United States v. Moreland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-30541
Plaintiff-Appellee, D.C. No.
v.
 CR-01-00108-05-
BJR
STEVEN CRAIG MORELAND,
Defendant-Appellant. ORDER AND
 OPINION

On Remand from the United States Supreme Court

Filed May 3, 2010

Before: Procter Hug, Jr., M. Margaret McKeown, and
William Fletcher, Circuit Judges.

Opinion by Judge Hug

6493
6498 UNITED STATES v. MORELAND

COUNSEL

Jordan Gross, Yarmuth Wilsdon Calfo PLLC, Seattle, Wash-
ington, for the defendant-appellant.
 UNITED STATES v. MORELAND 6499
Andrew C. Friedman and Carl Blackstone, Assistant United
States Attorneys, Seattle, Washington, for the plaintiff-
appellee.

ORDER

This case comes on remand from the Supreme Court of the
United States, which vacated this court’s December 12, 2007,
judgment, United States v. Moreland, 509 F.3d 1201 (9th Cir.
2007), in light of the Supreme Court’s decision in United
States v. Santos, 128 S. Ct. 2020 (2008). In the present opin-
ion, we reinstate Parts I and II.A-D of our former opinion and
revise the remainder in light of Santos and other develop-
ments in the law.

We also DENY defendant-appellant Steven Moreland’s
Contingent Motion for Stay Pending United Supreme Court’s
Resolution of United States v. Dolan, 571 F.3d 1022 (10th
Cir. 2009), cert. granted, 78 U.S.L.W. 3391 (U.S. Jan. 8,
2010) (No. 09-367). Moreland may raise the effect of the
upcoming decision in Dolan on remand.

OPINION

HUG, Circuit Judge:

For his participation in a fraudulent pyramid scheme,
defendant-appellant Steven Moreland was convicted of mail
and wire fraud, money laundering, and conspiracy to commit
mail and wire fraud and money laundering. On remand, the
district court imposed a revised sentence of 18 years in prison
and ordered Moreland to pay restitution to the victims in the
amount of slightly over $36 million. Moreland appeals his
conviction on the grounds that he involuntarily waived his
right to counsel and received ineffective assistance of counsel,
6500 UNITED STATES v. MORELAND
the district court erred in not granting an adequate continu-
ance, the prosecution committed misconduct resulting in a
violation of his due process rights, and insufficiency of the
evidence. Finally, Moreland appeals the imposition of restitu-
tion because the district court failed to comply with the time
frame outlined in § 3664(d)(5) of the Mandatory Victims Res-
titution Act.

I.

Moreland participated in an enormous pyramid scheme
that, from November 1997 until May 2000, swindled approxi-
mately 2,500 people out of more than $73 million. Many of
the victims in this case were of retirement age and invested
much or all of their savings in the scheme, which promised
astronomical returns. In reality, Moreland and his associates
were conducting a massive fraud in which a portion of the
funds from later investors were used to pay the promised
returns of some earlier investors. Most earlier investors were
convinced to roll their fictional returns over into supposed
new investment opportunities. The funds not used to repay
earlier investors were paid to the operators of the scheme or
squandered on unsound financial misadventures.

The federal government finally shut down the scheme on
May 10, 2000, by executing search warrants at the home of
John Wayne Zidar, the mastermind and leader of the scheme,
and the business offices in Washington and Arizona from
which the scheme was conducted. On the day of the searches,
Moreland fled with his family to Costa Rica, where he
planned to stay in order to avoid capture. Although his wife
refused to stay in Costa Rica, necessitating his return to the
United States, Moreland went back to Costa Rica in August
2000. He took with him all of his documents relating to the
scheme in order to prevent the government from obtaining the
records. After supposedly discovering the fraudulent nature of
the enterprise for the first time while in Costa Rica, Moreland
continued transferring money from accounts containing vic-
 UNITED STATES v. MORELAND 6501
tims’ investment funds into his own accounts to pay his salary
and personal expenses.

Moreland and his associates were indicted on March 28,
2001. Moreland eventually surrendered on April 3, 2001, in
Tyler, Texas, at which time he was arrested. While driving
from Dallas to Tyler to surrender, Moreland stopped about
half way between in the town of Canton and discarded his
laptop computer in a dumpster behind a Dairy Queen near the
highway.

At his initial appearance in the Western District of Wash-
ington on April 20, 2001, Moreland indicated his desire to
represent himself. Upon the prosecution’s motion, a magis-
trate judge conducted a hearing pursuant to Faretta v. Califor-
nia, 422 U.S. 806 (1975), on April 26 to determine whether
Moreland should be permitted to waive his right to counsel.
The magistrate judge permitted Moreland to represent himself
but concluded that standby counsel should assist him. Ralph
Hurvitz was then appointed to facilitate Moreland’s defense.
The district judge conducted a second Faretta hearing on June
5, at the request of the prosecution, at which time she urged
Moreland not to represent himself. Nonetheless, the district
judge concluded that Moreland had knowingly and intelli-
gently waived his right to counsel and permitted him to con-
tinue representing himself. The district judge further directed
Hurvitz to continue acting as standby counsel.

In a second superceding indictment issued on January 8,
2002, Moreland was charged with ten counts of mail fraud in
violation of 18 U.S.C. § 1341, six counts of wire fraud in vio-
lation of 18 U.S.C. § 1343, four counts of promotion money
laundering in violation of 18 U.S.C. § 1956(a)(1), four counts
of concealment money laundering involving foreign transfers
in violation of 18 U.S.C. § 1956(a)(2), conspiracy to commit
mail and wire fraud in violation of 18 U.S.C. § 371, and con-
spiracy to commit money laundering in violation of 18 U.S.C.
§ 1956(h). The second superceding indictment also contained
6502 UNITED STATES v. MORELAND
a criminal forfeiture count relating to numerous items of both
real and personal property in the possession of the defendants
as well as funds seized from bank accounts in the United
States, Samoa, Costa Rica, and the Bahamas.

On April 23, 2002, Moreland filed a motion to have a law-
yer appointed to represent him. The district court held a hear-
ing on the motion on May 6, 2002, and Hurvitz was appointed
to represent him because of his familiarity with the case. The
trial was set for June 10, 2002. Hurvitz stated that he wanted
additional time to prepare, but Moreland opposed a continu-
ance. The district court granted a continuance of two weeks
until June 24, 2002. Hurvitz served as Moreland’s counsel
during the trial.

On August 14, 2002, after a 34-day trial, a jury found
Moreland guilty on three counts of mail fraud, three counts of
wire fraud, two counts of promotion money laundering, four
counts of concealment money laundering involving foreign
transfers, and both conspiracy charges. Zidar was also found
guilty on all 25 counts on which he was charged and sen-
tenced to 30 years in prison. United States v. Zidar, 178 Fed.
Appx. 673, *1 (9th Cir. 2006)

In determining Moreland’s sentence, the district court
adopted the Sentencing Guidelines calculation set forth in the
original Presentence Report. Accordingly, the district court
began with a base offense level of 43 and criminal history cat-
egory I, which resulted in a sentence range of life imprison-
ment. The district court departed downward three points due
to Moreland’s mental state, resulting in a base offense level
of 40 and a criminal history category of I. The applicable sen-
tence range, under the 1998 edition1 of the U.S. Sentencing
Commission Guidelines Manual, was 292-365 months in
prison. The district court sentenced Moreland to 292 months
1
The 1998 edition was used to avoid a possible violation of the ex post
facto clause.
 UNITED STATES v. MORELAND 6503
in prison, the bottom of the sentencing range, on August 22,
2003. At the prosecution’s request, the district court also
deferred the issue of restitution pending a determination by a
receiver in a related civil case, brought by the U.S. Securities
and Exchange Commission, of the identities of victims and
the amounts of their losses. The district court’s order explic-
itly stated that it would “enter a subsequent order identifying
the payees and the amount of restitution owed to each payee.”
Moreland did not object to the district court’s deferral of the
restitution determination.

Moreland then appealed his conviction and sentence, but
not the district court’s deferral of restitution, to this court. Fol-
lowing the Supreme Court’s decision in Blakely v. Washing-
ton, 542 U.S. 296 (2004), a prior panel of this court remanded
for resentencing under the now-advisory Sentencing Guide-
lines on December 14, 2004. The remand order did not
address the substantive issues raised in Moreland’s appeal.

On remand, the district court ordered the preparation of a
Revised Presentence Report. In March 2005, while the
Revised Presentence Report was being prepared, the receiver
completed its task of identifying victims and the amounts of
their losses. The government then submitted its Revised Pre-
sentence Report on November 1, 2005. The Revised Presen-
tence Report, which contained the list of victims and losses,
recommended that the district court adopt the same Sentenc-
ing Guidelines calculation as in the original sentence and
order restitution in the amount of $36,031,772.84 pursuant to
18 U.S.C. § 3663A.

