United States v. Kenneth David Wall

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 21, 2008
No. 07-10469 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 05-00345-CR-KD

UNITED STATES OF AMERICA,

Plaintiff-Appellee
Cross-Appellant,

versus

KENNETH DAVID WALL,
LAURENCE PETER SUTLEY,

Defendants-Appellants
Cross-Appellees.

_________________________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEVE EUGENE RUSSO,

Defendant-Appellant.
 ________________________

Appeals from the United States District Court
for the Southern District of Alabama
_________________________

(July 21, 2008)

Before DUBINA and BARKETT, Circuit Judges, and SCHLESINGER,* District
Judge.

DUBINA, Circuit Judge.

Appellants Steven Eugene Russo (“Russo”)(Mayor of Orange Beach,

Alabama), Laurence Peter Sutley (“Sutley”)(City Attorney of Orange Beach,

Alabama), and Kenneth David Wall (“Wall”)(a developer in Orange Beach,

Alabama) appeal their various convictions involving a scheme to bribe Mayor

Russo. A jury found Russo, Wall, and Sutley guilty of conspiring to commit

honest services fraud. In addition, the jury found each of the Appellants guilty of

various substantive mail and wire fraud counts. The jury found Russo and Sutley

guilty of conspiracy to obstruct justice and found Russo guilty of one substantive

obstruction count. The district court also ordered Russo to criminally forfeit some

of his ill-gotten gains. The district court granted Wall’s motion for judgment of

acquittal on the conspiracy conviction, but let stand his substantive convictions.

*
Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of
Florida, sitting by designation.

2
 The Appellants appeal their convictions, and Russo appeals the criminal

forfeiture. In addition, the United States cross-appeals the district court’s grant of

Wall’s motion for judgment of acquittal on the conspiracy count, Wall’s sentence,

and the district court’s denial of forfeiture as to Sutley.

I. BACKGROUND

Russo served as the mayor of Orange Beach, Alabama (the “City”), from

1998 to 2006. As mayor, Russo was one of the six people who voted on

development applications (the five others were the members of the city council).

In order to gain approval for development applications from the City, four of the

six voting members must vote for the project.

Jim Brown (“Brown”) was a successful local developer in the City who

entered into an illicit relationship with Russo whereby Brown would provide

things of value to Russo in return for Russo’s support of Brown’s development

projects. The government originally charged Brown in the indictment with Russo,

Sutley, and Wall. Brown pleaded guilty and cooperated with the Government as

the chief witness against the Appellants.

The alliance between Brown and Russo began in 2003. At that time, Brown

did some work on Russo’s house and when Russo offered to pay him, Brown

declined, saying the mayor should consider it a campaign contribution. Instead of

3
objecting, Russo asked Brown to screen in his porch. Over the next year, Brown

tiled Russo’s porch, repaired a roof and fence, installed a sprinkler system,

landscaped the yard, added drainage lines, put in electric fans, and installed a

generator. The total cost of these services was approximately $15,000, and Russo

neither offered to pay nor paid Brown for any of his work.

The record reveals that in the summer of 2004 Russo asked Brown to find

“some way he could make some money.” Russo told Brown that “he was tired of

making money for all these people; he wanted to make some.” Brown did not

initially agree to help Russo, but Russo persisted, and Brown “was afraid to say

no” because “he was the mayor and I had to have his support to continue to work.”

At this time, Brown had an option to purchase a house in neighboring West Beach

that he planned to tear down, rebuild, and resell. Brown decided to let Russo

become his partner on this project even though Brown “was going to be doing all

the work and getting half the money.”

A few days later, Russo called Brown and asked him to bring Sutley into the

housing venture. To complete the venture, Sutley, Russo, and Brown used a

limited liability corporation entitled “American Hot.”1 American Hot borrowed

1
Sutley originally established American Hot in the name of his secretary, Dianne Brown,
for one of his clients who ultimately did not use it. After Sutley, Brown, and Russo decided to
use American Hot for their venture, Dianne Brown assigned her interest to Sutley, Brown, and
Russo.

