United States v. Hall

United States Court of Appeals
For the First Circuit

No. 03-2425

UNITED STATES OF AMERICA,

Appellee,

v.

KEVIN R. HALL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Chief Judge,

Campbell, Senior Circuit Judge,

and Howard, Circuit Judge.

Edward S. MacColl, with whom Thompson, Bull, Furey, Bass &
MacColl, LLC, P.A. was on brief, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.

January 12, 2006
 HOWARD, Circuit Judge. A federal grand jury in Maine

returned an indictment against Kevin Hall charging him with one

count of conspiring to distribute marijuana, 21 U.S.C. §§

841(a)(1) & 846; 163 counts of money laundering, 18 U.S.C. §

1956(a)(1)(B)(i), for his use of the conspiracy proceeds; and four

counts of tax evasion, 26 U.S.C. § 7201, for failing to pay income

tax on the drug-related income. The government also brought two

forfeiture counts to obtain assets related to Hall's illegal

conduct, 21 U.S.C. § 853; 18 U.S.C. § 982. After a ten-day jury

trial, Hall was convicted on all counts. He was sentenced to 151

months of imprisonment on the conspiracy and money laundering

convictions, to be served concurrently with 60 months of

imprisonment on each of the tax evasion convictions. He also was

ordered to forfeit his illegally obtained assets. On appeal, Hall

claims that there was insufficient evidence of a drug conspiracy or

money laundering and alleges a host of trial and sentencing errors.

SUFFICIENCY OF THE EVIDENCE CLAIMS

We review Hall's sufficiency of the evidence claims de

novo, see United States v. Cruzado-Laureano, 404 F.3d 470, 480 (1st

Cir. 2005), and apply the following standard:

We must determine whether the evidence,
taken in the light most favorable to the
government--a perspective that requires us
to draw every reasonable inference and
resolve credibility conflicts in a manner
consistent with the verdict--would permit
a rational trier of fact to find each
element of the crime charged beyond a

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 reasonable doubt. The government can meet
this burden by either direct or
circumstantial evidence, or by any
combination of the two. Moreover, the
government need not disprove every
hypothesis consistent with the defendant's
innocence; rather, it is enough that a
rational jury could look objectively at
the proof and supportably conclude beyond
a reasonable doubt that the defendant's
guilt has been established.

United States v. Patel, 370 F.3d 108, 111 (1st Cir. 2004).

A. Drug Conspiracy

Hall contends that there was insufficient evidence of his

participation in a drug trafficking conspiracy because the

government established only that he purchased marijuana from

another individual and resold it. According to Hall, proof of a

buyer/seller relationship is not sufficient to establish a drug

conspiracy.

This contention does not warrant extended discussion. It

is enough to say that Hall understates the strength of the

government’s evidence. There was proof that from 1995 to 1999 Hall

bought large amounts of marijuana from an individual named John

Redihan. Redihan testified that he was aware that Hall's purpose

was to resell the drugs for profit and that, on occasion, he

assisted Hall in these efforts. See United States v. Berrios, 132

F.3d 834, 841-42 (1st Cir. 1998) (concluding that there was

sufficient proof of a distribution conspiracy where seller knew

that buyer was purchasing drugs for the purpose of selling it to

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others and intended to facilitate the resales). Moreover, Hall

enlisted several other individuals to help him in the storage,

preparation, and selling of the drugs. For example, an individual

named William Lee sold marijuana for Hall, and a married couple,

George and Brenda Elliot, assisted Hall by letting him store drugs

in their home, helping him weigh the drugs, picking up marijuana

deliveries from Redihan, and participating in Hall's debt

collection efforts. This evidence sufficiently established Hall's

participation in a conspiracy to distribute marijuana.

B. Money Laundering

The government charged Hall with 163 counts of

concealment money laundering under 18 U.S.C. § 1956(a)(1)(B)(i) for

his use of the drug conspiracy proceeds. To sustain a conviction

under § 1956(a)(1)(B)(i), the government must prove: (1) that Hall

knowingly conducted a financial transaction, (2) that he knew that

the transaction involved funds that were proceeds of some form of

unlawful activity, (3) that the funds were proceeds of a specified

unlawful activity, and (4) that Hall engaged in the financial

transaction knowing that it was designed in whole or in part to

conceal or disguise the nature, location, source, ownership, or

control of the proceeds of such unlawful activity. See United

States v. Cornier-Ortiz, 361 F.3d 29, 37 (1st Cir. 2004). Hall's

sufficiency claims relate primarily to the government's proof on

the "conceal or disguise" element. He asserts that all of the

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financial transactions were conducted above board and were thus not

meant to conceal or disguise anything. In essence, Hall’s argument

is that the government proved only that he spent or invested drug

money and that this evidence is inadequate to sustain a conviction

under § 1956(a)(1)(B)(i).

It is true that the money laundering statute does not

criminalize the mere spending or investing of illegally obtained

assets. See United States v. Corchado-Peralta, 318 F.3d 255, 259

(1st Cir. 2003). Instead, at least one purpose for the expenditure

must be to conceal or disguise the assets. See id. Proof of this

element may be based on direct evidence, such as the defendant's

own statements; or circumstantial evidence, like the use of a

third-party to disguise the transaction; or unusual secrecy in

making the transaction. See Cruzado-Laureano, 404 F.3d at 483.

In this case the government charged a series of financial

transactions as separate counts. See United States v. Marshall,

248 F.3d 525, 540 (6th Cir. 2001). We must therefore examine the

government's proof on each count to determine its sufficiency. See

United States v. Shepard, 396 F.3d 1116, 1121 (10th Cir. 2005).