The district court held a sentencing hearing on November
7, 2005, at which time the district court adopted the Sentenc-
ing Guidelines range recommended in the Revised Presen-
tence Report and found by clear and convincing evidence the
factors on which the recommendation was based. In light of
United States v. Booker, 543 U.S. 220 (2005), the district
court examined the sentencing factors listed in 18 U.S.C.
6504 UNITED STATES v. MORELAND
§ 3553(a) and reduced Moreland’s sentence to 216 months
(18 years) in prison. The district court also imposed
$36,031,772.84 in restitution. Moreland appealed his convic-
tion as well as the revised sentence and restitution order on
November 10, 2005.

II.

Moreland appeals his conviction by alleging denial of his
right to counsel, ineffective assistance of counsel, improper
failure of the district court to grant a continuance, prosecu-
torial misconduct, and insufficiency of the evidence.

A.

[1] First, Moreland argues that he involuntarily waived his
right to counsel. The Sixth Amendment of the U.S. Constitu-
tion guarantees that a person brought to trial in federal court
“must be afforded the right to the assistance of counsel before
he can be validly convicted and punished by imprisonment.”
Faretta, 422 U.S. at 807. A criminal defendant may waive the
right to counsel and represent himself. Id. at 819-20. When a
defendant requests to proceed pro se, a district court may only
grant the request after determining that the defendant “know-
ingly and intelligently” waived the right to counsel. Id. at 835.
Once a district court has determined that a defendant’s waiver
of his right to counsel is knowing and intelligent, it may
appoint standby or “advisory” counsel to assist the pro se
defendant without infringing on his right to self-
representation. McKaskle v. Wiggins, 465 U.S. 168, 176-77
(1984). At the same time, a defendant who waives his right
to counsel does not have a right to advisory counsel. United
States v. Salemo, 81 F.3d 1453, 1460 (9th Cir. 1996); United
States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994).
Generally, the role of standby counsel is vague and undefined,
and the defendant must retain control over his case.
McKaskle, 465 U.S. at 177-78.
 UNITED STATES v. MORELAND 6505
The district court conducted two separate Faretta hearings
in this case and, after each hearing, concluded that More-
land’s requested waiver was both knowing and intelligent.
The district court also appointed standby counsel to assist
Moreland. Moreland argues on appeal, however, that his
waiver of his right to counsel was conditioned on assurances
from the district court regarding the level of assistance he
could expect to receive from standby counsel. Those assur-
ances were not satisfied, according to Moreland, because
standby counsel did not provide as much assistance as More-
land expected. For that reason, Moreland argues that his
waiver of his right to counsel was not voluntary.2

The validity of a Faretta waiver is a mixed question of law
and fact reviewed de novo. United States v. Erskine, 355 F.3d
1161, 1166 (9th Cir. 2004).

[2] The record undermines Moreland’s assertion that his
waiver was conditioned on specific assurances from the dis-
trict court regarding the level of participation he could expect
from standby counsel. During the second Faretta hearing,
which the prosecution requested after learning that Moreland
was receiving assistance with his case from Donald Mueller,
a former co-participant in the pyramid scheme who was not
licensed to practice law and who was scheduled to appear as
a witness on Moreland’s behalf, the district judge engaged in
2
Moreland relies on Milton v. Morris, 767 F.2d 1443 (9th Cir. 1985),
for the proposition that a defendant who waives his right to counsel based
on an understanding that he will have assistance with his pro se defense
has not knowingly and intelligently waived his right to counsel under
Faretta. The two cases are not similar. In Milton, the district court and
prison officials blocked the defendant’s access to legal materials, tele-
phone use, investigators, couriers, and witness. Id. at 1444-45. Here,
Moreland had more than ample access to the means necessary to prepare
his defense. Moreover, Moreland received assistance from standby coun-
sel, just not the degree of assistance he later decided he wanted. Addition-
ally, the district court repeatedly advised Moreland to withdraw his waiver
and request representation, but he refused to do so. When Moreland even-
tually did withdraw his waiver, the district court appointed counsel.
6506 UNITED STATES v. MORELAND
a lengthy discussion with Moreland, ensuring that he under-
stood the charges against him and the disadvantages of repre-
senting himself. Indeed, the district judge “strongly urge[d]”
Moreland to obtain counsel. Nevertheless, Moreland insisted
on representing himself. The district judge concluded that his
waiver was voluntary and directed Hurvitz to continue serving
as standby counsel. In continuing Hurvitz’s participation as
standby counsel, the district judge did not promise any spe-
cific degree of assistance. Rather, the district judge explicitly
noted that the role of standby counsel was undefined. As the
district judge explained: “So his position in this case to a large
extent is determined by your position in the case. . . . It’s hard
to tell now what’s going to happen. Cases develop often with
a life of their own. . . . But what his role is to a large extent
will be determined on how you use him.” The district judge
went on to make clear that Moreland and Hurvitz would have
to “play this by ear.” That explanation of the role of standby
counsel was not specific. Thus, contrary to Moreland’s con-
tention, the district court made no assurances upon which he
could have reasonably conditioned his waiver of counsel.

Furthermore, if Moreland did not believe that standby
counsel was living up to his expectations, he had ample
opportunity to waive his right to self-representation and
request the district court to appoint full counsel. In fact, after
the second Faretta hearing, Moreland began complaining
about Hurvitz’s representation almost immediately. Among
other things, Moreland accused Hurvitz of refusing to famil-
iarize himself with the case, review the evidence, assist with
discovery, and “offer any assistance beyond filing a few
motions.” In September 2001, Moreland requested to have
Hurvitz replaced by “non-representational counsel”—that is,
Mueller. The district judge denied Moreland’s request, stating
that although the role of standby counsel is “vague and unde-
fined, the court instructed Hurvitz to fill that role as appropri-
ately as possible under the circumstances.” The district judge
further stated that “it was the court’s understanding during the
Faretta hearing that Moreland expected little more from Hur-
 UNITED STATES v. MORELAND 6507
vitz than fulfillment of basic administrative responsibilities.”
The district judge further explained that “based on representa-
tions from Moreland that he wishes to represent himself, Hur-
vitz is prohibited from contributing beyond a basic level to
Moreland’s case, for risk of encroaching on Moreland’s
Faretta rights.” The district court went on to state that “More-
land is requesting, and Hurvitz is resisting, more participation
than courts creating the standby counsel role anticipated.”
Consequently, the district court clearly informed Moreland
well in advance of trial what he could and could not expect
from standby counsel. If Moreland’s waiver of his right to
counsel was truly conditioned on his expectation that Hurvitz
would play a larger role in his defense, he could have with-
drawn his waiver and asked the district court to appoint full
counsel at that time. He did not do so.

Instead of waiving his right to self-representation, More-
land filed additional pleadings in October and December
2001, in which he suggested that the district court was unlaw-
fully preventing Mueller from representing him. The district
court again admonished Moreland that Mueller would not be
permitted to represent him. The district court also informed
Moreland that, unless he was willing to allow Hurvitz to rep-
resent him, he was not entitled to greater assistance than Hur-
vitz was already providing. Again, Moreland declined to
waive his right to self-representation and have full counsel
appointed. Despite Moreland’s ostensible disappointment
with Hurvitz’s performance as standby counsel, Moreland did
not withdraw his waiver and request that counsel be appointed
to represent him until April 23, 2002.

[3] At no point did the district court lead Moreland to
believe that he would receive substantial assistance with his
case from standby counsel. Thus, Moreland’s waiver of his
right to counsel was knowing and intelligent.

B.

[4] Second, Moreland claims that he was denied effective
assistance of counsel. “[A]s a general rule, we do not review
6508 UNITED STATES v. MORELAND
challenges to the effectiveness of defense counsel on direct
appeal.” United States v. Jeronimo, 398 F.3d 1149, 1155 (9th
Cir. 2005). Rather, we prefer to review ineffective assistance
of counsel claims in habeas corpus proceedings under 28
U.S.C. § 2255. United States v. Alferahin, 433 F.3d 1148,
1160 n.6 (9th Cir. 2006). We may consider such claims on
direct appeal, however, where “the record on appeal is suffi-
ciently developed to permit determination of the issue.” Id.

[5] In this appeal, Moreland makes four arguments in sup-
port of his ineffective-assistance-of-counsel claim: (1) trial
counsel failed to investigate Moreland’s mental health, (2)
trial counsel failed to request an adequate continuance, (3)
trial counsel failed to object to the district court’s limitation
of Moreland’s direct examination, and (4) trial counsel failed
to object to questions regarding the veracity of witnesses on
cross-examination and to the prosecution’s statements during
closing arguments regarding Moreland’s veracity. But the
record is not sufficiently developed to permit determination of
the issues. For example, defense counsel has not had an
opportunity to explain his actions. See United States v.
Laughlin, 933 F.2d 786, 789 (9th Cir. 1991). The record is
also undeveloped with regard to Moreland’s purported mental
health defense, as the government has not conducted its own
psychological evaluation. Without that evaluation, we are
unable to determine whether prejudice resulted from trial
counsel’s failure to investigate. Id. Accordingly, we decline to
consider Moreland’s ineffective assistance of counsel claims
on direct appeal, but he may pursue those claims in collateral
proceedings. Jeronimo, 398 F.3d at 1156.