4
$1.6 million to buy the West Beach property and pay for the construction of a new

house. All three partners signed the note. However, Brown arranged for the loan

and covered all the closing costs. Sutley contributed his share of the first

mortgage payment and insurance, but Russo paid nothing. As the West Beach

deal was coming together, Brown repeatedly talked to Russo about the ethical

issues raised by the alliance, and asked that he speak with an ethics advisor.

Russo and Sutley both told Brown that Sutley was working on getting a ethics

letter, but Brown never received a letter.

In September 2004, Hurricane Ivan destroyed the existing West Beach

house. As a result, each partner received approximately $93,000 in insurance

proceeds.

In 2004, city councilman Jerry Davidson (“Davidson”) considered

challenging Russo for mayor. Davidson was already a member of the city council

and a reliable anti-development vote. As such, Brown did not want Davidson to

be elected mayor. Brown learned from Davidson’s daughter that the councilman

would forgo the race if he could sell his house and relocate. As a result, Brown

offered to buy Davidson’s house for $200,000 more that it was worth, and also

agreed (per Davidson’s demand) to buy another house in a neighboring town.

When Brown talked to Russo about the plan to buy Davidson’s house,

5
Russo was pleased but told Brown that he did not trust Davidson to keep his word.

Russo thus made some calls to determine the election filing deadlines but, failing

to get an answer, put Sutley on the case. Sutley phoned Brown, gave him the

filing deadline, and told him not to close before the deadline passed. Ultimately,

the plan worked, and Davidson left town without challenging Russo for mayor.

Shortly thereafter, the City awarded Brown a contract to clear hurricane-

related debris. The contract included both a clean-up fee ($68,562) and a

management fee ($115, 793). Brown did the clean-up, but the City managed the

project. However, Brown still received the entire amount for both clean-up and

management. The project manager for the clean-up site (a City employee) told

Brown “what a great friend” he had in Russo. When Brown asked Russo about

the contract, Russo said the money could help defray the cost of the “Davidson

deal.” Russo also asked Brown how much money Brown expected to make from

the clean-up contract. Brown told Russo that he was going to make about $50,000

and asked Russo how he wanted to be paid. Russo told Brown that Brown did not

need to pay him.

In spite of Russo telling Brown he did not need to pay him, Russo later

called Brown and asked him for “10 of the 50” to help with a new car. Russo told

Brown to make the check out to Crystal McDonald (Russo’s girlfriend) so that

6
“nobody would find it.” Brown agreed because “it was the only way [he] was

going to get out of there.” Brown also agreed that the remaining $40,000 would

go toward a new house he would build for Russo.

In the summer of 2004, Brown and Wall were working on a very large

condominium/hotel project called the Water Club. The value of the project was

expected to be around $300 million. Because of the size of the project, Brown

expected opposition on the city council.2 In the spring of 2005, Brown and Wall

pitched the Water Club project to Merrill Land Company (a land development

firm) and when asked about the required rezoning, Wall assured Merrill’s

representative that Brown “had City Hall in pretty good shape” and that they

“could guarantee the zoning.”3 As part of the Water Club project, Wall and Brown

needed to acquire a neighboring parcel of beachfront land. To get this property,

they agreed to give the owners of the beachfront land a parcel on the outskirts of

the Water Club, which they also agreed to develop. One condition of the land

swap was the approval of the development on the non-waterfront property. Russo

voted to approve the new development, and the land swap occurred.

Later in 2005, Russo learned of two waterfront lots that were for sale by

2
A city councilwoman testified that the project was controversial. Brown testified that
“it was going to be hard” to get approval and that he was counting on Russo.
3
A Merrill representative testified that he was surprised by Wall’s guarantee because he
had never heard of such a thing in his twenty-five years in the real estate business.

7
Claudia Bankester for $900,000. Russo asked Brown to buy the property with

him, and Brown agreed. Russo and Brown ultimately entered into an agreement to

purchase the Bankester lots for $1.2 million. Brown agreed to put up the collateral

and personally guarantee the full amount of the loan. Brown and Russo planned to

then re-sell the lots and split the profits. Two weeks after signing the contract,

Brown told Wall about the deal.

During this same time, Brown and Wall were partners with Keith Chunn

and Don Chunn, who owned a company called Deck Investments. Under their

arrangement, Wall and Brown brought real estate proposals to Deck Investments.