The 163 counts essentially involve loans to friends and colleagues

and related transactions, purchases of cars and other vehicles,

expenditures to renovate property, and establishing a construction

business.

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 1. Loans and Related Transactions

i. Cosby/Brown Loans (Counts 2-97)

In 1995, Hall offered to loan $30,000 to Danny Cosby and

his girlfriend, Susan Brown, to buy a parcel of land. Cosby and

Brown accepted Hall's offer and, after executing a mortgage to

secure the loan, Hall gave them the loan proceeds in cash. In

1996, Cosby and Brown borrowed another $25,000, which Hall also

paid out in cash. Over the next several years, Hall negotiated 96

repayment checks from Cosby and Brown, including a $33,000 check to

pay off the remainder of the loans.

When Cosby and Brown asked Hall where he got the money

for the loans, he told them that he got most of it from an

inheritance from his father. But there was evidence that Hall's

father had intentionally omitted him from his will and that Hall

did not receive anything from his father's estate. There also was

testimony that, in regard to a loan to another person, Hall stated

that the reason he wanted to loan money was to "get some of his

money more legal."

The government charged each negotiation of a loan

repayment check as a separate money laundering count. Hall claims

that there "was nothing suspicious about the loan" repayments

because he made no attempt to conceal his identity when dealing

with Cosby and Brown in making the loans or negotiating the

repayments. This argument misconstrues the purpose of §

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1956(a)(1)(B)(i). The statute criminalizes conduct designed to

conceal or disguise the source of the drug proceeds even if the

defendant does not conceal his own identity in the process. See,

e.g., United States v. Norman, 143 F.3d 375, 377-78 (8th Cir.

1998); United States v. Starke, 62 F.3d 1374, 1384 (11th Cir.

1995); United States v. Kinzler, 55 F.3d 70, 73 (2d Cir. 1995);

United States v. Lovett, 964 F.2d 1029, 1034 n.3 (10th Cir. 1992).

While Hall arranged the loans himself and negotiated the

checks in his own name, there was evidence that one purpose for the

loans was to disguise the illegal origin of the loan funds. Hall

admitted as much when he claimed to another individual that he

wanted to loan money to "get some of his money more legal." Hall

made this comment regarding a different loan, but the jury could

infer that the same motivation applied to other similar loans which

Hall made while running his marijuana trafficking operation.

Additionally, Hall intentionally misled the borrowers about the

source of the proceeds by telling them that he obtained the money

from a family inheritance. Such a misstatement is probative of

concealment. See United States v. Tekle, 329 F.3d 1108, 1114 (9th

Cir. 2003) (affirming money laundering conviction based on evidence

that defendant lied about the origin of funds that he used to

purchase a home); United States v. Wilson, 77 F.3d 105, 109 (5th

Cir. 1996) (affirming money laundering conviction where defendant

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said that money was from an inheritance to "cover" for the cash

purchase). This evidence is sufficient to sustain the convictions.

ii. Moving Funds to an E*Trade Account
(Count 98)

As mentioned above, Cosby and Brown provided Hall with a

$33,000 check to pay off their debt. After receiving the check,

Hall placed these funds in his bank account for a few days before

moving them to an E*Trade investment account. The government

charged the moving of the funds as money laundering. Hall claims

that "there was absolutely nothing about the transaction that

suggested concealment or an intent to conceal."

We agree that there is nothing about the transfer of

money from Hall's bank account to his E*Trade account that,

standing alone, necessarily suggests an intent to conceal. But the

transfer cannot be viewed in isolation. It was part of the series

of transactions that began with the loans to Cosby and Brown. "A

design to conceal on a particular transaction may be imputed to a

subsequent transaction if the subsequent transaction, while

innocent on its face, is part of a larger money laundering scheme."

United States v. Burns, 162 F.3d 840, 848-49 (5th Cir. 1998)

(internal citation and quotation marks omitted). This is so

because a "launderer can never be sure that he has run the money

through enough laundering cycles to make it clean enough so that

the government can't find the stains." B. Williams & F. Whitney,

Federal Money Laundering: Crimes and Forfeitures § 5.1.6.4 (1999).

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Given the proof that the original loans to Cosby and Brown were

motivated by Hall's desire to conceal the source of the funds, the

jury could infer that Hall's continued shuffling of the money

through accounts was an attempt to further separate the money from

its illegal source. See Burns, 162 F.3d at 848-49 (affirming money

laundering conviction based on bank deposit which when viewed in

isolation was innocent, but when viewed in context was part of a

scheme to launder funds).1

iii. Recording a Mortgage (Count 161)

As security for a loan that Hall made to Felicity Hyde

(Count 160), Hall recorded a mortgage on property that Hyde owned.

The government charged the recording of the mortgage as a separate

count of money laundering. Hall contends that the recording of the

mortgage does not constitute money laundering because it is not a

"financial transaction" as defined under the money laundering

statute. See 18 U.S.C. § 1956 (3)(c)(4). This argument was not

raised below, and therefore our review is for plain error. See

United States v. Capozzi, 347 F.3d 327, 335 (1st Cir. 2003).

As a threshold for relief under the plain error standard,

Hall must show that the district court committed a clear and

1
Counts 119-121, 125-150, 155-157 and 160 also concern loan
repayments Hall received and Hall's subsequent distribution of the
loan proceeds. For each count, there was evidence similar to the
proof presented for counts 2-98. Hall has not provided additional
grounds for overturning these convictions. We therefore affirm
these convictions for substantially the same reasons that we affirm
the convictions for counts 2-98.

