USA v. Elfgeeh, No. 06-0638 (2d Cir. 2008)

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06-0638-cr USA v. Elfgeeh 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 - - - - - - 4 August Term, 2006 5 (Argued: April 26, 2007 Decided: February 14, 2008 6 Errata Filed: March 25, 2008) 7 Docket Nos. 06-0638-cr(L), 06-0744-cr(con) 8 _________________________________________________________ 9 UNITED STATES OF AMERICA, 10 Appellee, 11 12 -v.AREF ELFGEEH and ABAD ELFGEEH, 13 Defendants-Appellants. 14 _________________________________________________________ 15 Before: KEARSE and SACK, Circuit Judges, and MILLS, District 16 Judge*. 17 Appeals from judgments of the United States District Court 18 for the Eastern District of New York, Sterling Johnson, Jr., Judge, 19 convicting defendants of operating and conspiring to operate an 20 unlicensed 21 1960(a), and convicting one defendant of structuring financial 22 transactions, see 31 U.S.C. § 5324(a)(3). money-transmitting business, see 18 U.S.C. §§ 371, 23 Affirmed in part, and vacated and remanded in part. 24 Judge Sack concurs in part and dissents in part in a * Honorable Richard Mills, of the United States District Court for the Central District of Illinois, sitting by designation. 1 separate opinion. 2 3 4 5 6 7 8 9 10 11 12 13 ARTHUR S. FRIEDMAN, New York, New York, for Defendant-Appellant Aref Elfgeeh. 14 15 JAMES M. BRANDEN, New York, New York, for Defendant-Appellant Abad Elfgeeh. 16 PAMELA K. CHEN and JEFFREY H. KNOX, Assistant United States Attorneys, Brooklyn, New York (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Barbara D. Underwood, Counsel to the United States Attorney, David C. James, Assistant United States Attorney, Brooklyn, New York, on the brief), for Appellee. KEARSE, Circuit Judge: 17 Defendants Aref Elfgeeh ("Aref") and Abad Elfgeeh ("Abad") 18 (collectively the "Elfgeehs" or "defendants") appeal from judgments 19 entered in the United States District Court for the Eastern District 20 of New York following a jury trial before Sterling Johnson, Jr., 21 Judge, convicting them of operating an unlicensed money-transmitting 22 business, in violation of 18 U.S.C. § 1960(a), and conspiring to do 23 so, in violation of 18 U.S.C. § 371; and convicting Abad of 24 structuring 25 § 26 imprisonment, to be followed by a three-year term of supervised 27 release, and was ordered to pay a $500,000 fine and to forfeit 28 $22,435,467. 29 imprisonment, to be followed by a three-year term of supervised 30 release, and was ordered to pay a $1,250,000 fine and to forfeit 31 $22,435,467. financial 5324(a)(3). Aref Abad transactions, was was sentenced sentenced in violation principally principally of to to 31 51 188 U.S.C. months' months' On appeal, defendants contend principally that they -2- 1 received an unfair trial due to newspaper publicity and trial 2 testimony relating to terrorism and violence, and that the district 3 court improperly instructed the jury on the mens rea element of the 4 money-transmitting statute. 5 statements 6 defendants challenge their sentences, contending, inter alia, that 7 the 8 substantively and on various procedural grounds; and Abad contends 9 that the amount of his fine is unreasonable. were prison Aref also contends that his postarrest improperly terms imposed admitted on at them trial. are In addition, unreasonable, both For the reasons that 10 follow, we affirm the convictions and most aspects of the sentences, 11 but we vacate and remand for reconsideration of the fine imposed on 12 Abad and one of the sentencing enhancements applied to Aref. 13 I. BACKGROUND 14 The present prosecution arose out of the operation by Abad 15 and his nephew Aref of a hawala, or money-transfer operation, at 16 Abad's Carnival French Ice Cream (or "Carnival") shop in Brooklyn, 17 New York. 18 issued for Aref, who was arrested in December of that year. 19 2004, 20 unlicensed money-transmitting business, in violation of 18 U.S.C. 21 § 1960(a), and conspiring to do so, in violation of 18 U.S.C. § 371. 22 As discussed in greater detail in Part II.D. below, § 1960 was 23 amended in October 2001. 24 charged Abad with conspiring to violate, and violating, § 1960 prior 25 to October 2001; counts three and four charged both Abad and Aref the Abad was arrested in January 2003; an arrest warrant was Elfgeehs were indicted on charges of In June operating an Counts one and two of the indictment -3- 1 with conspiring to violate, and violating, the post-October 2001 2 version of that section. 3 a charge (count five) that Abad had engaged in structuring monetary 4 transactions from January 1995 to January 2003, in violation of 31 5 U.S.C. § 5324(a)(3). 6 shall, for the purpose of evading the reporting requirements of 7 section 5313(a) or 5325 or any regulation prescribed under any such 8 section, . . . structure or assist in structuring, or attempt to 9 structure or assist in structuring, any transaction with one or more 10 domestic financial institutions." The pertinent regulation under 31 11 U.S.C. § 5313(a) generally requires financial institutions, other 12 than casinos, to file a report of any "deposit, withdrawal, exchange 13 of currency or other payment or transfer, by, through, or to such 14 financial institution which involves a transaction in currency of 15 more than $10,000." 16 A. 17 18 19 20 21 22 23 24 25 A subsequent superseding indictment added Section 5324(a)(3) provides that "[n]o person 31 C.F.R. § 103.22(b)(1). The Trial 1. The Government's Evidence of Unlicensed Money Transfers and Structuring At trial, Special Agent Brian Murphy of the Federal Bureau of Investigation ("FBI") explained for the jury what a hawala is: A Hawala operates in a similar fashion to a Western Union business. It's a money transfer operation. The word Hawala translated from Arabic into English means transfer. . . . [A] Hawala business is used to send money from one location to another. 26 (Trial Transcript ("Tr.") 223.) 27 described the benefits of using a hawala instead of using an 28 official money-transmitting business such as Western Union: 29 FBI Special Agent Daniel Gill One, it's conducted outside the realm of licensed -4- 1 2 3 4 banking activity. There is no regulatory oversight. Therefore, the transactions are basically conducted without any sort of legal review of how the transactions are conducted[.] 5 . . . . 6 7 8 9 A (Continuing) It also enables the transactions to occur without any review by banking officials that they are conducted in accordance with procedures and laws which govern banking activity. 10 . . . . 11 12 Q Are there any other advantages to the use of a hawala as opposed to licensed money transfer? 13 14 15 A The true originator of the funds and the true beneficiary of the funds are not identifiable in the banking transactions. 16 (Id. at 516-17; see also id. at 501 (one of the advantages of such 17 a system is that it "keeps the beneficiary and the originator of the 18 transactions essentially anonymous in the transaction").) 19 The government's documentary evidence at trial, including 20 several hundred exhibits, described and explained to the jury by 21 Murphy, 22 Carnival French Ice Cream account maintained by Abad at J.P. Morgan 23 Chase Bank ("Chase"), as well as account statements from 12 "feeder" 24 accounts at Chase and other banks. 25 totals of money deposited into the Carnival account in small amounts 26 as transfers from 12 feeder accounts, and large sums of money wired 27 out of the Carnival account to accounts in 25 other countries. 28 Tr. 234-36, 238-39, 242.) For example, in a one-month period during 29 the fall of 2000, more than $245,000 was deposited into the Carnival 30 account and more than $268,000 was wired out. 31 Between 1996 and 2003, the total amount deposited into the Carnival 32 account was $22,190,642.21, and the total amount withdrawn was consisted in large part -5- of account statements from a These statements showed large (See (See id. at 234-36.) 1 $21,995,556.54. 2 3 (See id. at 239.) Murphy described the overall flow of money in this case as follows: 4 5 6 7 8 9 10 [M]oney was deposited into these feeder accounts, these 12 different feeder accounts. After it was deposited, it was transferred to the JP Morgan Chase account and then after it reached the JP Morgan Chase account[ it] was then wired out to one of these 20-plus countries, ultimately making its way back to Yemen. 11 (Tr. 245.) 12 means, including check deposits, cash deposits, and wire transfers. 13 (See id.) 14 15 16 17 18 19 20 21 The money arrived in the feeder accounts by various Then, [m]oney got from the feeder accounts to the Carnival account in generally one of two ways. Most often there were checks written . . . from one of the 12 feeder accounts, pay[able] to the order of Carnival French Ice Cream account and then it is deposited into the Carnival French Ice Cream account. On some occasions the feeder accounts would wire money over to the Carnival French Ice Cream account. 22 (Id. at 247.) 23 from the feeder accounts made out to the Carnival account. 24 at 249.) Murphy testified that there were hundreds of checks (See id. 25 The government also offered as evidence the account- 26 opening documents for the feeder accounts, including another Chase 27 bank account in the name of the Prospect Deli that was opened by 28 Aref and listed the home address and telephone number of Abad. 29 Tr. 258-60; see also id. at 268-69 (same account-opening information 30 used for another feeder account at Astoria Federal Bank).) 31 Prospect Deli was a business a few blocks away from the Carnival 32 French Ice Cream shop; the Prospect Deli was in operation only from 33 1996 to 1998, but activity in the Prospect Deli bank account 34 continued until 2002. (See id. at 262-66.) -6- (See The For example, bank 1 records showed that in 2001 approximately $850,000 was deposited 2 into the Prospect Deli account and about $823,000 was transferred 3 out to the Carnival account. (See id. at 266.) 4 A representative of the New York State Banking Department 5 testified that neither Abad nor Aref, nor any of their various 6 entities including Carnival French Ice Cream, had a New York State 7 license to transmit money. 8 offered evidence that Abad was aware of the licensing requirement. 9 It introduced a letter from the New York State Banking Department 10 dated March 2002, found in Abad's files, stating that a New York 11 State license was required before commencement of money-transmitting 12 activities. 13 license was attached to the letter but was not filled out. 14 at 347.) 15 Abad's attorney that Abad was "told he needed to get a license to 16 remit money and that he had to apply for it and that he never did 17 apply for that." (See Tr. 673-74.) (See id. at 281-83.) The government An application form for such a (See id. In addition, Murphy testified that he had been informed by (Id. at 346.) 18 Murphy testified that after Aref was arrested in December 19 2003 and given Miranda warnings (Miranda v. Arizona, 384 U.S. 436 20 (1966)) 21 involvement in the money-transmitting business. 22 23 24 25 (see Part Q II.A. below), Murphy asked Aref about What did he say? A He stated that he worked for other people in a money transfer or hawala business in the United States. 26 Q Did he say what his responsibilities were? 27 A Yes. 28 Q What? -7- his 1 2 3 4 5 A He had two responsibilities, the first was to open up several bank accounts to further the hawala business and the second responsibility was to make deposits of cash, generally between three and $4,000 into various bank accounts. 6 7 Q Did he say individual's request? 8 A 9 10 he did that at another Yes. Q Did he say whether he received any compensation for his involvement in the hawala? 11 A Yes. 12 Q What? 13 14 15 A He stated he got room and board and a salary or small salary for that, for his work. (Tr. 314.) 16 With respect to the structuring count against Abad, Murphy 17 testified that the bank records obtained by the FBI for the 12 18 feeder accounts showed 3,252 cash deposits; only one of them was a 19 cash 20 requirement for the bank. 21 several 22 deposited into the feeder accounts. 23 explained the significance of the $10,000 threshold: deposit hundred 24 25 26 27 28 29 30 31 for more days, than an $10,000 triggering (See id. at 256.) aggregate of a reporting However, on each of more than $10,000 (See id. at 257.) was Murphy What happens is, when you enter a bank, if you have an amount of cash over 10,000, you are required to give information to the bank and generate--the bank generates what's called a CTR, or Currency Transaction Report. That then is filed with the Internal Revenue Service, and that information is tracked by the government. (Tr. 256.) 32 A former customer of Abad's hawala, Abdul Hizam, testified 33 that Abad helped him purchase a house in Yemen by sending the money 34 to Yemen on his behalf. (See id. at 297-99.) -8- Hizam testified that 1 Abad asked him to write several checks, each for less than $10,000, 2 and to date the checks differently, though he gave Abad all of the 3 checks at once. 4 made out to cash or the Carnival French Ice Cream store, and were 5 deposited into several different feeder accounts. 6 04.) 7 money to Yemen, he paid Abad $2,900, which he understood was 8 compensation for Abad and Abad's contact in Yemen. 9 305.) (See id. at 299-301.) The checks were variously (See id. at 302- Hizam testified that, in exchange for Abad's sending Hizam's (See id. at Another customer, a cousin of Abad's, testified that Abad 10 charged a commission for each money transmittal, $30 to $40 for 11 every thousand dollars sent. 12 The government (See id. at 416, 418.) also presented the testimony of a 13 handwriting expert who gave his opinion that Abad's handwriting was 14 on several documents that related to the Carnival account and the 12 15 feeder accounts. 16 although the name on some of the documents was that of Abad's 17 cousin, Nasser Elfgeeh, the documents had been signed by Abad. (See 18 id. at 563-64; see also id. at 574 (opining that on some checks, 19 Abad signed Nasser Elfgeeh's name); id. at 575-76 (opining that on 20 some 21 Aljahmi); id. at 576 (opining that on some checks, Abad signed the 22 name Mahmood Elfgeeh).) checks and (See Tr. 561-62.) deposit tickets, The expert testified that Abad signed the name Saleh 23 In addition, the expert testified that on several checks 24 written on the Prospect Deli account payable to the Carnival French 25 Ice Cream account and signed in the name of Aref, Aref's name was in 26 the handwriting of Abad, indicating that Abad had signed those 27 checks using his nephew's name. (See id. at 569-70; see also id. at -9- 1 577 (same).) 