If the group agreed on a project, Deck would finance it, Brown would build it, and

Wall would sell it. At the time of the contracting for the Bankester lots, Deck held

72 acres of landlocked property and was looking for contiguous waterfront

property to provide access to the gulf. Realizing that the Bankester lots met

Deck’s needs, Brown and Wall agreed that Brown had to get out of the deal.

Brown assigned his interest in the property to Russo and then asked Russo what

profit he expected from the property. Russo said he wanted to make $400,000,

and Deck ultimately agreed to pay Russo $1.6 million for the property. Wall did

not tell the Chunns about the original sale of $1.2 million or that Brown was

involved in that deal. Furthermore, after the $1.6 million sale, which netted Russo

8
$400,000, Wall told Brown “to be sure the mayor knew who made the deal

happen.” Ten days before the $1.6 million sale, Brown and Wall filed their

application for the Water Club project.

Also during the spring of 2005, Brown purchased a lot in a complex called

“Romar Vista” for $1.6 million. At the time Brown purchased the lot, other

Romar Vista developers were trying to get rezoning for a new condominium, but

Brown’s lot was not part of the plan. Brown asked Russo for his help with getting

Brown’s lot to be part of the rezoning plan. Russo called the project’s lawyer and

reported to Brown that his lot would be part of the rezoning and that he should not

sell it to the developers for less than $2.2 million. On August 2, 2005, the council

approved the Romar Vista rezoning, including Brown’s lot. Thirty minutes before

the vote, Brown signed a contract selling his lot to the other developers for $2.2

million. Brown agreed to give Russo a $75,000 management fee when the sale

closed.

In addition to the $75,000, Brown also agreed in the fall of 2005 to build

Russo a new house at cost (a $160,000 value for Russo). Russo bought the land

for his house with the $400,000 he made off the Bankester lots deal and planned to

finance the construction with the $40,000 remaining from the $50,000 profit

Brown made on the hurricane cleanup, as well as the $75,000 management fee for

9
Romar Vista. Before Brown could begin building the house, the Government

indicted Brown, Sutley, Wall, and Russo.

The first superseding indictment against the Appellants, which was returned

on March 31, 2006, sought forfeiture of the American Hot proceeds. That day,

Sutley called Brown twice and told him to move the money out of the American

Hot account. He told Brown that “the feds are trying to get the house” and the

bank account and that “it was urgent” to get the money out “before the government

got the money.” Brown complied and directed the bank to transfer the proceeds in

the American Hot account into a different account. Russo also called the bank and

told the branch administrator that he would like to open a new account because he

believed that his account was going to be frozen because of a new indictment. As

a result, Russo transferred $95,179 (which included the $93,000 insurance

proceeds from the waterfront house destroyed by Hurricane Ivan) into a new

account in the name of Russo’s girlfriend, Crystal McDonald.

The jury returned guilty verdicts against Russo on the following counts:

conspiracy to commit honest services fraud (Count 1); substantive honest services

violations arising out of American Hot (Counts 3-6, 8, 9); substantive honest

services violations arising out of the sale of the Bankester lots (Counts 12-16, 18-

21); substantive honest services violations arising out Russo’s personal use of

10
campaign funds (Counts 22-25); conspiracy to obstruct justice (Count 27); and

obstruction of justice (Count 28). The jury returned guilty verdicts against Sutley

on the following counts: conspiracy to commit honest services fraud (Count 1);

substantive honest services violations arising out of American Hot (Counts 3-6, 8,

9); and conspiracy to obstruct justice (Count 27). The jury returned guilty verdicts

against Wall of conspiracy to commit honest services fraud (Count 1) and

substantive honest services violations arising out of the sale of the Bankester lots

(Counts 12-14, 17, 20).

