United States v. Seher

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 26, 2009
THOMAS K. KAHN
No. 07-13935
CLERK
________________________

D. C. Docket No. 06-00322-CR-TCB-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOROS SEHER,
a.k.a. Torrez,
CHAPLIN'S, INC.,
CHAPLIN'S MIDTOWN, INC.,

Defendants-Appellants.

________________________

No. 07-14055
________________________

D. C. Docket No. 06-00322-CR-01-TCB-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus
CHAPLIN'S, INC.,
CHAPLIN'S MIDTOWN, INC.,

Defendants-Appellants.

________________________

No. 07-15919
________________________

D. C. Docket No. 06-00322-CR-01-TCB-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOROS SEHER,

Defendant-Appellant.

________________________

Appeals from the United States District Court
for the Northern District of Georgia
_________________________

(March 26, 2009)

Before BIRCH and PRYOR, Circuit Judges, and STROM,* District Judge.

BIRCH, Circuit Judge:

*
Honorable Lyle E. Strom, United States District Judge for the District of Nebraska,
sitting by designation.

2
 Toros Seher, Chaplin’s, Inc. (“Chaplin’s”), and Chaplin’s Midtown, Inc.

(“Midtown”) (collectively “the Appellants”) appeal their convictions and sentences

for various offenses related to money laundering and federal transaction reporting

requirements. After a jury trial, the Appellants were found guilty of money

laundering, in violation of 18 U.S.C. § 1956(a)(3)(B)–(C), and of failure to file

Form 8300 for various transactions, in violation of 31 U.S.C. § 5324(b)(1), (d)(2).

Seher also was found guilty of conspiracy to launder money, in violation of 18

U.S.C. § 1956(h). The district court denied the Appellants’ motion for judgment of

acquittal and new trial and issued a preliminary order of forfeiture against them.

After reviewing the record and the parties’ briefs and hearing oral argument, we

AFFIRM the Appellants’ convictions and sentences. Because the district court

both failed to address factual and legal issues regarding portions of the forfeiture

order and made clearly erroneous factual findings, we AFFIRM in part and

VACATE and REMAND in part the forfeiture order.

I. BACKGROUND

A. Factual Background

1. Events at the Gold & Diamond Depot

3
 The initial events relevant to this appeal took place between 1996 and 2002,

when Seher was working at the Gold & Diamond Depot, Inc. (“the Depot”), a

jewelry store located in Greenbriar Mall in Atlanta, Georgia. At trial, the

government put forward as witnesses four drug dealers who purchased jewelry

from Seher at the Depot during this time period — Garrette Ragland, Walter Dean

Johnson (“Johnson”), Delano McDowell, and Clifton James Manning. At the time

they made their purchases, all of these witnesses trafficked exclusively in cocaine,

with the exception of Manning, who also sold marijuana.

The witnesses’ accounts of their interactions with Seher share many

elements of commonality. They always made their purchases in cash, which came

from drug proceeds and often had been separated into bundles rubber-banded in

thousand-dollar increments.1 They all stated, however, that they never explicitly

discussed drugs with Seher nor told him that their cash came from drug sales,

though Johnson expressed the belief that Seher was aware of the origin of the

funds.2 For larger purchases, after the purchaser had chosen a particular piece of

jewelry, Seher would usher him through a swinging door into a back room behind

1
The witnesses also noted that their drug sales always involved cash and that they kept
track of the proceeds by separating them into thousand-dollar amounts, which they would wrap
with rubber bands and carry around in plastic grocery bags or shoe boxes.
2
Manning mentioned that, on one occasion, Seher commented on the drug-like aroma of
the cash that Manning had been holding in a plastic bag which previously had contained
marijuana.

4
the main counter to complete the sale.3 The buyer would then have a seat next to a

desk, Seher would open up a drawer in that desk, and the buyer would place his

cash inside the drawer. On some occasions, Seher had the buyer place the cash in a

safe inside the back room instead. Seher typically would not count the money at

that time. The witnesses further testified that Seher never asked them to fill out the

forms required for cash purchases of more than $10,000 nor requested that they

provide the identifying information needed to complete such forms.4 Ragland,

Johnson, and Manning were aware of this reporting requirement, and all four

indicated that they would have been reluctant to provide such information for fear

of creating a paper trail and might not have shopped at the Depot if they had been

forced to do so.

Ragland estimated that he bought more than $200,000 worth of jewelry from

Seher between 1996 and 2000, with fifteen to twenty of these purchases totaling

more than $10,000. He stated that some of his fellow drug dealers who had

purchased jewelry from Seher first introduced him to Seher. Ragland also

described how Seher had assisted him after he was arrested for cocaine

3
Some purchases were made by passing cash over the counter rather than in the back
room. The testimony appears to indicate that this occurred when the transaction involved less
than $10,000.
4
Federal law requires merchants to complete a Form 8300 for all cash transactions in
excess of $10,000. See 31 U.S.C. § 5324(b)(1); United States v. Leventhal, 961 F.2d 936, 937
(11th Cir. 1992) (per curiam).

5
distribution. He called Seher after receiving a post-arrest forfeiture order on a

watch Seher had sold him. According to Ragland, Seher indicated that he already

was aware of Ragland’s arrest and that he would handle the situation. In a later

phone call, Seher apparently stated that he had obtained the forfeited jewelry and

that he would try to sell it for Ragland, though Ragland had no further

communications with Seher thereafter.5

Johnson testified that he had purchased approximately $90,000 to $100,000

worth of jewelry from Seher between 1997 and February 2002, when he was

arrested for conspiracy to distribute cocaine. Though no one introduced Johnson to

Seher, Johnson recommended Seher to multiple drug dealers and specifically

instructed them to tell Seher that he had referred them. After Johnson was arrested,

he telephoned Seher and requested his assistance in selling a watch Johnson

previously had purchased from Seher. According to Johnson, Seher agreed to help

and eventually gave him approximately $6000 in exchange for the watch — a

description confirmed by Johnson’s sister.

5
An FBI forfeiture investigator confirmed that the FBI had received claims letters in
December 2000 and January 2001 from Seher regarding the watch, attached to which were a
number of documents including a receipt for the watch and photocopies of ten checks, which
were in sequential order and drawn from the account of Beverly Johnson (“Ms. Johnson”).
Ragland testified that Seher instructed Ragland to have Ms. Johnson, Ragland’s common-law
wife, bring Seher some blank, undated checks to help in recovering the watch.

6
 McDowell testified that his jewelry purchases from Seher totaled over

$100,000, with four or five of those in excess of $10,000. Johnson apparently first

introduced McDowell to Seher, and McDowell likewise brought drug dealers

whom he knew to Seher. McDowell also stated that Seher expressed a willingness

to buy back jewelry from McDowell if the latter ever fell upon hard times.

McDowell made his last purchase from Seher, a bracelet for his wife costing about

$8500, around December 2001. At the time McDowell was arrested in March

2002, however, he had paid only $6000 of this price, so Seher took the bracelet

back and sold it to someone else.

Manning testified that he was first introduced to Seher by Paul Rosser, a

fellow drug dealer who also made purchases from Seher. During this initial visit,

Manning bought a bracelet for $8000. Seher explicitly refused to provide a receipt

for the purchase, instead deeming a handshake sufficient. On other occasions,

Manning purchased at least ten items from Seher costing more than $10,000,

including one shopping spree when he spent almost $200,000. He also stated that

Seher obtained over $800,000 worth of diamonds for Manning to give to his drug

supplier, for which Manning paid Seher in cash.

Manning also described the circumstances surrounding his 1999 arrest. The

police, in the course of responding to a fire at his house, discovered about twenty

7
kilograms of cocaine in his dryer and arrested Manning. After Manning was

released on bond, Seher called his cell phone and stated that he had heard what had

happened, though he did not explain to Manning how he became aware of the

arrest. A few days later, Manning went by the Depot and Seher gave him some of

the jewelry which Manning had lost during the fire, but Seher would not say how

he had obtained it.

2. Events at Chaplin’s and Midtown

The second series of events relevant to this appeal occurred at two other

jewelry stores in Atlanta, Chaplin’s and Midtown. Chaplin’s and Midtown were

incorporated separately, but shared common elements. The two companies had

related owners — Seher co-owned Midtown and his brother Parseg owned

Chaplin’s.6 Seher had official positions at both — Vice President, Chief Financial

Officer, and Secretary at Midtown and Secretary at Chaplin’s. Chaplin’s also

made most of the jewelry for Midtown, and workers at Midtown would fill in for

absent employees at Chaplin’s.

During 2005 and 2006, IRS Special Agent James Perkins met with Seher on

multiple occasions at both Chaplin’s and Midtown. Perkins bought several

6
Parseg Seher may have been a co-owner of Chaplin’s with Sahin Corluoglu, who was
listed as an incorporator on that company’s articles of incorporation. Corluoglu was also the
President of Midtown, which he co-owned with Seher.

8
expensive pieces of jewelry from Seher under the pretense of being a narcotics

trafficker. Perkins testified that Seher acted strangely when they negotiated prices.

For instance, Seher repeatedly would stop speaking whenever the situation called

for him to quote a particular price and instead would write the amount down on

some paper, which he would immediately rip into shreds. The prices that Seher

would write down also were not the actual prices but instead had a zero removed,

such as $2200 instead of $22,000, so that the figures never exceeded $10,000. A

similar practice occurred whenever Seher would state the price orally.

Perkins first met Seher on 28 April 2005, when he entered Chaplin’s with

Kim Hubbard, the wife of a major Atlanta drug dealer. The previous day, Ms.