2 but actually signed by Aref. 3 expert also identified writing on many of the deposit tickets for 4 the Prospect Deli account as the handwriting of Aref. 5 567-69.) 6 2. Other checks appeared to have been filled out by Abad (See id. at 571.) The handwriting (See id. at The Defense Case 7 Abad and Aref testified in their own defense. 8 unlicensed-money-transfer counts, Abad's primary defense was that 9 the hawala was a "service" to the Yemeni community in Brooklyn (Tr. 10 726) and was not intended to make a profit (see id. at 727), and 11 hence Abad did not consider it a "business" within the meaning of 12 § 1960(a). 13 Americans only (see Tr. 727), that he transmitted money only for 14 individuals, not for businesses (see id. at 729), and that he 15 charged individuals for his service only in order to cover the 16 banking fees charged by commercial banks for the transmissions and 17 to cover the costs of delivering the money on the receiving end (see 18 id. at 741; see also id. at 738 ("I wasn't in a business, it was a 19 service.")). 20 As to the Abad testified that the hawala service was for Yemeni- Abad had adverted to this defense in his cross- 21 examinations of Special Agents Murphy and Gill, eliciting that 22 Murphy, 23 advertisements for the hawala (see, e.g., Tr. 332), and eliciting 24 from Gill that the books of the hawala did not show a profit (see 25 id. at 525-26). 26 testimony by the New York State Banking Department representative, in his investigations, had not come across any The government had countered this defense with - 10 - 1 who testified that a money-transmitting business need not take in 2 revenue, and need not be profitable, to trigger the licensing 3 requirement. (See id. at 675.) 4 Abad also testified that he was unaware of the licensing 5 requirement when he began transmitting money for Yemeni community 6 members in 1995, and only learned in 2002 that he might need a 7 license. 8 time he determined that the licensing requirement did not apply to 9 his money-transmitting business because the application appeared to 10 apply to banks and because New York State "wanted $500,000 on 11 deposit." 12 13 (See Tr. 728-29, 734-35.) Abad testified that at that (Id. at 737.) With regard to the structuring count, Abad offered the following testimony: 14 15 16 Q You've heard testimony here there was, I think was described as 12 feeder accounts in various banks throughout the area. 17 18 Would you please explain, did deposit[s] in various bank accounts? 19 A Q make I did. 20 you Why did you do that? 21 22 23 24 25 26 27 28 29 30 A These accounts, most of them or half of them had either my name individually or with the joint account with any other member of the family or partner and for the safety of this money that the people bring, I have to bring different accounts in order to have it safe. Additionally, to save some money because Chase bank charges a lot of money because it's a business account, these savings and checking accounts I put the money in, it's free. They don't charge you anything. 31 (Tr. 730.) 32 divide his money into checks for less than $10,000. 33 746.) Abad also stated that he did not instruct Abdul Hizam to - 11 - (See id. at 1 On cross-examination, the government elicited testimony 2 from Abad that he was aware of numerous other licensing requirements 3 for Carnival French Ice Cream, including requirements for a fire 4 permit, an illuminated sign permit, and a health certificate to sell 5 frozen food. 6 Abad about the fact that he incurred more fees by depositing money 7 in small amounts into several different accounts than he would have 8 had he deposited a larger amount into the Carnival account; Abad 9 acknowledged this but nonetheless maintained that he divided the (See id. at 755-57.) The government also questioned 10 money among the feeder accounts to save money. 11 Abad stated that since all the accounts were his, "I put [the money] 12 in any account I choose. 13 to me." 14 signed various checks and deposit tickets in the names of five or 15 six of his relatives. (Id. at 770.) (See id. at 764-68.) It doesn't matter to me, make a difference Abad admitted on cross-examination that he (See id. at 801-04.) 16 Abad also admitted that after his arrest, he failed to 17 disclose to the magistrate judge that he had access to the Prospect 18 Deli account, and he instructed Aref to withdraw $21,000 from that 19 account and send it to Yemen. 20 examination of Aref revealed that the checks sent to Yemen were 21 backdated to a date prior to Abad's arrest. (See id. at 807-08.) Cross- (See id. at 868-73.) 22 Abad also testified that Aref "ha[d] no role" in the 23 money-transmitting "service" (Tr. 743), and never made deposits for 24 the service (see id. at 747). 25 copies of deposit tickets and checks that he admitted were not in 26 his handwriting, Abad stated that he was "not sure" whether Aref 27 made deposits for the hawala into any feeder accounts. On cross-examination, when shown - 12 - (Id. at 796- 1 800.) 2 Aref testified, through an interpreter, that he did not 3 deposit money or write checks for his uncle's money-transmitting 4 business. 5 tickets and checks that the expert witness had opined were in his 6 handwriting, Aref denied that he had written the checks or made the 7 deposits. 8 3. (See id. at 848.) When presented with numerous deposit (See id. at 888-96.) Mentions of a Terrorism Investigation and Violence 9 Prior to trial, counsel for Abad had expressed concern 10 that Special Agent Murphy would testify that he was assigned to the 11 FBI's counterterrorism task force, and that the indictments of the 12 defendants stemmed from a "terrorism investigation, assigned to a 13 terrorism investigative unit." (Tr. 177.) The government responded 14 that it would not ask Murphy "what unit he's assigned to" and that 15 it planned to "keep that off the table unless [the defendants] open 16 the door." 17 have taken precautions to make sure that's not injected here at 18 all." 19 20 21 22 23 24 25 26 (Id.) The government stated: "We're mindful of that, (Id.) In Abad's opening statement, his attorney told the jury that [e]very bit of this money was earned by hardworking people who paid their taxes on it and gave it to Mr. Elfgeeh in trust, not to keep, to transfer for them. He had no tax obligation to pay for any of this money. Every bit of this money came from a decent source, not criminal activity. 27 (Id. at 200-01.) 28 argued that that statement constituted an "argument . . . that . . . Outside the presence of the jury, the government - 13 - 1 there's no proof the money came from terrorists or terrorism or 2 anything like that; that rather it was immigrants'[ ]money being 3 sent home to family and friends." 4 contended that that statement "open[ed] the door to getting [into 5 evidence] 6 government believes[,] to known terrorist organizations, checks that 7 say for the Jihad from the defendant himself." 8 court, noting that opening statements do not constitute evidence at 9 trial, ruled that this did not "open the door" because only a 10 the fact there was (Id. at 230.) actually money witness can open the door to related testimony. 11 Later that day, during The government transmitted, (Id.) the The district (See id.) cross-examination of Murphy, 12 counsel for Abad asked numerous questions about Murphy's visits to 13 or surveillance of Abad's Carnival French Ice Cream shop, inquired 14 whether Murphy had visited alone or with other agents, and elicited 15 that the FBI had sent a confidential informant ("CI") into Abad's 16 shop. 17 there. 18 19 20 21 22 23 Counsel then asked what Murphy's purpose had been in going Murphy responded: At some point, the first time I went there, I had a cooperating witness or a person that was working on behalf of the government. I wired that person up and the purpose to go there was to have that person gain information about Abad Elfgeeh on another matter. That was the first time. 24 (Tr. 336 (emphasis added).) 25 probe into Murphy's purpose, and received two answers that mentioned 26 the terrorism investigation: Counsel for Abad then continued to 27 28 Q Actually you wanted this person to go in there, do a $100,000 transaction, didn't you? 29 30 31 32 A I wanted that person to go in. At that time I was investigating a case that had to do with terrorism with a person in Yemen by the name of Mohamed-- 14 - 1 2 MR. HANCOCK [counsel for Abad]: mistrial. 3 4 5 THE COURT: No, we'll strike that. You asked him about what the investigation was. This case is not about terrorism, ladies and gentlemen. 6 7 Q Did you ask that person to go there and attempt to have $100,000, in excess[,] wired to him? 8 9 10 A No, I had that person go in there to try to attempt to move money from the United States to Yemen for terrorist causes. 11 12 13 14 Q I move for Was he successful-- MR. FRIEDMAN [counsel for Aref]: a side bar, please? Might I have (Side bar.) 15 16 17 18 19 20 21 22 MR. FRIEDMAN: I most respectfully ask for a mistrial, just for my client, who has been indelibly prejudiced now. I didn't ask any questions. Your Honor gave a ruling with respect to the witness'[s] answer. Then the witness on the very next question, without any prompting stuck it to Abad [sic] Elfgeeh for no reason other than to do it. It was not called for. 23 24 25 26 27 28 29 30 31 32 33 MS. CHEN [counsel for the government]: Quite the opposite. Mr. Hancock is going down a road, eliciting information that will clearly go into the other investigation. As the court is aware, the reason the CI was there [was] because he was investigating the Al Mo[a]yad case. That's why he went there. When Mr. Hancock keeps baiting the agent, the agent will give the response that he did which is entirely responsive, appropriate. Mr. Hancock could stop going down this road unless he wants to open it wide. 34 35 36 THE COURT: I'll deny this application for mistrial. You will proceed on this road at your own risk. 37 38 39 40 41 42 43 MR. HANCOCK: I happened to say he went into that place for two reasons; he needed a license, did he see any other licenses on the wall there to show he complied with other requirements like the health code requirement, sales tax, capitalization. He looked for this opportunity, not responsive to my question. - 15 - 1 MS. CHEN: Entirely responsive. 2 3 4 5 6 7 THE COURT: My ruling is . . . no mistrial and be very careful how you approach this subject. You're asking him questions, he's reading it one way where you have another motive, but you've got to be very careful. He doesn't know what you're talking about. Be careful. 8 9 When this is over, you'll speak to your witness, stay away from that terrorism, please. 10 (Tr. 336-38.) 11 mistrial by counsel for Abad, the court stated that it would 12 "reiterate [to the jury] that this is not a terrorism trial. 13 is a banking violation" trial. 14 the courtroom, the court stated: 15 16 17 18 19 The following morning, on a renewed motion for a (Id. at 384.) This When the jury entered I'm going to advise you this is a case, as I said when I read to you the indictment, it's a case about banking and Hawalas not getting licenses. That's what the allegations are, has nothing to do with terrorism. 20 (Id. at 389.) 21 jurors not to read the newspapers (see Part I.A.4. below). 22 This instruction was combined with a warning to the The subject of violence arose again on the third day of 23 testimony, during the testimony of Abad. 24 Abad stated that the fees he charged to customers covered certain 25 charges the operation incurred: 26 27 28 29 30 31 On direct examination, The bank charges, and the services that they do in the other side where they deliver the money, they have messengers to go to a village, to someone who is in a hospital, to other parts of the city, to different cities. They will have messengers to take it to other parts of the country. 32 (Tr. 741.) 33 testimony that money was sent to individuals in Yemen, some of whom 34 were hospitalized, the government asked Abad, "[H]ave you ever sent 35 money to support violence[?]" Abad answered "Absolutely not" before On cross-examination, in an attempt to counter the - 16 - 1 his attorney objected, an objection that was sustained by the 2 district court. 3 subject again in reference to a list of customers who had given Abad 4 money to send to Yemen: 5 6 7 (Id. at 792.) Q And, in fact isn't it money they gave you to support a blood feud between your tribe and another tribe? 8 MR. HANCOCK: 9 THE COURT: 10 The government approached the A Objection, your Honor. I will allow that. What was the question? 11 12 13 Q Isn't it money that these people on this list sent to Yemen to support a blood feud between your tribe and another tribe? 14 15 16 A We sent--they sent money not to blood, you're talking about, it's to--to have lawyers go to the government and fight a dispute. 17 18 Q I see. It was a legal dispute that you were sending money for? 19 A Sorry? 20 21 Q It was a legal dispute you say you were sending money for? 22 23 A The tribes have problems in the villages and we help the tribe, our side tribe. 24 25 Q This money was going to pay for lawyers, is that what you're saying? 26 27 A It's part for the lawyers and the expenses. 28 29 Q Isn't it in fact true the money went to buy weapons and ammunition for this fight? 30 MR. HANCOCK: 31 THE COURT: 32 A I don't know. 33 Q You don't know? government, for Objection, your Honor. I will allow it, if he knows. - 17 - the 1 2 3 . . . . Q Do you recognize this as another note in Arabic? . . . . 4 Do you recognize that document? 5 A Yes. 6 7 8 9 10 11 12 13 14 15 Q In fact, Mr. Elfgeeh, doesn't it say that-it's a letter to you actually, a note to you from your brother Yahaya, and it says basically, the weapons and ammunition are more than three million, and then it goes on to explain that Abdullah and his family are our guests now. I recommend that you take 5,000 from each of his children and Mahmood's money is with you. I see that you also take from him. As for their father, he's not giving anything, neither now nor later. 