concurring and dissenting.
I am troubled by the result we reach in this case. Nonetheless, I reluctantly concur in the court’s opinion affirming the guilt phase of the trial, although, in my view, the convictions barely survive reasonable analysis on both the law and the facts. I do believe, however, that the sentencing process was fatally flawed and should be reversed. Accordingly, I concur in part and dissent in part.
As the court notes, this case had its genesis in a quarrel over the care, custody and ownership of the 65-million-year-old remains of a tyrannosaurus rex named “Sue” discovered in 1990 on a South Dakota ranch. Black Hills Inst, of Geological Research v. United States Dep’t of Justice, 967 F.2d 1237, 1238-39 (8th Cir.1992) (Black Hills I). The roots of the dispute appear to extend into the murky depths of an earlier and ongoing argument between and among public, academic and commercial collectors and curators vying for control of archaeological remains worldwide. The criminal prosecutorial arm of the *629United. States was apparently recruited to participate in this continuing battle and it, in turn, enlisted the aid of the Federal Bureau of Investigation and the South Dakota National Guard. Id. at 1239. This resulted in an armed invasion of the Institute’s headquarters in Hill City, South Dakota, designed to carry out a search for and accomplish the seizure of Sue. Id.
The criminal act alleged at that time was a violation of the Antiquities Act, 16 U.S.C. § 433. Black Hills Inst, of Geological Research v. United States Dep’t of Justice, 978 F.2d 1043, 1044 (8th Cir.1992) (.Black Hills II). The maximum punishment for violating the Antiquities Act is a $500 fine and ninety days imprisonment. 16 U.S.C. § 433. This purported transgression seems to have long since been forgotten, and Sue is nowhere to be found within the four corners of the present criminal prosecution.
A bitter legal battle between the United States and the Institute over ownership of Sue continued for several years with this court acting as part-time umpire. Black Hills Inst. of Geological Research v. South Dakota Sch. of Mines & Tech., 12 F.3d 737 (8th Cir.1993) (Black Hills III). Although not a part of the record, press reports indicate that the beneficial owner of the land upon which the discovery was made has now emerged triumphant, and he proposes to auction Sue off to the highest bidder, public, private, academic or collector through the good offices of the fabled Sotheby’s Auction House in New York, New York. The estimated value is in the area of one million dollars.10 Malcolm W. Browne, “Well-Preserved T. Rex Bones May Get $1 Million at Auction,” N.Y. Times, Nov. 16,1996 at 1, 8.
At the same time, the criminal indictment limped along until late 1994 when a South Dakota newspaper disclosed that the ease was about to be concluded through a plea agreement favorable to Larson. In re Larson, 43 F.3d 410, 411 (8th Cir.1994) (Black Hills IV). At that point, the trial judge, in admitted violation of Federal Rule of Criminal Procedure 11(e), upset progress toward the consummation of the apparent arrangement, describing it, in part, (based on what the judge saw in the newspaper) as a “capitulation by the government.” Id. This, of course, sent the federal prosecutors scurrying back to the drawing board. The recent thirty-nine count prosecution resulted, with thirty-six of the counts directed at Larson. After trial, the jury convicted Larson of two minor counts of theft involving property of less than $100 in value and two rather exotic customs violations both involving activities carried out in foreign nations: one occurring prior to the discovery of Sue and one prior to the search of the Institute’s headquarters.
While the matter probably should have been disposed of by the plea agreement reported in the press, I now reluctantly agree with the court that, given the test we must apply at this point, United States v. Shoffner, 71 F.3d 1429, 1433 (8th Cir.1995) (review must be in light most favorable to verdict); United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir.1996) (reverse only if a jury must have entertained reasonable doubt), there is enough credible and admissible evidence to affirm the convictions even though they are based upon hotly disputed, barely viable and generally unenforced legal theories. Indeed, as correctly pointed out in Larson’s brief, good faith disagreement exists as to the proper interpretation of both the foreign law involved and the federal statutes and rules enforced in this prosecution.