Hubbard had called Chaplin’s to arrange a meeting with Seher. Perkins’ goal was

to purchase a set of wedding rings for more than $10,000 cash without having to

complete any governmental forms. Upon entering Chaplin’s, Perkins and Ms.

Hubbard unexpectedly encountered a friend of Ms. Hubbard’s who attempted to

assist them with the purchase. Soon afterward, Seher began to help all three of

them. Perkins intimated to Seher that he was involved in an illegal business, noted

that Seher “pretty much know the realm that we in,” and discussed “peeping the

game,” a reference to the drug business. Gov. Exh. 5 at 36, 40. After Perkins

selected a ring, Seher proposed that Perkins pay for it by having Perkins, Ms.

9
Hubbard, and her friend come in separately and each pay part of the price — a plan

that Perkins understood would avoid federal filing requirements. Eventually,

Perkins agreed to return with the appropriate amount of cash, after which Seher

would begin working on the jewelry.

When Perkins and Ms. Hubbard returned to Chaplin’s on 21 July 2005,

Seher was unable to find the rings they had selected, so they chose new ones.

Perkins and Seher then negotiated the price, in the course of which, Perkins

informed Seher that “[t]he dope game is hot right now.” Gov. Exh. 7 at 11. Seher

eventually quoted $220 as the cash price, which Perkins understood as actually

reflecting a cash price of $22,000. Perkins gave Seher $3000 in cash. Seher did

not give him a receipt, but instead gave him a yellow note bearing the numbers

“2200.00,” “1900.00” and “300.00,” which, according to Perkins, represented

$22,000, $19,000, and $3000 — the total price of the rings, the amount owed for

the rings, and the amount paid, respectively.

The following day, Perkins came back to Chaplin’s to pick up the one

wedding ring that was ready. Upon arrival, Seher escorted him into a back room,

and Perkins gave Seher $19,000 in cash which he had previously wrapped in a

rubber band. According to Perkins, Seher put the cash into a safe without counting

it first. Perkins then told Seher that he did not want to have any paperwork for the

10
transaction in his name, and Seher assured him that there would be none. Perkins

never completed a Form 8300 for this transaction, nor did Seher request the

information needed to complete that form. Perkins returned to Chaplin’s on 25

August 2005 and obtained the other wedding ring.

On 28 October 2005, Perkins called Seher at Midtown to inform him that he

planned to stop by at some point the following week to get a watch he previously

had ordered.7 Perkins called Seher back on 3 November 2005 to arrange the

details. Since the watch was at Midtown, Seher gave Perkins the option of meeting

at either Chaplin’s or Midtown. Perkins chose the latter, claiming it was because

of the lack of security there. After Perkins arrived at Midtown later that afternoon,

Seher informed him that the watch cost $12,800, and Perkins gave him that amount

in cash. The invoice Seher provided listed the price of the watch as $6200. Seher

never had Perkins complete a Form 8300 for this transaction and never sought the

information necessary to complete that form. Before Perkins left, he remarked to

Seher that he needed to leave Atlanta because it was “hot,” a term implying that it

was difficult to sell drugs there at that point in time. The following day, $6200 in

cash was deposited into Midtown’s bank account.

7
Perkins called Chaplin’s first but was informed that Seher was at Midtown instead. A
staff member gave him the phone number for Midtown.

11
 On 20 April 2006, Perkins and a fellow IRS Special Agent, Darryl Hudgins,

visited the Midtown store to purchase jewelry from Seher, having previously

arranged a meeting for that day. Upon first entering the store, they were assisted

by a female staff member. When Perkins first encountered Seher, he explained

that he had not been by the store recently because “somebody snatched twenty-five

kilos of coke” from him. Gov. Exh. 31 at 1. In response to this statement, Seher

joked that he was going to choke Perkins. Hudgins next asked Seher to appraise a

watch that he claimed to have purchased from another jeweler for the value of a

kilogram of cocaine. Hudgins ultimately decided to purchase two bracelets for

$20,000, and Perkins reminded Seher that there should be no paperwork. Seher

explained to Hudgins the payment process, doing so exclusively by writing on a

notepad rather than verbalizing any statements out loud. In the course of this

explanation, Hudgins remarked to Seher that he had been required to complete

paperwork when he purchased a car. Seher responded by giving a written

description of the $10,000 cash purchase reporting requirement and later explained

that the figures he wrote down on the receipt had to be below $10,000 even though

the actual price paid would exceed that.8 Hudgins and Perkins gave Seher $20,000

cash for the two bracelets, and Seher gave them a receipt, which listed the total

8
Seher also later agreed with Hudgins’ statement that “the magic thing is to keep it under
ten.” Gov. Exh. 31 at 28.

12
price as $8800. In filling out the receipt, Seher permitted Hudgins to use a fake

name (“Joe Flint”) and address (“123 Peachtree Road, Atlanta, Georgia”). Gov.

Exh. 31 at 24–25. He also never asked Perkins or Hudgins to fill out a Form 8300

or for the information needed to complete such a form. The following day, $8800

in cash was deposited into Midtown’s bank account.

B. Procedural History

A grand jury in the United States District Court for the Northern District of

Georgia returned a seven-count indictment against Seher, Chaplin’s, and Midtown

on 25 July 2006 and a superseding seven-count indictment against all three on 23

August 2006. Count One of the indictment charged the Appellants with conspiracy

to launder money known to represent the proceeds from a specified unlawful

activity, in violation of 18 U.S.C. § 1956(h).9 Counts Two, Four, and Six charged

them with laundering property represented to be the proceeds from a specified

unlawful activity on three separate occasions, in violation of 18 U.S.C.

§ 1956(a)(3)(B)–(C). Counts Three, Five, and Seven charged them with failing to

9
The unlawful activity in question was the distribution of cocaine, which is a felony
under 21 U.S.C. § 841(a)(1). Count One discussed three disjunctive intents for the money
laundering: promoting the carrying on of cocaine distribution, in violation of 18 U.S.C.
§ 1956(a)(1)(A)(i); concealing or disguising the nature of proceeds from that distribution, in
violation of 18 U.S.C. § 1956(a)(1)(B)(i); and avoiding a federal transaction reporting
requirement, in violation of 18 U.S.C. § 1956(a)(1)(B)(ii). As part of this count, Seher was
alleged to have facilitated the use of drug proceeds to make jewelry purchases as a means to
conceal the nature and source of the proceeds.

13
file a Form 8300 — as required for each of the transactions listed in Counts Two,

Four, and Six — an action which violated 31 U.S.C. § 5324(b)(1), (d). The

indictment also contained a provision in which the government sought forfeiture,

pursuant to 18 U.S.C. § 982(a)(1) and 31 U.S.C. § 5317(c)(1), of the complete

inventory of jewelry owned or held by Seher, Chaplin’s, or Midtown and of real

property at a particular address in Atlanta, along with money judgments in the

amounts involved in the various offenses.

Before trial, the district court dismissed Count One as to Midtown, but the

case proceeded to a jury trial in February 2007 against the Appellants on the

remaining counts. After the government presented its case, the Appellants moved

to dismiss the indictment or for judgments of acquittal. The court granted these

motions in part, dismissing Count One against Chaplin’s and entering judgments of

acquittal on Counts Four, Five, Six, and Seven against Chaplin’s and Counts Two

and Three against Midtown. The court also dismissed the portion of Count One

against Seher dealing with conspiracy to launder money in order to promote an

unlawful activity, in this case, the selling of cocaine. The defendants then entered

guilty pleas regarding Counts Three, Five, and Seven — Seher to all three,

Chaplin’s to Count Three, and Midtown to Counts Five and Seven. The jury

subsequently found the defendants guilty on all of the remaining counts — Seher

14
as to Counts One, Two, Four, and Six, Chaplin’s as to Count Two, and Midtown as

to Counts Four and Six.

After the completion of trial, Chaplin’s, Midtown, and Seher filed a motion

for judgment of acquittal and a new trial, which the district court denied. The

government moved for a preliminary order of forfeiture against Chaplin’s,

Midtown, and Seher, which the district court granted. The forfeiture order

encompassed: a $1,610,400 money judgment against Seher, real property owned

by Seher, all bank accounts and inventory seized from Chaplin’s and Midtown in

July 2006, and a $54,800 money judgment against Seher, Chaplin’s, and Midtown.

All three defendants appealed the issuance of this order. In August 2007, the court

sentenced Chaplin’s and Midtown to five years of probation for each count, to run

concurrently, and to fines of $50,000 and $62,500 per count, respectively.10 It also

imposed special assessments of $800 for Chaplin’s and $1600 for Midtown.

Chaplin’s and Midtown appealed these convictions and sentences. In December

2007, the district court sentenced Seher to 72 months of imprisonment for Counts

One, Two, Four, and Six and 60 months of imprisonment for Counts Three, Five,

and Seven, with a supervised release of three years for each count, all of which

would run concurrently. The court also imposed a special assessment of $700 on

10
The total fines were $100,000 for Chaplin’s and $250,000 for Midtown. The court also
incorporated those portions of the order of forfeiture that applied to the two companies.

15
him. Seher appealed his convictions and sentences. Seher, Chaplin’s, and

Midtown filed a motion to consolidate their three appeals, which we granted.