16 17 18 Isn't it in fact true that the money that they are referring to is money to buy weapons and ammunition? 19 MR. HANCOCK: 20 THE COURT: Objection. I will allow it. 21 22 23 24 A This is a letter and he said how much money they deposited to secure for the government side, the government take as a bail from each tribe in order to have this thing discussed. 25 26 27 28 Q Mr. Elfgeeh, when your brother sent you this note and you read the weapons and the ammunition is more than three million, did you know what he was talking about? 29 A 30 31 32 Q 33 No. You had no idea that there was this feud going on that involved weapons and ammunition between your tribe and another tribe? A I know what he said, but-- 34 35 36 Q You knew that the money you were sending over was going to be used for that purpose, didn't you, based on this note? 37 38 A When what this note came, I knew it was-when this note came. 39 Q And you sent the money, isn't that right? - 18 - 1 2 A I don't know if I sent the money for this purposes. I don't know that. 3 4 5 6 7 Q Isn't it true that you actually got a number of correspondences from your brother on this particular issue about collecting money for this particular purpose, to fuel the feud between your tribe and another tribe? 8 9 10 11 12 13 14 A There was some money, yes, sent for this. (Tr. 793-96.) On redirect examination of Abad, his attorney elicited further testimony about the tribal feud: Q You were asked a question, there was a tribal dispute in Yemen in which your family was involved or somebody was involved? 15 A Yes. 16 Q Explain that a little bit, please. 17 18 A Tribes are fighting problems all the time. 19 20 21 Q To your knowledge did the United States of America, the United States Government have a position in that dispute? 22 A each other, have No, I don't think so. 23 (Tr. 829-30.) 24 addressed the issue again: 25 26 27 28 29 30 31 32 33 34 35 Finally, on recross-examination, the government Q Mr. Elfgeeh, you were just asked about this feud between your family and another family in Yemen. Do you recall testifying about that? A Yes. Q This is actually your family, right? referred to them as your tribe, right? A You Not just my family, but the whole tribe. Q When you use the word "tribe," you're actually referring to people who come from the same region basically and have some blood connection? A You could say that. - 19 - 1 . . . . 2 3 Q In fact, did your brother fax you various correspondence about this feud that was ongoing? 4 A 5 6 7 Yes. Q In fact did he send you a fax that basically referred to various court cases that involved violence? 8 A 9 10 11 He did. Q Were not there two or three cases that involved grenades and other explosive devices that were part of this big dispute? 12 A 13 14 15 That's what happened in the village, yes. Q Isn't it in fact the money that you sent was supposed to help your family defend this dispute involving grenades and other ammunition? 16 A To help fight the case. 17 18 Q Wasn't it actually used though to buy weapons or other grenades? 19 20 that. 21 22 THE COURT: or no. MR. HANCOCK: 23 A 24 4. There is no proof of I'll allow it. He can answer yes I don't know. (Tr. 833-34.) 25 Objection. Publicity During Trial 26 The jurors had been sworn in on September 12, 2005; on 27 September 13, counsel's opening statements were made, apparently 28 with the press in attendance, and the presentation of testimony was 29 begun. 30 metropolitan area newspapers carried four articles relating to the 31 trial. On the morning of September 14, three New York City The New York Daily News carried an article on page 3 that - 20 - 1 stated in part: 2 3 4 5 6 7 Nowhere in Assistant U.S. Attorney Pamela Chen's opening argument, though, was the word "terrorism" mentioned, even though the arrest of defendant Abad Elfgeeh, 50, was an offshoot of a government crackdown on the financing of terrorist organizations abroad. 8 9 10 11 12 13 Federal Judge Sterling Johnson has barred any mention of Elfgeeh's reputed ties to Yemeni cleric Mohammed Ali Hassan Al-Moayad, who was recently convicted of conspiring to provide material support to Hamas and Al Qaeda and referred to himself as Osama Bin Laden's "personal sheik." 14 15 16 A government witness, FBI agent Brian Murphy, was not allowed to testify he is assigned to a squad that investigates terrorism. 17 18 19 20 Chen argued unsuccessfully yesterday that the jury should see checks seized from Elfgeeh with the words "for the jihad" and "mujahidin" written on them. 21 John Marzulli, "Jury Hears Charges Vs. Yemen Man," New York Daily 22 News, September 14, 2005, at 3 (emphases added). 23 included information about the Carnival French Ice Cream shop, a 24 definition of hawala, and a quote from Abad's counsel. The article also 25 Another article, with an Associated Press byline, appeared 26 on page 15 of Newsday and was entitled "Jury Won't Hear About 27 Alleged Al-Qaida Links." It stated, in pertinent part: 28 29 30 31 32 33 34 35 Prosecutors have said [Abad Elfgeeh's] business was used by a Yemeni cleric convicted earlier this year of a scheme to fund al-Qaida and the Palestinian militant group Hamas. But prosecutors cannot raise the topic of terrorism at Elfgeeh's trial unless the defense does first because they did not have enough evidence to charge Elfgeeh with a terrorism-related crime. 36 37 38 39 40 41 Assistant U.S. Attorney Pamela Chen made her first attempt to bring up terrorism after an opening statement by defense attorney Frank Hancock, who called Elfgeeh a law-abiding citizen who sent money overseas for Yemeni immigrants innocently seeking to support their families and invest in their native - 21 - 1 country. 2 3 4 5 6 7 8 9 After the jury left the courtroom, Chen asked U.S. District Judge Sterling Johnson Jr. of Brooklyn to let her refute Hancock's claims by introducing what she called suspicious checks confiscated from Elfgeeh, some bearing the words "jihad" and "mujahidin." Others were made out to the Yemenbased Charitable Society for Social Welfare, which the FBI has described as a terrorist front. 10 11 Johnson rejected her request but is expected to revisit the issue as the trial moves forward. 12 13 14 15 16 17 18 Elfgeeh first came to the attention of FBI anti-terrorist agents as they investigated Sheik Mohammed Ali Hassan Al-Moayad, whom they eventually accused of funneling money from the United States to al-Qaida and Hamas. Al-Moayad was convicted of supporting and conspiring to support terrorism and sentenced to 75 years in prison in July. 19 20 21 22 Witnesses at al-Moayad's trial said he kept Elfgeeh's number in his phone book and called Elfgeeh someone he trusted to transfer money from the United States to Yemen. 23 The Associated Press, "Jury Won't Hear About Alleged Al-Qaida 24 Links," Newsday, September 14, 2005, at A15 (emphases added). 25 The New York Post contained two articles about the case. 26 A 27 appeared on page 28. 28 to Yemeni Sheik Mohammed Ali Hassan Al-Moayad and the district 29 court's ruling that prohibited mention of terrorism. 30 stated: "[Abad] Elfgeeh had pleaded guilty to the charges in 2003, 31 but was allowed to withdraw [the guilty plea] after stating his 32 lawyer at the time had not made him fully aware of the 11-year 33 sentence that came with the deal." Zach Haberman, "Ice-Cream Terror 34 Charges Melt Away," New York Post, September 14, 2005, at 28 35 (emphasis added). 36 "Trial Serves Up Some Real Nutty Buddies" stated in part: news article entitled "Ice-Cream Terror Charges Melt Away" It reiterated allegations about Abad's links It also A column on page 9 by Andrea Peyser entitled - 22 - 1 2 3 4 When Elfgeeh was arrested, Attorney General John Ashcroft went so far as to say that this case proves "the FBI can better prevent terrorism and save American lives." 5 6 7 8 Was Abad Elfgeeh, upstanding American citizen, financing terror through ice cream? You may never know because federal jurors may never hear the "T" word spoken aloud. 9 10 11 12 13 14 Elfgeeh is standing trial on charges he illegally transferred money to Yemen--which could put him away for 15 years. But prosecutors agreed that mentioning terror might "prejudice" the jury, a source told me. This surreal trial gets even stranger, when you learn how it all came about. 15 16 17 18 19 20 21 On Elfgeeh[']s legal team in Brooklyn federal court is one Burton Pugach. He is a jolly paralegal and former lawyer who was disbarred more than 40 years ago after he was convicted of hiring three men to throw lye in the face of a girlfriend who tried to leave him. She was blinded permanently. Then he married her. 22 23 Then, eight years ago, he was threatening to maim a second woman. 24 25 26 "I only asked someone to beat her up," Pugach, 78, said about his wife, who for some reason remains wed to him. 27 28 So now he wants to fight for fellow victims of the system. 29 30 31 32 33 34 Elfgeeh actually pleaded guilty to the charges against him two years ago. But then he met Pugach. He pleaded "not guilty" and now faces up to 15 years in prison if convicted. Pugach is convinced his client [sic] will walk. These two deserve each other. accused of 35 Andrea Peyser, "Trial Serves Up Some Real Nutty Buddies," New York 36 Post, September 14, 2005, at 9. 37 On the morning that these articles appeared, Assistant 38 United States Attorney ("AUSA") Pamela Chen notified the district 39 judge, before the jury was called into the courtroom, that publicity 40 about the Elfgeehs' trial had appeared in the media. - 23 - She pointed 1 out 2 instructions to the jury or in the previous day's proceedings, 3 instructed the jurors to avoid media reports about the trial. 4 AUSA asked, that 5 6 7 8 the judge had not, either during his preliminary The [c]ould the court admonish the jury as the standard not to read the paper and all that? I think perhaps yesterday that didn't happen. I want to make sure since I have seen-- 9 THE COURT: 10 MS. CHEN: This morning. 11 THE COURT: Which paper? This case was in the paper? 12 13 14 MS. CHEN: The New York Post. There were reporters here yesterday. I think it also made the AP wire. I think it's worth reminding [sic] them. 15 16 MR. HANCOCK: application. 17 MS. CHEN: I didn't see it. I join in the Just cautionary. 18 (Tr. 388 (emphases added).) 19 courtroom, the district court offered the following warning: After calling the jury into the 20 21 22 23 24 25 26 The other thing I have to admonish you, this case is going to be decided by the evidence or lack of evidence. Evidence is sworn testimony of the witnesses and the exhibits that I allow in; therefore anything that anybody else says, whether defense counsel or the prosecutor or it's me is not evidence in the case. 27 28 29 30 Also, if you read anything in the newspapers about this case--I don't think there will be anything in the newspapers [sic]--you're not to concern yourselves. Don't read that. 31 (Id. at 389.) 32 trial was not related to terrorism (see Part I.A.3. above). This admonition was followed by a warning that the 33 That afternoon, after the lunch break, there was further 34 discussion about the trial publicity outside the presence of the 35 jury. Counsel for Aref stated: - 24 - 1 2 3 4 5 Your Honor, you've been most scrupulous, have done a Herculean job in this case to instruct the jury to keep their focus on this case, that the issues are basically a banking issue, as you described it this morning. 6 7 8 9 10 11 Unfortunately, there have been some articles in the major daily newspapers of New York, and I'm talking about the Post, Newsday and the News which have contained very deleterious statements concerning the material that your Honor wanted to keep from the jury's knowledge. 12 13 14 15 16 In particular, the article speaks about the defendants' ties to "terrorists." The articles mention how your Honor prevented the government from including [checks], which bear words like Jihad and what the FBI describes as a "terrorist front." 17 18 19 20 21 The articles similarly refer to evidence linking these defendants to the defendant Al Mo[a]yad, who was tried before your Honor and convicted and Mr. Al Mo[a]yad is identified as being convicted and with links to Hamas and Al Qaeda. 22 23 24 The article further prejudices the defendant Abad Elfgeeh by disclosing the fact he had pled guilty before and withdrew his plea. 25 26 27 28 29 30 31 32 33 34 35 I would like your Honor to read the articles, the two I have in front of me and afterwards, I would like to move, most respectfully, for a mistrial, or in the alternative, have your Honor speak to the jurors individually and I don't mean 15 minutes each--quickly--to see, one, that they have not read the articles to ensure they won't read any more articles and, secondly, I make this application because I'm not sure whether your Honor specifically instructed the jurors before not to read articles about this case. 36 THE COURT: 37 MR. FRIEDMAN: 38 THE COURT: 39 You wanted to say something, Ms. Chen? 40 41 42 43 I did this morning. May have done it on the train. I'll speak to them again. MS. CHEN: No, I was going to say that's why we raised this issue this morning, your Honor, because we were aware of articles. THE COURT: I was not aware of it, but I have - 25 - 1 already seen it over the lunch break. 2 3 4 5 6 7 MS. CHEN: I thought you perfectly dealt with it by admonishing them. If the court would like to inquire of them when they return, if anybody has read any articles, we have no objection to that. Individual voir dires are not necessary, your Honor. Your standard way of dealing with it would be fine. 8 9 10 11 MR. HANCOCK: I don't know what the standard way is. I join in cocounsel's application. Sometimes when you have a situation like this, you make it worse. 12 THE COURT: 13 MR. HANCOCK: I agree with you. I don't know what the remedy is. 14 15 16 17 18 19 20 THE COURT: Generally in a situation like this, rather than call attention to it, because those who have not read it, maybe now they want to read it. I'll reiterate anything in the papers you're not to read. If you come across it, put it down. Again, I'll reiterate it, this case will be decided solely on the evidence. 