C.

Third, Moreland contends that the district court erred in
failing to grant an adequate continuance. Here, the district
court granted a two-week continuance over Moreland’s objec-
tion. But Moreland argues that the district court should have
sua sponte granted a lengthier continuance to allow his trial
 UNITED STATES v. MORELAND 6509
counsel adequate time to prepare. A district court’s decision
to grant or deny a continuance is reviewed for abuse of discre-
tion, even where a defendant fails to make a formal motion
for a continuance. United States v. Nguyen, 262 F.3d 998,
1002 (9th Cir. 2001). There is no abuse of discretion unless
the denial was “arbitrary or unreasonable.” United States v.
Wills, 88 F.3d 704, 711 (9th Cir. 1996).

[6] The district court did not abuse its discretion in grant-
ing only a two-week continuance, however, because the need
for a continuance was Moreland’s fault. See United States v.
Fowlie, 24 F.3d 1059, 1069 (9th Cir. 1994). The district court
repeatedly advised Moreland to withdraw his waiver of coun-
sel and accept representation. For example, the district judge
told Moreland “[i]f you exclude Mr. Hurvitz early on, then
turn to him later, he’s going to be severely handicapped, in
ways he wouldn’t be if he were your attorney right from the
beginning.” But Moreland insisted on relying on Mueller, a
co-participant in the criminal enterprise and an unlicensed
lawyer, as legal counsel. Moreland did not request representa-
tion until two months before trial. When Moreland finally did
accept counsel, he opposed his trial counsel’s expressed
desire for a continuance and prevented trial counsel from
requesting more time to prepare. He even opposed the two-
week continuance granted sua sponte by the district court.
Consequently, Moreland was clearly to blame both for the
delay and for the district court not granting a longer continu-
ance. The district court’s decision to grant only a two-week
continuance, when Moreland objected to any continuance,
was not “arbitrary or unreasonable”; therefore, the district
court did not abuse its discretion.

D.

Fourth, Moreland argues that his due process rights were
violated because the government committed prosecutorial
misconduct by questioning Moreland about the veracity of
two prosecution witnesses during cross-examination and by
6510 UNITED STATES v. MORELAND
casting doubt upon Moreland’s veracity during closing argu-
ments. Moreland did not object at trial. “We review claims of
prosecutorial misconduct for plain error when a defendant
failed to object at trial.” United States v. Washington, 462
F.3d 1124, 1136 (9th Cir. 2006); see Fed. R. Crim. P. 52(b).
Under the plain error standard, relief is not warranted unless
there has been: (1) “error,” (2) that was “plain,” (3) that
affected “substantial rights,” and (4) that “seriously affected
the fairness, integrity, or public reputation of the judicial pro-
ceedings.” United States v. Recio, 371 F.3d 1093, 1100 (9th
Cir. 2004).

1.

[7] Moreland first asserts that his due process rights were
violated when the prosecution asked him to testify regarding
whether two government witnesses lied during their testi-
mony. It is improper for a prosecutor to question a defendant
regarding the veracity of a government witness. United States
v. Combs, 379 F.3d 564, 572 (9th Cir. 2004); see also United
States v. Sanchez-Lima, 161 F.3d 545, 548 (9th Cir. 1998)
(holding that testimony regarding witness’ credibility is pro-
hibited unless it is admissible as character evidence). In this
case, the prosecutor twice asked Moreland about the veracity
of government witnesses during his cross-examination. The
first instance involved Juan Alvarez, a Costa Rican attorney
with whom Moreland left all of his documentation regarding
the criminal enterprise. Alvarez testified that he never had an
attorney-client relationship with Moreland, whereas Moreland
claimed Alvarez was his lawyer. The prosecutor asked More-
land to testify regarding Alvarez’s veracity on this point:

Q. You’re telling us he was your lawyer?

A. Yes, he was.

Q. You heard his testimony. He said he had no cli-
ent relationship with you.
 UNITED STATES v. MORELAND 6511
A. That was his testimony.

Q. He’s lying?

A. I don’t know why he would be, but he has to be.

Q. So he’s a liar. Right?

A. I don’t know why, but yes.

The second instance involved Lisa Green, a former adminis-
trative assistant who testified about statements Moreland
made concerning the ownership of a house in Texas and
whether Moreland paid his personal expenses with money
from a trust set up with investor funds. She also testified that
Moreland had lied to investors about his health. The prosecu-
tion’s questioning of Moreland transpired as follows:

Q. Lisa Green told us you had that checkbook in
your house?

A. Yes, sir, she did.

Q. And she told us that you would sign Jeff Lewis
and Derral Hineman’s names to those checks.
Remember her testimony?

A. That’s what her testimony was. That is not true.

Q. She’s lying?

A. I just was never allowed to sign their signatures.
There was no reason to.

Q. When she told this jury she saw you signing
Jeff Lewis’s name, she’s lying. Right, Mr.
Moreland?
6512 UNITED STATES v. MORELAND
A. No. I think she could have been mistaken. . . .

...

Q. You told Ms. Green that this house was your
house, didn’t you?

A. No, sir, I did not.

Q. So she’s lying about that?

A. You know, people jump to conclusions . . . .

Q. If Ms. Green said you told her this was your
house, was she lying about that?

A. Yes, sir, she would be. I’ve never had a discus-
sion with her like that.

Q. Why do you think she would come in here and
lie under oath about you?

A. Well, probably because I fired her.

...

Q. So if [Ms. Green] said you were healthy, she’s
lying.

A. You’re trying to twist something here of what
is this sabbatical.

The prosecutor’s questioning is clearly improper under our
case law. In United States v. Geston, 299 F.3d 1130 (9th Cir.
2002), a case involving the prosecution of a police officer for
unreasonable use of force, we held that a prosecutor’s ques-
tioning of two law enforcement officers during cross-
examination improperly compelled the witnesses to offer
 UNITED STATES v. MORELAND 6513
opinions regarding the veracity of government witnesses. Id.
at 1136-37. When cross-examining two defense witnesses, the
prosecution in Geston summarized prior government witness
testimony that contradicted each defense witness’s testimony,
and then asked whether the defense witness thought the gov-
ernment witness was lying. Id. at 1135-36. We held this type
of questioning to be improper. Id. at 1136. Similarly, in
Combs, we found that the prosecution improperly questioned
the defendant regarding whether a government agent lied dur-
ing his testimony. 379 F.3d at 572. The questioning in this
case also resembles the questioning in United States v. San-
chez, 176 F.3d 1214 (9th Cir. 1999), in which we held that
compelling a defendant to call a government agent a liar was
improper. Id. at 1220. The following constituted the line of
questioning deemed improper in Sanchez:

Q. You heard Deputy Marshal Fielder testify this
morning?

A. Yes, I did.

Q. You were telling the ladies and gentlemen of
the Jury that he lied to them?

A. Yes, I did.

Q. That is what you are saying, he lied this morn-
ing?

Id. at 1219. The questioning in this case is not only similar in
nature to that in Sanchez, it is lengthier and more accusatory.
Therefore, the prosecutor’s cross-examination of Moreland
was improper.

The government argues, however, that the prosecutor’s
questions regarding Green and Alvarez were proper because
Moreland “invited” questions regarding their veracity.
According to the government, Moreland opened the door to
6514 UNITED STATES v. MORELAND
the issue of Green’s credibility by stating “That’s what her
testimony was. That is not true.” The government seems to
suggest that the prosecution had no choice but to follow up
Moreland’s statement by asking whether Green was lying.3
This argument makes little sense on its own, especially when
compared to the questioning in Sanchez, and becomes com-
pletely invalid when considering the entire line of question-
ing. The prosecutor asked whether Moreland considered
Green a liar six times. Moreland tried to explain that Green
was not a liar four times, but the prosecutor persisted with
questions regarding her veracity. Consequently, the govern-
ment cannot plausibly claim that its questions about Green’s
truthfulness were “invited.”