II. DISCUSSION

A. Russo’s Honest Services Convictions

1) Alleged Pleading Failures

Russo asserts that his honest services convictions surrounding American

Hot and his personal use of campaign funds must be reversed because of pleading

failures. “We review de novo whether an indictment sufficiently alleges a

statutorily proscribed offense.” United States v. Walker, 490 F.3d 1282, 1296

(11th Cir. 2007) (citation omitted). “The indictment must contain a plain, concise,

and definite written statement of the essential facts constituting the offense

charge.” Id. (internal quotations and citation omitted). “An indictment is

sufficient if it (1) presents the essential elements of the charged offense, (2)

11
notifies the accused of the charges to be defended against, and (3) enables the

accused to rely upon a judgment under the indictment as a bar against double

jeopardy for any subsequent prosecution of the same offense.” Id. (internal

quotations and citation omitted).

The American Hot counts charged Russo and Sutley with depriving the

citizens of Orange Beach of their right to Russo’s honest services as mayor by

receiving from Brown things of value “in return for Russo’s and Sutley’s

agreements to perform acts benefitting Brown and Wall.” Russo argues that the

sentence structure in the indictment indicates that the Government alleged Russo

violated 18 U.S.C. Section 1346 in two ways: (1) by agreeing to take bribes from

Brown, and (2) because Sutley agreed to take bribes from Brown. Russo argues

that this second theory of liability is erroneous and because the jury returned a

general verdict on the American Hot counts, we must reverse his convictions.

We are not persuaded by Russo’s argument. “[W]hen analyzing challenges

to the sufficiency of an indictment, courts give the indictment a common sense

construction.” United States v. Poirier, 321 F.3d 1024, 1029 (11th Cir. 2003).

We conclude that the indictment is sufficient as to the American Hot counts

because it clearly notified Russo of the offenses for which he was charged and set

forth the elements of these offenses. The common sense construction of the

12
indictment is that the Government charged Russo because he took bribes. The

Government did not base the indictment against Russo on the allegation that

Sutley may have accepted bribes. Furthermore, as we have stated before,

“[l]inguistic precision is not required” in an indictment. United States v. deVegter,

198 F.3d 1324, 1330 (11th Cir. 1999).

Next, Russo argues that his honest services convictions stemming from his

personal use of campaign funds must be reversed because such conduct is not

covered by the statute. “To prove ‘honest services’ mail fraud, the Government

must show that the accused intentionally participated in a scheme or artifice to

deprive the persons or entity to which the defendant owed a fiduciary duty of the

intangible right of honest services, and used the United States mails to carry out

that scheme or artifice.” United States v. Browne, 505 F.3d 1229, 1265 (11th Cir.

2007) (citation omitted). The Government argues that Russo’s use of his

campaign funds for personal expenditures deprived the public of his honest

services. We disagree. Though Russo’s actions may violate some other law, his

actions do not fall within the realm of honest services fraud. The only people who

were possibly deprived of honest services from the use of campaign funds for

personal expenditures were Russo’s campaign contributors. However, Russo did

not owe his campaign contributors an independent fiduciary duty, and thus, any

13
deprivation of honest services that occurred is not covered by the statute. We

therefore vacate Russo’s convictions on Counts 22-25.

2) Sufficiency of the Evidence

Russo argues that the Government presented insufficient evidence to

establish quid pro quo bribery.4 “We review . . . de novo the sufficiency of the

evidence supporting a criminal conviction.” Walker, 490 F.3d at 1296 (citation

omitted). “In doing so, we review the evidence in the light most favorable to the

government, drawing all reasonable inferences and making all credibility choices

in the government’s favor.” Id. (internal quotations and citation omitted). “We

will reverse a conviction based on insufficient evidence only if no reasonable trier

of fact could have found guilt beyond a reasonable doubt.” Id. (internal quotations

and citation omitted).

The evidence in this case was clearly sufficient for a reasonable jury to find

Russo guilty beyond a reasonable doubt. Russo repeatedly asked Brown for both

in-kind contributions and assistance in making money. See Walker, 490 F.3d at

1297-98 (legislator’s repeated request for lobbyist’s business favors evidence his

fraudulent intent). The record is also replete with references to instances where

4
Russo also argues that the Government has the burden of connecting specific gifts to
specific acts on his part. Russo offers no support for this argument, and we conclude that it is
without merit.

14
Russo voted on Brown-related projects without disclosing his relationship with

Brown. See United States v. Hasner, 340 F.3d 1261, 1271-72 (11th Cir. 2003)

(failure to disclose material information evinced official’s fraudulent intent).