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obvious error by not dismissing this count on the ground that

recording the mortgage was not a financial transaction. See United

States v. Marino, 277 F.3d 11, 32 (1st Cir. 2002). The money

laundering statute defines a financial transaction as a transaction

which "in any way or degree affects interstate commerce" and, among

other things "involves the transfer of title to any real property."

This definition is construed broadly. Federal Money Laundering,

supra § 2.3 (citing S. Rep. 99-433 at 13 (1986)). A mortgage is

"a conveyance of title to property that is given as security for

the payment of a debt . . . that will become void upon payment . .

. according to the stipulated terms." Black's Law Dictionary 1031

(8th ed. 1999) (emphasis supplied). The recording of the mortgage

thus memorialized and made efficacious "transfer of title to any

real property," and would seem to constitute a "financial

transaction." In any event, we are aware of no caselaw to the

contrary, and therefore the district court's error, if any, was not

clear or obvious. See Patel, 370 F.3d at 118.

2. Vehicle Purchases

i. Pickup Truck (Count 99)

In April 1997, Hall purchased a used one-ton pickup

truck. Hall found an advertisement for the truck in a local

magazine and called the owner, Mark Stevens, to inquire about it.

After a few contacts, Hall and Stevens agreed on a $12,000 purchase

price. Hall asked that Stevens deliver the truck to his house.

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Although Stevens found that request peculiar, he complied and upon

delivering the truck received from Hall $12,000 in cash in the form

of wrapped packages of $20 bills. Hall contends that this evidence

does not suggest an effort by him to conceal the funds used for the

transaction.

"The conversion of cash into goods or services as a way

of concealing or disguising [a] wellspring of . . . cash is a

central concern of the money laundering statute." United States v.

Jackson, 935 F.2d 832, 841 (7th Cir. 1991). "Because cash is a

frequent by-product of many kinds of illegal activity, converting

. . . cash into useable funds is probative of money laundering.

Thus, spending large amounts of cash to buy cars . . . may suggest

an intent to conceal." Federal Money Laundering supra at §

5.16.11.

The jury heard evidence that Hall paid for the truck with

wrapped packages of small bills. Hall's use of small bills made it

more difficult for anyone to trace the truck payment. See United

States v. Misher, 99 F.3d 664, 668-69 (5th Cir. 1996) (concluding

that proof that drug dealer purchased pickup truck with $10 and $20

bills was sufficient for the jury to conclude that a purpose of the

purchase was to conceal the source of the funds); United States v.

Heater, 63 F.3d 311, 319 (4th Cir. 1995) (concluding that proof

that defendant made several large purchases using small bills which

exceeded his lawful income was sufficient to sustain money

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laundering conviction). Additionally, as we will discuss below,

the government introduced evidence of other vehicle purchases for

which there was additional proof that Hall made the purchases to

conceal his drug income. The jury could have relied on this

evidence to conclude that the pickup truck purchase was part of a

single pattern of concealment. Taken in total, this evidence

suffices to sustain the conviction on count 99.

ii. 1988 Ford Dump Truck (Counts 100-01)

In August 1997, Hall provided his sister, Andrea Read,

with $16,000 cash to purchase a money order in her name payable to

O'Connor GMC. Hall used the money order along with an additional

$500 in cash to purchase a dump truck. Hall's use of his sister's

name in purchasing the money order is evidence of his intent to

conceal because it indicates that he was attempting to disguise the

source of the proceeds by having it pass through another person's

control. See United States v. Willey, 57 F.3d 1374, 1385 (5th Cir.

1995) (stating that "using a third party, for example, . . . a

relative, to purchase goods on one's behalf . . . usually

constitutes sufficient proof of a design to conceal"). Moreover,

Redihan testified that Hall told him that he had set up a

fictitious "inheritance account" in which the money "was cleaned"

and used to purchase construction equipment such as a dump truck.

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Thus, the jury could have found that this purchase was part of the

money laundering scheme.2

iii. 1932 Ford Coupe (Count 102)

In August 1997, Hall purchased a restored 1932 Ford Coupe

from Terrence Blair for $24,000. When Blair delivered the car to

Hall, Hall gave him a paper bag filled with cash. At Hall's

request, Blair wrote the bill of sale for only $5,000. In addition

to the use of cash to make the purchase, Hall's request for a false

bill of sale suggests concealment because it permitted Hall to

include an additional $19,000 in the purchase price that could not

easily be traced. See Wilson, 77 F.3d at 109 (affirming money

laundering conviction where defendant asked seller of car to say

that he sold the car to him for half of the actual purchase

price).3

3. Renovations and Fire Island Construction

2
Redihan's testimony is also sufficient to affirm the
convictions on counts 103-118 and 122-124 which relate to Hall's
purchase of other pieces of construction equipment.
3
There was evidence that Hall requested false bills of sale
for his purchases of a 1970 Volkswagon (count 154) and a 1965
Corvette (count 158). We affirm these convictions on this basis.
We also affirm the conviction concerning Hall's purchase of a 1995
Volvo (count 151), as there was evidence that Hall attempted to
conceal certain loan repayment funds by purchasing this vehicle.
Additionally, we affirm the conviction concerning Hall's purchase
of an all-terrain vehicle (count 159) on the ground that the jury
could conclude that this purchase (made in cash) was part of the
same laundering scheme as the other vehicle purchases. Hall has
not challenged the convictions on counts 152 and 153 which relate
to his purchase of a 1992 Ford Explorer.