[8] Even though the prosecution’s questioning was
improper, it does not amount to plain error. “A prosecutor’s
improper questioning is not in and of itself sufficient to war-
rant reversal. It must also be determined whether the prosecu-
tor’s actions ‘seriously affected the fairness, integrity, or
public reputation of judicial proceedings, or where failing to
reverse a conviction would result in a miscarriage of jus-
tice.’ ” Geston, 299 F.3d at 1136 (quoting United States v.
Tanh Huu Lam, 251 F.3d 852, 862 (9th Cir. 2001) (citation
omitted), and citing Ortiz v. Stewart, 149 F.3d 923, 934 (9th
Cir. 1998)). Moreland argues that the prosecutor’s questions
prejudiced his defense and affected the integrity of his trial
because Moreland’s knowledge and intent were the main
issues at trial and credibility of the witnesses was central to
the prosecution’s case. As the government points out, the
prosecution presented more than 75 witnesses in this case.
Furthermore, Green and Alvarez were peripheral witnesses
because they testified regarding matters of minor importance
to the case. In fact, Moreland himself admits that an IRS
agent was the prosecution’s key witness. In the context of this
long and complicated trial, in which witness credibility was
3
The government offers no specific rationale to support its argument
that Moreland “invited” testimony regarding Alvarez’s veracity.
 UNITED STATES v. MORELAND 6515
not paramount, the prosecution’s questioning of Moreland
regarding those two non-essential witnesses did not prejudice
his defense, affect his substantial rights, or diminish the integ-
rity of the judicial proceedings.

2.

[9] Moreland next argues that his due process rights were
violated by the prosecution’s statements during closing argu-
ments regarding Moreland’s veracity. As a general rule, “a
prosecutor may not express his opinion of the defendant’s
guilt or his belief in the credibility of [government] witness-
es.” United States v. McKoy, 771 F.2d 1207, 1211 (9th Cir.
1985). This concept has been extended to find that referring
to a defendant as “a liar” during closing argument, when that
assertion is not based on “reasonable inferences,” is improper.
See United States v. Garcia-Guizar, 160 F.3d 511, 520 (9th
Cir. 1998). At the same time, we have recognized that “the
prosecution must have reasonable latitude to fashion closing
arguments.” United States v. Molina, 934 F.2d 1440, 1445
(9th Cir. 1991). As a result, it is “neither unusual nor
improper for a prosecutor to voice doubt about the veracity of
a defendant who has taken the stand.” United States v. Birges,
723 F.2d 666, 672 (9th Cir. 1984). Indeed, we have found
that, in “instances of flatly contradictory testimony on impor-
tant issues . . . it [is] proper for the government to argue that
the jury ought not to believe the [defendant’s] version.”
Molina, 934 F.2d at 1445. Thus, the prosecution may refer to
a defendant as a liar if it is “commenting on the evidence and
asking the jury to draw reasonable inferences.” Garcia-
Guizar, 160 F.3d at 520; see also United States v. Rude, 88
F.3d 1538, 1548 (9th Cir. 1996) (holding that a prosecutor’s
use of the words “lie,” “lies,” or “lied” over 90 times when
referring to the defendants in its closing argument was
“within the boundaries of proper . . . summations.”).

In this case, the prosecutor referred to Moreland as a liar
several times throughout his closing argument. To illustrate,
Moreland points to the following statement:
6516 UNITED STATES v. MORELAND
Remember, I asked Mr. Moreland about [being a
liar] on the witness stand. I said: Hey, if this jury
finds that you lied, can they apply your own words
to yourself and conclude that as to you, once a liar
always a liar? And you saw the little cogs in his head
spin. He didn’t know quite what to say. He was in
kind of a jam there. He paused, he delayed, and he
finally begrudgingly said: Yeah, they can conclude
once a liar, always a liar. Make Mr. Moreland eat
those words. And you can find so many lies he told.
I’ll tell you some of them. But when you go back in
there, you can probably make a list of 50 lies he told.

...

So once you conclude Mr. Moreland is a liar, then
nothing he told you is believable.

The prosecutor then went on to point out specific examples of
contradictory testimony pointing to the conclusion that More-
land was not telling the truth. For example, the prosecutor
specifically discussed Moreland’s explanation of the invest-
ment scheme and how Moreland merged his enterprise with
scheme mastermind Zidar’s, Moreland’s denial that the house
he lived in was actually his, Moreland’s denial that he threw
his laptop into a dumpster, and whether Moreland knew of the
government’s search of Zidar’s house when he fled to Costa
Rica. The prosecution then went on to remind the jurors that
it was their job to evaluate the credibility of the witnesses and
defendants.

[10] This case is similar to Molina, in which the prosecutor
explained how the defendant’s testimony directly conflicted
with that of a confidential informant and then stated that the
defendant must have lied. 934 F.2d at 1445. In Molina, the
defendant objected to the following passage from the prosecu-
tion’s closing argument:
 UNITED STATES v. MORELAND 6517
[Y]ou could only come to one conclusion: That
somebody is lying. And who is that? Who’s lying?
Is Special Agent Reyes lying? Did he get up on the
stand under oath and lie to you for the sole purpose
of convicting an innocent man? It’s unbelievable.

The one who lied to you is the one who is guilty
of possessing with the intent to distribute the
cocaine. And that’s the defendant, Frank Molina.
And when you weigh the credibility of the witnesses,
remember that there was one witness here who had
a greater motive to lie than any other witness, a
greater stake in this case than either Art Reyes or
Alvaro or Agent Leppla or anybody, and that man
was the defendant, Frank Molina. He had the great-
est bias in this case and the greatest motive to lie.

So when you go back into the jury room remem-
ber . . . that Mr. Molina lied to you on the stand and
remember that the reason he lied to you is because
he is guilty, and that’s the only reason and the only
motivation for him to lie.

Id. (alterations in original) (emphasis in original). We found
that “the inference is unavoidable that ‘somebody is lying’ ”
and that the prosecutor’s statements were proper based on the
evidence. Id. Similarly, the prosecutor’s statements in this
case were reasonable based on the evidence, which the prose-
cutor demonstrated by carefully walking the jury through the
evidence and pointing out inconsistencies. Therefore, based
on the case law, the prosecutor’s statements regarding More-
land’s credibility were not improper.

Moreover, the prosecutor’s statement did not affect More-
land’s substantial rights. Even if the prosecutor’s statements
were improper, Moreland must show that the statements
affected the outcome of his trial. United Stated v. Romero-
Avila, 210 F.3d 1017, 1022 (9th Cir. 2000). Where the gov-
6518 UNITED STATES v. MORELAND
ernment “presented strong independent evidence of [the
defendant’s] guilt,” a prosecutor’s improper statements about
the defendant during cross-examination will not be found to
have affected the defendant’s substantial rights. Id. at 1023;
see also United States v. Laurins, 857 F.2d 529, 539 (9th Cir.
1988) (“If the evidence was so strong that these remarks had
no effect on the jury, reversal is not required.”). Here, the
government presented strong independent evidence that
Moreland knowingly engaged in a massive fraud. Addition-
ally, the district court properly instructed the jury that
“[a]rguments and statements by lawyers are not evidence” and
what the lawyers said “in their closing arguments . . . is not
evidence.” As a result, Moreland has not shown that the pros-
ecutor’s statements during closing arguments affected the out-
come of the proceedings. See Sassounian v. Roe, 230 F.3d
1097, 1106-07 (9th Cir. 2000).

[11] Moreland also objects to what he considers the prose-
cutor’s misstatement of the law in its closing argument. Obvi-
ously, a “prosecutor should not misstate the law in closing
argument.” United States v. Berry, 627 F.2d 193, 200 (9th Cir.
1980). Moreland argues that the following statement by the
prosecutor to the jury constituted a misstatement of the law
governing the case:

So when you’re assessing credibility, look at who
got up on that stand and answered questions straigh-
forwardly, and look who tried to duck and weave.
And once you conclude they’re not credible, case is
over.

But Moreland ignores the fact that the prosecutor spent a sub-
stantial amount of time reviewing the legal elements of the
charges and discussing which facts the jury needed to find in
order to convict Moreland. In doing so, the prosecutor accu-
rately explained exactly what the government had to prove to
find Moreland guilty. Consequently, the single, brief state-
ment highlighted by Moreland is neither improper nor did it
 UNITED STATES v. MORELAND 6519
affect his substantial rights. “Put in proper context,” the state-
ment was an “isolated moment” in a 34-day trial. See Hall v.
Whitley, 935 F.2d 164, 165-66 (9th Cir. 1991). Moreland’s
due process rights were not violated.

III.

As noted above, on January 21, 2009, the Supreme Court
vacated our December 12, 2007, judgment, United States v.
Moreland, 509 F.3d 1201 (9th Cir. 2007), in favor of the
United States and remanded for further consideration in light
of United States v. Santos, 553 U.S. 507 (2008). After the
Supreme Court’s remand, we asked the parties to file supple-
mental briefing on the effect of Santos on this court’s prior
opinion. We now turn to Santos and its impact on this case.

A.

Santos concerned a prosecution against two defendants for
their involvement in an illegal gambling business. See Santos,
128 S. Ct. at 2022-23. The ringleader, Santos, employed a
number of people to help him run the lottery. Id. at 2022.
These workers included runners, who gathered bets from
gamblers and kept a portion of the bets as commissions. Id.
Santos also employed collectors, including Diaz, who col-
lected bets and delivered them to Santos. Id. Part of these bets
were paid to Diaz and other collectors as a salary; Santos used
other bets to pay winners. Id. at 2022-23.