II. DISCUSSION

The Appellants raise a total of ten issues. They all assert that the district

court erred by not dismissing Counts Two, Four, and Six because those counts

failed to charge offenses and that their conviction on those counts violated the Fifth

Amendment. The Appellants also argue that those three counts were duplicitous,

that the district court’s jury charge constructively amended those counts, and that

there was insufficient evidence to convict them on those counts. Seher asserts that

there was insufficient evidence to convict him on Count One either because the

government did not prove that a conspiratorial agreement existed or because the

evidence established multiple conspiracies rather than a single one. Chaplin’s and

Midtown contend that the district court erred by ordering forfeiture of their

inventories and accounts and that this forfeiture constituted an excessive fine under

the Eighth Amendment. The Appellants all contest the personal money judgments

entered against them, and Seher challenges the forfeiture of his property as a

substitute asset. Finally, Seher maintains that his sentence for Counts Three, Five,

and Seven was unreasonable. We address these issues in turn.

A. Issues Regarding Counts Two, Four, and Six

16
 1. Failure to Charge an Offense

According to the Appellants, Counts Two, Four, and Six of the First

Superseding Indictment failed to charge an offense because they did not identify

the requisite state of mind necessary to violate § 1956(a)(3).11 The Appellants

contend that this absence meant that the grand jury failed to make the appropriate

specific intent findings and that their subsequent convictions on these charges

therefore violated their rights under the Fifth Amendment. They thus assert that

the district court erred in failing to dismiss these counts.

We review de novo the legal question of whether an indictment sufficiently

alleges a statutorily proscribed offense, though a district court’s denial of a motion

to dismiss an indictment is reviewed for abuse of discretion. See United States v.

Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 2002). We will not uphold a criminal

conviction “if the indictment upon which it is based does not set forth the essential

elements of the offense.” United States v. Gayle, 967 F.2d 483, 485 (11th Cir.

1992) (en banc). “[I]f the facts alleged in the indictment warrant an inference that

11
The Appellants, in their discussion of the indictment’s failure to charge an offense, also
submit that the district court erred by concluding that § 1956(a)(3)(B) and § 1956(a)(3)(C)
represent alternative elements of intent for the same offense rather than two distinct offenses
requiring different elements of proof. However, they do not allege any Fifth Amendment
violation with respect to this issue. We view this argument as a variation on their claim that the
indictment was duplicitous and thus address it as part of our analysis of that issue. We also note
that the Appellants concede that the indictment provided them with adequate notice of the
charges against them and thus did not violate the Sixth Amendment.

17
the jury found probable cause to support all the necessary elements of the charge,”

the indictment satisfies the Fifth Amendment. United States v. Fern, 155 F.3d

1318, 1325 (11th Cir. 1998). Additionally, we need not find an indictment

“defective simply because it fails to allege mens rea so long as the allegation that

the crime was committed with the requisite state of mind may be inferred from

other allegations in the indictment.” United States v. Woodruff, 296 F.3d 1041,

1046 (11th Cir. 2002) (quotation marks and citation omitted). As a general rule,

“practical, rather than technical, considerations govern the validity of an

indictment.” United States v. Hooshmand, 931 F.2d 725, 735 (11th Cir. 1991)

(quotation marks and citation omitted). Finally, we note that several of our sister

circuits have held that where, as here, the defendant challenges the indictment after

the government’s case has ended, the indictment should be construed in a liberal

manner in favor of validity. See United States v. Sabbeth, 262 F.3d 207, 218 (2d

Cir. 2001); United States v. Gooch, 120 F.3d 78, 80 (7th Cir. 1997); United States

v. Lucas, 932 F.2d 1210, 1218 (8th Cir. 1991).

Counts Two, Four, and Six of the indictment charged as follows:

On or about [date], in the Northern District of Georgia, the defendants
. . . did knowingly and intentionally conduct a financial transaction,
namely, sold [description of jewelry] for [amount] in United States
currency, involving property represented to be the proceeds of
specified unlawful activity by a law enforcement officer, in violation

18
 of Title 18, United States Code, Sections 1956(a)(3)(B) and 1956
(a)(3)(C).

R1-31 at 2–5. Sections 1956(a)(3)(B) and (C), referenced in these counts, state the

necessary intent for a money laundering offense.12 Under the former subsection, an

offender must have the intent “to conceal or disguise the nature, location, source,

ownership, or control of property believed to be the proceeds of specified unlawful

activity.” 18 U.S.C. § 1956(a)(3)(B). The latter provision requires that the

offender intend “to avoid a transaction reporting requirement under State or

Federal law.” Id. § 1956(a)(3)(C).

At issue is whether the indictment’s statutory references warrant an

inference that the grand jury found probable cause for all the essential elements of

the offenses charged. The most analogous case appears to be Fern, in which the

indictment charged the defendant with making “false statements” in violation of

the Clean Air Act. Fern, 155 F.3d at 1325 (quotation marks omitted). Though the

12
18 U.S.C. § 1956(a)(3) states:

(3) Whoever, with the intent —
(A) to promote the carrying on of specified unlawful activity;
(B) to conceal or disguise the nature, location, source, ownership,
or control of property believed to be the proceeds of specified
unlawful activity; or
(C) to avoid a transaction reporting requirement under State or
Federal law,
conducts or attempts to conduct a financial transaction involving property
represented to be the proceeds of specified unlawful activity, . . . shall be fined
. . . or imprisoned . . . , or both.

19
indictment referenced the relevant statute, 42 U.S.C. § 7413(c)(2), it did not

mention the materiality of these statements, an essential element of the offense.

See 42 U.S.C. § 7413(c)(2)(A); id. at 1326. We concluded that this charge was

sufficient for Fifth Amendment purposes because the indictment’s reference to a

particular statutory subsection created a reasonable inference that the grand jury

found that the false statements mentioned therein were material. See Fern, 155

F.3d at 1326.

Similarly, in United States v. Arteaga-Limones, 529 F.2d 1183, 1199 (5th

Cir. 1976), we addressed an indictment that did not mention that the defendant

imported marijuana “knowingly or intentionally,” an essential element of the

charged offense. However, the indictment referenced the relevant statutory

sections, which discussed those scienter requirements. See Arteaga-Limones, 529

F.2d at 1199. We found that the elements of the offense did not have to “be

alleged in terms” and focused on whether the indictment “fairly import[ed]

knowledge or intent.” Id. Given this framework, we concluded that the statutory

references were sufficient to make the indictment not defective, particularly since

the court instructed the jury that it had to find knowledge or intent to convict the

defendant. See id. at 1200.

20
 These cases indicate that the Fifth Amendment is satisfied if the indictment

makes a specific statutory reference to an essential element of the offense and

contains some other indication from which we can infer that the grand jury found

that element to be present. See Fern, 155 F.3d at 1326. The indictment in this case

did not spell out the different forms of intent required for the offenses alleged in

Counts Two, Four, and Six. However, it did include the word “intentionally” as

well as specific references to the statutory provisions which described the different

forms of intent required to violate the money laundering statute. This combination

of statutory citation and reference to the essential element discussed in that

statutory subsection serves as a reasonable basis for inferring that the grand jury

found that the Appellants committed money laundering with the intents described

in those statutory subsections. See id. In fact, the rationale for making such an

inference arguably is even stronger here than in Fern, since here the statutory

reference is to a specific subsection rather than to a section in general.13 See id.

Appellants contend that this interpretation of Fern conflicts with United

States v. Hess, 124 U.S. 483, 8 S. Ct. 571 (1888). They specifically refer to

language in Hess stating that “[t]he omission [of an essential element of the crime]

13
The indictment in Fern referenced only § 7413(c)(2). See id. We found that the only
portion of that provision which could be applicable to the false statements count was subsection
(A), which mentioned “false material statement[s].” Id. As a result, we concluded that the only
rational reading of the count was that it involved a violation of § 7413(c)(2)(A). See id.

21
cannot be supplied by intendment or implication, and the charge must be made

directly, and not inferentially, or by way of recital.” Hess, 124 U.S. at 486, 8 S. Ct.

at 573. However, the Court in Hess was addressing whether the indictment

sufficiently alleged the factual circumstances comprising a mail fraud scheme, not

the legal elements of the offense. See id. at 487, 8 S. Ct. at 573 (noting that “the

absence of all particulars of the alleged scheme renders the count as defective as

would be an indictment for larceny without stating the property stolen, or its owner

or party from whose possession it was taken”). In addition, Hess focused on

whether the defendant had proper notice of the charges, rather than on whether the

grand jury could find the essential elements of the charge. See id. at 487, 8 S. Ct.

at 573. We thus read the language cited by the Appellants as referring to the

omission of facts pertaining to the charge, not to the omission of legal elements

from the charge, as occurred here.14 Hess therefore would not alter our analysis of

the indictment in this case. We note, however, that, even if Hess did apply to legal

issues, we would still find the indictment here sufficient for Fifth Amendment

purposes. The indictment identified the particulars of the offense committed, and

14
Appellants’ citation of United States v. Adkinson, 135 F.3d 1363 (11th Cir. 1998), is
inapposite for the same reason. In that case, we concluded that an indictment failed to state all
the essential elements of a bank fraud offense because it never alleged the defendants actually
executed a bank fraud scheme. Id. at 1376–78. As in Hess, the relevant omissions thus were
factual rather than legal.

22
there was no need to infer scienter since the statutes pertaining to intent were

specified in the indictment.

Accordingly, we find that the indictment did not fail to charge an offense

and presented no Fifth Amendment violation. The district court thus did not abuse

its discretion in denying Appellants’ motion to dismiss Counts Two, Four, and Six

on this basis.

2. Duplicity

The Appellants also contend that the district court erred in denying their

motion to dismiss Counts Two, Four, and Six because those counts were fatally

duplicitous. They premise their duplicity argument on the assumption that

§ 1956(a)(3) contains three different offenses, which means that each of these

counts, by referencing subsections (B) and (C) of that provision, charged two

different offenses.