Furthermore, a city employee told Brown that he had a good friend in Mayor

Russo when discussing the hurricane clean-up project, and Russo even told Brown

that the hurricane clean-up contract would help offset the cost of Brown paying for

Davidson to leave town. Given the repeated gifts from Brown to Russo and

Russo’s numerous acts benefitting Brown, we conclude that there was more than

enough evidence from which a reasonable juror could find Russo guilty beyond a

reasonable doubt.

B. Sutley’s Honest Services Convictions

In order to be convicted of honest services conspiracy, the Government

must show the existence of: (1) an agreement between two or more persons to

achieve an unlawful objective; (2) a defendant’s knowledge of and voluntary

participation in the conspiracy; and (3) the commission of an overt act in

furtherance of the conspiracy. United States v. Suba, 132 F.3d 662, 672 (11th Cir.

1998). Sutley argues that the evidence is insufficient to show that he knew that

Brown was bribing Russo or that he voluntary participated in the conspiracy.5

5
Sutley also argues that the Government’s conflict of interest theory of criminal liability
for Sutley is invalid. Because we conclude that the evidence is sufficient to sustain his

15
 “We review . . . de novo the sufficiency of the evidence supporting a

criminal conviction.” Walker, 490 F.3d at 1296 (citation omitted). “In doing so,

we review the evidence in the light most favorable to the government, drawing all

reasonable inferences and making all credibility choices in the government’s

favor.” Id. (internal quotations and citation omitted). “We will reverse a

conviction based on insufficient evidence only if no reasonable trier of fact could

have found guilt beyond a reasonable doubt.” Id. (internal quotations and citation

omitted).

The Government presented the following evidence at trial: (1) Russo and

Sutley were close personal friends who had a long personal and professional

relationship; (2) Russo called Brown and told him that Sutley wanted to make

some money; (3) Sutley, Brown, and Russo joined together to form American Hot

LLC; (4) American Hot was one way in which Brown bribed Russo; and (5)

Sutley, at the behest of Russo, talked with Brown about Brown’s purchase of

Davidson’s two houses. We believe this evidence is sufficient for a reasonable

juror to infer both that Sutley knew of Russo and Brown’s illicit arrangement and

that Sutley willingly joined this conspiracy by participating in American Hot.

C. Wall’s Honest Services Convictions

convictions on the basis of his knowing participation in the bribery scheme, we need not address
the merits of this argument.

16
 The jury found Wall guilty of five substantive honest services counts (12-

14, 17, 20) and one honest services conspiracy count (1). Post-trial, the district

court set aside Wall’s honest services conspiracy conviction. Wall appeals his

convictions for the substantive counts, and the Government cross-appeals the

district court’s grant of Wall’s post-judgment motion for judgment of acquittal on

the conspiracy count. The argument raised by Wall is the same on both his

conspiracy conviction and substantive convictions–that there was insufficient

evidence that he knowingly participated in a scheme to bribe Russo.

The standard of review for a motion for judgment of acquittal based on

sufficiency of the evidence is de novo. United States v. Miles, 290 F.3d 1341,

1355 (11th Cir. 2002). This court views the evidence “in the light most favorable

to the government, with all reasonable inferences and credibility choices made in

the government's favor.” Id.

As previously stated, in order to be convicted of honest services conspiracy,

the Government must show the existence of: (1) an agreement between two or

more persons to achieve an unlawful objective; (2) a defendant’s knowledge of

and voluntary participation in the conspiracy; and (3) the commission of an overt

act in furtherance of the conspiracy. Suba, 132 F.3d at 672. We conclude from

the record that the Government met its burden in this case in establishing these

17
elements.

First, the record indicates that in the spring of 2005, Wall met with potential

investors for the Water Club, a project Wall and Brown jointly undertook. At this

meeting, Wall was asked about zoning issues, and he responded that Brown “had

City Hall in pretty good shape” and that they “could guarantee the zoning.” One

of the potential investors testified that this was the first time in his 25 years in the

business that someone had guaranteed zoning. Furthermore, there was also

testimony that the Water Club project was controversial and zoning was going to

be difficult to attain. This testimony is sufficient for a reasonable juror to infer

that, as of the spring of 2005, Wall knew that Brown was bribing Russo.