A jury found Santos guilty of conspiracy to run an illegal
gambling business, 18 U.S.C. § 371, running an illegal gam-
bling business, § 1955, conspiracy to launder money,
§ 1956(a)(1)(A)(i) and § 1956(h), and promotion money laun-
dering, § 1956(a)(1)(A)(i). Id. at 2023. The district court sen-
tenced Santos to 60 months imprisonment on the two
gambling counts and 210 months imprisonment on the three
money laundering counts. Id. Diaz pleaded guilty to conspir-
6520 UNITED STATES v. MORELAND
acy to launder money and received 108 months imprisonment.
Id.

After the defendants sought post-conviction relief under 28
U.S.C. § 2255, a district court vacated the defendants’ money-
laundering convictions, and the Seventh Circuit affirmed. Id.
at 2023. Reviewing the defendants’ money laundering convic-
tions for sufficiency of the evidence, the Supreme Court con-
sidered the definition of “proceeds” as used in 18 U.S.C.
§ 1956(a)(1)(A)(i)4:

Whoever, knowing that the property involved in a
financial transaction represents the proceeds of some
form of unlawful activity, conducts or attempts to
conduct such a financial transaction which in fact
involves the proceeds of specified unlawful activity
. . . with the intent to promote the carrying on of
specified unlawful activity . . . shall be sentenced to
a fine of not more than $500,000 or twice the value
of the property involved in the transaction, which-
ever is greater, or imprisonment for not more than
twenty years, or both.

[12] In particular, the Court considered whether proceeds
may be gross receipts of a specified unlawful activity or
whether proceeds must be profits. Applying the rule of lenity,
a plurality held that proceeds must always be profits. Id. at
2025. The plurality also reasoned that applying a definition of
gross receipts would result in what it called a “merger prob-
lem”:

If “proceeds” meant “receipts,” nearly every viola-
4
In the wake of Santos, Congress amended the money laundering statute
to define proceeds to include gross receipts of an unlawful activity. 18
U.S.C. § 1956(c)(9). Because this amendment does not apply retroactively
to Moreland, we must follow Santos’s interpretation of the money laun-
dering statute.
 UNITED STATES v. MORELAND 6521
tion of the illegal-lottery statute would also be a vio-
lation of the money-laundering statute, because
paying a winning bettor is a transaction involving
receipts that the defendant intends to promote the
carrying on of the lottery. Since few lotteries, if any,
will not pay their winners, the statute criminalizing
illegal lotteries, 18 U.S.C. § 1955, would “merge”
with the money-laundering statute. Congress evi-
dently decided that lottery operators ordinarily
deserve up to 5 years of imprisonment, § 1955(a),
but as a result of merger they would face an addi-
tional 20 years, § 1956(a)(1). . . .

The merger problem is not limited to lottery oper-
ators. For a host of predicate crimes, merger would
depend on the manner and timing of payment for the
expenses associated with the commission of the
crime. Few crimes are entirely free of cost, and costs
are not always paid in advance. Anyone who pays
for the costs of a crime with its proceeds—for exam-
ple, the felon who uses the stolen money to pay for
the rented getaway car—would violate the money-
laundering statute. And any wealth-acquiring crime
with multiple participants would become money-
laundering when the initial recipient of the wealth
gives his confederates their shares. Generally speak-
ing, any specified unlawful activity, an episode of
which includes transactions which are not elements
of the offense and in which a participant passes
receipts on to someone else, would merge with
money laundering.

Id. at 2026-27 (footnote omitted). Applying the profits defini-
tion of proceeds to the facts of the case, the plurality con-
cluded that the money-laundering convictions had been
properly vacated. Id. at 2031. They noted that the money-
laundering charges against Santos were based on his pay-
ments to the lottery winners and his employees; and the
6522 UNITED STATES v. MORELAND
money laundering charge against Diaz was based on his
receipt of payments as an employee. Id. Neither type of trans-
action, the plurality stated, could fairly be characterized as
involving the lottery’s profits. Id.

Because only four justices joined the plurality’s opinion,5
Justice Stevens provided the final vote to affirm the Seventh
Circuit’s judgment. Justice Stevens concluded that the defen-
dants’ money-laundering convictions must be vacated but did
not adopt the plurality’s reasoning that proceeds must be prof-
its in all instances. Instead, his vote was motivated by his
belief that Congress could not have intended the “merger
problem” produced by the defendants’ convictions:

The revenue generated by a gambling business that
is used to pay the essential expenses of operating
that business is not “proceeds” within the meaning of
the money laundering statute. As the plurality notes,
there is “no explanation for why Congress would
have wanted a transaction that is a normal part of a
crime it had duly considered and appropriately pun-
ished elsewhere in the Criminal Code, to radically
increase the sentence for that crime.” This conclu-
sion dovetails with what common sense and the rule
of lenity would require.

Id. at 2033 (Stevens, J., concurring in the judgment) (footnote
and citation omitted). Thus, the plurality and Justice Stevens
all agreed that proceeds means profits where viewing pro-
ceeds as receipts would present the merger problem as identi-
fied in their opinions. See also United States v. Van Alstyne,
584 F.3d 803, 814 (9th Cir. 2009) (identifying the holding in
Santos).
5
Justice Thomas did not join Part IV of the plurality’s opinion; however,
his decision not to join the entire opinion does not affect the outcome of
this appeal.
 UNITED STATES v. MORELAND 6523
Although Santos is the impetus for revisiting this case, we
must also acknowledge this court’s subsequent decision in
United States v. Van Alstyne, 584 F.3d 803 (9th Cir. 2009),
which refines our post-Santos analysis of the money launder-
ing statute. In Van Alstyne, a defendant defrauded approxi-
mately 450 victims through a Ponzi scheme involving a
number of companies he organized for that purpose. Id. at
807. The defendant, Van Alstyne, perpetuated the scheme by
selling interests in oil and gas properties owned by limited
partnerships that he controlled. Id. at 808.

Van Alstyne was convicted of seven counts of mail fraud
and three counts of money laundering. Id. at 809. The three
money laundering convictions corresponded to three specific
transactions. Id. at 809, 815-16. The first two transactions
occurred in January and June of 1994, respectively, and con-
sisted of transfers of funds between two companies owned or
controlled by Van Alstyne. Id. at 808-09. These transactions
made distributions to individual investors. Id. at 809. The
third transaction occurred in November 1994 and also
involved a transfer of funds between companies owned or
controlled by Van Alstyne. Id. at 808-09. However, this trans-
fer occurred after the scheme began to unravel and was made
to refund one investor’s entire outlay. Id. at 809.

On appeal, Van Alstyne argued for reversal of his three
money-laundering convictions on the basis that there was
insufficient evidence to support them. Id. at 813. Applying the
Santos holding, this court asked “whether mail fraud is, or can
be, a crime presenting the ‘merger’ problem that was a ful-
crum consideration for the Santos plurality and concurrence.”
Id. at 814. In its analysis of the first two money laundering
counts, this court reasoned that the distribution checks under-
lying those counts supposedly represented generous returns
on the victims’ investment and were a central component of
the scheme to defraud. Id. at 815.

[13] On the other hand, the third transaction was not cen-
tral to the scheme to defraud because it refunded an investor’s
6524 UNITED STATES v. MORELAND
entire outlay. Id. Returning the investment undermined rather
than advanced the scheme because the funds were not avail-
able to lull other investors into maintaining their investment.
Id. at 815-16. Thus, in its analysis of whether mail fraud “is,
or can be, a crime presenting the ‘merger’ problem” presented
in Santos, the Van Alstyne court distinguished between trans-
actions that were a central component of the scheme to
defraud and those that were not.

B.

We first address the effect of Santos and Van Alstyne on the
adequacy of the jury instructions under which Moreland was
convicted. “Any omission or misstatement of an element of an
offense in the jury instructions is constitutional error and,
therefore, requires reversal unless we find the error ‘harmless
beyond a reasonable doubt.’ ” United States v. Kilbride, 584
F.3d 1240, 1247 (9th Cir. 2009) (quoting Chapman v. Califor-
nia, 386 U.S. 18, 24 (1967)). In the absence of a timely objec-
tion to the jury instructions, however, we review for plain
error. Id.