I disagree, however, with the sentence imposed. In its sentencing guideline calculations, the trial court seems to have generously exercised its discretion to enhance the penalties arising from the defendant’s participation in relatively minor crimes. Further, the weighty sentence was, in my view, inappropriate given the questionable presentations at trial concerning the existence of and the substance of the Peruvian law at issue. *630Overall, the penalty process resulted in a prison sentence well above that called for given the minimal and uncertain nature of the offenses, especially the theft offenses involving property of less than $100 in value.11
Sentencing enhancements based on uncharged or acquitted conduct,- as in this case, must rely on behavior that is (1) proven by a preponderance of the evidence and (2) part of the “relevant conduct” of the offense of conviction. A review of the trial record shows that the rulings survive the evidentiary standard, but fail the nexus requirement.
Although acquitted of all conspiracy allegations by the jury, the district judge found, for sentencing purposes, that a conspiracy to collect fossils from federal land existed.12 Sentencing Tr. at 30. All of the enhancements flow from this finding. Since it is reversible error to fail to impose applicable enhancements, Hall v. United States, 46 F.3d 855, 859 (8th Cir.1995), it is difficult to evaluate the enhancements without addressing the predicate finding of conspiracy.
While my review of the transcript left me convinced that there was no conspiracy, there was some evidence supporting the government’s theory. Furthermore, I have not located a case reversing a sentencing enhancement on the grounds that the acquitted conduct was insufficiently proven. In this ease, however, there seems to have been some predisposition to find that a conspiracy did, indeed exist. Tr. of Hr’g at 26-27 (Sept. 21, 1994) (comments regarding plea bargain reported by press).
The enhancements were then imposed on the grounds that the customs violations13 in some way advanced this judge-found conspiracy. Although relevant conduct is defined broadly, U.S. Sentencing Guidelines Manual (“Guidelines”) § 1B1.3(a)(2), the concept is not without limits. Offenses constituting part of a common scheme or plan must be “ ‘substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purposes, or similar modus operands ” United States v. Sheahan, 31 F.3d 595, 599 (8th Cir.1994) (quoting Guidelines § 1B1.3, comment (n. 9)). This determination is reviewed for clear error. United States v. Batano, 8 F.3d 629, 630 (8th Cir.1993).
The only Eighth Circuit case exploring the limits of lB1.3(a)(2) is United States v. Bal-lew, 40 F.3d 936 (8th Cir.1994). Ballew was convicted of wire and mail fraud for falsely reporting to his insurance carrier that his truck was stolen. Investigation of the fraud revealed Ballew’s involvement in several automobile thefts. Some parts from stolen vehicles had been put into the truck. The district court relied on the thefts to impose a five-level increase in Ballew’s base offense level. We affirmed the sentence, reasoning that Ballew’s use of parts from the stolen vehicles disguised the truck so he could continue using it. Id. at 943. In dissent, Judge Heaney argued that “the asserted connection is too tenuous to bind together these two discreet, identifiable units of crime into a single continuing offense.” Id. at 945.
Even if Ballew is correctly decided, the nexus between the convictions and the enhancements in Larson’s case is considerably more tenuous.
Section 3Bl.l(a) calls for a four-level increase for a defendant’s leadership role. The district court did name five conspirators, Evi-dentiary Hr’g at 64-65 (Jan. 16, 1996), but *631only Larson and his girlfriend were present for the actual customs violations. The court does not address this issue at all; it simply asserts that the leadership enhancement was appropriate because Larson was a principal of the Institute. Ante at 627.
Similarly, section 2S1.3(b)(l) adds two levels when the defendant knew the funds were proceeds of unlawful activity or were intended to promote unlawful activity. Both the district court and this court assert that this enhancement was appropriate because the funds from the customs violations were purportedly intended to aid the United States conspiracy.
The vast majority of section 2S1.3(b)(l) cases involve the use of drug proceeds. E.g., United States v. Mitchell, 31 F.3d 628, 633 (8th Cir.1994). There is only one case applying a 2S1.3(b)(1) enhancement based on the prospective use of funds. In United States v. Packer, 70 F.3d 357, 361 (5th Cir.1995), cert. denied, — U.S. -, 117 S.Ct. 75, 136 L.Ed.2d 34 (1996), the defendant planned to use the funds in question to support himself and his girlfriend in their flight to avoid her arrest. The court affirmed because the whole purpose of the transactions was the financing of the flight. Id.