21 22 23 24 MR. FRIEDMAN: Would your Honor as a group then ask the jury if they read any article dealing with this case? If you get a positive, we'll take care of it. 25 26 27 28 29 THE COURT: There might be some who have not read it, you'll call their attention to it. I did not know anything about articles when I came here this morning. Ms. Chen happened to mention it. I still didn't see it. 30 31 32 33 34 35 When I went back during the lunch hour, I was reading the newspaper and I came across it. In fact, my paper didn't have it. I got the Queens news that somebody else gave me, which is the Brooklyn news. That's the way I'm going to handle[] it. 36 37 38 39 40 MS. CHEN: May I note for the record when you spoke to the jury this morning about this issue, none of the jurors indicated verbally or in my observation in any other way that they actually had read anything when you mentioned the press issue. 41 42 43 44 THE COURT: It's going to be kind of delicate for me to mention this again. I think what I should do at the end of the day, when we get ready to go home, to mention it again as opposed to right after - 26 - 1 lunch. 2 3 MR. FRIEDMAN: Again, I have made my request. My request is on the record. 4 THE COURT: I understand. I'm sensitive to it. 5 (Tr. 518-21 (emphasis added).) 6 the district court again instructed the jurors that they should 7 avoid media reports about the trial: Accordingly, at the end of the day, 8 9 10 Have a nice weekend. Don't discuss the case. Keep an open mind. If you read anything in the paper about this case, put it down, do not read it. 11 12 13 14 I will admonish you again that this case is going to be determined based solely upon the evidence, sworn testimony of witnesses and the exhibits that I have allowed in evidence. 15 16 (Id. at 600.) Further discussion about the trial publicity occurred on 17 the next day of trial, September 19, after a weekend break. 18 time, it was counsel for Abad who raised the issue: 19 20 21 22 23 24 25 26 27 28 29 30 31 One other issue, Mr. Elfgeeh came to my office Saturday. For the first time I saw this article, an article in the Post, apparently went out in the morning edition. From what I've been able to discern, the editor came in, pulled it, but the first issue went out. This is, of course, the issue that jurors would get on their way to court in the morning. Part of it deals with Abad Elfgeeh, shows Mr. Elfgeeh next to Al Mo[a]yad, the two, making a link. Apparently Ms. Andrea Pizer (ph), a columnist for the Post talked to Mr. Puga[c]h, went into his history, indicated he was a nut and basically my client is a nut and--the article is as it is. 32 33 34 35 36 37 38 39 40 41 I'm concerned the jury is going to see this. I have to put Mr. Elfgeeh on the stand after this. There are two allegations under direct testimony with the government [stating] my client is a terrorist, an allegation there's overwhelming evidence against Mr. Aref Elfgeeh because of the conspiracy, I suppose, would and could [come] back and touch on Abad Elfgeeh. I would like to put him on the stand to testify. I'm so afraid they're going to come up with information about terrorist - 27 - This 1 activity, Islamic charities, things of that nature. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 For instance, there was a charity that Mr. Elfgeeh has given money to in the past, called "Islamic Relief," pledged $2 million to the Gulf region victims. He's given maybe $100, $200, [to] various agencies such as this, charitable agencies. He gets on the witness stand, starts talking about this charity versus that charity, whether this is a terrorist front or not, I can't put him on. On the other hand, I'm forced to put him on because of articles like this. I would ask for a motion in limine if he testifies, he does not go near any of these issues about charities; that the government not be allowed under some guise, character, some other reason to bring it up under cross-examination. 16 17 18 19 20 THE COURT: When you put a person on the stand, he can be cross examined as far as his story is concerned, issues of credibility. I'm not going to do that. I don't know what he's going to testify to, what his cross-examination is going to be. 21 22 now. 23 (Tr. 639-41.) 24 I haven't seen that article. Let me see it I am again going to caution the jurors. judge stated: 25 26 27 28 29 30 31 32 33 When the jury entered the courtroom, the district I want to admonish you, again, keep an open mind; that you are not to read anything in the newspapers and that this case will be decided solely on the evidence, as I told you before, sworn testimony of the witness[es] and it's the answers, not the questions, and whatever exhibits I choose to admit. (Id. at 645.) The final discussion about the trial publicity occurred 34 during a mid-morning break on the same day, September 19. 35 consisted principally of the following exchange: 36 37 38 39 40 41 THE COURT: Did you say you spoke to the editor of the New York Post? MR. HANCOCK: No, sir. I first received that Saturday morning, about noon, from Mr. Elfgeeh. It is my understanding that they pulled that article when the editor came in - 28 - It 1 2 that morning and replaced it with another article without Ms. Piser's [sic] column. 3 4 5 MS. CHEN: To clarify the record, when he says that article, I think he is referring only to the one about Mr. Pugach. 6 MR. HANCOCK: 7 8 9 10 Yes. THE COURT: It is an article from the New York Post dated September 14th. It refers to--the top article is Terror Case Melts and beneath it says Trial Serves Up Some Real Nutty Buddies. 11 This portion of the article, nutty buddies. 12 MR. HANCOCK: 13 THE COURT: 14 MR. HANCOCK: 15 THE COURT: 16 (Recess taken.) 17 . . . . That bothers me. That was pulled? Yes, sir. Okay. All right. 18 19 20 MR. HANCOCK: You asked before we broke about my taking umbrage to the article in the Post. I also take umbrage to the two photographs-- 21 22 23 24 THE COURT: I'm assuming that you took exception to the whole article, but I wanted to clarify which one the editor withdrew. I understand that. 25 26 MR. HANCOCK: Thank you. (Tr. 689-91.) 27 The record does not indicate that any articles other than 28 the above-described September 14 articles were published about the 29 defendants during the course of the trial. 30 5. The Jury's Verdicts and Forfeiture Findings 31 The jury found Aref and Abad guilty on all of the counts 32 with which they were charged. After the jury returned its verdicts, - 29 - 1 the trial proceedings turned to the issue of forfeiture to determine 2 what, if any, assets the defendants would be required to turn over 3 to the government. 4 on the ground that that was the total involved in defendants' 5 operation of the hawala in violation of § 1960(a), citing 18 U.S.C. 6 § 982(a)(1), which provides that 7 8 9 10 11 12 The government sought forfeiture of $22,435,467 [t]he court, in imposing sentence on a person convicted of an offense in violation of section . . . 1960 of this title, shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property. 13 The government also sought forfeiture of that sum on the ground that 14 that was the amount involved in Abad's structuring offense in 15 violation 16 § 5317(c)(1)(A), which provides that of 31 U.S.C. § 5324(a)(3), citing 31 U.S.C. 17 18 19 20 21 22 [t]he court in imposing sentence for any violation of section . . . 5324 of this title, or any conspiracy to commit such violation, shall order the defendant to forfeit all property, real or personal, involved in the offense and any property traceable thereto. 23 No evidence was presented at the forfeiture hearing; the 24 jury simply heard argument from counsel as to what assets should be 25 forfeited. 26 should include all assets that passed through the Carnival French 27 Ice Cream account. 28 briefly urged the jury to require the government to return to Abad 29 the personal property that it had already seized from him. 30 at 1097-98.) 31 1098.) 32 The government argued that the amount to be forfeited (See Tr. 1095-97, 1098-99.) Counsel for Abad Counsel for Aref presented no argument. (See id. (See id. at After deliberating briefly, the jury returned a verdict - 30 - 1 finding 2 unlicensed money-transmission business or the structuring activity. 3 (See Tr. 1115-17.) 4 defendants 5 promptly asked the district court to set aside the verdict, stating, 6 "I think the jury was confused. 7 money be subject to forfeiture when there was a mixture of checks 8 and cash?" 9 (See id.) 10 B. that or $22,435,467 was involved in or traceable to the The verdict did not distinguish between the two between the (Id. at 1119.) various charges. Counsel for Abad How could the total amount of the The district court denied the motion. No other challenge was made. Sentencing 11 Abad and Aref were sentenced in separate proceedings in 12 February 2006. According to the presentence report ("PSR") prepared 13 by the probation department on Abad, the advisory Guidelines range 14 for 15 increases for an aggravating role in the offense, obstruction of 16 justice, and the amount of money involved in the criminal activity. 17 In sentencing Abad, the district court imposed a prison term of 188 18 months (see Abad Elfgeeh Sentencing Transcript, February 3, 2006 19 ("Abad 20 sentencing guidelines] are advisory. 21 guidelines, along with the other factors in 3553, and I have come to 22 this particular sentence" (id. at 15). imprisonment S.Tr."), was at 188-235 13), months, stating, based "[a]ccording on to offense-level Booker the[ And I have considered the 23 The PSR on Abad also noted that the Guidelines-recommended 24 range for the fine to be assessed against him was $20,000 to - 31 - 1 $500,000, 2 convicted. 3 count (see id. at 13), for a total of $1.25 million. 4 stated, "I impose this sentence because I think it is sufficient for 5 the crime that was committed." 6 forfeit $22,435,467. 7 which encompassed all five counts on which he was The district court imposed a fine of $250,000 on each (Id.) The court The court ordered Abad to The PSR prepared on Aref concluded that the Guidelines- 8 recommended prison range was 51-63 months. 9 a base offense level of 6, plus a 16-step enhancement for the value 10 of the currency--$1,615,893.25--that had been transferred during the 11 time for which Aref was convicted of having participated in the 12 offenses, and a two-step upward adjustment for obstruction of 13 justice for having given perjurious testimony at trial and at the 14 suppression hearing. 15 adjustment, arguing that his trial testimony, given his difficulty 16 with English, was the product of "'confusion, mistake or faulty 17 memory.'" 18 States Probation Officer, dated December 13, 2005 ("Aref Letter"), 19 at 5 (quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)).) 20 At the sentencing hearing, the government suggested that 21 Aref be credited with a two-step downward adjustment on the ground 22 that he played a minor role in the offense, which would reduce his 23 Guidelines-recommended incarceration range to 41-51 months. 24 Aref Elfgeeh Sentencing Transcript, February 7, 2006 ("Aref S.Tr."), 25 at 21.) 26 imprisonment--the intersection between the government's suggested 27 range and the PSR-recommended range (see id. at 25)--stating that That range was based on Aref challenged the obstruction-of-justice (Letter from Arthur S. Friedman to Shayna Bryant, United (See The district court imposed a sentence of 51 months' - 32 - 1 "there 2 disclosed" (id. at 22). 3 [sentence] because I think it's sufficient for the crime that was 4 committed," and "I took into consideration the guidelines and also 5 3553(a)." 6 think is the right thing.").) 7 pay a fine of $250,000 on each count, for a total of $500,000, and 8 to forfeit $22,435,467. are more questions that loom than answers that were The district court stated, "I impose this (Id. at 26; see also id. ("[T]his is something that I 9 II. The district court ordered Aref to DISCUSSION 10 On appeal, both defendants contend principally that they 11 were denied a fair trial by Special Agent Murphy's mentions of 12 terrorism and by the news articles that linked Abad to persons who 13 were known or believed to be terrorists, and that the district court 14 gave the jury an erroneous instruction on the mens rea element of 15 § 1960(a) as amended. 16 erred in not excluding his postarrest statements and in not giving 17 the jury a proper instruction as to its consideration of those 18 statements. 19 on various grounds. 20 for reversing their convictions or for disturbing most facets of 21 their sentences. 22 the $1,250,000 fine, and we remand for reconsideration of the 23 obstruction-of-justice adjustment applied to Aref. Aref also contends that the district court In addition, both defendants challenge their sentences For the reasons that follow, we find no basis We vacate so much of Abad's sentence as imposed - 33 - 1 A. Aref's Postarrest Statements 2 Aref contends that his postarrest statements about his 3 involvement in the money-transmitting business were involuntary and 4 that the district court erred in admitting them in evidence and in 5 not instructing the jury that it could determine what weight to give 6 them. 7 1. We see no error. Admissibility 8 Prior to trial, Aref moved to suppress his postarrest 9 statements on the grounds that they were not voluntary, that when 10 arrested he was in pain from a March 2003 operation on his back, 11 that he had not been advised of his Miranda rights prior to making 12 those statements, and that he did not waive those rights. 13 pretrial suppression hearing was held at which Aref testified in 14 support of these contentions (see Suppression Hearing Transcript 15 dated September 12, 2005 ("Supp. Tr."), at 149-64), and Special 16 Agent Murphy testified as follows. 17 A Murphy testified that Aref was arrested in December 2003 18 at John F. Kennedy International Airport. 19 his Miranda rights at the airport, reading them from an advice-of- 20 rights card he kept in his wallet. 21 indicated that he understood his rights. (See id. at 95.) 22 then driven to the FBI's office in lower Manhattan for processing. 23 During that drive, Aref "began to say he knew what [the arrest] was 24 about and that Abad Elfgeeh, his uncle, was the person to blame." 25 (Id. at 96.) 26 office before speaking about the case. Murphy advised Aref of (See Supp. Tr. 94.) Aref Aref was Murphy told Aref to wait until they arrived at the FBI - 34 - (See id.) 1 Once they arrived at the FBI office, Murphy again advised 2 Aref of his Miranda rights, and he gave Aref an advice-of-rights 3 form written in both English and Arabic. 