Moreland did not raise a timely objection to the jury
instructions. Moreland did argue in a Federal Rule of Crimi-
nal Procedure Rule 29 motion that there was not “enough
mens rea to show that Mr. Moreland knew that the money that
was subject of the various money laundering counts under
either of the charged statutes, that he knew that the funds were
the proceeds of any mail fraud or wire fraud.” But a Rule 29
motion challenging the sufficiency of the evidence cannot
substitute as a timely objection to the jury instructions. See
United States v. Crowe, 563 F.3d 969, 972 n.5 (9th Cir. 2009).
We therefore apply plain error review. Id. at 972-73. “Plain
error review requires us to find (1) an error that is (2) plain
and (3) affects substantial rights. Even if these conditions
were met, we may only exercise our discretion to correct the
error if it seriously affects the fairness, integrity or public rep-
 UNITED STATES v. MORELAND 6525
utation of judicial proceedings.” Kilbride, 584 F.3d at 1247
(quotation omitted).

1. Counts 26 and 27

[14] Moreland was convicted of promotion money laun-
dering under Counts 26 and 27 as one who “knowing that the
property involved in a financial transaction represents the pro-
ceeds of some form of unlawful activity, conducts or attempts
to conduct such a financial transaction which in fact involves
the proceeds of specified unlawful activity . . . with the intent
to promote the carrying on of specified unlawful activity
. . . .” See 18 U.S.C. § 1956(a)(1)(A)(i). The jury instructions
and indictment reflect that Counts 26 and 27 correspond to
wire transfers for the purpose of paying commissions. These
payments, therefore, raise the same merger problem con-
demned in Santos and Van Alstyne, as commissions were cen-
tral to carrying out the scheme’s objective of encouraging
further investment. Cf. Van Alstyne, 584 F.3d at 815. Because
the jury instructions for Counts 26 and 27 should have defined
proceeds as profits, these instructions were erroneous.

[15] As to whether that error was plain, Santos’s definition
of “proceeds” would not have been plain to the district court
at the time of Moreland’s trial. Nevertheless, the Supreme
Court has held that “where the law at the time of trial was set-
tled and clearly contrary to the law at the time of appeal—it
is enough that an error be ‘plain’ at the time of appellate con-
sideration.” Johnson v. United States, 520 U.S. 461, 468
(1997). At the time of Moreland’s trial the law in this circuit
was settled that “proceeds” were “that which is obtained . . .
by any transaction.” United States v. Akintobi, 159 F.3d 401,
403 (9th Cir. 1998). After Santos and Van Alstyne, however,
the law is clearly to the contrary. The district court’s failure
to instruct the jury that proceeds must be profits therefore
constitutes an error that is plain.

We also find that the error affected Moreland’s substantial
rights. An error prejudices the substantial rights of a defen-
6526 UNITED STATES v. MORELAND
dant when it affects the outcome of the proceedings. United
States v. Fuchs, 218 F.3d 957, 962 (9th Cir. 2000). As stated
previously, the jury instructions for Counts 26 and 27 should
have specified that proceeds must be profits. We conclude
that there is a high probability that this error substantially
affected the jury verdict, as the sales commissions underlying
these counts do not constitute profits.

[16] Under the last prong of the plain error standard, this
court may exercise its discretion to notice the forfeited error
only if the error seriously affected the fairness, integrity, or
public reputation of judicial proceedings. Id. at 963. The
instructional error as to Counts 26-27 requires us to reverse
these convictions because the government has not produced
“overwhelming” evidence that the proceeds involved in these
counts were in fact profits. See id.

2. Counts 33 to 36

Counts 33 to 36, however, stand on different ground. The
jury instructions for these counts required the jury to find the
following:

First, the defendant transferred or caused to be
transferred money from a place in the United States
to a place outside the United States;

Second, the defendant knew that the property rep-
resented the proceeds of mail fraud or wire fraud;

Third, the defendant acted with the intent to pro-
mote the carrying on of mail fraud or wire fraud; and

Fourth, the defendant knew that the transaction
was designed in whole or in part to conceal or dis-
guise the nature, source, ownership, or control of the
proceeds of mail or wire fraud.
 UNITED STATES v. MORELAND 6527
[17] As further stated by the jury instructions, these counts
charge Moreland with money laundering “in violation of Sec-
tions 1956(a)(2)(A) and 1956(a)(2)(B) of Title 18 of the
United States Code.” This point is significant because while
§ 1956(a)(2)(B) requires a showing of “proceeds,”
§ 1956(a)(2)(A) does not. Furthermore, the jury instructions
for Counts 33-36 are conjunctive, so their direction to find
proceeds does not affect the validity of Moreland’s conviction
under § 1956(a)(2)(A), which requires only the transfer of
funds from a place in the United States to a place outside the
United States, or vice versa, with the intent to promote the
carrying on of a specified unlawful activity. Therefore,
because Moreland’s convictions under Counts 33-36 are sup-
ported by § 1956(a)(2)(A), any error in omitting a profits defi-
nition for proceeds was not prejudicial. Accordingly,
Moreland has not shown plain error as to these counts.6

3. Count 38

[18] Moreland was also convicted under 18 U.S.C.
§ 1956(h) for conspiracy to commit money laundering as
alleged in Count 38 of the indictment. The jury instructions
for Count 38 state that the jury could find Moreland guilty of
conspiracy to commit money laundering if “there was an
agreement between two or more persons to commit money
laundering.” These instructions were erroneous under Santos
and Van Alstyne because they permitted the jury to convict
Moreland of conspiracy to launder money even if he agreed
only to transfer gross receipts within the United States. The
instructions do not define “money laundering,” therefore per-
mitting the jury to rely on the incorrect definition in Counts
26 and 27.
6
We note, however, a separate error in the judgment, which states that
§ 1956(a)(1) supports Moreland’s convictions under counts 33-36.
Because that is not the case, the district court is directed to amend that
portion of the judgment on remand.
6528 UNITED STATES v. MORELAND
[19] We nonetheless uphold Moreland’s conviction for
Count 38 under plain error review because Moreland cannot
show “a reasonable probability that, but for [the error], the
result of the proceeding would have been different.” United
States v. Dominguez Benitez, 542 U.S. 74, 81 (2004) (citation
omitted). Even with proper instructions, the jury would have
convicted Moreland of conspiring to commit money launder-
ing, as defined by § 1956(a)(2)(A), because Moreland agreed
to transfer funds outside of the United States in order to carry
on his fraud. The jury found Moreland guilty of Counts 33-36,
which accurately defined money laundering under
§ 1956(a)(2)(A). All of the evidence at trial demonstrated that
the actions underlying those counts were taken subject to an
agreement between Moreland and others. See infra at
6527-32. Also, the jury instructions for Count 38, though
erroneous, did require the jury to find at least some agreement
between Moreland and his co-conspirators. Because Moreland
would have been convicted with correct instructions, the error
in the instructions for Count 38 did not affect Moreland’s sub-
stantial rights and his conviction must be upheld.

C.

Moreland also challenges his convictions for money laun-
dering and conspiracy to commit money laundering on the
basis that there was insufficient evidence to support the jury’s
verdict. Because we reverse Moreland’s convictions under
Counts 26 and 27, we do not address Moreland’s contentions
as to those counts. However, we do address Moreland’s con-
victions for promotion money laundering involving foreign
transfers in violation of 18 U.S.C. § 1956(a)(2)(A) (Counts
33-36) and conspiracy to commit money laundering in viola-
tion of 18 U.S.C. § 1956(h) (Count 38), which are unaffected
by Santos.

“Claims of insufficient evidence are reviewed de novo.”
United States v. Shipsey, 363 F.3d 962, 971 n.8 (9th Cir.
2004). There is sufficient evidence to support a conviction if,
 UNITED STATES v. MORELAND 6529
“viewing the evidence in the light most favorable to the prose-
cution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).

Regarding the four promotion counts (Counts 33, 34, 35,
and 36), 18 U.S.C. § 1956(a)(2)(A) makes it a crime to trans-
fer funds from the United States to a foreign country “with the
intent to promote the carrying on of specified unlawful activ-
ity . . . .” 18 U.S.C. § 1956(a)(2)(A).7 The specified unlawful
activity in this case was mail fraud, 18 U.S.C. § 1341, and
wire fraud, 18 U.S.C. § 1343.

The counts on which Moreland was convicted, Counts 33-
36, involved transfers from Meliorations’s account in Wash-
ington to three international business corporation (“IBC”)
accounts in Samoa and an IBC account in the Bahamas. One
of the Samoan IBCs, Millennium, was controlled by More-
land. Yet Moreland argues that the testimony offered at trial
by Phillips and Fitzgerald demonstrated that only Zidar, Phil-
lips, Fitzgerald, and William Cravens (who established off-
shore accounts for the enterprise) were directly involved in
those transactions. According to Moreland, the prosecution
offered no evidence that Moreland was involved in the trans-
fers. Moreland argues, therefore, that his conviction is not
supported by sufficient evidence.