Second, the record reveals that later in 2005, business partners of Wall,

acting on the advice of Wall, purchased a piece of property from Russo, which he

bought and sold on the very same day. This deal netted Russo $400,000. After

this deal closed, Wall told Brown “to be sure the mayor knew who made the deal

happen.” Furthermore, the application for zoning for the Water Club was filed

just ten days prior to the closing of this deal. In light of this evidence, a

reasonable juror could conclude that Wall voluntarily joined the existing

conspiracy between Brown and Russo when he arranged for the purchase of the

Bankester lots.

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 Therefore, we conclude that the district court erred in granting Wall’s

motion for judgment of acquittal on the conspiracy count. Furthermore, for the

same reasons, we affirm Wall’s substantive honest services convictions. We do

not address the Government’s challenge to Wall’s sentence because, in light of our

reinstatement of the conspiracy conviction, Wall will need to be re-sentenced by

the district court.6

D. Obstruction Convictions

Sutley and Russo argue that their conspiracy convictions are invalid because

neither statute which the Government alleges they conspired to violate, 18 U.S.C.

§ 2232(a) and 18 U.S.C. § 1512(c)(2), apply to their conduct. We disagree.

Title 18 U.S.C. § 1512(c)(2) makes it a crime to “corruptly . . . obstruct[],

influence[], or impede[] any official proceeding, or attempt[] to do so.” The

indictment in this case sought criminal forfeiture of Russo and Sutley’s ill-gotten

gains. Since a criminal forfeiture is an “official proceeding,” and concealment,

destruction, or dissipation of specified forfeitable property “obstructs” or

“impedes” the proceeding, we conclude that Sutley and Russo’s attempt to hide

the money they made from American Hot violates this statute.

6
We also conclude that Wall’s contention that the wire and mail transmissions were not
material to the bribery scheme is without merit.

19
 The Appellants argue that, even if their conduct was covered by 18 U.S.C. §

1512(c)(2), we still must reverse their convictions because their conduct was not

covered by 18 U.S.C. § 2232(a), and since the jury returned a general verdict of

guilty on the obstruction conspiracy count, “the verdict may be set aside if one of

the conspiracy theories is contrary to law.” United States v. Pendergraft, 297 F.3d

1198, 1210 (11th Cir. 2002). The legal theory cited by the Appellants originated

in Yates v. United States7 and remains good law. However, the Yates rule does not

apply when “the jury necessarily made the findings required to support a

conviction on the valid ground.” United States v. Holland, 116 F.3d 1353, 1358

(10th Cir. 1997), overruled on other grounds, Bousley v. United States, 523 U.S.

614, 118 S. Ct. 1604 (1998). In this case, in order to convict the Appellants under

either 18 U.S.C. § 2232(a) or 18 U.S.C. § 1512(c)(2), the jury had to make the

same finding–that the Appellants agreed to transfer the funds for the purpose of

preventing the Government from seizing them. Since this finding is sufficient to

uphold a conviction under 18 U.S.C. § 1512(c)(2), we need not determine whether

the Appellants’ conduct is covered by 18 U.S.C. § 2232(a).8

7
Yates v. United States, 354 U.S. 298, 312, 77 S. Ct. 1064 (1957), overruled on other
grounds, Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141 (1978).
8
Russo also challenges his substantive obstruction conviction, which was under 18
U.S.C. § 1512(c)(2). As discussed above, Russo’s transfer of the money, which he knew the
Government sought via forfeiture, impeded an official proceeding and is thus covered by the
statute. We therefore also affirm his substantive obstruction conviction.

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E. Criminal Forfeiture

Russo contends that forfeiture was inappropriate in this case for two

reasons. First, he points to the fact that the indictment erroneously sought

forfeiture under 18 U.S.C. § 982, which only allows for criminal forfeiture for

wire/mail fraud violations that affect a financial institution. The Government

agrees that it was not entitled to criminal forfeiture in this case under 18 U.S.C. §

982. However, the Government argues that the reference to 18 U.S.C. § 982 in the

indictment was a scrivener’s error, and they were really seeking forfeiture under

18 U.S.C § 981 and 28 U.S.C. § 2461. We agree. Since the indictment clearly

notified the Appellants that the Government sought to forfeit their fraud proceeds,

the Appellants were not prejudiced by the scrivener’s error, and absent prejudice, a

scrivener’s error in the indictment is not grounds for reversal. See Fed.R.Crim.P.