As a preliminary matter, we note that the Appellants appear to have waived

their ability to raise this issue because they failed to challenge the indictment on

these grounds pre-trial. Generally, a defendant must object before trial to defects

in an indictment, and the failure to do so waives any alleged defects. See United

States v. Ramirez, 324 F.3d 1225, 1227–28 (11th Cir. 2003) (per curiam)

(defendants waived issue of defective indictment where they did not raise a statute

23
of limitations defense to the indictment before trial); see also Fed. R. Crim. P.

12(b)(3), (e). The only exception to this waiver rule is for claims that the

indictment “fails to invoke the court’s jurisdiction or to state an offense,” which

may be made at any time during the proceedings.15 Fed. R. Crim. P. 12(b)(3)(B).

Our sister circuits generally have held that this exception does not apply to claims

that an indictment was duplicitous, and we see no reason to depart from this

conclusion since a duplicity objection does not implicate jurisdictional issues and

does not assert that the indictment fails to state an offense.16 See, e.g., United

States v. Creech, 408 F.3d 264, 270 (5th Cir. 2005); United States v. Klinger, 128

F.3d 705, 708 (9th Cir. 1997); United States v. Prescott, 42 F.3d 1165, 1167 (8th

Cir. 1994); see also Reno v. United States, 317 F.2d 499, 502 (5th Cir. 1963)

(agreeing with district court’s assertion that “[d]uplicity is not a fatal defect”)

(quotation marks omitted).

15
A court also may grant relief from the waiver “[f]or good cause.” Fed. R. Crim. P.
12(e). Good cause is not shown where the defendant had all the information necessary to bring a
Rule 12(b) motion before the date set for pretrial motions, but failed to file it by that date. See
Ramirez, 324 F.3d at 1228 n.8. The Appellants have not asserted that there was good cause here.
16
It is uncertain whether we previously have made this finding. In United States v.
Busard, 524 F.2d 72, 73 (5th Cir. 1975) (per curiam), we commented that an objection to an
indictment as being duplicitous is waived if not made prior to trial. However, in a later decision
dealing with a multiplicitous indictment, we characterized Busard’s waiver discussion as “dicta”
and adopted the Sixth Circuit’s stance that “‘if sentences are imposed on each count of that
multiplicitous indictment the defendant is not forced to serve the erroneous sentence because of
any waiver.’” See United States v. Bradsby, 628 F.2d 901, 905–06 (5th Cir. 1980) (citing United
States v. Rosenbarger, 536 F.2d 715, 722 (6th Cir. 1976)).

24
 Despite the Appellants’ apparent waiver of this issue, the waiver argument

has never been raised by the government, though the issue was discussed at oral

argument and the Appellants filed supplemental authority on the issue. We have

been willing to consider sua sponte whether an issue was waived when an

appellant failed to preserve or raise that issue before the district court. See Harden

v. United States, 688 F.2d 1025, 1032 n.7 (5th Cir. Unit B 1982). We also are

required to raise sua sponte the issue of whether an indictment properly charges an

offense, since that represents a jurisdictional issue. See United States v. Peter, 310

F.3d 709, 713 (11th Cir. 2002) (per curiam); United States v. Meacham, 626 F.2d

503, 509 (5th Cir. 1980). However, we conclude that the distinctions between

those situations and this matter are sufficient to warrant our not raising the waiver

issue. Here, the Appellants did not raise the duplicity issue for the first time on

appeal, the district court ruled on the issue in denying the motion to dismiss, and

both parties fully briefed the issue on appeal. Additionally, we do not believe that

this kind of defective indictment allegation implicates jurisdictional issues.17 See

United States v. Moloney, 287 F.3d 236, 240 (2d Cir. 2002) (noting that a

17
We note that we have yet to address whether Rule 12(b)(3)(B)’s requirement that a
defective indictment objection be raised pre-trial operates as a jurisdictional bar. See United
States v. Browne, 505 F.3d 1229, 1271 n.31 (11th Cir. 2007) (declining to consider whether the
requirement “is a ‘claim-processing rule’ susceptible to forfeiture or waiver, or whether it is a
jurisdictional bar”).

25
duplicitous indictment claim does not “implicate[] the jurisdiction of the federal

courts”). Since it is not “incumbent upon us to make a waiver argument which the

government was willing to forego,” we choose not to do so here. Ochran v. United

States, 117 F.3d 495, 503 (11th Cir. 1997). We now turn to the merits of the

Appellants’ duplicity argument.

“A count in an indictment is duplicitous if it charges two or more separate

and distinct offenses.” United States v. Schlei, 122 F.3d 944, 977 (11th Cir. 1997)

(quotation marks and citation omitted). “[T]he key issue to be determined is what

conduct constitutes a single offense.” Id. In support of the claim that Counts Two,

Four, and Six are duplicitous, the Appellants cite United States v. Calderon, 169

F.3d 718, 720 (11th Cir. 1999), in which we stated that “[t]he four subsections of

Section 1956(a)(1) are separate offenses,” each requiring different elements of

proof. They acknowledge that Calderon dealt with a different statutory provision

but contend that its discussion is relevant to our analysis since the three subsections

of § 1956(a)(3) contain the same language as three of the four subsections in

§ 1956(a)(1).18 They submit that it would be incongruous for us to interpret the

former differently from the latter.

18
Specifically, § 1956(a)(3)(A), (B), and (C) use the same wording as § 1956(a)(1)(A)(i),
(B)(i), and (B)(ii), respectively.

26
 Additionally, the Appellants argue that we should analyze duplicity under

the test established in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct.

180, 182 (1932), which requires us to look at “whether each provision requires

proof of a fact which the other does not.” They contend that the subsections of

§ 1956(a)(3), when evaluated under the Blockburger test, would be separate

offenses since each subsection requires proof of an additional fact which the other

does not. For example, subsection (C) requires proof that the defendant intended

to avoid a transaction reporting requirement, while subsection (B) does not. See 18

U.S.C. § 1956(a)(3)(B)–(C).

The Supreme Court has described the Blockburger test as “a rule of statutory

construction.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678 (1983).

Specifically, the Blockburger rule helps to determine whether Congress intended to

punish the same offense under two different statutes. We ordinarily assume that

Congress did not have such an intent. See id., 103 S. Ct. at 678. “Accordingly,

where two statutory provisions proscribe the ‘same offense,’ they are construed not

to authorize cumulative punishments in the absence of a clear indication of

contrary legislative intent.” Id., 103 S. Ct. at 678. (quotation marks and citation

omitted, emphasis in original). In other words, even if two statutory provisions

27
punish the same offense under the Blockburger test, multiple punishments would

be permissible if Congress clearly intended that. See id. at 367, 103 S. Ct. at 678.

In accordance with the Supreme Court’s refinement of the Blockburger test,

we stated in Schlei that “we must look to congressional intent” in analyzing

whether a count in an indictment is duplicitous. Schlei, 122 F.3d at 977. We have

not yet examined congressional intent in enacting § 1956(a)(3). The government

argues that United States v. Puche, 350 F.3d 1137 (11th Cir. 2003), authorizes

charging the intents in § 1956(a)(3)(B) and (C) alternatively. Puche does not

explicitly state this, however. Rather, in determining whether there was sufficient

evidence to sustain a money laundering conviction under § 1956(a)(3), we outlined

the government’s burden of proof, which included establishing that the defendant

acted with one of the three intents listed under § 1956(a)(3). See Puche, 350 F.3d

at 1142–43. We did not discuss whether the three subsections on intent comprised

one offense or separate offenses.

We also have not examined congressional intent in enacting § 1956(a)(1),

the parallel provision to § 1956(a)(3).19 The district court and the government

19
Both sections deal with money laundering offenses, with (a)(1) addressing those cases
in which the laundered proceeds actually derive from an unlawful activity and (a)(3) dealing
with government sting operations, in which the government, or its representative, “represents
that the proceeds are from a specified unlawful activity though in reality they are not.” United
States v. Magluta, 418 F.3d 1166, 1176 (11th Cir. 2005).

28
correctly point out that our decision in Calderon addressed the issue of sufficiency

of the evidence to support a § 1956(a)(1) conviction, rather than duplicity. See

Calderon, 169 F.3d at 720. As part of our discussion of the sufficiency issue, we

recited the language of § 1956(a)(1) and then stated that, “The four subsections of

Section 1956(a)(1) are separate offenses, each of which requires the Government to

prove an element not required under the others.” Id. After examining the context

of that quotation, however, we find it to be dicta. The remainder of the opinion

never addresses congressional intent regarding § 1956(a)(1). Instead, we focused

solely on whether the evidence at trial evidenced a violation of the promotion

subsection, § 1956(a)(1)(A)(i), which was the only portion of § 1956(a)(1)

included in the jury charge.20 See id. Given that we did not analyze congressional

intent in Calderon, and since the issue of a duplicitous indictment likewise was not

raised or addressed, we are not bound by our statement therein that the subsections

of § 1956(a)(1) are separate offenses.

In the absence of controlling case law within our circuit, we find it

particularly helpful to look at the analyses of our sister circuits, at least six of

which have determined that § 1956(a)(1) does not create separate offenses, only

20
We ultimately concluded that the evidence at trial showed that the defendant at most
violated only the concealment and reporting requirements subsections, but that the evidence was
insufficient to support a conviction for the promotion subsection. See id. at 722.

