United States v. Khanani

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 2, 2007
Nos. 05-11689 & 05-15014 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 02-00171-CR-ORL-28KRS

UNITED STATES OF AMERICA,

Plaintiff-Appellee
Cross-Appellant,

versus

M. SALEEM KHANANI,
DAVID PORTLOCK,

Defendants-Appellants
Cross-Appellees.

________________________

Appeals from the United States District Court
for the Middle District of Florida
_________________________

(October 2, 2007)

Before EDMONDSON, Chief Judge, and BIRCH and WILSON, Circuit Judges.

BIRCH, Circuit Judge:
 M. Saleem Khanani and David Portlock appeal their convictions both

arguing that the district court erred in refusing to give their “mere employment”

theory of defense jury instruction and that the warrant searches conducted at

Portlock’s accounting business and storage facility and other locations violated the

Fourth Amendment. Khanani also separately contends that the district court

abused its discretion by failing to grant a mistrial because of an alleged extrinsic

influence on the jury, and by admitting into evidence Portlock’s statement that he

“would not be surprised” by Khanani’s involvement in the charged offenses.

Portlock separately asserts that: the evidence was legally insufficient to prove the

offense of conspiracy to harbor or shield illegal aliens from detection; or,

alternatively, the offense of conspiracy to encourage or induce illegal aliens to

reside in the United States when the government’s evidence only showed that

unauthorized workers were knowingly employed; the evidence was legally

insufficient to prove guilt beyond a reasonable doubt as to Counts 54, and 56

through 71; and cumulative error exists that warrants the grant of a new trial.

Additionally, the government cross-appeals, arguing that the district court erred by

entering judgments of acquittal on the money-laundering conspiracy count (Count

55). For the reasons set forth below, we AFFIRM the district court in all respects.

2
 I. BACKGROUND

Khanani was a 40% owner of Big Bargain World, Inc. (“BBW”), SS Mart,

Inc., and several retail stores, including Jeans Unlimited, Inc., and Denim

Unlimited, Inc. Jesse Maali owned the remaining 60% stake. Portlock was an

accountant and worked for Khanani and Maali as a comptroller. At least some of

the employees at Jeans Unlimited and Denim Unlimited were aliens who were not

authorized to work in the United States.

In November 2002, law enforcement agents raided and searched fourteen

locations, including seven BBW stores, two Sports Dominator stores, a BBW

corporate office/warehouse, the office of Maali Enterprises, Maali’s residence,

Portlock’s office, and a storage unit rented by Portlock. The government seized

multiple computer hard drives, as well as related equipment and software from the

businesses and homes. An agent mirrored the computer hard drives after they were

seized so that the data contained therein could be reviewed by investigators.

The search warrants were based on an FBI agent’s affidavit, which alleged

that the computers were “integral tools” of the claimed violations. The master

affidavit limited the search to specified categories of documents pertaining to a

number businesses and four individuals, and limited the chronological reach of the

search to documents and records dating back to 1997. The affidavit also required

3
the search activity to be focused on materials related to specified immigration and

tax violations.

On 21 July 2004, a federal grand jury returned a third superceding

indictment charging Saleem Khanani and David Portlock, among others, with

offenses relating to Khanani’s employment of aliens who were not authorized to

work the United States and to the related failures to pay state and federal taxes.

The first 53 counts charged that Khanani, Portlock, and others had “encouraged

and induced” named, unauthorized aliens to reside in the United States, in

violation of 8 U.S.C. § 1324(a)(1)(A)(iv). R552 at 1-4. Count 54 charged that the

defendants had participated in a conspiracy to “conceal, harbor, and shield” these

aliens from detection, also in violation of § 1324(a)(1)(A)(iii). Counts 56-58

charged that the defendants had mailed and e-mailed fraudulent state and federal

tax forms, in violation of 18 U.S.C. §§ 1341 and 1343 and 18 U.S.C. § 2. Count

55 charged the defendants with conspiracy to launder the proceeds of the crimes

charged in Counts 1-54 and 56-58, in violation of 18 U.S.C. § 1956(h). Counts 59-

71 charged that the defendants had evaded federal employment and income taxes,

in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2. The government also sought

the forfeiture of any assets the defendants had obtained through their crimes.