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 i. Renovations to Hall's Real Estate
Holdings (Counts 162-163)

In 1997 and 1998, Hall paid almost $100,000 for supplies

and labor to renovate property that he owned in Camden and

Northport, Maine. Hall argues that he organized the work himself

and therefore there was no effort on his part to conceal or

disguise the drug funds.

But, as discussed above, the issue is not whether Hall

hid his identity in performing these renovations but rather whether

one purpose of the transaction was to conceal or disguise drug

proceeds. See supra at 6-7. The government presented evidence

that Hall paid for the labor and materials using mostly cash and

that he did not keep records of the labor costs. The evidence also

established that Hall spent far in excess of his declared income to

make these renovations. See United States v. Webster, 960 F.2d

1301, 1308 (5th Cir. 1992) (holding that "a differential between [a

drug dealer's] legitimate income and cash flow is sufficient for a

money laundering conviction"). A jury could conclude that Hall's

expenditures of large amounts of cash, far in excess of his

reported income, coupled with his non-existent bookkeeping

practices demonstrated that he renovated the properties as a way to

disguise illegally obtained cash by converting the money into

expensive real estate holdings.4

4
Hall also argues that these counts should have been dismissed
because the government did not charge each expenditure related to

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 ii. Transferring Assets to Fire Island
Construction (Count 164)

The final count of money laundering charged Hall with

transferring over $80,000 in assets to a construction company that

he established called Fire Island Construction. Hall again claims

that the government failed to prove the concealment element of the

offense. Hall's objection to this count fails on the basis of his

statements to others. See Cruzado-Laureano, 404 F.3d at 483. There

was testimony that Hall said that he established Fire Island

Construction "to make him look legitimate" and that he transferred

construction equipment to Fire Island as part of a scheme to "clean

up some [of the] money." The jury could infer from this testimony

that Hall's creation of Fire Island Construction and the subsequent

transfer of property to the company was at least partially

motivated by his desire to disguise the source of his drug

proceeds.5

the renovations as a separate offense. He argues that each
renovation expenditure was a distinct transaction and therefore
should have been charged separately. This argument was first
raised on appeal, and we therefore limit ourselves to plain error
review. The term transaction "may comprehend a series of many
occurrences, depending not so much upon the immediateness of their
connection as upon their logical relationship." Moore v. N.Y.
Cotton Exchange, 270 U.S. 593, 610 (1926). It was not clearly
wrong for the district court to view Hall's numerous renovation
expenditures as one transaction even though it was comprised of
several "subtransactions." Federal Money Laundering supra at §
2.2.2.
5
Hall also challenges his money laundering convictions on the
ground that the government failed to establish a nexus between the
money laundering transactions and interstate commerce as required

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 TRIAL-ERROR CLAIMS

A. Brady Violation

Hall claims that the government committed a Brady

violation by withholding information concerning the extent of

Redihan's prior criminal history. See Brady v. Maryland, 373 U.S.

83, 87 (1963) (holding that prosecution violates defendant's due

process rights by withholding evidence from defense that is

material to either guilt or punishment); Giglio v. United States,

405 U.S. 150, 154 (1972) (applying Brady to impeachment evidence).

Before trial, the government disclosed Redihan's prior convictions,

including a 1998 drug conviction in Rhode Island. As part of the

disclosure, the government told defense counsel that the Rhode

Island conviction involved the sale of Percodan and steroids, but

after trial, it was discovered, through the preparation of Hall's

presentence report, that the conviction also involved allegations

of marijuana distribution.

Hall asserts that this omission prejudiced his defense.

One of Hall's defenses was that, while he sold small amounts of

marijuana, he was not involved in the large-scale trafficking

by 18 U.S.C. § 1956(a)(3)(B). This argument was not raised below.
While Hall claims that "many of the transactions" fail the
interstate commerce requirement, he has provided us with only a
skeletal argument and has not cited any authority to support his
claim. This sort of underdeveloped argument is inadequate for Hall
to sustain his "heavy burden" of demonstrating plain error for this
unpreserved claim. United States v. Moran, 393 F.3d 1, 13 (1st Cir.
2004).

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charged in the indictment. Hall argues that evidence concerning

the nature of Redihan's Rhode Island conviction was important

because it would have shown that Redihan lied when he testified

that Hall was his major customer during the period of the charged

conspiracy. He posits that, if he could have shown that Redihan

was supplying drugs to many people, the jury would have been less

likely to believe that Redihan was selling him such large

quantities of marijuana. The government counters that there was no

Brady violation because it was unaware of the marijuana aspects of

the Rhode Island conviction until after the trial, and in any event

the unavailability of this information was not prejudicial to

Hall's defense.

Hall's Brady argument fails because there is no evidence

that, prior to the conclusion of the trial, the government had

information concerning the marijuana aspect of Redihan's Rhode

Island conviction. The information that Redihan's Rhode Island

conviction concerned marijuana trafficking came from a police

report which the government states that it learned about only after

the probation department discovered it during Hall's presentence

investigation.

The government's obligations under Brady only extend to

information in its possession, custody, or control. See United

States v. Josleyn, 206 F.3d 144, 153-54 (1st Cir. 2000).

