the federal prosecutors
improperly sought to undermine his credibility throughout the
trial by repeatedly (1) emphasizing their presence at the FBI raid
and interview and thus vouching for the reliability of Agent
Neeson’s testimony as to Vitillo’s inculpatory statements, which
Vitillo denied ever making; and (2) explicitly asking Vitillo
whether Agent Neeson was “lying” while on the witness stand.
Vitillo objected to the alleged vouching during trial and in his
motion for a new trial, but he never objected to any of the “was
Agent Neeson lying?” questions, during or after trial.6

        The “decision to grant or deny a motion for a new trial
lies within the discretion of the district court,” United States v.
Cimera, 

, 458 (3d Cir. 2006), and the District
Court’s ruling on a challenge to prosecutorial statements
objected to at trial is reviewed for abuse of discretion. United
States v. Brennan, 

, 182 (3d Cir. 2003). We will


  6
   Vitillo points to six spots in the trial record where he alleges
defense counsel objected to the “was Agent Neeson lying?”
questions. It is clear, however, that at these moments Vitillo
was objecting to the prosecutor’s purported “vouching,” not the
“was Agent Neeson lying?” questions.

                                16
review the vouching issue for abuse of discretion and harmless
error. However, because Vitillo did not object to the “was
Agent Neeson lying?” questions, we will review that issue for
plain error. United States v. Boone, 

, 174 n.6 (3d
Cir. 2002). To establish plain error, Vitillo must prove that (1)
there was error, i.e., a deviation from a legal rule, (2) the error
is clear under the law at the time of appellate review, and (3) the
error affected substantial rights, i.e., affected the outcome of the
proceedings. United States v. Harris, 

, 511 (3d Cir.
2006); see also Johnson v. United States, 

, 467-468
(1997); United States v. Olano, 

, 732-735 (1993).
If all three elements are established, we may exercise our
discretion and award relief, 

, but only
if the defendant is “actually innocent” or the error “‘seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” 

(citation omitted).


          1. “Was the Witness Lying?”


       An important issue at trial was whether John Vitillo
confessed to Agent Neeson during an interview that took place
on the day the FBI searched the Vitillo Corporation offices.
Vitillo testified at trial that no such confession was made,
whereas Agent Neeson testified to the contrary. The jury had to
make a credibility determination. Vitillo argues that the
government improperly bolstered the testimony of Agent
Neeson by explicitly asking Vitillo whether Agent Neeson was
a “liar” or “lying,” which placed Vitillo in the unfavorable
position of having to accuse a government agent of committing
perjury.


        At the time of trial, several courts of appeal had held this
type of questioning improper because it tended to infringe on the
jury’s exclusive role as arbiter of witness credibility. See, e.g.
United States v. Thomas, 

, 846 (7th Cir. 2006);
United States v. Williams, 

, 438 (5th Cir. 2003);
United States v. Sanchez, 

, 1219-1220 (9th Cir.
1999); United States v. Sullivan, 

, 749 (1st Cir.

                                17
1996); United States v. Boyd, 

, 871 (D.C. Cir. 1995);
United States v. Richter, 

, 208 (2d Cir. 1987). We
have recently joined this chorus. United States v. Harris, 

, 511 (3d Cir. 2006) (“Today, we follow our sister
circuits and hold that asking one witness whether another is
lying is inappropriate.”). It is clear that, under current law, it
was improper for the prosecutor to ask Vitillo whether Agent
Neeson was lying.

        However, under the plain error standard, a new trial is not
warranted here. The prosecutor’s questions, while improper,
were not prejudicial in light of the overwhelming evidence of
Vitillo’s guilt presented at trial. See, e.g. 

(under plain error standard, such questions improper but not
prejudicial in light of, inter alia, strong evidence of defendant’s
guilt). Brian Boyer, Vitillo’s program manager for the Terminal
Expansion Project, testified in detail about how he assisted
Vitillo in submitting “false,” “inflated” bills to the Airport, in
accordance with Vitillo’s instructions. Boyer testified that, in
February 1999, Vitillo directed him and James Purcell, Vitillo
Corporation’s accounting assistant, to bill the Airport a
minimum of $40,000 per month, without regard to the number
of hours actually worked. James Purcell testified and confirmed
Boyer’s testimony. Both men explained how this overbilling
scheme continued for several months. Purcell testified that the
bills were inflated between 50 to 100 percent.