7(c)(3); United States v. Edelkind, 467 F.3d 791, 800 (1st Cir. 2006) (incorrect

citation of 18 U.S.C. § 982 rather than § 981 was not prejudicial and did not

warrant reversal).

Next, Russo argues that even if the reference to § 982 was a mere

scrivener’s error, the Government was still not entitled to forfeiture under 18

U.S.C. § 981 and 28 U.S.C. § 2461. We disagree. Title 18 U.S.C. § 981 permits

civil forfeiture for offenses constituting “specified unlawful activity” under 18

21
U.S.C. § 1956(c)(7). Some of the offenses covered by 18 U.S.C. § 1956(c)(7) are

the RICO predicate acts listed in 18 U.S.C. § 1961(1), which include mail and

wire fraud. Furthermore, 28 U.S.C. § 2461 “authorizes criminal forfeiture for any

criminal offense for which civil forfeiture is authorized” and for which “no

specific statutory provision is made for criminal forfeiture upon conviction.”

Because civil forfeiture for mail/wire fraud is allowed under 18 U.S.C. § 981 and

28 U.S.C. § 2461 allows for criminal forfeiture when civil forfeiture is authorized,

the Government argues that criminal forfeiture was appropriate in this case. Russo

contends that 18 U.S.C. § 982 is a “specific statutory provision,” which removes

mail/wire fraud from the purview of 28 U.S.C. § 2461.

We disagree with Russo’s interpretation of the interplay between 28 U.S.C.

§ 2461 and 18 U.S.C. § 981. Rather, we choose to adopt the reasoning of both the

Third and D.C. Circuits–the only two circuits to address this issue. Both courts

have reasoned that:

To interpret the statute, we begin with its plain language. Ascribing
plain meaning to the words of 28 U.S.C. Section 2461(c), criminal
forfeiture is not permitted unless (1) a substantive provision exists for
civil forfeiture of the criminal proceeds at issue; and (2) there is no
specific statutory provision that permits criminal forfeiture of such
proceeds. Thus, we read the statute, enacted eight years after
Congress last amended 18 U.S.C. § 982(a)(2), as a “bridge” or “gap-
filler” between civil and criminal forfeiture, in that it permits criminal
forfeiture when no criminal forfeiture provision applies to the crime

22
 charged against a particular defendant but civil forfeiture for that
charged crime is nonetheless authorized. Accordingly, under our
reading, § 2461(c) permits criminal forfeiture for general mail fraud
because (1) 18 U.S.C. § 981(a)(1)(C) authorizes civil forfeiture for
general mail fraud; and (2) no statutory provision specifically
authorizes criminal forfeiture for general mail fraud.

United States v. Day, 524 F.3d 1361, 1376 (D.C. Cir. 2008) (quoting United States

v. Vampire Nation, 451 F.3d 189, 199 (3d Cir. 2006)). Therefore, we conclude

that the district court did not err in ordering the forfeiture of Russo’s ill-gotten

gains.9

III. CONCLUSION

For the aforementioned reasons, we affirm Russo’s conspiracy to commit

honest services fraud conviction, the criminal forfeiture of his American Hot

proceeds, his conspiracy to obstruct justice conviction, his obstruction of justice

conviction, and all of his substantive honest services convictions, except those

stemming from his personal use of campaign funds (Counts 22-25), which we

vacate. We affirm all of Sutley’s and Wall’s convictions and reinstate Wall’s

conspiracy conviction.

In light of our reinstatement of Wall’s conspiracy conviction and vacatur of

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The Government cross-appeals the district court’s denial of forfeiture for Sutley’s
proceeds from American Hot. We see no error in the district court’s reasoning and thus affirm
the denial.

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some of Russo’s convictions, we remand their cases to the district court for re-

sentencing.

AFFIRMED in part; VACATED and REMANDED in part.

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