4 Murphy instructed Aref to read the form, asked Aref if he understood 5 it, and then went over the form line-by-line to ensure that Aref 6 understood each sentence. 7 the advice-of-rights form but indicated that he was willing to speak 8 to the agents. 9 English, and then in Arabic with the aid of an interpreter, until 10 Aref indicated that he was tired and wanted a lawyer, when the 11 questioning ceased. 12 (See id. at 96-97.) (See id. at 98.) (See id.) Aref refused to sign Questioning of Aref ensued, first in (See id. at 101.) The district court denied Aref's suppression motion. It 13 found that "the testimony given by Agent Murphy [wa]s credible and 14 that 15 incredible." 16 Miranda warnings at the airport; that on the drive from the airport 17 to Manhattan, Murphy stopped Aref from initiating a conversation 18 about the facts leading to his arrest; that "there was no violation 19 of the defendant's Sixth Amendment right" to counsel (id. at 167- 20 68); and that "the government ha[d] sustained its burden" to show a 21 voluntary, knowing, and intelligent waiver of Aref's Miranda rights 22 (id. at 168). 23 the testimony of the defendant, (Supp. Tr. 167.) [Aref] Elfgeeh, [wa]s The court found that Aref was given Aref contends that this ruling should be overturned on the 24 ground 25 suppression motion because the district court violated his Sixth 26 Amendment right of confrontation by limiting his attorney's cross- 27 examination of Murphy. The record does not support this contention. that he was denied a fair - 35 - opportunity to support his 1 The district court has 2 3 4 5 6 7 wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness'[s] safety, or interrogation that is repetitive or only marginally relevant. 8 Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see, e.g., Davis 9 v. Alaska, 415 U.S. 308, 316 (1974); United States v. Salameh, 152 10 F.3d 88, 132 (2d Cir. 1998), cert. denied, 525 U.S. 1112 (1999). 11 Here, following Murphy's direct testimony, which lasted 12 approximately 20 minutes, Aref's attorney cross-examined Murphy for 13 nearly an hour and a half. 14 topics, including Aref's luggage (see Supp. Tr. 107, 112-13), the 15 Vienna Convention on Consular Relations (see id. at 114-17), Arabic 16 dialects 17 interrogating Aref (see id. at 126-31, 136-40, 142-44), an FBI legal 18 handbook (see id. at 131-32, 134-36, 139, 141-42), Aref's indication 19 that he would like something to eat (see id. at 141-42), and 20 Murphy's decision to ask a translator to help with the interrogation 21 (see id. at 143-44). (see id. at The cross-examination covered various 124-25), notes taken by Murphy while 22 Periodically during the cross-examination, the district 23 court cautioned Aref's counsel that certain questions had been 24 "[a]sked and answered." 25 145.) 26 Aref's counsel, "[t]he issue before me . . . is the voluntariness of 27 any statement made by the defendant," and stated, "I haven't heard 28 you address that." 29 questioning was designed to show that Murphy was biased or that his 30 testimony was otherwise inaccurate in describing his encounter with (Id. at 118; see also id. at 119, 120, 144, After some 45 minutes of questioning, the court reminded (Id. at 132.) Aref's counsel indicated that his - 36 - 1 Aref. 2 if a witness is biased, his testimony may be rejected no matter what 3 he says").) The court cautioned that it would permit Aref's counsel 4 to "explore this a little more and then [the court would] cut it 5 off" (id. at 133-34), because Aref's counsel was "wasting time" (id. 6 at 134). (See id. at 133 (stating that "[a]s a matter of impeachment, 7 Aref's counsel continued to question Murphy in the same 8 vein, and the court repeatedly cautioned that the cross-examination 9 time was running out. The court eventually warned counsel that it 10 would allow him 10 more minutes, and subsequently eight minutes, and 11 then two minutes. 12 court told Aref's counsel that his "time [wa]s up." 13 When counsel objected that the court was "truncating [his] cross- 14 examination of th[e] witness," the district court stated: "Let the 15 record 16 approximately 20 minutes. 17 (Id.) reflect (See id. at 137, 138, 139, 144.) this witness testified on Finally, the (Id. at 145.) direct examination You've been almost an hour and a half." Aref has not suggested that this description was inaccurate. 18 This record does not indicate any abuse of discretion in 19 the court's termination of Aref's counsel's cross-examination of 20 Murphy. 21 patience during a cross-examination that was repetitive and wide- 22 ranging into matters that were at best tangential, without exploring 23 the 24 confrontation rights. 25 Rather, it reflects that the court exhibited considerable issue of voluntariness. We see no violation of Aref's Nor do we see any error in the court's ruling that Aref's 26 postarrest statements were voluntary. 27 that a defendant has waived his right to remain silent and his right - 37 - Credibility-based findings 1 not to be interrogated in the absence of counsel, see generally 2 Edwards v. Arizona, 451 U.S. 477, 482 (1981), are reviewed only for 3 clear error, see, e.g., United States v. Isom, 588 F.2d 858, 862 (2d 4 Cir. 1978). 5 2. There was no such error here. Jury Instructions as to Voluntariness 6 With respect to his postarrest statements, Aref also 7 contends, citing United States v. Barry, 518 F.2d 342, 346-47 (2d 8 Cir. 1975), that the court should have given the jury an instruction 9 "pursuant to 18 U.S.C. § 3501." (Aref Elfgeeh brief on appeal 10 at 41.) That section provides that the trial court, after admitting 11 in evidence a defendant's self-inculpatory statements that it found 12 were made voluntarily, "shall permit the jury to hear relevant 13 evidence on the issue of voluntariness and shall instruct the jury 14 to give such weight to the confession as the jury feels it deserves 15 under all the circumstances." 16 § 3501(e) ("As used in this section, the term 'confession' means any 17 confession 18 incriminating statement made or given orally or in writing."). 19 find no basis for reversal in the court's instructions. of guilt of any 18 U.S.C. § 3501(a); see also id. criminal offense or any selfWe 20 While Aref's counsel noted during the charging conference 21 that the district court's charge to the jury did not include 22 instructions about the voluntariness of Aref's statements to Murphy 23 (see Tr. 616), at no point was a jury instruction pursuant to § 3501 24 requested by Aref. 25 include such an instruction; and his subsequent letter to the 26 district court, sent in response to an inquiry by the court as to His initial proposed instructions did not - 38 - 1 any remaining questions about the charge, did not request such an 2 instruction. 3 pursuant to § 3501(a) is reviewable only for plain error. 4 e.g., United States v. Fuentes, 563 F.2d 527, 535 (2d Cir.), cert. 5 denied, 434 U.S. 959 (1977). 6 prejudicially affected the defendant's "substantial rights" and 7 "seriously affect[ed] the fairness, integrity or public reputation 8 of judicial proceedings." United States v. Olano, 507 U.S. 725, 732 9 (1993) (internal quotation marks omitted). Aref's § 3501 claim does 10 Accordingly, the court's failure to instruct the jury See, A plain error is one that, inter alia, not meet this test. 11 Although we stated in United States v. Barry that "[a] 12 defendant 13 statements and that any statements which the jury might find that he 14 made were coerced," 518 F.2d at 347, we have since clarified that 15 "an instruction of the kind required by 18 U.S.C. § 3501 is mandated 16 only where an issue of voluntariness has in fact been raised at 17 trial," United States v. Fuentes, 563 F.2d at 535. 18 that the defendant did not understand his Miranda rights is not 19 sufficient to require the voluntariness instruction, see id. n.6; 20 nor is it sufficient that there is testimony that the defendant had 21 initially stated that he did not wish to talk to the officers, see 22 id. at 535. 23 a jury could infer that the statement was involuntary," § 3501(a) 24 "does 25 voluntariness." 26 Cir. 1977), cert. denied, 435 U.S. 973 (1978). 27 not may properly claim that he made no incriminating An assertion Where "[t]here was little, if any, evidence from which require that the jury be specifically charged on United States v. Lewis, 565 F.2d 1248, 1253 (2d Here, there is no suggestion that the court excluded any - 39 - 1 relevant evidence as to voluntariness, but little such evidence was 2 presented. Although Aref testified that when he was arrested he was 3 in pain due to a back operation he had had nine months earlier, and 4 Aref's counsel argued in summation that Aref did not understand the 5 waiver form he read in Arabic and English (see Tr. 996), there was 6 virtually no evidence from which the jury could infer that Aref's 7 statements to Murphy were involuntary. 8 did not instruct the jurors to determine for themselves what weight 9 to accord to Aref's postarrest statements in particular, the court 10 gave the usual general instruction that the jurors are "the sole 11 judges" of "the weight and effect of all evidence." 12 Given the record, we are not persuaded that there was error here, 13 much 14 substantial rights were affected. 15 B. less plain error, and we see And while the trial court no (Id. at 1024.) indication that Aref's Testimony Mentioning Terrorism or Violence 16 Defendants contend that they are entitled to a new trial 17 on account of Special Agent Murphy's mentions of terrorism during 18 his testimony, and the government's questioning of Abad about a 19 "blood feud" in Yemen. We disagree. 20 Where an inadmissible statement is followed by a curative 21 instruction, the court must assume "that a jury will follow an 22 instruction 23 presented to it, unless there is an overwhelming probability that 24 the jury will be unable to follow the court's instructions, . . . 25 and a strong likelihood that the effect of the evidence would be 26 devastating to the defendant." to disregard inadmissible evidence inadvertently Greer v. Miller, 483 U.S. 756, 766 - 40 - 1 n.8 (1987) (internal quotation marks omitted). 2 There can be little doubt that in the wake of the events 3 of September 11, 2001, evidence linking a defendant to terrorism in 4 a trial in which he is not charged with terrorism is likely to cause 5 undue prejudice. 6 Murphy stated that he had been "investigating a case that had to do 7 with terrorism"--in response to questioning by Abad's attorney that 8 may have been confusingly repetitive but that did not actually 9 require him to mention terrorism--the court promptly gave a curative 10 instruction to the jury, stating that the case was not about 11 terrorism. The district court endorsed that view. When (Tr. 336.) 12 After Murphy, in answer to Abad's attorney's ensuing 13 question probing Murphy's instructions as to what the CI was to do 14 in Abad's shop, stated that he had asked the CI to attempt to "move 15 money from the United States to Yemen for terrorist causes" (id.), 16 the 17 government 18 terrorism and warned Abad's counsel to be more careful with his 19 questions (see id. at 338). 20 for 21 immediately rather than later, it was well within the court's 22 discretion to conclude that another such warning so soon after the 23 first was unnecessary, especially in light of the fact that Abad's 24 attorney, who elicited the second mention of terrorism--to which 25 Aref, not Abad, objected--had, before Aref's objection, already 26 begun to ask his next question. 27 instruction the following morning (see id. at 389); and at various court the promptly, to court in instruct also to a sidebar Murphy to conference, avoid admonished gratuitous mention the of Although it might have been preferable give a second cautionary instruction The court gave another cautionary - 41 - 1 points during the trial, as well as in its final instructions, the 2 court gave additional general admonitions to consider only the 3 testimony and documents that the court had allowed in evidence (see, 4 e.g., id. at 445, 600, 645, 1021-22, 1024-27, 1029). 5 Although the two inappropriate answers by Murphy indicated 6 that Abad was suspected of funding terrorism, the trial produced no 7 further mentions of terrorism. 8 was unable or unwilling to heed the court's repeated instructions 9 that terrorism was not an element in the case, that the case was We see no indication that the jury 10 about 11 consider 12 presented evidence that defendants had operated an unlicensed money- 13 transmitting business, and that Abad had structured the deposits 14 into the Carnival and feeder accounts, was overwhelming. 15 conclude that Murphy's two mentions of terrorism denied defendants 16 a fair trial. alleged only banking-law the violations, evidence admitted and at that trial. the The jury must properly We cannot 17 Defendants also argue that the government reintroduced the 18 subject of terrorism into the trial by asking Abad whether he had 19 sent money to Yemen in connection with tribal wars, blood feuds, or 20 other violence, and that those questions should have been excluded. 21 We disagree with their characterization of this questioning and with 22 their challenge to its admissibility. 23 The trial court has broad discretion to exclude even 24 relevant 25 outweighed by the danger of unfair prejudice." 26 see, e.g., Old Chief v. United States, 519 U.S. 172, 174 n.1 (1997). 27 "The term 'unfair prejudice,' as to a criminal defendant, speaks to evidence "if its probative - 42 - value is substantially Fed. R. Evid. 403; 1 the capacity of some concededly relevant evidence to lure the 2 factfinder into declaring guilt on a ground different from proof 3 specific to the offense charged." 4 'opening the door,' or 'curative admissibility,' gives the trial 5 court 6 inadmissible evidence on an issue (a) when the opposing party has 7 introduced inadmissible evidence on the same issue, and (b) when it 8 is needed to rebut a false impression that may have resulted from 9 the opposing party's evidence." United States v. Rosa, 11 F.3d 315, discretion to permit a Id. at 180. party to "The rule of introduce otherwise 10 335 (2d Cir. 1993), cert. denied, 511 U.S. 1042 (1994). 11 defendant offers an innocent explanation he 'opens the door' to 12 questioning into the truth of his testimony, and the government is 13 entitled to attack his credibility on cross-examination." 