Nevertheless, Hall contends that the government had a duty to learn

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and disclose the details of Redihan's Rhode Island convictions and

not just the fact of the conviction. While a prosecutor must

disclose information maintained by government agents even if the

prosecutor herself does not possess the information, see Strickler

v. Greene, 527 U.S. 263, 280 (1999), this duty does not extend to

information possessed by government agents not working with the

prosecution, see United States v. Bender, 304 F.3d 161, 164 (1st

Cir. 2002). The information concerning the details of Redihan's

conviction was maintained by the Rhode Island state courts, and

there is no evidence that the federal prosecutor or any agent

working on her behalf had this information prior to or during

trial. See id.

Moreover, even assuming the government had to disclose

the details of Redihan's Rhode Island conviction, Hall has not

shown sufficient prejudice to warrant relief. Brady prejudice

exists where "there is a reasonable probability that the suppressed

evidence would have produced a different verdict." Strickler, 527

U.S. at 281-82. Hall elicited from Redihan, on cross-examination,

that he was a convicted drug dealer and that he had distributed

drugs in Rhode Island. Additional detail about the Rhode Island

conviction would have been mostly cumulative. See Lavallee v.

Coplan, 374 F.3d 41, 46 (1st Cir. 2004). There also was

substantial evidence of Hall's participation in a drug conspiracy

aside from Redihan's testimony. Several other members of the

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conspiracy testified about Hall's criminal conduct. In sum, we are

persuaded the disputed information, if known to Hall, would not

have affected the trial's outcome. See United States v.

Schneiderman, 404 F.3d 73, 79 (1st Cir. 2005).

B. Redihan's Plea Agreement

Hall next challenges the admission of Redihan's plea

agreement for conspiring with Hall to distribute drugs. While

Hall's brief is not explicit, he appears to object to the admission

of the plea agreement because the agreement was conditioned on

Redihan's truthful testimony at Hall's trial. According to Hall,

admitting the agreement had the effect of bolstering Redihan's

credibility in the jury's eyes.

We have previously concluded that "informing the jury of

the contents of a plea agreement of, at least, normal stripe," is

permissible. See United States v. Martin, 815 F.2d 818, 821 (1st

Cir. 1987). Hall has not presented any claim that Redihan's plea

agreement was atypical or outside the rule stated in Martin.

Hall also claims that the district court did not provide

an appropriate cautionary instruction concerning the jury's

consideration of the plea agreement. We disagree. The court

instructed the jury that "[s]ome people [testifying pursuant to a

plea agreement] are entirely truthful when testifying. Still, you

should consider the testimony of these individuals with particular

caution. They may have had reason to make up stories or exaggerate

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what others did because they wanted to help themselves." Hall did

not object to this instruction or propose other language, and the

instruction was not clearly erroneous as given.

C. Money Laundering Jury Instruction

The next challenge concerns the jury instruction on the

concealment element of money laundering. The district court

instructed that the concealment element was satisfied if the jury

concluded that "Hall knew that the transaction in question was

designed in whole or in part to conceal or disguise the nature,

location, source, ownership, or control of the proceeds of the

marijuana trafficking." Hall objected to this instruction on the

ground that the instruction did not sufficiently convey that he had

to intend specifically to conceal the drug proceeds.

We review challenges to the wording of a jury instruction

for abuse of discretion. See United States v. Tom, 330 F.3d 83, 91

(1st Cir. 2003). The court's instruction closely tracked the

language of the statute, which is a strong indicator that the

charge passes muster. See, e.g., United States v. Rosa, 705 F.2d

1375, 1381 (1st Cir. 1983). In any event, the instruction clearly

conveyed that Hall had to intend the transactions to conceal drug

proceeds by requiring such a design on Hall's part. The

instructions were thus adequate.

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 D. Agent Giguere's Testimony

Near the close of its case, the government called

Internal Revenue Service Agent Rodney Giguere to testify concerning

his investigation of Hall's finances. Relying on our recent

decisions in United States v. García-Morales, 382 F.3d 12, 16-17

(1st Cir. 2004) and United States v. Casas, 356 F.3d 119-120 (1st

Cir. 2004), Hall challenges Giguere's testimony as improper

overview testimony. He also suggests Giguere provided prejudicial

summary testimony. Evidentiary rulings are reviewed for abuse of

discretion. See United States v. Perez-Ruiz, 353 F.3d 1, 11 (1st

Cir. 2003).

Hall's reliance on García-Morales and Casas is misplaced.

In both cases, we were addressing the problem of the prosecution

beginning its case-in-chief by calling a government agent to

provide an overview of its case. We criticized that practice

because "such testimony raises the very real specter that the jury

verdict could be influenced by statements of fact or credibility

assessments in the overview but not in evidence." Casas, 356 F.3d

at 119.

Here, Giguere did not testify until near the end of the

government's case-in-chief. Most of his testimony concerned his

description of his investigation into Hall's activities. This

testimony was appropriate because it was based on Giguere's

personal knowledge. See García-Morales, 382 F.3d at 16. On a

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couple of occasions, Giguere testified to hearsay statements made

to him during the investigation. But Hall did not object to

Giguere's answers, and the testimony was hardly prejudicial.

To the extent that Giguere provided summary testimony, it

concerned the travel of Hall's funds in and out of various accounts

and was based on testimony and documents in evidence. This sort of

testimony is permissible to summarize complex aspects of a case

such as the financial dealings of a defendant. See Casas, 120 F.3d

at 120 n.4. Furthermore, the court cautioned the jury that it

should rely on its own memory of the facts and not the summary

provided by Giguere. We discern no abuse of discretion.