29
alternative mental states for a single offense. See United States v. Garcia-Torres,

341 F.3d 61, 65–66 (1st Cir. 2003); United States v. Bolden, 325 F.3d 471, 487

n.19 (4th Cir. 2003); United States v. Booth, 309 F.3d 566, 571–72 (9th Cir. 2002);

United States v. Meshack, 225 F.3d 556, 580 n.23 (5th Cir. 2000), reh’g granted on

other grounds, United States v. Meshack, 244 F.3d 367 (5th Cir. 2001); United

States v. Navarro, 145 F.3d 580, 592 (3d Cir. 1998); United States v. Holmes, 44

F.3d 1150, 1155–56 (2d Cir. 1995).

The most instructive of these analyses with regard to the question of

congressional intent is Navarro. In that case, the indictment conjunctively charged

the defendants with possessing three mental states listed in § 1956(a)(1), i.e., with

promotion, concealment, and avoidance of reporting requirements. See Navarro,

145 F.3d at 585. However, the district court’s instructions to the jury for that

charge were in the disjunctive, i.e., the defendant would be guilty if his intent was

promotion, concealment, or avoidance of reporting requirements. See id. On

appeal, the Third Circuit had to decide whether the district court should have

instructed the jury that it had to decide unanimously which of the alternative

mental states the defendants possessed. See id. The Third Circuit, relying on the

framework established in Schad v. Arizona, 501 U.S. 624, 631–45, 111 S. Ct.

2491, 2499–504 (1991), examined the issue using a two-step inquiry: (1) whether

30
the legislature intended to create different means for violating a single offense, and

(2) if it so intended, whether that statutory definition satisfied the Due Process

Clause. See Navarro, 145 F.3d at 586. After a lengthy analysis, the court found

that Congress intended for the subsections “to be construed as separate means of

committing the same offense,” that this interpretation of the statute raised no due

process concerns, and that there was no risk of jury confusion.21 Id. at 590. The

court found that Congress intended for § 1956 “to punish a financial transaction

involving known illicit proceeds, accomplished for a guilty purpose.” Id. at 592.

“That multiple purposes could satisfy this end does not mean that Congress

intended to create multiple offenses.” Id. Thus, since the three alternative mental

states in § 1956(a) could be treated as separate means of committing a single

offense, the Third Circuit concluded that no specific unanimity instruction was

required. See id.

We agree with Navarro’s analysis regarding congressional intent and find it

applicable to § 1956(a)(3) due to the parallels between the subsections of the two

provisions. Furthermore, we see no policy reasons to interpret this language

differently when addressing money laundering uncovered in a sting operation and

21
In reaching this conclusion, the court found that having multiple mental states for the
same course of conduct did not raise any constitutional concerns and did not depart from the
historical tradition of unanimity in jury verdicts. See id. at 589. These findings outweighed the
rule of lenity, which counseled against such an interpretation. Id. at 589–90.

31
money laundering in general. Accordingly, even if the Appellants are correct that

the subsections of § 1956(a)(3) contain different elements of proof and so are

different offenses under the Blockburger test, this does not negate the

congressional intent to treat § 1956(a) as creating a single offense of money

laundering with alternative mental states, subject to only one punishment. See

Schlei, 122 F.3d at 977. In fact, permitting an alternative reading would present

multiplicity problems because it would permit a defendant to “be convicted of two

different money laundering offenses based on the same transaction simply because

he knew that his prohibited conduct was designed for two unlawful purposes.”

Navarro, 145 F.3d at 592 n.6. We therefore find that Counts Two, Four, and Six

were not duplicitous and conclude that the district court did not err in denying the

Appellants’ motion for judgment of acquittal on those grounds.

3. Constructive Amendment

The Appellants assert that the district court’s jury charge constructively

amended the indictment because: (1) the intent elements were never charged in the

indictment, and (2) the court charged the jury in the disjunctive, whereas the

indictment’s charge was in the conjunctive. In this case, the indictment charged

the Appellants with violating § 1956(a)(3)(B) and § 1956(a)(3)(C); however, the

32
jury charge stated that the Appellants could be found guilty if they violated either

of those subsections.

“In evaluating whether the indictment was constructively amended, we

review the district court's jury instructions . . . in context to determine whether an

expansion of the indictment occurred either literally or in effect.” United States v.

Castro, 89 F.3d 1443, 1450 (11th Cir. 1996) (quotation marks and citation

omitted). A jury instruction amends an indictment when it “broaden[s] the

possible bases for conviction beyond what is contained in the indictment.” United

States v. Dennis, 237 F.3d 1295, 1299 (11th Cir. 2001) (quotation marks and

citation omitted).

We need not tarry long over the Appellants’ arguments on this issue, since

they essentially reiterate their claims regarding duplicity and failure to state an

offense. We find these allegations equally unpersuasive in their constructive

amendment guise. The indictment specifically referenced the statutory subsections

on intent, and the jury charge merely tracked the language of those provisions. As

such, the jury charge did not expand the bases for conviction as to Counts Two,

Four, and Six. See id. (finding that jury instruction which tracked the language of

the bankruptcy fraud statute did not amend the indictment). Additionally,

§ 1956(a)(3)(B) and § 1956(a)(3)(C) are not separate offenses but rather alternative

33
intents for the single offense of money laundering. “[T]he law is well established

that where an indictment charges in the conjunctive several means of violating a

statute, a conviction may be obtained on proof of only one of the means, and

accordingly the jury instruction may properly be framed in the disjunctive.”

United States v. Simpson, 228 F.3d 1294, 1300 (11th Cir. 2000). Furthermore,

several circuits addressing the analogous provisions of § 1956(a)(1) have

concluded that it is permissible to indict in the conjunctive but charge the jury in

the disjunctive. See, e.g., Garcia-Torres, 341 F.3d at 65–66; Bolden, 325 F.3d at

487 n.20; Navarro, 145 F.3d at 592. We therefore conclude that the district court’s

jury instructions did not constructively amend the indictment.

4. Sufficiency of the Evidence

The Appellants also contend that the government failed to prove that Seher

intended to conceal or disguise the origin of the proceeds used in the money

laundering at Chaplin’s and Midtown. They thus assert that there was insufficient

evidence to sustain their convictions on Counts Two, Four, and Six. Their

argument focuses exclusively on the failure to prove a violation of § 1956(a)(3)(B).

However, these counts all allege violations of both § 1956(a)(3)(B) and

§ 1956(a)(3)(C). Since we have found that these subsections represent alternative

intents for the same offense, their convictions would be sustained if there was

34
sufficient evidence to support either intent. The Appellants do not contend that

there was insufficient evidence that they acted in violation of § 1956(a)(3)(C), i.e.,

with the intent to avoid a transaction reporting requirement, and the record is

replete with proof that Seher had such intent for each of the transactions cited in

Counts Two, Four, and Six.22 Accordingly, we find that there was sufficient

evidence to support the jury’s verdict for those three counts. We therefore affirm

the Appellants’ convictions on those counts.

B. Issues Regarding Count One

1. Sufficiency of the Evidence

Seher contends that there was insufficient evidence to sustain his Count One

conviction for conspiracy to launder money. He asserts that the evidence

established that he had a buyer-seller relationship with his customers at the Depot

and did not show that he entered into a conspiratorial agreement to conceal and

disguise cocaine proceeds. According to Seher, the district court erred by failing to

address this argument as part of his motion for judgment of acquittal. He also

asserts that, to the extent that the evidence established an intent to avoid the

requirement to file a Form 8300, there was no evidence that such transactions

22
Though this finding is dispositive of the sufficiency of the evidence issue, we note that
the record also contains sufficient evidence to support a violation of § 1956(a)(3)(B). From the
evidence at trial, the jury could clearly infer that Seher’s actions showed an intent to conceal or
disguise the proceeds from a specified unlawful activity in all three transactions.

35
occurred within the relevant statute of limitations period. As such, there would

have been insufficient evidence to support his conviction on Count One.

We review a district court’s denial of a motion for judgment of acquittal de

novo. See United States v. Evans, 473 F.3d 1115, 1118 (11th Cir. 2006). “When

the motion raises a challenge to the sufficiency of the evidence, we review the

sufficiency of the evidence de novo, drawing all reasonable inferences in the

government's favor.” Id. (quotation marks and citation omitted). We will affirm

the denial by concluding that a reasonable factfinder could find that the evidence

established that the defendant was guilty beyond a reasonable doubt. See id.

“To support a conviction of conspiracy, the government must prove [1] that

an agreement existed between two or more persons to commit a crime and [2] that

the defendants knowingly and voluntarily joined or participated in the conspiracy.”

United States v. Silvestri, 409 F.3d 1311, 1328 (11th Cir. 2005) (quotation marks

and citation omitted). The government can show the existence of such an

agreement via circumstantial evidence, which would include making inferences

based on the conduct of those allegedly involved in the scheme. See id. A

defendant is deemed to have knowledge of the illegal agreement if he was aware of

the primary purpose of the conspiracy. See id.

36
 Federal law sets the statute of limitations for conspiracy charges under

§ 1956(h) at five years. See 18 U.S.C. § 3282(a). “The government satisfies the

requirements of the statute of limitations for a non-overt act conspiracy if it alleges

and proves that the conspiracy continued into the limitations period.” United

States v. Arnold, 117 F.3d 1308, 1313 (11th Cir. 1997); see also Whitfield v.

United States, 543 U.S. 209, 219, 125 S. Ct. 687, 694 (2005) (holding that

§ 1956(h) does not require proof of an overt act). “[A] conspiracy is deemed to

continue as long as its purposes have neither been abandoned nor accomplished,

and no affirmative showing has been made that it has terminated.” Arnold, 117

F.3d at 1313.