Khanani and Portlock moved to suppress the evidence uncovered in the computer

4
searches, arguing, among other things, that the warrants were deficient because

they failed to articulate any search protocol. After an evidentiary hearing, the court

denied the motions to suppress.

At trial, Khanani’s primary defense was that he merely employed

undocumented workers and that mere employment, at most, constitutes a

misdemeanor under a separate and uncharged provision of the immigration laws, 8

U.S.C. § 1324a. Khanani and Portlock requested that the court instruct the jury

that “[t]he employment of an illegal alien in and of itself does not constitute”

encouragement or harboring under § 1324(a). R755 at 4, 9. The requested

instruction was denied.

Portlock testified during the defense’s case. Portlock’s counsel questioned

him about his prior statements regarding Maali and Khanani’s motives for hiring

unauthorized aliens. Portlock denied telling agents that the reason for the separate

entities was to facilitate Maali and Khanani’s employment of unauthorized aliens

to gain a competitive advantage. On cross-examination, the following colloquy

occurred:

Q. You said on your direct testimony . . . that you told the agents the
reason for hiring [illegal aliens] was because Mr. Khanani was a
charitable guy or a charitable person?

5
 A. That was my perception, that he had met these people in his
religious responsibilities as a leader in his religious community and
they came to . . . him.

...

Q. Well, didn’t you tell the agents that you wouldn’t be surprised by
anything that Mr. Khanani did?

R965 at 4216-17. After an objection and discussion with the court, the

government rephrased its question, asking: “Did you tell the agents that you

would not be surprised at Mr. Khanani’s involvement because Mr. Khanani

was much more interested in finding ways around employing the illegal

aliens?” Id. at 4224. Portlock answered “I may have said that, yes.” Id.

At the close of the evidence at trial, the district court denied the defendants’

motions for judgment of acquittal on most counts but reserved judgment on Count

55, the money-laundering conspiracy count.

In instructing the jury regarding 18 U.S.C. § 1324(a), the district court

charged the jury:

The elements of a violation of Section 1324[(a)(1)(A)(iv)] are as
follows: First, that the defendant knowingly encouraged or induced a
person who was, in fact, an alien to reside in the United States; and
second, that the defendant either knew or acted in reckless disregard
of the fact that the alien’s residence in the United States was or would
be in violation of law.

...

6
 The elements of a violation of section 1324(a)(1)(A)(iii) are as
follows: That an alien entered or remained in the United States in
violation of law; second, that the defendant knowingly concealed,
harbored or shielded from detection the alien within the United States;
and third, that the defendant either knew or acted in reckless disregard
of the fact that the alien entered or remained in the United States in
violation of law.

R992 at 5518-19; see also id. at 5521. The court instructed the jury that:

To act knowingly means to act voluntarily and intentionally and not
because of mistake or accident.

To act with reckless disregard means to be aware of, but consciously
and carelessly ignore facts and circumstances clearly indicating that
the person residing in the United States was an alien [that] had entered
or remained in the United States in violation of law.

...

To conceal, harbor, or shield from detection includes any knowing
conduct by the defendant tending to substantially facilitate an alien’s
escaping detection as an illegal alien, thereby remaining in the United
States illegally.

Id. at 5519-20; see also id. at 5522. The court also instructed the jury that “[t]he

word willfully, as that term is used in the indictment or in these instructions, means

that the act was committed voluntarily and purposely, with the specific intent to do

something the law forbids, that is, with bad purpose either to disobey or disregard

the law.” Id. at 5555. The court also gave the jury instructions regarding the

defendants’ good faith defenses. Id. at 5549-54.

7
 Before the jury retired to deliberate the forfeiture counts, the district court

entered judgments of acquittal on the money-laundering conspiracy count, stating

that the court later would enter a written order.1

The jury found Khanani guilty on all counts except 11 counts of encouraging

or inducing aliens to reside in the United States, and Portlock guilty of Counts 54-

71. The jury acquitted Khanani and Portlock of the remaining charges.

After the jury returned its verdict, a member of the jury (“Juror H”) sent a

note to the trial judge.2 Juror H stated that during the trial, she had “locked eyes”

1
On 28 February 2005, the district court entered a Memorandum Opinion setting forth
the reasoning for its earlier decision to grant the defendants’ motions for acquittal on Count 55.
United States v. Maali, 358 F. Supp. 2d 1154 (M.D. Fla. 2005).
2
The note, as read by the judge, is as follows:

Your instructions to us as jurors at the beginning of this trial included the
statement that we should bring to your attention anything that happened
that affects us, no matter how insignificant . . . it may seem to be. In
response to those instructions I believe I need to tell you something that
occurred in the courtroom the second day before the last two alternates
were dismissed. It’s difficult to put into words, so I ask for your patience.