Unlike Packer, the government here provided no evidence about Larson’s plans for the money. The only arguable nexus between the trips and the fossil conspiracy is the general business done by the Institute. The exhibits do demonstrate that the Japanese travelers’ checks were deposited into the Institute’s account and the Peruvian travelers’ checks were purchased with Institute money. One defendant did testify that the business was conducted to “support our, I guess, habit of collecting” fossils. Trial Tr. at 2902. These general connections were all that was established under even the most charitable reading of the record. This stretches the concept of relevant conduct well beyond Ballew. Further, there was no evidence at all about either the intended or the actual use of these monies.
Accordingly, I would affirm the convictions but, given the Rule 11(e) violation, I would remand the case to the district court for resentencing before another judge. We noted in our opinion in Black Hills IV that precedent supports sentencing by a different judge under these same circumstances. 43 F.3d at 416, n. 7 (citing United States v. Adams, 634 F.2d 830, 835-43 (5th Cir.1981)). Indeed, the decision by the court to deny Larson’s request for recusal of the trial judge seems to run contra to our recent decision in United States v. Washington, 109 F.3d 459 (8th Cir.1997). In Washington we stated:
Rule 11(e)(1) of the Federal Rules of Criminal Procedure provides that the district court “shall not participate” in any discussions concerning a possible plea agreement. This is an “absolute prohibition.” United States v. Adams, 634 F.2d 830, 835 (5th Cir.1981).
[Rule 11(e)(1)] also furthers “the sound principle that the interests of justice- are best served if the judge remains aloof from all discussions preliminary to the determination of guilt or innocence so that his impartiality and objectivity shall not be open to any question or suspicion when it becomes his duty to impose sentence.” United States v. Werker; 535 F.2d 198, 203 (2d Cir.1976); accord Barrett, 982 F.2d at 195; Adams, 634 F.2d at 840.
Id. at 464.
In Washington, the court construed our earlier opinion in Black Hills IV and did not find “plain error” when the trial judge, who had also acknowledged a Rule 11(e)(1) violation, failed to recuse himself sua sponte from the sentencing phase of the trial. Id., 109 F.3d 459 slip op. at 7-8. However, the court, by inference, seems to have held that a “request [for] a different sentencing judge” by. Washington would have made recusal mandatory. Id. In this case, Larson timely demanded the recusal of the trial judge citing, inter alia, our Adams footnote in Black Hills IV as authority for the request. Appellant’s App. at 57-58. Thus, under our decisions in Black Hills IV and Washington, denial of Larson’s motion for recusal was reversible error.
Accordingly, I concur in that part of the court’s opinion affirming the conviction. I
*632dissent from the court’s view that the sentencing procedure and the sentence were within the established law of this circuit.
. This sum would apparently be "net” the cost of excavation of the fossil, which cost purportedly amounted to $209,000. The land owner also received and apparently retained $5,000 paid by the Institute for permission to excavate. We denied a claim by the Institute for the excavation costs by affirming the district court's disallowance of an equitable or statutory lien for this amount. Black Hills Inst. of Geological Research v. Williams, 88 F.3d 614 (8th Cir.1996) (Black Hills V).
. The probation officer’s sentencing guideline calculation for the trial court, made via the pre-sentence report, proposed no enhancement for Larson’s role in the offense and no enhancement for any purported obstruction of justice, leading to an offense level no higher than 12, which, in turn, provided for a sentence of from 10 to 16 months with the option of one half of the time being served under supervised release. I agree with this more minimal analysis contained in the presentence report.
. The judge's exact words were that he found "based upon the greater weight of the evidence, a conspiracy____” Sentencing Tr. at 30. Although he did not use the term "preponderance,” I assume that the judge’s expression is equivalent.
.The only enhancements at issue are those attached to Counts XX and XXX (the customs violations). Counts II and VII added no units to Larson's combined offense level and so did not increase his sentence. See U.S. Sentencing Guidelines Manual § 3D 1.4 and Evidentiary Hr’g at 3 (Jan. 16, 1996).