Count One alleged that Seher conducted a financial transaction with two

disjunctive intents — “to conceal and/or disguise the nature, location, source,

ownership and control of the proceeds of the said unlawful activity and/or to avoid

transaction reporting requirements under federal law” — with the unlawful activity

in question being the distribution of cocaine. R1-31 at 1–2. The government

obtained the initial indictment on 25 July 2006. Accordingly, we need to

determine whether there was sufficient evidence that Seher knowingly entered into

a conspiracy with either of those purposes and that the conspiracy continued on or

beyond 25 July 2001.

37
 We find that there was ample evidence in the record to support the

conclusion that Seher acted with both of those intents. Ragland, Johnson,

McDowell, and Manning all testified that Seher never requested that they complete

a Form 8300 nor asked for information that would have helped him complete one,

even though they all made multiple cash purchases in excess of $10,000.

Additionally, Seher and many of these witnesses were aware of the requirement to

file a Form 8300, and the witnesses testified that they would not have shopped at

the Depot if Seher had made them complete such a form. The jury would have

been reasonable in inferring from this evidence that the parties had an agreement to

avoid reporting requirements and that Seher voluntarily acted with the intent to

evade those requirements.

There was likewise sufficient evidence from which a jury could reasonably

infer an intent to disguise drug proceeds. Both Manning and Johnson testified that

they purchased jewelry from Seher after that date, though the purchase prices did

not exceed $10,000. Furthermore, Manning and Ragland discussed how Seher

assisted them in obtaining jewelry that authorities had seized as part of their arrests

on drug-related charges, and Johnson testified that Seher agreed to help him sell a

watch. In fact, Ragland and Johnson explicitly requested Seher’s help, and he

agreed to aid them. Furthermore, both Ragland and Manning testified that Seher

38
was aware of their arrests before they ever broached the topic. Though Seher

correctly notes that the witnesses all testified that they never told him that they

were involved in the drug business or that they were spending drug proceeds, the

jury could have reasonably assumed from circumstantial evidence that Seher had

such knowledge. Additionally, the witnesses all stated that they made their

purchases with cash rolled into thousand-dollar increments, which they typically

carried around in plastic bags or shoe boxes, the same manner in which they

transported their drug proceeds. Most importantly, Seher continued to help them

after they had been charged with drug-related crimes and even expressed a belief to

an FBI official that Ragland was involved in the drug trade.

The government also put forth sufficient evidence that the conspiracy

continued on or beyond 25 July 2001. Manning, Ragland, and Johnson all testified

that their interactions with Seher were not limited merely to individual purchases,

but extended to his permitting them to return their purchased jewelry later on,

which he would then attempt to sell and give them money in return. The jury

could have reasonably inferred that the conspiracy encompassed the totality of

these dealings, and that these dealings reflected the dual intents of evading

reporting requirements and disguising drug proceeds. Given this understanding of

the nature of the conspiracy, Johnson’s February 2002 request for Seher’s

39
assistance in selling the Rolex, along with Seher’s subsequent payment of funds to

Johnson and his sister, would have constituted part of the conspiracy.

Accordingly, although there were no sales in excess of $10,000 after July 2001, it

was reasonable to view the conspiracy as continuing into the limitations period.

We therefore reject Seher’s contention that he had merely a buyer-seller

relationship with his customers.23 We conclude that there was sufficient evidence

for a reasonable juror to find that Seher entered into a conspiracy to launder drug

proceeds with the intent of both avoiding transaction reporting requirements and

concealing or disguising drug proceeds. There was also ample proof from which a

reasonable juror could find that the conspiracy continued past 25 July 2001.

Accordingly, the district court did not err in rejecting Seher’s motion for judgment

of acquittal on these grounds.

2. Material Variance

Seher contends that there was a material variance between the crime charged

and that proven at trial because the evidence showed that there were multiple

conspiracies, rather than a single conspiracy. He believes that the evidence

reflected the kind of “rimless wheel” or “hub-and-spoke” conspiracy described in

23
Seher also incorrectly asserts that the district court did not address this argument. The
district court’s conclusion that there was sufficient evidence to support Seher’s conviction on
Count One implicitly rejected his theory.

40
Kotteakos v. United States, 328 U.S. 750, 755, 66 S. Ct. 1239, 1243 (1946) and

United States v. Chandler, 388 F.3d 796, 807 (11th Cir. 2004). Both of those

courts reversed convictions because that type of conspiracy constituted a material

variance from the indictment, and Seher urges us to reach the same result here.

“A material variance between an indictment and the government's proof at

trial occurs if the government proves multiple conspiracies under an indictment

alleging only a single conspiracy.” Castro, 89 F.3d at 1450. “We will uphold the

conviction unless the variance (1) was material and (2) substantially prejudiced the

defendant.” Id. To determine whether a variance was material, we look at the

evidence in the light most favorable to the government and ask whether a

reasonable trier of fact could have determined beyond a reasonable doubt that a

single conspiracy existed. See United States v. Moore, 525 F.3d 1033, 1042 (11th

Cir. 2008). We will not disturb the jury’s finding of a single conspiracy if it is

supported by substantial evidence. See id. Only after making the finding of

material variance do we need to examine whether the variance substantially

prejudiced the defendant. See United States v. Richardson, 532 F.3d 1279, 1284

(11th Cir. 2008).

“To determine whether the jury could have found a single conspiracy, we

consider: (1) whether a common goal existed; (2) the nature of the underlying

41
scheme; and (3) the overlap of participants.” United States v. Edouard, 485 F.3d

1324, 1347 (11th Cir. 2007) (quotation marks and citation omitted). The

government must establish interdependence amongst the co-conspirators. See id.

The existence of separate transactions does not have to imply separate conspiracies

if the co-conspirators acted “in concert to further a common goal.” Chandler, 388

F.3d at 811 (emphasis in original). “Courts typically define the common goal

element as broadly as possible,” with “common” being “defined as ‘similar’ or

‘substantially the same.’” Moore, 525 F.3d at 1042. “If a defendant's actions

facilitated the endeavors of other coconspirators, or facilitated the venture as a

whole, then a single conspiracy is shown.” Chandler, 388 F.3d at 811 (quotation

marks, alteration, and citation omitted, emphasis in original). Each co-conspirator

thus does not have to be involved in every part of the conspiracy. See Moore, 525

F.3d at 1042.

After reviewing the record, we find that there was substantial evidence to

support the jury’s single conspiracy finding. The evidence indicated that the

jewelry transactions between Seher and the drug dealers were all done with the

common goals of avoiding filing Form 8300s and disguising drug proceeds. The

government showed that Seher deliberately ignored transaction reporting

requirements and that the dealers continued to come to him because they also

42
wanted to avoid these requirements. Ragland, Johnson, Manning, and McDowell

all expressed a desire to purchase jewelry without leaving a paper trial, with the

first three also indicating that they would not have purchased jewelry from Seher if

he had made them fill out Form 8300s. Taking the evidence in the light most

favorable to the government, there was also substantial proof that Seher sold

jewelry to help conceal drug proceeds. Witness testimony demonstrated that Seher

had established a scheme whereby drug dealers could purchase jewelry from him

using cash from drug sales. As part of this same scheme, he also generally agreed

to let the dealers return their jewelry, which he would then attempt to resell and, in

effect, convert their purchased jewelry back into cash whenever they were in need

of it. Furthermore, the evidence indicated that Seher was aware that he was

interacting with drug dealers and that the money being used to purchase the

jewelry came from drug sales.

There was likewise substantial evidence of a single conspiracy based on the

nature of the underlying scheme and the overlap of participants. The set patterns

and practices engaged in by Seher and the drug dealers during jewelry purchases at

the Depot show the commonality of purpose expected of a single conspiracy.

Ragland, Johnson, Manning, and McDowell all testified that Seher required them

to complete large transactions in the back room, that he regularly stated coded or

43
incorrect prices for the jewelry, that he never inquired about the source of their

cash, and that he failed to request information to complete Form 8300s. These

elements all support the notion that there was a scheme, established by Seher,

deliberately designed to avoid transaction reporting requirements and conceal the

nature of the funds being used to purchase the jewelry. Furthermore, the

participants in the scheme had a great deal of overlap. Many of the dealers knew

each other, and they often suggested that fellow dealers should come to the Depot

to purchase jewelry. For example, McDowell testified that one of his first visits to

the Depot was with Johnson. The dealers were thus aware that others they knew

were participating in the scheme.

We also disagree with Seher’s contention that the money laundering

involved a “rimless wheel” conspiracy similar to those described in Chandler and

Kotteakos. A “rimless wheel” conspiracy is a variation of the “hub-and-spoke”

model, in which the individual at the “hub” of the conspiracy interacts separately

with those along the various “spokes” of the wheel. See Chandler, 388 F.3d at

807. Such a structure would constitute a single conspiracy when the various

spokes are aware of each other and of their common aim. See id. at 808.

However, “where the ‘spokes’ of a conspiracy have no knowledge of or connection

with” the other “spokes” and “deal[] independently with the hub conspirator, there

44
is not a single conspiracy, but rather as many conspiracies as there are spokes.” Id.

at 807. This type of multiple conspiracy is akin to “a ‘rimless wheel’ because there

is no rim to connect the spokes in a single scheme.” Id. In Chandler, we found

that the evidence reflected the latter kind of arrangement because the central

conspirator was the only individual who moved from spoke to spoke or who even

knew about the other spokes or the overall scheme. See id. at 808. In contrast, the

drug dealers here knew that they could purchase jewelry from Seher without

having to follow federal reporting requirements and then exchange it back when

needed. They were aware that their fellow drug dealers were purchasing goods

from Seher for the same purpose, and they even encouraged others to do likewise.24

There was thus substantial evidence that the co-conspirators were aware of the

nature and scope of Seher’s scheme, thereby distinguishing this situation from the

rimless wheel discussed in Chandler and Kotteakos. Accordingly, we find that the

jury’s finding of a single conspiracy was supported by substantial evidence.25 We

24
Some drug dealers appear to have assisted Seher in obtaining payment from delinquent
purchasers. For instance, Johnson testified that Seher asked him to contact particular drug
dealers on his behalf.
25
Furthermore, we note that, even if there had been a material variance, Seher would not
have been substantially prejudiced by it because the proof at trial did not differ so greatly from
the charges so as to surprise him unfairly or impair his ability to prepare an adequate defense,
nor were there “so many defendants and separate conspiracies before the jury that there [was] a
substantial likelihood that the jury transferred proof of one conspiracy to a defendant involved in
another.” Richardson, 532 F.3d at 1287 (quotation marks and citation omitted).