[20] Moreland’s claim regarding Count 34 is meritless.
That count involved a wire transfer of $510,800 from Melio-
rations to Millennium, an IBC created and controlled by
7
Initially, we note that Moreland’s latest arguments center on whether
there is sufficient evidence to support his convictions under Counts 33-36
for concealment money laundering (18 U.S.C. § 1956(a)(2)(B)(i)), not
promotion money laundering (§ 1956(a)(2)(A)). As demonstrated by Part
III.B.2 of our opinion, we do not decide whether those counts may be
upheld as concealment money laundering, which requires a showing of
proceeds. See § 1956(2)(B)(i). Rather, we address whether there is suffi-
cient evidence to uphold Counts 33-36 as promotion money laundering.
6530 UNITED STATES v. MORELAND
Moreland and used by him to pay his personal expenses. Phil-
lips testified that this transfer was “for a trade” (i.e., an invest-
ment) and sent offshore to conceal it from the government—
an act that also promoted the fraudulent scheme. Not only did
the prosecution produce evidence in support of Moreland’s
culpability on this count, Moreland virtually admitted as
much in his brief to this court by quoting a portion of Fitzger-
ald’s testimony in which she states that Moreland “was
behind Millennium.” A rational juror could have concluded
that Moreland was therefore involved with the transfer. Con-
sequently, the evidence is sufficient to uphold his conviction
on Count 34.

[21] There is also sufficient evidence to uphold More-
land’s convictions on the other money laundering charges
(Counts 33, 35, and 36) even though those transactions did
not directly involve Moreland. Under Pinkerton v. United
States, 328 U.S. 640 (1946), a conspirator is “criminally liable
for the substantive offenses committed by a co-conspirator
when they are reasonably foreseeable and committed in fur-
therance of the conspiracy.” United States v. Long, 301 F.3d
1095, 1103 (9th Cir. 2002) (citing Pinkerton, 328 U.S. at 645-
48). Pursuant to the Pinkerton doctrine, sufficient evidence
exists in this case to uphold Moreland’s convictions for the
substantive money laundering charges provided that: (1) there
is sufficient evidence to uphold his conviction for conspiracy,
(2) the money laundering offenses were committed in further-
ance of the conspiracy while Moreland was a member of the
conspiracy, and (3) the actions providing the basis for the sub-
stantive charges were reasonably foreseeable to Moreland.8
Pinkerton, 328 U.S. at 645-48.

[22] Section 1956(h) states that “[a]ny person who con-
spires to commit any offense defined in this section . . . shall
be subject to the same penalties as those prescribed for the
offense the commission of which was the object of the con-
8
The jury was properly instructed on these elements.
 UNITED STATES v. MORELAND 6531
spiracy.” 18 U.S.C. § 1956(h). Moreland argues that he did
not have knowledge of the objective of Zidar’s money laun-
dering conspiracy. “Knowledge of the objective of the con-
spiracy is an essential element of any conspiracy conviction.”
United States v. Krasovich, 819 F.2d 253, 255 (9th Cir. 1987).
In asserting that he had no knowledge of the conspiracy,
Moreland claims that he had no connection to Meliorations or
access to its bank accounts, that his clients did not deposit
their money in Meliorations’s accounts, and that his function
in the organization was merely to invest funds. “However, the
existence of an agreement may be inferred from circumstan-
tial evidence.” United States v. Fulbright, 105 F.3d 443, 448
(9th Cir. 1997), overruled on other grounds by United States
v. Heredia, 483 F.3d 913, 921 (9th Cir. 2007) (en banc); see
also United States v. Castro, 972 F.2d 1107, 1110 (9th Cir.
1992) (“The government does not have to present direct evi-
dence. Circumstantial evidence and the inferences drawn from
that evidence will sustain a conspiracy conviction.”) (empha-
sis in original). The evidence contradicts Moreland’s conten-
tion.

The government introduced an overwhelming amount of
evidence demonstrating Moreland’s knowledge of the exis-
tence of the conspiracy and agreement to the conspiracy’s
objectives. Moreland worked with Zidar, Cravens, and Phil-
lips to use foreign corporations and bank accounts to promote
their fraud and hide their ill-gotten millions from the U.S.
Government. A specific example is Cravens’s testimony that
the IBCs and Samoan bank accounts he set up specifically for
Moreland (including the Millennium IBC and bank account)
were set up to allow Zidar and Moreland to operate “privately
and with the utmost secrecy,” with the purpose of keeping
money away from the government. Phillips testified that Zidar
directed her to wire funds from Meliorations to Moreland’s
Millennium account in Samoa in order to keep the money
away from the government. Agent Lawrence testified that
new investor money was sent to Moreland’s various accounts
in the Bahamas, Samoa, and other locations, which money
6532 UNITED STATES v. MORELAND
Moreland used to pay his Dexia and Millennium investors.
Much more evidence was introduced at trial. Given the weight
of the evidence, a rational juror could have found beyond a
reasonable doubt that Moreland participated in the overall
conspiracy to launder money and had knowledge of its objec-
tives.

The evidence also supports the jury’s finding beyond a rea-
sonable doubt that the specific actions underlying the money
laundering counts were committed in furtherance of the
money laundering conspiracy while Moreland was a part of it,
and that the offenses were reasonably foreseeable to More-
land. Moreland knew that Zidar, Cravens, and Phillips were
transferring funds out of the country to hide the funds from
the government, which promoted the fraudulent scheme. And
he knew about the existence and use of all four foreign bank
accounts involved in the transfers. Thus, a rational juror could
find beyond a reasonable doubt that the particular transactions
alleged in Counts 33, 35, and 36 were committed in further-
ance of the conspiracy while Moreland was part of it and were
reasonably foreseeable to Moreland.

[23] There is ample evidence that Moreland participated in
the overarching conspiracy with knowledge of its objectives.
There is also sufficient evidence to conclude that the transac-
tions forming the basis for the substantive charges were com-
mitted in furtherance of the conspiracy while Moreland was
a member of the conspiracy and were reasonably foreseeable
to Moreland. As a result, there is sufficient evidence to uphold
Moreland’s conviction on the substantive money laundering
charges under Counts 33-36 and the conspiracy charge under
Count 38.

IV.

Finally, Moreland appeals the district court’s order impos-
ing over $36 million in restitution. The legality of a restitution
order is reviewed de novo, unless it is within the statutory
 UNITED STATES v. MORELAND 6533
bounds, in which case we review for abuse of discretion.
United States v. Phillips, 367 F.3d 846, 854 (9th Cir. 2004).

Congress passed the Mandatory Victims Restitution Act of
1996 (MVRA), 18 U.S.C. §§ 3663A-3664, as part of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub.L. No. 104-132, § 206, 110 Stat. 1232 (1996),
and as a supplement to the Victim and Witness Protection Act
of 1982 (VWPA), 18 U.S.C. § 3663. United States v. De La
Fuente, 353 F.3d 766, 769 (9th Cir. 2003). The MVRA makes
restitution mandatory, without regard to a defendant’s eco-
nomic situation, to identifiable victims who have suffered
physical injury or pecuniary loss from particular crimes,
including offenses involving fraud or deceit. 18 U.S.C.
§ 3663A(a)(1), (c), § 3664(f)(1)(A); United States v. Mays,
430 F.3d 963, 965 (9th Cir. 2005); United States v. Gordon,
393 F.3d 1044, 1048 (9th Cir. 2004); and United States v.
Dubose, 146 F.3d 1141, 1143 (9th Cir. 1998). The “primary
and overarching goal” of the MVRA “is to make victims of
crime whole, to fully compensate these victims for their losses
and to restore these victims to their original state of well-
being.” Gordon, 393 F.3d at 1053 (internal quotations, cita-
tions, and emphasis omitted). For that reason, the statute “ex-
pressly directs the sentencing judge to award restitution in an
amount equal to the value of the property on the date of the
damage, loss, or destruction.” Id. (internal quotation omitted).
As such, the MVRA seeks “to restore the defrauded party to
the position he would have had absent the fraud.” Id. (internal
quotation omitted).

[24] The procedures for identifying victims and the losses
they sustained as a result of a defendant’s criminal conduct
are set forth in § 3664. The statute directs the sentencing court
to order a probation officer to prepare a report providing “a
complete accounting of the losses to each victim.” 18 U.S.C.
§ 3664(a). To facilitate the preparation of this report,
§ 3664(d)(1) provides for the prosecutor, upon request of the
probation officer, to consult with victims and, not later than
6534 UNITED STATES v. MORELAND
60 days before the sentencing date, to detail any losses subject
to restitution. Id. § 3664(d)(1). Section 3664(d)(2) further pro-
vides that the probation officer, prior to submitting a report to
the court, shall, to the extent practicable, provide notice of the
court proceedings to all victims and afford them the opportu-
nity to submit an affidavit detailing any losses subject to resti-
tution. Id. § 3664(d)(2). “If the number or identity of victims
cannot be reasonably ascertained, or other circumstances exist
that make [preparing the report] clearly impracticable, the
probation officer shall so inform the court.” Id. § 3664(a).
Where victims’ losses are not ascertainable by a date 10 days
prior to sentencing, the prosecutor or the probation officer
shall inform the court, and “the court shall set a date for the
final determination of the victim’s losses, not to exceed 90
days after sentencing.” Id. § 3664(d)(5). If a victim thereafter
discovers losses that could not reasonably have been included
in his or her initial claim for restitution, that victim may,
within 60 days of discovering the loss, petition the court for
an amended restitution order. Id.