E. Prosecutorial Misconduct

Hall alleges that the government violated his Fifth and

Sixth Amendment rights by threatening certain witnesses with severe

consequences if they did not testify on the government's behalf.

Specifically, one witness, Andrea Read, testified that government

agents told her that she would face prosecution if she did not tell

them "what they wanted to hear," and a second witness, Steven

Hiscock, testified that a government agent told him that, if he did

not cooperate, the government "would take his home." Both

witnesses testified on behalf of the government and were examined

about the nature of the threats and the effect, if any, these

threats had on their testimony.

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 We have recognized that a due process violation can occur

where the government intimidates or harasses potential defense

witnesses to discourage them from testifying. See United States

v. Anguilo, 897 F.2d 1169, 1192 (1st Cir. 1990). Hall has cited a

series of cases in which appellate courts have overturned

convictions where the prosecution coerced a potential witness not

to testify on behalf of the defendant. See, e.g., United States

v. Morrison, 535 F.2d 223, 226 (3d Cir. 1976); United States v.

Smith, 478 F.3d 976, 978-79 (D.C. Cir. 1973). These case are

distinguishable because, here, the challenged conduct was intended

to encourage witnesses to testify. Anguilo and the cases cited by

Hall recognize a constitutional problem when the defendant is

precluded from putting on the defense of his choice because the

government threatens a person into not testifying. See also Webb

v. Texas, 409 U.S. 95, 98 (1972) (per curiam) (stating that

threatening comments by a judge that "effectively drove the witness

off the stand" violated the defendant's constitutional right to

present his defense).

Hall does not claim that he was deprived of testimony but

rather that Read and Hiscock may have testified falsely because of

the government's alleged threats. The problem is a complicated one

because in many cases the government has to press unwilling

witnesses, out of fear or friendship, are reluctant to give. There

-23-
is no blanket rule against inducements by the government to

witnesses to produce truthful testimony.

We will assume that, in extreme circumstances, government

misconduct, could occur through improper efforts to shape testimony

to the government's liking. In this instance, however, there was

conflicting testimony as to whether the government actually

threatened Read or Hiscock and defense counsel was allowed to

cross-examine on the issue, leaving it to the jury to evaluate

witness credibility in light of the evidence concerning the alleged

threats. We do not find a constitutional violation.

Hall also asserts that his constitutional rights were

violated by the government convincing his wife, Jill Hall, to

invoke her Fifth Amendment privilege against self-incrimination and

to decline to testify on his behalf during sentencing. Before Ms.

Hall testified, the government informed the court that Ms. Hall was

a target of an investigation for conduct related to the crimes for

which her husband had been convicted. In response to the

government's representation, the court summoned Ms. Hall's lawyer

to discuss with her the possible consequences of her testimony.

After Ms. Hall and her lawyer consulted, she decided to invoke her

privilege not to testify, and the court upheld her invocation.

Under these facts, the government did not substantially

interfere with Hall's ability to call his wife as a witness. The

court found that Ms. Hall properly invoked her Fifth Amendment

-24-
privilege. There is no evidence that the government acted in bad

faith by notifying the court that Ms. Hall was the target of an

investigation. Moreover, the court handled the matter

appropriately by alerting Ms. Hall to the possible consequences of

testifying and assuring that an attorney was present to counsel Ms.

Hall on her decision of whether to invoke her Fifth Amendment

privilege. See United States v. Serrano, 406 F.3d 1208, 1216 (10th

Cir. 2005) (rejecting claim of government interference with witness

on similar facts).6

FORFEITURE AND SENTENCING ERROR CLAIMS

A. Forfeiture

After finding Hall guilty on all counts, the jury

returned forfeiture findings concerning Hall's drug trafficking and

money laundering activities. See 21 U.S.C. § 853 (forfeiture for

drug trafficking); 18 U.S.C. § 982 (forfeiture for money

laundering). After the jury returned these findings, the court

entered a forfeiture order pursuant to Fed. R. Crim. P. 32.2. In

regard to the drug trafficking forfeiture, the court imposed a

money judgment in the amount of $511,321.22 and ordered the

forfeiture of specific items of personal and real property which

6
Hall also claims that the trial was conducted in such a way
that it denied him due process of law. He offers a litany of
complaints to support the claim. We have reviewed the entire
transcript of Hall's trial and conclude that the district court
presided ably over this complex case, assuring that Hall's
procedural rights were protected at every turn.

-25-
the jury found were connected Hall's drug activities. The money

laundering forfeiture order commanded Hall to turn over specific

items of property (in accord with the jury's findings) but did not

impose an additional money judgment. Both orders permitted the

government to seize "substitute property" under certain

circumstances to satisfy the forfeiture amount.7

Hall's first challenge concerns the district court's

entry of a money judgment as part of the drug trafficking

forfeiture. A money judgment permits the government to collect on

the forfeiture order in the same way that a successful plaintiff

collects a money judgment from a civil defendant. Thus, even if a

defendant does not have sufficient funds to cover the forfeiture at

the time of the conviction, the government may seize future assets

to satisfy the order. Relying on United States v. Croce, 334 F.

Supp. 2d 781 (E.D. Pa. 2004), Hall argues that a court may not

issue a money judgment as part of a forfeiture order.