       Boyer testified that, when the Authority notified Vitillo
that his companies’ work for the Airport was going to be
audited, Vitillo instructed him to compare the time cards
recording the hours actually worked with the invoices submitted
for payment. Heather Brightbill and Becky Huyett, employees
in the Vitillo Corporation accounting department, also testified
that Vitillo instructed them to conduct similar comparisons.
Purcell, Brightbill and Huyett each testified that Vitillo ordered
them to create false time cards to reflect the hours invoiced
(rather than the hours actually worked) and to remove the real
time cards from the job file and replace them with the phonies.
Brightbill testified that this process took several months.
Purcell, Brightbill and Huyett testified that the fake time cards

                                18
were to be submitted to the Airport for auditing purposes.
Purcell testified that Vitillo attempted to hide the original
invoices, spreadsheets, and job status reports for the Airport
contract. The FBI recovered sets of fake and real time cards
from Vitillo’s offices, and hundreds of these cards were
submitted into evidence at trial.


         This is strong evidence of guilt. Furthermore, this
evidence stands apart from the disputed confession that gave
rise to the prosecutorial misconduct. Although the prosecutor’s
“was Agent Neeson lying” questions were improper and may
have improperly bolstered Agent Neeson’s testimony to Vitillo’s
detriment, there is no doubt that the government’s case was
amply supported by other strong evidence of guilt. Had the
government’s case been based primarily on Vitillo’s purported
confession, the prosecutor’s misconduct may have resulted in
prejudice warranting a new trial. Such was the case in United
States v. Combs, 

, 572-574 (9th Cir. 2004), where
the case essentially boiled down to whether the defendant had
confessed to a DEA agent. The agent testified that the
defendant had confessed, the defendant testified to the contrary,
and the prosecution (and the district judge) forced the defendant
to answer the question “was the agent lying?” Vitillo’s case is
much different. There is strong evidence of his guilt unaffected
by the prosecutor’s misconduct. (Plus, the District Court did not
place its imprimatur on the improper questioning.) Unlike in
Combs, there is no prejudice here.7 Because the error did not



   7
     Another principal case relied on by Vitillo, United States v.
Richter, 

(2d Cir. 1987), is distinguishable for
similar reasons. In Richter, after the defendant gave testimony
at trial contradicting the testimony of two government agents,
the prosecutor asked the defendant whether the agents were
“lying.” 

Because these questions were improper, and
the agents’ testimony was the only evidence corroborating the
testimony of the government’s key witness (an unreliable
alcoholic), the Second Circuit found plain and prejudicial error
                                                   (continued...)

                               19
affect the outcome of the proceedings, we need not address
whether it seriously affected the fairness, integrity or public
reputation of judicial proceedings.


          2. Vouching


        Vitillo claims that the government committed further
prosecutorial misconduct during his cross-examination (and at
other times during the trial) by “subtly, yet effectively, vouching
for Agent Neeson’s testimony.” Specifically, Vitillo argues that
the government assured the jury that Agent Neeson was telling
the truth about Vitillo’s confession by repeatedly emphasizing
the fact that AUSAs Goldman and Rice were present during the
interview when the confession allegedly took place. By
informing the jury of their presence, the prosecutors implied that
they knew what Vitillo actually said to Agent Neeson, which in
turn assured the jury that Agent Neeson was testifying truthfully.
If Agent Neeson was lying, Vitillo’s argument goes, the
prosecutors – as officers of the court and representatives of the
Department of Justice – would have known this and thus would
not have introduced Agent Neeson’s testimony and relied on it
to the extent that they did. As noted above, defense counsel
unsuccessfully objected to the alleged vouching at trial and by
post-trial motion; we review the District Court’s decision for
abuse of discretion and harmless error.


       For vouching to occur, two criteria must be met: (1) “the
prosecutor must assure the jury that the testimony of a
Government witness is credible”, and (2) “this assurance must
be based on either the prosecutor’s personal knowledge, or other
information not contained in the record.” United States v.
Harris, 

, 512 (3d Cir. 2006) (quotation marks and



   7
    (...continued)
and remanded for a new trial. 

the government’s
case against Vitillo was strong and mostly unaffected by the
prosecutor’s misconduct.

                                20
alterations omitted) (citing United States v. Walker, 

, 187 (3d Cir. 1998)). The prosecutor’s assurance may be
based on either an “explicit or implicit reference” to information
outside the record. 

. Vouching is not
permitted because it can “jeopardize the defendant’s right to be
tried solely on the basis of the evidence presented to the jury” as
the prosecutor’s imprimatur “may induce the jury to trust the
Government’s judgment rather than its own view of the
evidence.” 

(citing United States v. Young, 

, 18 (1985)).


        During the government’s opening statement, AUSA
Goldman described the FBI raid and Agent Neeson’s subsequent
interrogation of Vitillo and informed the jury that AUSA
“Kathleen Rice and myself are there.” Later, on direct and
cross-examination, the prosecutors made similar passing
reference to their presence at the FBI raid and interview and also
repeatedly used the pronoun “we” (meaning the prosecutors and
the FBI agents) when asking questions about what Vitillo
admitted to the government that day. Although it is not clear
from the record, government counsel stated at oral argument
before this Court that AUSAs Goldman and Rice actually waited
in a car as the FBI agents searched Vitillo’s offices; only later,
after the search was over, did the AUSAs enter the offices to
observe Agent Neeson’s interview with Vitillo. Government
counsel informed us that it was common practice for prosecutors
who had observed a defendant’s interview to later serve as trial
counsel should the government bring the case that far. Counsel
also informed us that it was not uncommon for prosecutors to
accompany agents into the field and later serve as trial counsel,
provided that the prosecutors waited in the car while the search
warrants were being executed.