In this case, the district court ordered restitution of approxi-
mately $36 million well after the 90-day limit had elapsed. At
the time of Moreland’s original sentencing, on August 23,
2003, and at the request of the prosecution, the district court
deferred the issue of restitution pending a determination by a
receiver of the identities of victims and the amounts of their
losses. The receiver did not complete its determination until
March 2005. By that time, Moreland had appealed his original
sentence and a prior panel of this court had already remanded
for resentencing. On remand, the district court entered a resti-
tution order for over $36 million. That order was issued over
two years after the original sentencing took place. Moreland
argues that the district court lacked jurisdiction to order resti-
tution on remand because it failed to do so within the 90-day
time frame set forth in § 3664(d)(5). We disagree. Moreland’s
timing argument would abrogate an obligation to pay millions
of dollars in restitution to thousands of defrauded victims.
 UNITED STATES v. MORELAND 6535
Such an outcome would be antithetical to the purpose of the
MVRA.

[25] The “intended beneficiaries” of the MVRA’s proce-
dural mechanisms “are the victims, not the victimizers.”
United States v. Grimes, 173 F.3d 634, 639 (7th Cir. 1999).
The legislative history reveals Congress’s intent that the time
limits in § 3664 not be relied upon for protection by defen-
dants. See United States v. Cheal, 389 F.3d 35, 49 (1st Cir.
2004). In its report on the bill that would become the MVRA,
the Senate Judiciary Committee explicitly refused to relate the
statute’s procedural framework to the interest of defendants,
stating that the “sole due process interest of the defendant
being protected during the sentencing phase is the right not to
be sentenced on the basis of invalid premises or inaccurate
information.” S. Rep. No. 104-179, at 18 (1995), as reprinted
in 1996 U.S.C.C.A.N. 924, 930, quoted in Cheal, 389 F.3d at
49. Consequently, we recognized in United States v. Cienfue-
gos, 462 F.3d 1160 (9th Cir. 2006), that “ ‘the purpose behind
the statutory ninety-day limit on the determination of victims’
losses is not to protect defendants from drawn-out sentencing
proceedings or to establish finality; rather, it is to protect
crime victims from the willful dissipation of defendants’
assets.’ ” Id. at 1163 (quoting United States v. Zakhary, 357
F.3d 186, 191 (2d Cir. 2004)).

[26] Addressing two of the other timing requirements in
§ 3664 (the 10-day notice rule in § 3664(d)(5), and the 60-day
requirement in § 3664(d)(1) regarding the amount of loss cal-
culation), we held that § 3664’s timing requirements are pro-
cedural, rather than jurisdictional. United States v.
Cienfuegos, 462 F.3d 1160, 1162-63 (9th Cir. 2006). We con-
cluded that the government’s failure to comply with both of
those requirements was subject to harmless error review. Id.
This conclusion puts us in sync with the First, Second, Fourth,
Sixth, Seventh, Eighth, and Tenth Circuits, which have held
that § 3664’s requirements are not jurisdictional. See United
States v. Cheal, 389 F.3d 35, 49-50 (1st Cir. 2004); United
6536 UNITED STATES v. MORELAND
States v. Zakhary, 357 F.3d 186, 191 (2d Cir. 2004); United
States v. Vandeberg, 201 F.3d 805, 814 (6th Cir. 2000);
United States v. Johnson, 400 F.3d 187, 199 (5th Cir. 2005);
United States v. Grimes, 173 F.3d 634, 639 (7th Cir. 1999);
United States v. Balentine, 569 F.3d 801, 806-07 (8th Cir.
2009); United States v. Dolan, 571 F.3d 1022, 1031 (10th Cir.
2009).9

In fact, Moreland’s “jurisdictional argument is undermined
by § 3664’s provision for continued revision of the restitution
order in light of later discoveries of losses.” Cheal, 389 F.3d
at 48. “The MVRA permits amendments to restitution order
to reflect changed circumstances, and neither confers nor ter-
minates the court’s jurisdiction.” Vandeberg, 201 F.3d at 814.
If a district court’s jurisdiction to order restitution did termi-
nate after 90 days, the time limitation would “effectively nul-
lify[ ]” the provision allowing for consideration of later-
discovered losses. Id. Furthermore, the title of the provision
itself—“Procedure for issuance and enforcement of order of
restitution”—“advertises its procedural nature” and refutes the
notion that § 3664(d)(5) is jurisdictional. Cheal, 389 F.3d at
48.

The legislative history also supports the notion that the “in-
tended beneficiaries” of the MVRA’s procedural mechanisms
“are the victims, not the victimizers.” Grimes, 173 F.3d at
639. The legislative history reveals Congress’s intent that the
time limits in § 3664 not be relied upon for protection of
defendants. See Cheal, 389 F.3d at 49. In its report on the bill
that would become the MVRA, the Senate Judiciary Commit-
tee explicitly refused to relate the statute’s procedural frame-
9
But see United States v. Farr, 419 F.3d 621, 623 (7th Cir. 2005) (dis-
tinguishing Grimes and holding that the district court exceeded its author-
ity under § 3664 to issue restitution because it did not do so within the 90-
day time limit, where it did not order restitution as part of the defendant’s
original sentence, but three years later added restitution as a condition of
defendant’s supervised release).
 UNITED STATES v. MORELAND 6537
work to the interest of the defendants, stating that the “sole
due process interest of the defendant being protected during
the sentencing phase is the right not to be sentenced on the
basis of invalid premises or inaccurate information.” S. Rep.
No. 104-179 at 18 (1995), reprinted in 1996 U.S.C.C.A.N.
924, 930, quoted in Cheal, 389 F.3d at 49. Consequently, we
recognized in Cienfuegos that “ ‘the purpose behind the statu-
tory ninety-day limit on the determination of victims’ losses
is not to protect defendants from drawn-out sentencing pro-
ceedings or to establish finality; rather, it is to protect crime
victims from the willful dissipation of defendants’ assets.’ ”
462 F.3d 1163 (quoting Zakhary, 357 F.3d at 191).

[27] For that reason, in Cienfuegos, we concluded that “be-
cause the procedural requirements of section 3664 were
designed to protect victims, not defendants, the failure to
comply with them is harmless error absent actual prejudice to
the defendant.” 462 F.3d at 1163; see also Zakhary, 357 F.3d
at 188 (“[F]ailure to determine losses within the § 3664(d)(5)
time period will be deemed harmless error unless a defendant
can show actual prejudice from the delay. . . . [A] presump-
tion of harmlessness applies to any error in the timely identifi-
cation of victims’ losses.”). Here, Moreland “cites no
prejudice from the delay in entering the restitution order.”
Cheal, 389 F.3d at 48. For example, Moreland does not claim
that any documents or witnesses had become unavailable after
the 90-day period elapsed, or that his financial status changed.
See United States v. Stevens, 211 F.3d 1, 6 (2d Cir. 2000).
Indeed, Moreland does not even allege that the delay caused
any prejudice to his defense whatsoever. See id. at 6. In Cien-
fuegos, we held that the defendant failed to show prejudice,
in part, because he had “the functional equivalent of notice”
under § 3664(d)(5)’s requirements, since restitution was part
of his plea agreement. 462 F.3d at 1163. Likewise, here,
Moreland was aware that an order of restitution would be part
of his sentence, as the district judge noted it on the record dur-
ing the original sentencing hearing but deferred the calcula-
tion of the amount and identification of the victims at the
6538 UNITED STATES v. MORELAND
prosecution’s request. Thus, Moreland also had notice that the
restitution order would later be imposed. Finally, Moreland
was aware of the large amount of funds at issue based on the
district court’s findings to support the sentencing calculation.
Therefore, the district court’s error in failing to comply with
the 90-day time limit was harmless. See id.

[28] Finally, the prosecution did not waive its right to seek
restitution, as Moreland suggests. As an initial matter, restitu-
tion under the MVRA is not a right to be sought or waived by
a prosecutor. Rather, as the name of the statute suggests, resti-
tution is mandatory where the MVRA applies. Even so, in this
case, the prosecution requested restitution in its original sen-
tencing memorandum to the district court. At the prosecu-
tion’s request, the court deferred ordering restitution until the
receiver finished its report on victims’ losses. Moreland’s
waiver argument is therefore undermined by both the record
and the mandatory nature of the statute.

V.

The Supreme Court’s decision in Santos requires us to
REVERSE Moreland’s convictions under Counts 26 and 27,
VACATE Moreland’s sentence, and REMAND for resentenc-
ing. We AFFIRM the district court in all other respects.