Croce is at odds with the law of this circuit. In

Candelaria-Silva, 166 F.3d at 42, we ruled that a "criminal

forfeiture may take several forms [including] an in personam

judgment against the defendant for the amount of money the

defendant obtained as proceeds of the offense." This position

7
Substitute property may be seized by the government to
satisfy a forfeiture order where, by an act or omission, the
defendant has prevented the government from tracing his illegally
obtained assets. See United States v. Candelaria-Silva, 166 F.3d
19, 42 (1st Cir. 1999).

-26-
accords with the several appellate decisions that have addressed

the question. See United States v. Huber, 404 F.3d 1047, 1056 (8th

Cir. 2005); United States v. Baker, 227 F.3d 955, 970 (7th Cir.

2000); United States v. Lester, 85 F.3d 1409, 1413 (9th Cir. 1996);

United States v. Robilotto, 828 F.2d 940, 948-49 (2d Cir. 1987);

United States v. Ginsburg, 773 F.2d 798, 801-03 (7th Cir. 1985) (en

banc).

There are two primary reasons for permitting money

judgments as part of criminal forfeiture orders. First, criminal

forfeiture is a sanction against the individual defendant rather

than a judgment against the property itself. See United States v.

Nava, 404 F.3d 1119, 1124 (9th Cir. 2005); United States v. Cunan,

156 F.3d 110, 116 n.7 (1st Cir. 1998). Because the sanction

"follows the defendant as a part of the penalty," the government

need not prove that the defendant actually has the forfeited

proceeds in his possession at the time of conviction. Robilotto,

828 F.2d at 948-49. Second, permitting a money judgment, as part

of a forfeiture order, prevents a drug dealer from ridding himself

of his ill-gotten gains to avoid the forfeiture sanction. In

rejecting an argument against the use of money judgments pursuant

to the RICO forfeiture statute, the Seventh Circuit explained:

What the defendant's argument overlooks
is the fact that a racketeer who
dissipates profits or proceeds of his
racketeering activity on wine, women,
and song has profited from organized
crime to the same extent as if he had

-27-
 put the money in his bank account.
Every dollar that the racketeer derives
from illicit activities and then spends
on such items as food, entertainment,
college tuition, and charity, is a
dollar that should not have been
available for him to spend for those
purposes. In order to truly separate
the racketeer from his dishonest gains,
therefore, the statute requires him to
forfeit to the United States the total
amount of the proceeds of his
racketeering activity, regardless of
whether the specific dollars received
from that activity are still in his
possession.

Ginsburg, 773 F.2d at 802. The policy rationale for permitting a

money judgment as part of a forfeiture in a racketeering case

applies equally to a forfeiture in a drug case. See Nava, 404 F.3d

at 1124 n.1 (stating that RICO forfeiture cases are useful in

interpreting the drug forfeiture statute because the statutes are

"substantially identical"). The district court did not err in

entering a money judgment as part of the drug trafficking

forfeiture.8

Hall next contends that the forfeiture orders wrongly

permit the government to seize substitute property. He argues that

the power to forfeit substitute property rests exclusively with the

court.

8
Hall also contends that, even if the court could enter a
money judgment, it could not enter both a money judgment and a
forfeiture of specific assets as part of the same order. Hall has
cited no authority for this proposition, and there are several
cases in which such hybrid orders have been entered. See, e.g.,
Baker, 227 F.3d at 959; Candelaria-Silva, 166 F.3d at 42.

-28-
 Federal Rule of Criminal Procedure 32.2(e) provides the

procedure for the forfeiture of substitute property. It states:

"On the government's motion, the court may at anytime enter an

order of forfeiture or amend an existing order of forfeiture to

include property . . ." that is substitute property under an

applicable statute. Fed. R. Crim. P. 32.2(e)(1). The forfeiture

orders in this case state that the government may "forfeit"

substitute property. It is not clear whether this means that the

government may move for forfeiture or may seize the substitute

property without any action by the court.

The government acknowledges that only the court can order

the forfeiture of substitute property. In light of this

acknowledgment and the plain language of Fed. R. Crim. P. 32(e)(1),

we interpret the forfeiture orders in this case to permit the

government to move for substitute property but to reserve for the

court the authority to order the property forfeited.9

B. Sentencing

Hall raises several challenges to his sentence. He

9
Hall also asserts that the forfeiture of his real property
holdings was erroneous because there was insufficient evidence for
the jury to have found a nexus between his real estate holdings and
his drug trafficking and money laundering activities. We disagree.
The jury could have found that Hall renovated his property with
drug proceeds and that he used one of the properties to receive a
shipment of drugs. This evidence is sufficient to support the
jury's forfeiture finding. See United States v. Desmarais, 938
F.2d 347, 353 (1st Cir. 1991); United States v. Parcels of Land,
903 F.2d 36, 39 (1st Cir. 1990).

-29-
claims that the district court clearly erred in its drug quantity

calculation and in its application of the obstruction of justice

enhancement. He also claims that the court should have awarded him

a downward adjustment for acceptance of responsibility. Finally,

he claims that he is entitled to re-sentencing because the district

court treated the Sentencing Guidelines as mandatory.

In deciding Hall's sentence, the district court applied

the grouping rules under the Sentencing Guidelines. See U.S.S.G.

3D1.2. The application of these rules led the court to determine

that Hall's period of incarceration would be based on his

conviction for the drug trafficking conspiracy because it resulted

in the highest offense level.

To calculate the offense level for the conspiracy

conviction, the court concluded that the conspiracy involved

between 700 and 1000 kilograms of marijuana, which led to an

offense level of 30. The court then increased the offense level

to 34 because of Hall's leadership role and his attempt to obstruct

justice by trying to convince Redihan not to testify against him.