14 States v. Payton, 159 F.3d 49, 58 (2d Cir. 1998). 15 no right to avoid cross-examination into the truth of his direct 16 examination, even as to matters not related to the merits of the 17 charges against him." "When a United "A defendant has Id. 18 Here, the district court ruled that if the Elfgeehs 19 testified that they merely helped Yemeni immigrants to send money 20 home to their family and friends, it would open the door to allow 21 the government to attempt to show that the Elfgeehs sent money 22 instead for bellicose purposes. 23 testimony three times during his direct examination. 24 728 ("Yemeni community member would come, give me the money and 25 deposit the money in the bank, ask the bank to wire transfer the 26 money to the other side, to his family, a member of his family."); 27 id. at 739 ("[My brother in Yemen] give that money to the people--to (See Tr. 230.) - 43 - Abad offered such (See id. at 1 the beneficiaries that these people here send to the family to 2 receive."); id. at 741 (describing sending money "to someone who is 3 in a hospital").) 4 Abad whether he knew that the money he sent was being used to buy 5 arms and ammunition and was allowed to submit documentary evidence 6 obliquely referring to such use (see id. at 794), in order to attack 7 Abad's credibility. 8 the government did not mention terrorism; Abad denied any knowledge 9 that the money he sent was used for violent purposes (see id. at 10 795, 834); and defense counsel thereafter elicited testimony from 11 Abad that, so far as he knew, the United States Government had no 12 position in the dispute between Yemeni tribes (see id. at 829-30). 13 We see no abuse of discretion in the district court's evidentiary 14 rulings and no unfair prejudice to defendants. 15 C. Accordingly, the government was allowed to ask In connection with this line of questioning, Publicity and Juror Impartiality 16 Defendants also argue that the district court erred in 17 failing to canvass the jury to determine whether any juror had been 18 exposed to prejudicial media coverage during the course of the 19 trial. They argue that the district court's repeated admonitions to 20 the jury to avoid news coverage of the trial were insufficient to 21 ensure that the jurors had not been exposed to such coverage and 22 that defendants are entitled to a new trial based on this error. 23 conclude that the proceedings in this regard, though they seem to 24 have been a bit haphazard, provide no basis for reversal. We 25 "A district court's decision regarding juror impartiality 26 is reviewed for abuse of discretion and deserves deference." United - 44 - 1 States v. McDonough, 56 F.3d 381, 386 (2d Cir. 1995); see also 2 United States v. Gaggi, 811 F.2d 47, 51 (2d Cir.) ("Gaggi") ("Absent 3 a clear abuse of the trial court's discretion, its finding that the 4 jury was impartial should be upheld."), cert. denied, 482 U.S. 929 5 (1987). 6 In Gaggi, we set out a three-step process for the trial 7 court to follow when it is brought to the court's attention that 8 there has been publicity about the case during trial. 9 10 11 12 13 14 15 16 17 18 The simple three-step process is, first, to determine whether the coverage has a potential for unfair prejudice, second, to canvass the jury to find out if they have learned of the potentially prejudicial publicity and, third, to examine individually exposed jurors--outside the presence of the other jurors--to ascertain how much they know of the distracting publicity and what effect, if any, it has had on that juror's ability to decide the case fairly. 19 811 F.2d at 51; see also United States v. Lord, 565 F.2d 831, 838-39 20 (2d Cir. 1977). 21 determine whether the publicity has the potential to deprive the 22 defendant of a fair trial. 23 instruction (even if one has been given earlier, for example, 24 immediately after the jury has been sworn in) that the jurors should 25 not read any news article about the trial or watch or listen to any 26 item on television or radio about the trial. 27 followed, we may presume, in the absence of any indication to the 28 contrary, that the jurors have followed the court's instructions and 29 have rendered their verdict solely on the basis of the evidence at 30 trial. 31 (2d Cir. 2000), cert. denied, 531 U.S. 1143 (2001); United States v. 32 McDonough, 56 F.3d at 386-87; United States v. Casamento, 887 F.2d This process is simple and is efficient to The court should of course give an If this process is See, e.g., United States v. Zichettello, 208 F.3d 72, 106 - 45 - 1 1141, 1154-55 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990); 2 Gaggi, 811 F.2d at 51-53. 3 We have also held, however, that where the defendants 4 prefer not to have the jurors interviewed individually, the trial 5 court has discretion to forgo such interviews and instead give a 6 general admonition to the jurors as a group to avoid exposure to 7 publicity about the case. 8 267 (2d Cir. 1992) (individual interviews with the jurors were not 9 necessary because "the defendants . . . specifically requested that 10 no such individual voir dire be conducted for fear of magnifying the 11 problem"), cert. denied, 507 U.S. 1029 (1993). 12 any 13 instructions, we found that "[t]he steps taken to protect the 14 integrity 15 circumstances." indication of that the the jury See United States v. Eisen, 974 F.2d 246, jurors failed deliberations to were In the absence of follow adequate the court's under the Id. 16 In the present case, so far as appears from the record, 17 none of the parties called the court's attention to the prescribed 18 three-step procedure or to any of the above authorities, although 19 Aref's attorney eventually made a proper request. 20 Part I.A.4. above, on the morning of September 14, the second day of 21 testimony, four news articles appeared in three New York City area 22 newspapers. 23 fact, that articles had been published, to the attention of the 24 district court. 25 news items (see id. at 520-21); Abad's counsel stated that he had 26 not seen them (see id. at 388); and apparently neither the attorneys 27 nor the judge had copies of any of the pertinent newspapers in As described in Before trial began that day, the AUSA brought that (See Tr. 388.) The judge had not seen any of the - 46 - 1 court. 2 to 3 application." 4 that the case was to be decided strictly on the basis of the 5 evidence at trial and that they were not to read anything in the 6 newspapers about the case. read 7 The AUSA asked the court to give the jury an admonition not the newspapers, (Id.) and Abad's counsel "join[ed] in the The court accordingly instructed the jurors (See id. at 389.) We see no error in the way the district court handled the 8 matter up to that point. 9 under Gaggi and its progeny is to determine whether the news 10 coverage has the potential for unfair prejudice, that step could not 11 be taken on the morning of September 14 because the judge had not 12 seen, and was not presented with, any of the articles. 13 time, the court could not sensibly do more than it did, which was, 14 with Abad's attorney's concurrence, simply to instruct the jury to 15 avoid news items about the case. Although the first step to be followed At that 16 After the court had read one of the articles during the 17 lunch break, however, the answer to Gaggi's first-step question was 18 clear: The articles plainly had the potential for unfair prejudice. 19 Each referred to the Elfgeehs' trial and made pointed references to, 20 inter alia, terrorism and/or al Qaeda; in addition, they described 21 evidence that the jury would not be allowed to see or hear at trial; 22 and two of the articles stated that Abad had previously pleaded 23 guilty to the charges on which he was now being tried. 24 I.A.4. 25 reservation expressed by defense counsel, the court should have 26 proceeded to Gaggi's second step and canvassed the jury to determine 27 whether any juror had been exposed to any of the news items. above.) Accordingly, had - 47 - there been no (See Part objection or 1 However, Aref's attorney, who stated, "I'm not sure 2 whether your Honor specifically instructed the jurors before not to 3 read articles about this case" (Tr. 519), asked the judge to "speak 4 to the jurors individually . . . to see . . . that they have not 5 read the articles [and] to ensure they won't read any more articles" 6 (id.). 7 have been appropriate for the court to grant that motion, thereby 8 going directly to Gaggi's third step, because it had not yet 9 determined, in accordance with step two, that there was a need for Abad's attorney joined in Aref's motion; but it would not 10 such individual interviews. 11 need, for the colloquys indicate that the articles on the trial did 12 not appear in all editions of their respective newspapers. Indeed, there may have been no such 13 The government, in opposition to Aref's initial motion for 14 individual juror interviews, had suggested that the court instead 15 make 16 articles." (Id. at 520.) Abad's attorney, although stating that he 17 joined in Aref's motion (which sought a mistrial or individual juror 18 interviews), also stated that "[s]ometimes when you have a situation 19 like 20 ambiguous as to whether he was expressing concern about conducting 21 individual juror interviews or about posing a group question asking 22 whether any juror had been exposed to the articles, or about both; 23 but whatever his concern, it was shared by the court, which was 24 hesitant to call the articles to the jurors' attention. 25 colloquy was: 26 27 28 a general this, you inquiry make it as to whether worse"--a "anybody statement that has was read somewhat MR. HANCOCK: . . . . Sometimes when you have a situation like this, you make it worse. THE COURT: I agree with you. - 48 - any The 1 MR. HANCOCK: 2 3 4 5 6 7 8 9 I don't know what the remedy is. THE COURT: Generally in a situation like this, rather than call attention to it, because those who have not read it, maybe now they want to read it[,] I'll reiterate anything in the papers you're not to read. If you come across it, put it down. Again, I'll reiterate it, this case will be decided solely on the evidence. (Id.) 10 Nonetheless, Aref's attorney proceeded to ask the court to 11 inquire of the jury "as a group" if anyone had "read any article 12 dealing with this case," with further steps to be taken if there was 13 an affirmative answer. 14 Aref for the court to follow step two of the Gaggi procedure, Abad's 15 counsel, 16 essentially the same suggestion by the government, did not state 17 that he joined in this new motion by Aref. 18 motion, reiterating that such a question might pique undue curiosity 19 on the part of jurors who had not seen the articles, and decided 20 simply to issue another warning at the end of the day. 21 520-21.) whose (Id.) above-quoted Although this was a proper request by expression of concern followed The court denied this (See id. at 22 Had there been no expression of concern by Abad's attorney 23 following the government's suggestion that the court pose a general 24 question to the jury, or had Abad joined in Aref's eventually 25 appropriate motion for such questioning, the court should have 26 followed the Gaggi procedure and asked the jurors, as a group, 27 whether any of them had been exposed to the articles. 28 circumstances 29 requesting, properly, that the jury be asked whether any jurors had 30 seen a news article and the other defendant, as was his right, not as they appeared, - 49 - however, with one In the defendant 1 joining in that motion and expressing concern that asking such a 2 question might pose a greater danger of prejudice than not asking 3 the question, we conclude that the trial judge had discretion to 4 decide whether or not to put the question to the jury. 5 We cannot conclude here that the trial judge abused that 6 discretion. The articles were clearly prejudicial, but it is hardly 7 clear that the jurors would have seen them. 8 them; Abad's attorney had not seen them; and we assume that Aref's 9 attorney had not seen them since he said nothing during the first 10 discussion of the articles (and at lunchtime did not even recall 11 that the court had instructed the jury that morning to avoid such 12 articles). 13 editions of their respective newspapers. 14 could not find the article in the edition of the newspaper he first 15 searched during the lunch break, finding it only in another edition 16 of the paper. 17 Post articles until the weekend. 18 earliest edition but had been withdrawn from other editions. 19 court repeatedly cautioned the jurors not to view any news items on 20 the trial, and we presume that the jurors followed the court's 21 instructions. The judge had not seen The articles did not appear in all of that morning's Indeed, the judge himself And Abad's attorney did not see one of the New York That article had appeared in the The 22 In all the circumstances, with one defendant not joining 23 the motion to have the court ask the jury whether anyone had seen 24 any of the articles and expressing concern that asking that question 25 might make matters worse, we conclude that the court did not abuse 26 its discretion in declining to put the question to the jury. - 50 - 1 D. Instructions on the Knowledge Requirement of Amended § 1960(a) 2 Defendants contend that in instructing the jury with 3 respect 4 unlicensed 5 district court erred by not informing the jury that the government 6 was required to prove that they knew the money-transmitting business 7 was unlicensed. 8 instructed, we find no basis for reversal, for the court's failure 9 to give that instruction explicitly was, in the circumstances of 10 11 12 13 14 15 16 17 to count four, which money-transmitting charged them with business after operating October 2001, the Although we agree that the jury should have been so this case, harmless. The post-October 2001 version of § 1960(a) provides, in pertinent part, as follows: (a) Whoever knowingly conducts, controls, manages, supervises, directs, or owns all or part of an unlicensed money transmitting business, shall be fined in accordance with this title or imprisoned not more than 5 years, or both. 18 (b) As used in this section-- 19 20 21 22 23 (1) the term "unlicensed money transmitting business" means a money transmitting business which affects interstate or foreign commerce in any manner or degree and-- 24 25 26 27 28 29 30 31 (A) is operated without an appropriate money transmitting license in a State where such operation is punishable as a misdemeanor or a felony under State law, whether or not the defendant knew that the operation was required to be licensed or that the operation was so punishable; 32 33 34 35 36 (B) fails to comply with the money transmitting business registration requirements under section 5330 of title 31, United States Code, or regulations prescribed under such section; or 37 an (C) otherwise - 51 - involves the 1 2 3 4 5 transportation or transmission of funds that are known to the defendant to have been derived from a criminal offense or are intended to be used to promote or support unlawful activity[.] 