45
therefore conclude that there was no material variance regarding Count One and

affirm Seher’s conviction on that count.26

C. Issues Related to the Forfeiture Order

1. Forfeiture of Bank Accounts and Inventories

Chaplin’s and Midtown contend that the district court erred in ordering

forfeiture of their bank accounts and inventories because they did not constitute

properties involved in, or used to facilitate, the offenses charged in Counts Two

through Seven. Specifically, they maintain that there is no connection between

these properties and the money laundering offenses. They also emphasize that,

apart from the undercover sales, there was no proof of any other illegal activities

taking place at the Chaplin’s and Midtown stores

“We review de novo the district court's legal conclusions regarding

forfeiture and the court's findings of fact for clear error.” Puche, 350 F.3d at 1153.

A person convicted of violating 18 U.S.C. § 1956 and 31 U.S.C. § 5324 must

forfeit to the government all property that is either “involved in” that violation or

traceable thereto. 18 U.S.C. § 982(a)(1); 31 U.S.C. § 5317(c)(1)(A). Property

eligible for forfeiture under 18 U.S.C. § 982(a)(1) includes that money or property

26
Seher asserts that we should vacate his sentence on Counts Three, Five, and Seven and
remand for a new sentencing hearing. He concedes, however, that this argument would only be
applicable if we vacate his convictions on Counts One, Two, Four, and Six. Since we have
affirmed his convictions on those counts, we need not address his resentencing argument.

46
which was actually laundered (“the corpus”), along with “any commissions or fees

paid to the launderer[] and any property used to facilitate the laundering offense.”

Puche, 350 F.3d at 1153 (quotation marks and citation omitted). Property would

facilitate an offense if it “makes the prohibited conduct less difficult or more or

less free from obstruction or hindrance.” Id. (quotation marks and citation

omitted). Though the pooling or commingling of tainted and untainted funds

would not by itself render the entirety of an account subject to forfeiture, if the

government establishes that the defendant did so “to facilitate or ‘disguise’ his

illegal scheme,” then forfeiture is acceptable. Id.

Chaplin’s and Midtown first contend that we should not interpret

§ 5317(c)(1)(A) to allow for forfeiture of property used to facilitate the transaction

reporting violation. See 31 U.S.C. § 5317(c)(1)(A). In support of their argument,

they cite United States v. Dean, 87 F.3d 1212, 1213–14 (11th Cir. 1996), in which

we noted that the amount forfeitable in a case would be limited to that money

which was directly involved in the reporting offense. However, we conclude that

discussion in Dean to be inapposite and not controlling here. In Dean we were

dealing with a separate and distinct issue, the legality of a civil forfeiture

agreement — a question that involved determining whether § 5317 was a remedial

or punitive statute. In answering this question, we never addressed whether

47
facilitation of the offense was a valid interpretation of § 5317, instead focusing on

the nature of the statute itself. See Dean at 1213–14. Furthermore, Dean was

addressing an old version of § 5317, which included no mention of the current

version’s phrase “involved in.” See id. at 1213. The “term ‘involved in’ has

consistently been interpreted broadly by courts to include any property involved in,

used to commit, or used to facilitate the offense.” United States v. Varrone, 554

F.3d 327, 331 (2d Cir. 2009) (quotation marks and citation omitted).

Because Dean does not affect our analysis, we instead focus on the similarity

between the relevant language of § 5317(c)(1)(A) and § 982(a)(1). Section

§ 5317(c)(1)(A) requires “the defendant to forfeit all property, real or personal,

involved in the offense and any property traceable thereto,” whereas § 982(a)(1)

states “that the person forfeit to the United States any property, real or personal,

involved in such offense, or any property traceable to such property.” 18 U.S.C.

§ 982(a)(1); 31 U.S.C. § 5317(c)(1)(A). Given that the two statutes essentially

mirror each other, it seems incongruous to interpret those provisions as covering

different arrays of property. Cf. Varrone, 554 F.3d at 330–31 (noting that the two

provisions have “nearly identical” language and that the broad interpretation of

“involved in” applies equally to § 5317(c)(1)(A) and § 982). Furthermore, we can

discern no policy basis for distinguishing between the two. Accordingly, we

48
conclude that § 5317(c)(1)(A) allows for forfeiture of property that facilitates the

reporting violation.

Chaplin’s and Midtown next assert that forfeiture of their accounts and

inventories was improper because there was no evidence that they were used in the

commission of those violations. This contention ignores the fact that the

availability of the two stores’ inventories made it easier for Seher to launder money

by giving potential buyers a large variety of jewelry options. Furthermore, Seher

used telephones, business cards, and other company property to create a facade of

legitimacy, which aided in the concealment of his actions. See United States v.

Rivera, 884 F.2d 544, 546 (11th Cir. 1989) (deeming defendant’s horse breeding

business a “front” for his drug trafficking and thus permitting forfeiture of horses

under facilitation theory). Both stores’ inventories thus facilitated the offenses,

and the district court properly included them in the forfeiture order. For much the

same reason, we also find that the district court did not err in including Midtown’s

bank account. The evidence established that the cash from Perkins’ last two

purchases was deposited in Midtown’s bank account, thereby further facilitating

the laundering by disguising the source of those tainted funds. See Puche, 350

F.3d at 1154 (deeming it reasonable to infer that the intermingling of tainted and

49
legitimate proceeds “act[ed] as a ‘cover’ and hence reduced suspicion of” the

source of the tainted funds).

We can identify no evidence in the record, however, linking a Chaplin’s

bank account to the reporting and laundering offenses. There were no deposit slips

or account statements showing that Perkins’ cash was deposited in a Chaplin’s

account, nor were there any references to payments being deposited into a

Chaplin’s bank account. In fact, the record does not disclose the name of

Chaplin’s bank account or even mention that a Chaplin’s account exists, other than

in general references to accounts apparently held by Chaplin’s. The government

provides no record cites to a specific Chaplin’s bank account. Instead the

government focuses on the interconnectedness between Chaplin’s and Midtown

and asserts that all of the assets of both companies, including their bank accounts,

were thereby involved in the offenses. It also notes that some Midtown employees

occasionally worked at Chaplin’s and often were paid in cash. Though this latter

fact could support the inference that Perkins’ cash was used to pay employees, it

would not tie the cash to a Chaplin’s bank account. Additionally, the district court

made no specific findings regarding whether Chaplin’s and Midtown should be

treated as one entity. Unless such a finding is made, we cannot view the two

companies as sharing assets for forfeiture purposes. See United States v. Gilbert,

50
244 F.3d 888, 919 (11th Cir. 2001) (noting that criminal forfeiture reaches only

those assets owned by a particular defendant).

Instead, the court found that the proceeds from the offenses went back into

both Chaplin’s and Midtown via bank deposits and cash payments. Though

property need not be used exclusively for illegal activities to be forfeitable, it

“must have more than an incidental or fortuitous connection to criminal activity.”

United States v. Schifferli, 895 F.2d 987, 990 (4th Cir. 1990). As a result, there

must be evidence that some part of the property was used for illegal activities.

Since we can identify no evidence to support the district court’s finding as it

pertains to Chaplin’s bank accounts, we find that the district court clearly erred on

that point.27 See United States v. Bornfield, 145 F.3d 1123, 1138 (10th Cir. 1998)

(concluding that jury verdict ordering forfeiture of defendant’s business account in

money laundering case constituted clear error when the record showed that all of

the laundered funds went to his personal account and that there was no connection

between his business account and the laundering offense). Accordingly, we find

that the district court did not err in ordering forfeiture of the inventory of both

27
This conclusion should not be read as implying that these accounts could not be part of
a forfeiture order, but rather that the district court failed to support its finding with sufficient
evidence. On remand, the district court should address whether forfeiture is supported by a
preponderance of the evidence, taking into account any and all evidence put forth at trial, even
on the conspiracy counts. See United States v. Hasson, 333 F.3d 1264, 1279 (11th Cir. 2003).

51
companies and of Midtown’s bank account; however, we vacate that part of its

order forfeiting any bank accounts of Chaplin’s and remand for further hearing to

address whether the evidence supports such a forfeiture.

2. Eighth Amendment Violation

Chaplin’s and Midtown also contend that the forfeiture of their bank

accounts and inventories constituted an excessive fine in violation of the Eighth

Amendment. We review de novo the issue of whether a forfeiture order would be

constitutionally excessive under the Eighth Amendment. See Puche, 350 F.3d at

1153. Since the forfeiture order here occurred at the end of a criminal proceeding

and was imposed solely because of a criminal conviction, it would constitute a fine

that would be subject to the Eighth Amendment’s prohibition of excessive fines.

See Browne, 505 F.3d at 1281–82.

A forfeiture order violates the Excessive Fines Clause if it “is grossly

disproportional to the gravity of a defendant's offense.” United States v.