When combined with a criminal history category of I, Hall's offense

level yielded a sentencing range of 151 to 188 months. The court

sentenced Hall to 151 months' imprisonment.

1. Drug Quantity

The government bears the burden of proving drug quantity

by a preponderance of the evidence. See United States v. Sklar,

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920 F.2d 107, 112 (1st Cir. 1990). In determining the drug quantity

involved in an offense, the district court "may choose between

plausible estimates of drug quantity but must err on the side of

caution." United States v. Marks, 365 F.3d 101, 105 (1st Cir.

2004). We review the district court's drug quantity calculation

for clear error. See id.

The court estimated the drug quantity involved in the

conspiracy by determining the total profit that Hall earned from

his drug activities and the profit that Hall made per pound. By

dividing the total profit by the profit per pound, the court

determined that the conspiracy involved between 700 and 1000

kilograms of marijuana. We have previously approved this method

for ascertaining drug quantity. See United States v. Gerante, 891

F.2d 364, 369 (1st Cir. 1989).

Nevertheless, Hall contends that the district court's

quantity estimation was clearly erroneous because the court relied

on unreliable evidence in determining Hall's drug profits. We

disagree. The court determined that Hall's overall drug profits

totaled $519,000, which was consistent with evidence showing that

Hall's unreported taxable income was $518,929. The court also

determined that Hall's profit per pound was approximately $300. It

based this determination, in part, on Hall's own statement during

the sentencing hearing that he earned between $200 and $400 profit

per pound of marijuana. This evidence provided a reasonable basis

-31-
for the court to set the variables which it used to calculate the

drug quantity.

2. Obstruction of Justice Enhancement

Section 3C1.1 of the Guidelines mandates a two-level

enhancement where the defendant "willfully . . . attempted to

obstruct or impede the administration of justice during the course

of the . . . prosecution." One recognized way in which a defendant

can obstruct justice is by threatening, intimidating or coercing a

witness. See U.S.S.G. § 3C1.1 cmt. 4. The district court found

that Hall obstructed justice by trying to coerce Redihan not to

testify against him.

Hall contends that the district court erred in applying

the enhancement because it did not make a particularized finding as

to whether Hall had a specific intent to obstruct justice. We

recently declined to decide whether there must be a particularized

finding that the defendant had a specific intent to obstruct

justice to impose a § 3C1.1 enhancement. See United States v.

Fournier, 361 F.3d 42, 43 (1st Cir. 2004) (per curiam). We again

decline to decide this question because the evidence clearly

supports the district court's ultimate finding that Hall attempted

to obstruct justice. See id.

The record demonstrates that Hall told Redihan "not to

say anything, and that [Hall] would never say anything about

[Redihan]." The district court reasonably concluded that Hall was

-32-
trying to silence Redihan by promising him that he would not

disclose Redihan's criminal conduct if Redihan refused to testify

against him. Hall argues that he merely meant to advise Redihan of

his right to invoke his Fifth Amendment privilege against self-

incrimination. But, absent a showing of clear error, the meaning

of Hall's comment is for the district court to decide. See United

States v. Akitoye, 923 F.2d 221, 228 (1st Cir. 1991). The district

court's interpretation of Hall's conduct was not clearly erroneous

in these circumstances.10

3. Acceptance of Responsibility

Hall's challenge to the district court's denial of a

downward adjustment for acceptance of responsibility is entirely

without merit. See U.S.S.G. § 3E1.1. Under most circumstances, a

defendant who goes to trial is not entitled to acceptance of

responsibility credit. See United States v. Mikutowicz, 365 F.3d

65, 76 (1st Cir. 2004). Moreover, acceptance of responsibility is

not generally available to a defendant whose sentence has been

enhanced for obstructing justice. See Fournier, 361 F.3d at 44.

Hall went to trial and attempted to obstruct justice in the

process. On these facts, the district was not clearly wrong to

10
Hall also challenges the district court's measure of the
amount of funds laundered for purposes of calculating the offense
level for the money laundering counts. Because Hall does not
dispute that the drug conspiracy governs for purposes of
determining Hall's punishment under the Guidelines, this challenge
is moot. See United States v. Cruz, 156 F.3d 22, 29-30 (1st Cir.
1998).

-33-
conclude that Hall failed to accept responsibility for his crimes.

4. Mandatory Guidelines

Finally, by way of supplemental briefing, Hall argues

that the district court erred by viewing the Guidelines as

mandatory in determining his sentence. See United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). He does not dispute

that he failed to raise this argument below, and we therefore apply

the plain error standard. See United States v. Antonakopoulos, 399

F.3d 68, 76-77 (1st Cir. 2005).

Under our post-Booker plain error cases, we will

ordinarily remand for resentencing if the defendant demonstrates

"either by [evidence] in the existing record or by plausible

proffer [that] there is a reasonable indication that the district

[court] might well have reached a different result under advisory

guidelines." United States v. Heldeman, 402 F.3d 220, 224 (1st

Cir. 2005). The record discloses the district court’s unease with

the degree of speculation involved in the drug quantity

calculation, as well as the court’s recognition of Hall’s difficult

childhood and later good works. Without forecasting whether these

considerations would justify a more favorable sentence, we are

persuaded by the record that the district court at least might be

inclined to impose such a sentence on remand.

CONCLUSION

For the reasons set forth, we affirm all counts of

-34-
conviction and the forfeiture orders but vacate Hall's sentence and

remand for resentencing.

So ordered.

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