       We are concerned by the existence of this practice. It
may give rise to the temptation to vouch. If a prosecutor will be
tempted at trial to refer to his or her presence at the interview,
the prosecutor would do better not to attend the interview.
Moreover, a prosecutor who wants to testify as a witness should
withdraw as trial counsel for the case. We are also troubled by

                                21
the prosecutors’ comments at trial. The prosecutors should not
have made the jury aware that they were present during the
execution of the search warrant or during Vitillo’s interrogation.


        That said, Vitillo’s case is different from most of our
other vouching cases in that the challenged comments took place
during opening statements and witness examination rather than
during closing argument. See, e.g. 

(alleged vouching occurred during closing argument); United
States v. Brennan, 

, 183-184 (3d Cir. 2003) (same);
United States v. Saada, 

, 225 (3d Cir. 2000)
(same); United States v. Dispoz-O-Plastics, Inc., 

,
286 (3d Cir. 1999) (same); 

(same);
United States v. Molina-Guevara, 

, 703-704 (3d Cir.
1996) (same); United States v. Bethancourt, 

, 1079
(3d Cir. 1995) (same); United States v. Zehrbach, 

,
1264 (3d Cir. 1995) (same); but see United States v. Milan, 

, 289-290 (3d Cir. 2002) (no vouching where
challenged comments made during witness examination); United
States v. Helbling, 

, 240-241 (3d Cir. 2000) (no
prejudice where alleged vouching occurred during opening
statements and closing argument). The government seizes upon
this difference to argue that “assurances” constituting vouching
under Walker must be clearly presented to the jury during
closing argument. Vitillo argues vouching can occur at any time
during the trial. Although our cases suggest that vouching most
often occurs during summation, we agree with Vitillo that
vouching may occur at any point during trial, provided the two
elements set forth in Walker (and recently reiterated in Harris)
are satisfied.


       We next consider whether vouching actually occurred in
this case. On one hand, it was certainly ill-advised for the
prosecutors to mention their presence at the FBI raid and
interview. We hope the United States Attorney for the Eastern
District of Pennsylvania will instruct his assistants accordingly.
On the other hand, the comments challenged here are more
subtle than the comments giving rise to reversible error in our
previous vouching cases. For example, in Dispoz-O-Plastics,

                               22
we found error and prejudice where the prosecutor assured the
jury during closing argument that two key government witnesses
testified truthfully with regard to two alleged price-fixing
agreements entered into by 

. The
prosecutor stated: “They [the government witnesses] told the
Government they fixed prices twice and I can guarantee you the
Justice Department doesn’t give two for one deals; they had to
plead guilty to both price fixing conspiracies and their sentence
reflected that.” 

(emphasis added). Similarly, in
Molina-Guevara, we found error and prejudice where, during
closing argument, the prosecutor “told the jury that it was
‘insulting’ and ‘ridiculous’ to think that the United States would
put on a witness who would lie and assured the jury that ‘Agent
Lugo did not lie to 

(alterations omitted).
         Nevertheless, we conclude that, in the instant case, the
prosecutors’ comments and questions referring to their presence
at Vitillo’s interview constituted vouching. The prosecutors
assured the jury that Agent Neeson’s testimony was credible
based on their personal observations of Agent Neeson’s
interrogation of Vitillo. For example, AUSA Goldman asked
Vitillo this question on cross examination: “Then, after we
talked, Agent Neeson talked to you concerning the inflating of
the bills, he then asked you about changing the time cards and
do you remember admitting to Agent Neeson at that time you
changed the time cards because we had to cover the inflated
hours, do you remember that, Mr. Vitillo?” The clear
implication of this question and other questions and statements
like it is that Agent Neeson’s testimony was credible because the
prosecutors attended the interview and knew for a fact that
Agent Neeson was testifying truthfully.8


    8
       One could actually restate AUSA Goldman’s actions in
these terms: “I am the prosecutor. I was present during the
interview where Vitillo allegedly admitted to Agent Neeson that
he fraudulently over-billed the RRAA. Vitillo states that such
a confession never occurred. I nonetheless brought this case to
trial, and I put Agent Neeson up on the stand. I am not allowed
to call a witness when I know that witness will lie on the stand,
                                                   (continued...)