Bajakajian, 524 U.S. 321, 337, 118 S. Ct. 2028, 2038 (1998). To make this

determination, we principally look at three factors: “(1) whether the defendant falls

into the class of persons at whom the criminal statute was principally directed; (2)

other penalties authorized by the legislature (or the Sentencing Commission); and

(3) the harm caused by the defendant.” Browne, 505 F.3d at 1281. We do not take

52
into account the impact the fine would have on an individual defendant. See

United States v. 817 N.E. 29th Drive, Wilton Manors, Fla., 175 F.3d 1304, 1311

(11th Cir. 1999). In addition, “if the value of forfeited property is within the range

of fines prescribed by Congress, a strong presumption arises that the forfeiture is

constitutional.” Id. at 1309.

The district court never addressed whether the forfeiture order violated the

Eighth Amendment, even though Chaplin’s and Midtown raised it in their

opposition brief. It also made no findings regarding the value of the forfeited

properties — a particular problem since the parties cite widely divergent figures.

The government, relying on a pleading filed by Chaplin’s and Midtown, asserts

that the collective value of the two properties is approximately $3 million.28

Chaplin’s and Midtown, on the other hand, claim in their brief on appeal that the

properties are worth a total of $7 million. Based on 18 U.S.C. § 3571 and 31

U.S.C. § 5324, Chaplin’s and Midtown would have been eligible for $1.5 million

28
The pleading the government cites is itself contradictory. The text lists the total for
both stores as $3 million, but a footnote states that Chaplin’s inventory is worth $2-2.5 million
and Midtown’s about $1.5 million.

53
and $3 million, respectively, in total fines for their offenses.29 See 18 U.S.C.

§ 3571(c)(3); 31 U.S.C. § 5324(d)(2).

We therefore do not have a clear factual basis for evaluating whether the

forfeiture of the accounts and inventories would be an excessive fine, especially

since we are vacating the district court’s order vis-a-vis Chaplin’s bank accounts.

As a result, we believe that the issue would be better addressed by the district court

in the first instance and therefore remand so it can examine the Eighth Amendment

issue solely as to the accounts and inventories. See United States v. Land, Winston

County, 163 F.3d 1295, 1303 (11th Cir. 1998) (deeming remand of previously

unaddressed excessive fine issue proper “[b]ecause the issue of excessive fines

may depend on various factors and conduct with which the district court is more

familiar”). Accordingly, although we find no error regarding the forfeiture order

insofar as it encompassed the inventories of Chaplin’s and Midtown and the bank

accounts of Midtown, since the district court had not addressed the Eighth

Amendment question, we also vacate those parts of the order.

3. Personal Money Judgments

29
The normal statutory maximum fine for a corporation found guilty of a felony is
$500,000 per offense. See 18 U.S.C. § 3571(c)(3). However, 31 U.S.C. § 5324 permits this
maximum to be doubled when a violation of that section is coupled with a violation of a different
statute, such as 18 U.S.C. § 1956(c)(3). See 31 U.S.C. § 5324(d)(2). Chaplin’s would thus be
eligible for a $500,000 fine on Count Two and a $1 million fine on Count Three, and Midtown
would be eligible for a $500,000 fine on Counts Four and Six and a $1 million fine on Counts
Five and Seven.

54
 Chaplin’s, Midtown, and Seher all challenge the personal money judgment

entered against them regarding Counts Two through Seven. Chaplin’s and

Midtown both concede that they would be eligible for money judgments of

$22,000 and $32,800, respectively. However, they argue that the district court

erred by making them jointly liable, along with Seher, for a money judgment of

$54,800.30

We agree with the government that the judgment would be acceptable if we

pierced the corporate veil and deemed Chaplin’s and Midtown the functional

equivalent of a single corporation. However, as previously noted, the district court

made no findings regarding whether Chaplin’s and Midtown constituted one entity

for the purpose of imposing joint and several liability. Furthermore, though courts

have affirmed forfeiture orders imposing joint and several liability, those cases

appear to involve offenses from which such liability would logically derive, such

as conspiracy or aiding and abetting. See, e.g., United States v. Spano, 421 F.3d

599, 603 (7th Cir. 2005) (conspiracy); United States v. Pitt, 193 F.3d 751, 765 (3d

Cir. 1999) (conspiracy); United States v. Benevento, 836 F.2d 129, 130 (2d Cir.

30
In their initial brief, they also appear to challenge the district court’s authority to enter
personal money judgments in general. However, we have since explicitly rejected this argument
in a subsequent case. See United States v. Padron, 527 F.3d 1156, 1162 (11th Cir. 2008) (noting
that the district court has the authority to enter a money judgment in a criminal forfeiture case
based on a combination of 28 U.S.C. § 2461(c) and Federal Rule of Criminal Procedure 32.2).

55
1988) (per curiam) (criminal enterprise). The district court imposed the $54,800

money judgment for the Appellants’ money laundering and failure to follow

reporting requirements, neither of which are the types of offenses for which joint

and several liability would be appropriate. In the absence of any clear authority or

factual basis for affirming the money judgment against Seher, Midtown, and

Chaplin’s, we therefore vacate that portion of the forfeiture order and remand for

further findings which address whether joint liability is appropriate or whether the

corporate veil should be pierced.

4. Forfeiture of Substitute Assets

Seher asserts that the district court erred in finding that his real property

could be a substitute asset under 21 U.S.C. § 853(p) for the $1,610,400 laundered

in connection with the drug conspiracy charged in Count One. He argues that

these funds were the property of the Depot, not him, and that he therefore had no

interest in this property and should be deemed an “intermediary” to the conspiracy,

who could not be subject to a money judgment. He also contends that the

government failed to prove that he caused this property to be unavailable via an act

or omission on his part.

Both of these arguments fail. The evidence at trial established that the

laundered funds were originally given to Seher, and there was no indication that

56
they ever became the property of the Depot. Furthermore, as he was convicted of

conspiracy to launder money, it is reasonable to hold him liable for all the proceeds

that were a reasonably foreseeable result of that conspiracy regardless of whether

he still possesses them. See United States v. Caporale, 806 F.2d 1487, 1506–09

(11th Cir. 1986) (affirming forfeiture order imposing joint and several liability on

RICO conspirators based on this rationale); see also United States v. Reiner, 500

F.3d 10, 18 (1st Cir. 2007) (affirming forfeiture order holding single conspirator

vicariously liable for the total value of the conspiracy). Seher also asserts that he

was merely an “intermediary” to these financial transactions, as defined in 18

U.S.C. § 982(b)(2), and therefore would be ineligible for a money judgment. That

statute defines an intermediary as an individual “who handled but did not retain the

property in the course of the money laundering offense.” 18 U.S.C. § 982(b)(2).

However, an individual would not be an intermediary if, “in committing the

offense or offenses giving rise to the forfeiture, [he] conducted three or more

separate transactions involving a total of $100,000 or more in any twelve month

period.” Id. There was evidence that Manning made at least $200,000 in

purchases on a single day in 1998 and that Johnson and McDowell also made

purchases that same year. Seher therefore would not be an intermediary under the

57
statute regardless of whether he “handled but did not retain” the money involved in

the laundering.

Seher is likewise in error in asserting that the government failed to provide

proof that his actions or omissions triggered the substitute asset provision. As part

of the government’s motion for a preliminary forfeiture order, it attached a

declaration from an IRS Special Agent involved in the case stating that, based on

the government’s attempts to locate the missing proceeds, Seher had “dissipated or

otherwise disposed of the proceeds of his crimes.” R4-155, Exh. B at 2. Though

the affidavit did not identify every effort the government had made to obtain the

proceeds, we find it sufficiently specific in identifying Seher’s acts and omissions

for the district court to rely on it as the basis for ordering forfeiture under the

substitute asset provision. We note that the First Circuit made a similar finding

based on a government affidavit that used virtually the same language regarding

the defendant’s actions. See United States v. Candelaria-Silva, 166 F.3d 19, 42

(1st Cir. 1999). The district court therefore did not err in finding that Seher’s

property could be a substitute assert for the personal money judgment on Count

One.

III. CONCLUSION

58
 Seher, Chaplin’s, and Midtown appeal their convictions and sentences for

various money laundering and transaction reporting offenses, as well as the district

court’s forfeiture order. Counts Two, Four, and Six of the indictment properly

stated claims, were not duplicitous, and were not constructively amended by the

district court in the jury charge. There was also sufficient evidence to support the

Appellants’ convictions on those counts. Additionally, as to Count One, there was

sufficient evidence that Seher entered into a single conspiracy that continued into

the relevant statute of limitations period. The district court also did not err in

ordering forfeiture of Midtown’s inventory and bank accounts as well as Chaplin’s

inventory, nor did it err in imposing a $1,610,400 money judgment against Seher

or in ordering forfeiture of his real property as a substitute asset. However, the

district court clearly erred in making factual findings regarding Chaplin’s bank

accounts. It also failed to address whether the forfeiture of the two companies’

inventories and bank accounts constituted an excessive fine under the Eighth

Amendment. Finally, the court did not justify the imposition of joint liability on

Chaplin’s, Midtown, and Seher for the $54,800 money judgment on Counts Two

through Seven. We therefore AFFIRM all of the Appellants’ convictions as well

as those portions of the district court’s forfeiture order imposing the $1,610,400

money judgment against Seher and ordering forfeiture of Seher’s real property as a

59
substitute assert. We VACATE the district court’s order insofar as it ordered

forfeiture of the accounts and inventories of Chaplin’s and Midtown and imposed a

$54,800 money judgment against Chaplin’s, Midtown, and Seher and REMAND

for further action on those portions of the forfeiture order.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

60