6 18 U.S.C. § 1960 (as amended October 26, 2001). 7 26, 2001, the statute provided, in pertinent part: 8 9 10 11 12 13 Prior to October (a) Whoever conducts, controls, manages, supervises, directs, or owns all or part of a business, knowing the business is an illegal money transmitting business, shall be fined in accordance with this title or imprisoned not more than 5 years, or both. 14 (b) As used in this section-- 15 16 17 18 (1) the term "illegal money transmitting business" means a money transmitting business which affects interstate or foreign commerce in any manner or degree and-- 19 20 21 22 23 (A) is intentionally operated without an appropriate money transmitting license in a State where such operation is punishable as a misdemeanor or a felony under State law; or 24 25 26 27 28 (B) fails to comply with the money transmitting business registration requirements under section 5330 of title 31, United States Code, or regulations prescribed under such section[.] 29 18 U.S.C. § 1960 (2000) (emphases added). 30 Thus, in order to convict a defendant of owning or 31 conducting, etc., a business in violation of § 1960(a) prior to 32 October 33 defendant had "know[ledge that] the business [wa]s an illegal money 34 transmitting business," id. (emphases added), i.e., one that was 35 "intentionally operated without an appropriate money transmitting 36 license," id. § 1960(b)(1)(A) (emphasis added). 37 amended, however, the government need prove only that the defendant 2001, the government was - 52 - required to prove that the Under § 1960(a) as 1 had 2 transmitting business," 18 U.S.C. § 1960(a) (as amended) (emphasis 3 added). 4 that he knew the money-transmitting business was "illegal." "know[ledge]" that the business was "an unlicensed money Accordingly, the government is no longer required to prove 5 In amending § 1960(a) in this way in October 2001, 6 Congress made § 1960(a) stricter by eliminating the requirement of 7 proof that the defendant knew that a license was required. 8 e.g., United States v. Hopkins, 53 F.3d 533, 539 (2d Cir. 1995) 9 ("One way of heightening criminal sanctions is to reduce the mens 10 rea element of the prohibited acts . . . ."), cert. denied, 516 U.S. 11 1072 12 "knowingly 13 business"--appears still to require proof that the defendant knew 14 that the business was engaged in money-transmitting and also knew 15 that 16 implication is supported by subsection (b)(1)(A) of the amended 17 § 1960, which defines an "unlicensed money transmitting business," 18 in relevant part, as one that "is operated without an appropriate 19 money transmitting license in a State where such operation is 20 punishable as a misdemeanor or a felony under State law, whether or 21 not the defendant knew that the operation was required to be 22 licensed 23 § 24 subsection (b)(1)(A) thus explicitly makes it irrelevant whether or 25 not a defendant knew that a license was required; but it does not 26 state that it is irrelevant whether he knew it was unlicensed. 27 United States v. Talebnejad, 460 F.3d 563, 568 (4th Cir. 2006) (1996). the However, conducts business or that 1960(b)(1)(A) . had the (as the . no language . an of the unlicensed money-transfer operation amended) was so (emphases - 53 - amended money section-- transmitting license. And punishable," added). See, 18 The that U.S.C. amended Cf. 1 (noting that "[t]he parties agree that the Government must allege 2 and prove the defendant's knowledge" (1) that he "operate[d] a money 3 transmitting business, (2) that [it] affect[ed] interstate commerce, 4 and (3) that [it wa]s unlicensed under state law"), cert. denied, 5 127 S. Ct. 1313 (2007). 6 (a) itself and from the absence from subsection (b)(1)(A) of a 7 "whether or not" clause mentioning knowledge of the possession of a 8 license, that in order to convict under the amended § 1960(a), the 9 government is required to prove that the defendant knew the money- 10 We infer from the language of subsection transmitting business was unlicensed. 11 In the present case, Aref asked the court to instruct the 12 jury, inter alia, that "[t]he government must also prove beyond a 13 reasonable doubt that the defendant knew that the business was 14 unlicensed." 15 instruction in its charge to the jury. The trial court should have included such an 16 Nonetheless, where "the defendant had counsel and was 17 tried by an impartial adjudicator, there is a strong presumption 18 that any . . . [constitutional] errors that may have occurred"-- 19 including jury instructions that omit an essential element of the 20 offense--"are subject to harmless-error analysis." 21 States, 527 U.S. 1, 8-10 (1999) (internal quotation marks omitted). 22 If we can "conclude[] beyond a reasonable doubt that the omitted 23 element was uncontested and supported by overwhelming evidence, such 24 that the jury verdict would have been the same absent the error," 25 i.e., that "the error 'did not contribute to the verdict obtained,'" 26 then "the erroneous instruction is properly found to be harmless." 27 Id. at 17 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). - 54 - Neder v. United 1 In assessing the likely effect of imperfect instructions 2 on the jury, we must view them in light of the jury charge as a 3 whole. 4 Gaggi, 811 F.2d at 61-62; United States v. Clark, 765 F.2d 297, 303 5 (2d Cir. 1985) (the charge "must be viewed in its entirety and not 6 on 7 separately be open to serious question"). In reviewing an ambiguous 8 instruction, we inquire whether there is a reasonable likelihood 9 that the jury has applied the challenged instruction in a way that the See, e.g., Cupp v. Naughten, 414 U.S. 141, 146-47 (1973); basis of excerpts taken out of context, which might 10 is fundamentally unfair. 11 62, 72-73 (1991); Boyde v. California, 494 U.S. 370, 380 (1990). See, e.g., Estelle v. McGuire, 502 U.S. 12 In the present case, the court's instructions did not 13 state that the government must prove that defendants knew they were 14 operating the money-transmitting business after October 2001 without 15 a license, and stated that as to the "fourth count," i.e., the 16 charge that the Elfgeehs operated an unlicensed money-transmitting 17 business after October 2001, "the government need only prove that 18 the defendant knew that he was engaged in transmission of money on 19 behalf of others." 20 this regard were ambiguous, for both before and after that sentence, 21 the court told the jury that the only difference between the pre- 22 and post-October 2001 versions of § 1960(a) was that, under the 23 latter, the government need not prove that the defendant knew that 24 a license was required or that the operation was illegal. (Tr. 1049.) Nonetheless, the instructions in 25 Thus, as to count two, which, as the court read it to the 26 jury, charged Abad with conducting a money-transmitting business 27 between January 1995 and October 2001 "knowing that the business was - 55 - 1 an illegal money transmitting business," the court stated that the 2 government was required to prove that Abad "knew that the business 3 was an illegal money transmitting business, which means that it was 4 intentionally operated without an appropriate money transmitting 5 license and that the defendant was aware that the business was 6 required to be licensed." (Tr. 1043, 1045 (emphases added).) 7 After explaining the terms "knowingly," "willfully," and 8 "intentionally," and the ways in which those mental states may be 9 evidenced, the court turned to count four, which charged both Abad 10 and Aref with conducting a money transmitting business between 11 November 2001 and January 2003. 12 § 1960(a) The court stated that the amended 13 provide[s] in relevant part: 14 15 16 17 Whoever knowingly conducts, controls, manages, supervises, directs or owns all or part of an unlicensed money transmitting business shall be guilty of a crime. 18 19 20 21 22 23 24 25 26 27 28 The elements required to prove the defendant guilty of Count Four are the same as those required for Count Two, with one exception. That exception is that for Count Four, the government does not have to prove that the defendant knew of the licensing requirement or that it was unlawful to operate such a business without a license. That is because the statute changed in November 2001, such that it was no longer necessary that the defendant [k]new of the licensing requirement in order to be guilty of the crime. 29 (Tr. 1049 (emphases added).) 30 correct. The ensuing sentence, that "the government need only prove 31 that the defendant knew that he was engaged in transmission of money 32 on behalf of others" (id.), was unduly limited and thus introduced 33 an ambiguity. 34 Up to that point, the instruction was The court then continued: In other words, in Count Two, which charges the - 56 - 1 2 3 4 5 6 7 8 9 10 11 12 defendant Abad Elfgeeh with conducting an unlicensed money transmitting business between January 1995 and October 2001, the government must prove that the defendant knew of the licensing requirement or that the business was illegal. However, for Count Four, which charges both defendants with conducting an unlicensed money transmitting business between November 2001 and January 2003, the government need not prove that the defendants knew of the licensing requirement or that it was unlawful to operate such a business without a license. (Tr. 1049-50.) 13 Thus, viewing the instructions as a whole, there was a 14 single sentence that was erroneous, and it was preceded and followed 15 by correct instructions that the only difference between counts two 16 and four was that on count four the government did not need to prove 17 that the defendant knew that a license was a legal requirement. 18 think 19 erroneous sentence and disregarded the correct instructions that 20 surrounded it. 21 it highly unlikely that the jury focused on that We lone In any event, the evidence at trial was such that the jury 22 verdict would have been the same absent the error. 23 March 2002 letter from the New York State Banking Department, found 24 in his files, stated that a license was required for a money- 25 transmitting business; Abad's attorney had told Abad that he needed 26 a license; and a State Banking Department witness testified that 27 Abad had no license. 28 money-transmitting business was unlicensed. 29 As to Abad, a There could be no doubt that Abad knew his As to Aref, although the evidence was more circumstantial, 30 we 31 instructional error did not contribute to the verdict against him. 32 First, we note that the matter of Aref's knowledge as to whether the likewise conclude beyond a - 57 - reasonable doubt that the 1 money-transmitting business was unlicensed was not expressly put in 2 issue. His attorney's opening statement to the jury did not suggest 3 that 4 summation did not suggest that the government had failed to prove 5 that Aref knew the business was unlicensed. 6 was that he did not participate, not that he was unaware that the 7 business was unlicensed. 8 The 9 Aref was unaware that government's the business evidence, on was unlicensed; his And Aref's testimony the other hand, overwhelmingly revealed the furtiveness of the actions of Aref, as 10 well as Abad, in the money-transmitting operations. 11 inter alia, that the hawala used numerous different bank accounts 12 and small denominations of money; that Aref, like Abad, opened 13 accounts using the names and/or addresses of other persons or 14 entities; that even within the Carnival store (which was listed as 15 Aref's employer on bank documentation relating to one or more of 16 Aref's accounts), the money-transmitting business was not promoted 17 openly; that customers were limited to known members of the Brooklyn 18 Yemeni community; that neither Abad nor Aref ever reported any 19 income from the business in their respective tax filings; and that 20 Aref continued to use the Prospect Deli account for hawala business 21 after that deli closed in 1998. 22 sent the last $20,000 in the Prospect Deli account to Abad's 23 brother, he did not write a $20,000 check on that account to Abad's 24 brother. 25 and deposited them in his own account; and from his own account he 26 wrote several checks intended for Abad's brother but made them 27 payable to Aref's own son and to others he could not remember at It showed, And when Aref (at Abad's behest) Rather, Aref signed two Prospect Deli checks to himself - 58 - 1 trial. (See, e.g., Tr. 868-76.) 2 The surreptitious manner in which Aref helped to operate 3 the hawala was overwhelming evidence that he knew that its operation 4 was not authorized. 5 authorization, the jury was entitled to find that Aref knew the 6 hawala was not licensed. As possession of a license would indicate 7 In sum, viewing the instructions as a whole and the nature 8 of the evidence presented at trial, we are persuaded beyond a 9 reasonable doubt that the error in the instructions was harmless 10 because the jury would have reached the same verdicts had it been 11 instructed not to convict these defendants unless it found they knew 12 the business was unlicensed. 13 E. Sentencing 14 Each defendant makes several challenges to his sentence. 15 Abad contends that the amount of his fine is unreasonable, and he 16 requests a remand to a different district judge for resentencing. 17 Aref contends that the calculation of his sentence should not have 18 included consideration of acts committed by Abad and should not have 19 included an adjustment for obstruction of justice. 20 defendants challenge the accuracy of the forfeiture verdict and 21 contend that the forfeiture amount violates the Excessive Fines 22 Clause of the Constitution, U.S. Const. amend. VIII; and they 23 contend that the prison terms imposed on them are unreasonable and 24 create unwarranted disparities between them and others convicted of 25 similar crimes. 