                               23
        Ultimately, however, a new trial is not required here in
light of the strong evidence of Vitillo’s guilt. The prosecutors
vouched by implicitly assuring the jury that Agent Neeson
truthfully testified that Vitillo confessed to him. Vouching
“aimed at the witness’s credibility and . . . based on extra-record
evidence is deemed non-constitutional error.” Dispoz-O-

. Non-constitutional error is harmless
where “‘it is highly probable that the error did not contribute to
the judgment’” and “the court has a ‘sure conviction that the
error did not prejudice’ the defendant.” 

47 F.3d at 1265 (en banc) (substituting harmless error analysis
for per se rule announced in United States v. DiLoreto, 

(3d Cir. 1989))). Prejudice is determined by examining “the
scope of the comments and their relationship to the proceeding,
the extent of any curative instructions, and the strength of the
evidence against defendants.” 

above, the government’s strongest evidence
came not from Agent Neeson’s recounting of the purported
confession but rather from the Vitillo Corp. employees who
described the overbilling scheme in detail and the hundreds of
bogus time cards supporting their testimony. Furthermore, the
district judge instructed the jury that “[y]ou are the sole and
exclusive judges of the facts” and “[y]ou determine the
credibility of the witnesses.” The district judge also instructed
the jury that the “statements[] and arguments of counsel are not
evidence in this case.” It is therefore highly probable that the
prosecutors’ passing reference to their presence at the FBI
interview did not prejudice Vitillo. Compare 

(finding prosecutor’s vouching to be inappropriate
but not prejudicial where evidence of defendant’s guilt was
overwhelming and the district judge gave effective curative


   8
    (...continued)
and I have an ethical duty to inform the court if one of my
witnesses has lied on the stand. I have no intention to inform
the court that Agent Neeson lied. I submit to you the testimony
of Agent Neeson, but I am not permitted to assure you, the jury,
about the credibility of any of the Government’s witnesses.”

                                24
instructions) and 

(same) with Dispoz-
O-

-287 (finding prosecutor’s vouching
prejudicial where it tainted crucial testimony, the government’s
case was weak, and the jury instructions failed to neutralize the
harm done by the government). We are convinced that any
potential error with regard to vouching is harmless.9
       C. Restitution


        Finally, Vitillo challenges the $317,760 restitution figure
set by the District Court.10 Vitillo argues that the additional
$117,760 added to the jury’s general loss finding of “more than
$200,000” was not based on evidence presented during trial or
at the sentencing hearing. We review Vitillo’s challenge to the
appropriateness of the restitution figure for abuse of discretion.
United States v. Quillen, 

, 221 (3d Cir. 2003).


        “[R]estitution must be limited to an amount pegged to the
actual losses suffered by the victims of the defendant’s criminal
conduct, and based upon losses directly resulting from such
conduct.” 

(quotation and emphasis omitted). The
burden of demonstrating the amount of loss is on the
government, and any dispute regarding the proper amount is to
be resolved by a preponderance of the evidence. 18 U.S.C. §


       9
        Vitillo also makes a half-hearted argument that the
government’s colorful remarks during cross-examination and
summation (e.g., calling Vitillo a “thief,” a “bully boss,” and a
boy who got his hand “stuck in the cookie jar”) constituted
prosecutorial misconduct warranting a new trial. In light of the
overwhelming evidence of Vitillo’s guilt, as discussed above,
we find these potential errors to be harmless. See 

, n.11 (no prejudice where prosecutor inappropriately
characterized defendant as, inter alia, a “looter” and a “thief”
with “ugly values”).
  10
     Post-Booker, a sentencing court may determine the amount
of restitution owed by a defendant. See United States v. Leahy,

, 338 (3d Cir. 2006) (en banc).

                                25
3664(e). The District Court’s factual finding regarding the
amount of loss is reviewed for clear error. United States v.
Akande, 

, 138 (3d Cir. 1999). To establish “clear
error,” Vitillo must show that the $317,760 restitution figure is
“completely devoid of a credible evidentiary basis or bears no
rational relationship to the supporting data.” United States v.
Haut, 

, 218 (3d Cir. 1997).


        Vitillo has failed to meet this heavy burden. At trial, the
government presented extensive evidence of the hours
overbilled by Vitillo and the corresponding monetary loss
sustained by the Authority. Agent Neeson testified to his
examination of the phony time cards and inflated bills, which
showed overbilling for 4,262.75 hours and a corresponding
dollar loss of $317,760.58. The presentence investigation report
set forth the overbilling loss at $317,760. Government counsel
recapitulated this evidence of loss at the sentencing hearing.
Although Vitillo presented a witness at sentencing who
calculated the loss to be between $80,000 and $119,000, the
District Court’s determination of the amount of restitution to be
$317,760 is well supported by a preponderance of the evidence.


III. CONCLUSION.


       For the foregoing reasons, we will AFFIRM the
judgment of conviction and the judgment of sentence of the
District Court.




                                26