26 U.S.C. § In addition, Considering the sentencing factors listed in 18 3553(a), and reviewing - 59 - defendants' sentences for 1 reasonableness, see United States v. Booker, 543 U.S. 220, 261 2 (2005)--both 3 reasonableness, see, e.g., United States v. Canova, 485 F.3d 674, 4 679 (2d Cir. 2007); United States v. Fernandez, 443 F.3d 19, 26-27 5 (2d Cir.), cert. denied, 127 S. Ct. 192 (2006); United States v. 6 Crosby, 397 F.3d 103, 114 (2d Cir. 2005)--we conclude that except 7 for Abad's challenge to his fine and Aref's challenge to the 8 obstruction adjustment, these challenges lack merit. 9 1. substantive reasonableness and procedural The Amount of the Fine Imposed on Abad 10 In calculating a defendant's fine, the sentencing court 11 must follow a procedure similar to the post-Booker procedure that it 12 is to follow in calculating a defendant's term of imprisonment: 13 must consider the Guidelines recommendation for the imposition of a 14 fine, consider the § 3553(a) factors, and consider the fine-specific 15 factors listed in 18 U.S.C. §§ 3571 and 3572. 16 Rattoballi, 17 Section 3572 requires the court to consider, inter alia, "the 18 defendant's income, earning capacity, and financial resources." 19 U.S.C. § 3572(a)(1). The Guidelines provide that "[t]he court shall 20 impose a fine in all cases, except where the defendant establishes 21 that he is unable to pay and is not likely to become able to pay any 22 fine." 23 a minimal opportunity to show that he lacks the ability to pay the 24 fine proposed by the court. 25 941 F.2d 60, 65-66 (2d Cir. 1991). 26 452 F.3d 127, 139 Guidelines § 5E1.2(a). (2d Cir. It See United States v. 2006) ("Rattoballi"). 18 The defendant must be given at least See, e.g., United States v. Marquez, "A non-Guidelines sentence that a district court imposes - 60 - 1 in reliance on factors incompatible with the Commission's policy 2 statements may be deemed substantively unreasonable in the absence 3 of persuasive explanation as to why the sentence actually comports 4 with the § 3553(a) factors." 5 6 7 8 9 10 11 12 Rattoballi, 452 F.3d at 134. [I]f a district court elects to impose a non-Guidelines sentence outside the applicable Guidelines range, it has a statutory obligation to include a statement in the written judgment setting forth "the specific reason for the imposition of a sentence different from" the recommended Guidelines sentence. Id. at 128-29 (quoting 18 U.S.C. § 3553(c)(2)). 13 The PSR on Abad calculated that, under Guidelines 14 §§ 5E1.2(c)(3) and (4), the recommended range of the total fine for 15 the five offenses of which he was convicted was $20,000 to $500,000. 16 The district court instead imposed a fine of $1.25 million, more 17 than twice the sum prescribed by the advisory Guidelines. 18 somewhat less than the statutory maximum, given Abad's conviction 19 under § 5324 for structuring. 20 $250,000 as the maximum fine for each count of conviction for 21 violating 18 U.S.C. 22 31 23 violating another law of the United States or as part of a pattern 24 of any illegal activity involving more than $100,000 in a 12-month 25 period shall be fined twice the amount provided in subsection (b)(3) 26 . . . of section 3571 of title 18 . . . ."). 27 state whether its fine of $1.25 million was a Guidelines-departure 28 fine or a non-Guidelines fine, stating only, "I am also going to 29 fine the defendant $250,000 on each count for a total of--what is 30 it--$1.5 million [sic]. U.S.C. § This was See 18 U.S.C. § 3571(b)(3) (setting § 1960(a) or 31 U.S.C. § 5324); but see 5324(d)(2) ("Whoever violates this section while The court did not I impose this sentence because I think it - 61 - 1 is sufficient for the crime that was committed." 2 The PSR had concluded that, given the amount Abad would be required 3 to forfeit, he would not be able to pay a fine in any amount. (Abad S.Tr. 13.) 4 Although Abad's present challenge to his fine triggers 5 only plain-error analysis because he did not contest the amount of 6 the fine in the district court, we conclude that there was plain 7 error in the proceedings in connection with the imposition of the 8 fine, for the record does not indicate that Abad was given either 9 notice that a fine of such magnitude was contemplated or an 10 opportunity to be heard on his ability to pay such a fine. 11 not see in the government's presentencing submission to the district 12 court any request for imposition of an above-the-Guidelines-range 13 fine. Nor has the government called to our attention any indication 14 in the record that Abad was given notice by the court that it was 15 considering 16 recommended range. 17 more than double the maximum recommended by the Guidelines, without 18 advance 19 opportunity to present evidence as to his ability to pay a fine, 20 without any findings as to his ability to pay a fine, and without 21 any acknowledgement by the district court at sentencing of its 22 deviation from the Guidelines, constituted a plain error that 23 substantially impacted the fairness, or at least the appearance of 24 fairness, of the sentencing proceeding. See, e.g., United States v. 25 Mordini, 366 F.3d 93, 95 (2d Cir. 2004); United States v. Gordon, 26 291 F.3d 181, 191 (2d Cir. 2002), cert. denied, 537 U.S. 1114 27 (2003). imposing notice to a fine above the top of the We do Guidelines- We conclude that the imposition of a fine of the defendant, without affording him an Accordingly, we vacate so much of Abad's sentence as - 62 - 1 imposed a fine of $1.25 million, and we remand for reconsideration 2 of the amount of the fine. 3 We deny Abad's request, however, that we remand to a 4 different 5 sentencing judge has been shown to have held erroneous views or made 6 incorrect findings . . . resentencing before a different judge is 7 required only in the rare instance in which the judge's fairness or 8 the appearance of the judge's fairness is seriously in doubt." 9 United States v. Bradley, 812 F.2d 774, 782 n.9 (2d Cir.), cert. 10 district judge. "As denied, 484 U.S. 832 (1987). 11 On remand, the a general rule, even when a This is not such an instance. district court must give Abad an 12 opportunity to present evidence with respect to his ability to pay 13 a fine and make specific findings as to Abad's ability to pay the 14 fine imposed. If the court decides to impose a fine that is 15 different the 16 provide an explanation as to the specific reason for its decision. 17 18 2. from Guidelines-recommended range, it must also Aref's Challenges to the Obstruction-of-Justice and LossAmount Components of his Guidelines Offense Level 19 "[I]f a defendant objects to a[n obstruction of justice] 20 sentence enhancement resulting from her trial testimony, a district 21 court 22 necessary to establish a willful impediment to, or obstruction of, 23 justice, or an attempt to do the same . . . ." 24 Dunnigan, 507 U.S. 87, 95 (1993). 25 requirement 26 enhancement found in the PSR, provided "the findings of the PSR 27 [a]re sufficiently detailed and explicit." must review by the adopting evidence the and make independent findings United States v. A district court may satisfy this recommendation - 63 - of an obstruction United States v. Johns, 1 324 F.3d 94, 98 (2d Cir.), cert. denied, 540 U.S. 889 (2003). 2 The PSR recommended that Aref's offense level be increased 3 by two steps pursuant to Guidelines § 3C1.1 for obstruction of 4 justice on the basis that his testimony at trial and at the 5 suppression hearing was perjurious. Aref objected, arguing that any 6 falsity in his testimony was attributable to his difficulty with 7 English, or to "'confusion, mistake or faulty memory.'" 8 Letter at 5 (quoting Dunnigan, 507 U.S. at 94).) 9 did not address Aref's objection to this adjustment. (Aref The district court It neither 10 made specific findings as required by Dunnigan nor expressly adopted 11 the findings made in Aref's PSR. 12 resentencing of Aref in order for the district court to consider the 13 obstruction-of-justice adjustment and to make whatever specific 14 findings are warranted. Accordingly, we remand for 15 We see no merit, however, in Aref's contention that his 16 offense level, enhanced by 16 steps because the amounts transferred 17 during the period of his participation in the conspiracy totaled 18 $1,615,893.25, see Guidelines § 2B1.1(b)(1)(I), should have been 19 calculated without reference to any acts committed by Abad. 20 the 21 participation in the hawala, this enhancement was proper because, 22 inter 23 unlicensed 24 transferred during that period was reasonably foreseeable to him, 25 see Guidelines § 1B1.3(a)(1)(B). evidence alia, discussed Aref was in Part convicted I.A.1. above conspiring business money-transmitting of and - 64 - the as to to Given Aref's operate entire the amount 1 3. Forfeiture 2 Defendants challenge the $22,435,467 forfeiture orders, 3 contending (a) that the jury, in determining the forfeiture amount, 4 should have excluded checks of third persons not made out to cash, 5 and (b) that the forfeiture amount is unconstitutionally excessive. 6 We note that the constitutional challenge was not made in the 7 district court and hence triggers plain-error analysis. 8 note that although Aref in his brief on appeal has adopted Abad's 9 arguments to the extent that they may apply to Aref, Aref has not We also 10 made any challenges of his own to the forfeiture amount. 11 conclude that the challenges made by defendants lack merit and do 12 not require extended discussion. 13 We The contention that checks of third parties should have 14 been excluded is meritless for two reasons. 15 require forfeiture of all "property . . . involved in" the offenses 16 of 17 18 U.S.C. § 982(a)(1). 18 deposited by means of structured transactions in violation of 19 31 U.S.C. § 5324(a)(3) and transferred in the unlicensed operation 20 in violation of § 1960(a) included the checks of third parties. 21 Hence those checks plainly were "involved in" those offenses and 22 were 23 excludable, defendants presented no evidence of the dollar amount 24 represented by those checks and hence gave the jury no basis for 25 returning a verdict in an amount less than that sought by the 26 government. 27 which not defendants excludable. were convicted, 31 First, the statutes U.S.C. § 5317(c)(1); There is no question here that the moneys Second, even if such checks had been The constitutional challenge advanced by defendants fares - 65 - 1 no better. 2 'grossly disproportional to the gravity of a defendant's offense.'" 3 United States v. Collado, 348 F.3d 323, 328 (2d Cir. 2003) (quoting 4 United States v. Bajakajian, 524 U.S. 321, 334 (1998)), cert. 5 denied, 541 U.S. 904 (2004). In determining whether a forfeiture is 6 grossly disproportional, we are to evaluate 7 8 9 10 11 12 13 "[F]orfeiture is unconstitutionally excessive if it is (a) the essence of the crime of the [defendants] and its relation to other criminal activity, (b) whether the [defendants] fit into the class of persons for whom the statute was principally designed, (c) the maximum sentence and fine that could have been imposed, and (d) the nature of the harm caused by the [defendants'] conduct. 14 United States v. Collado, 348 F.3d at 328 (citing Bajakajian) 15 (internal quotation marks omitted). 16 Although the record is silent as to the fourth factor, the 17 other three reveal that the order for a forfeiture of $22,435,467 is 18 not disproportional. 19 unlicensed transmission of money, and neither defendant received the 20 statutory maximum prison term allowed. 21 that the total amount deposited into the Carnival account was 22 $22,190,642.21, and the total amount withdrawn was $21,995,556.54; 23 these sums, which were integral to the offenses, are quite close to 24 the amount ordered forfeited. 25 "service" was limited to members of the Yemeni-American community 26 and that the money was being sent home to "family" (Tr. 726, 728), 27 the evidence showed that defendants in fact transmitted the moneys 28 to 25 different countries. Plainly, defendants were persons at whom 29 § 1960(a) was aimed. The essence of defendants' offenses was the The trial evidence showed And although Abad testified that his - 66 - 1 4. The Alleged Unreasonableness or Disparity in Prison Terms 2 Finally, we see no merit in the Elfgeehs' contention that 3 the prison terms imposed on them--51 months for Aref, 188 months for 4 Abad--are 5 comparison 6 convicted of similar crimes. 7 defendant credibly argues that the disparity in sentences has no 8 stated or apparent explanation," United States v. Ebbers, 458 F.3d 9 110, 129 (2d Cir. 2006), cert. denied, 127 S. Ct. 1483 (2007), we substantively to the unreasonable terms of or imprisonment unwarrantedly meted out high to in others While "we may remand cases where a 10 see no disparity here. 11 eradicate unwarranted disparities between defendants convicted of 12 similar conduct and with similar criminal backgrounds. 13 the extent that a modification of Aref's offense level may be 14 required 15 discussed in Part II.E.2. above, both sentences were within the 16 applicable Guidelines ranges. 17 basis for concluding that the prison terms imposed are unreasonable, 18 given that the district court's articulation of the reasons for the 19 prison terms imposed, although not extensive (see Part I.B. above), 20 was sufficient to show that the court considered the Guidelines and 21 the 22 Fernandez, 443 F.3d at 30. with required respect § 3553 The Guidelines ranges are designed to to the obstruction-of-justice Except to adjustment And except to that extent, we see no factors, see - 67 - generally United States v. 1 CONCLUSION 2 We have considered all of defendants' contentions on these 3 appeals, and except as indicated above, have found them to be 4 without merit. 5 sentences 6 sentence of Abad Elfgeeh and remand for reconsideration of the 7 amount of his fine; we remand with respect to Aref Elfgeeh for 8 reconsideration of his term of imprisonment in light of the findings 9 to be made as to the adjustment of his Guidelines offense level for 10 Defendants' convictions, and all aspects of their except the following, are obstruction of justice. - 68 - affirmed. We vacate the

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