That afternoon while taking notes I had the feeling someone was watching
me. I looked up from the notes I had just made and immediately locked
eyes with a man at the back of the courtroom who I had not seen before or
since. Never have I felt such an overwhelming presence of danger or evil.
It literally stunned me at the time and all I could think to do was pray. It
took a few minutes to regain my composure. The jury was sent out again
after a while and when we returned the man was gone.

When we were finished for the day I walked with several other jurors to
the parking garage. Upon exiting the elevator at the garage the feeling of
being watched returned. The other jurors went a different direction to
their cars and I proceeded to mine without incident[.] But I was unable to
shake the feeling that someone was watching. However, I did not see

8
with a stranger at the back of the courtroom. R884 at 24. She claimed that he was

menacing and resembled Khanani. Juror H described being “stunned.” Id. She

associated an “overwhelming presence of danger or evil” with the man, id., who

she said resembled Khanani. In response to questioning, Juror H stated that she

had not discussed this incident with fellow jurors, but eventually they learned of

her general concern. Further investigation by the court revealed that Juror H had

told one other juror (“Juror S”) of the incident on the day it took place. The court

determined that no reasonable possibility of prejudice existed, and denied

Khanani’s motion for a mistrial.

The district court sentenced Khanani to seventy months of imprisonment, to

be followed by two years of supervised release, and Portlock to forty-eight months

of imprisonment, to be followed by two years of supervised release.

anyone there.

The man of whom I speak bears some resemblance to Mr. Khanani.
Appears younger, but with a receding hairline, and has much more
muscular bulk, like a man who works out a great deal. He has no facial
hair. All that could be seen of his attire was a bright blue polo type shirt.
The incident I related has been hard to put into words without sounding
like I’m paranoid, but continues to trouble me. Even if we have finished
our deliberations, I feel you should know.

R884 at 24-25.

9
 Khanani and Portlock now appeal raising a host of issues, and the

government cross-appeals the district court’s grant of the defendants’ motions for

acquittal on Count 55, the money laundering count.

II. DISCUSSION

A. “Mere employment” Instruction

Khanani and Portlock argue that the district court erred in refusing to give

their proposed instruction that mere employment of undocumented workers cannot

support a conviction for harboring, encouraging, or inducing aliens to enter or

reside illegally in the United States.3 A critical aspect of both Khanani and

Portlock’s defense was that they only employed undocumented workers and that

mere employment, at most, constitutes a misdemeanor under a separate and

uncharged provision of the immigration laws, 8 U.S.C. § 1324a, in contrast to the

felony offense of encouragement and harboring, 8 U.S.C. § 1324(a), with which

they were charged.

The district court’s refusal to instruct the jury on the defendants’ “mere

employment” theory of defense is reversible error “if the requested instruction (1)

was correct, (2) was not substantially covered by the court’s charge to the jury, and

3
Khanani’s proposed jury instruction read: “The employment of an illegal alien in and of
itself does not constitute encouraging or inducing such alien to reside in the United States as
required to support a violation of Title 8, United States Code, as charged in Counts One through
Fifty-three of the Indictment.” R755 at 4; see also id. at 9 (regarding harboring).

10
(3) dealt with some point in the trial so important that failure to give the requested

instruction seriously impaired the defendant’s ability to conduct his defense.” See

United States v. Anderson, 326 F.3d 1319, 1330 (11th Cir. 2003) (citation and

internal quotations omitted). A requested theory-of-defense instruction need only

be a “substantially correct statement of the current law” and have “some basis” in

the evidence. United States v. Morris, 20 F.3d 1111, 1116 (11th Cir. 1994).

We find that failure to give the requested “mere employment” instruction did

not seriously impair the defendants’ ability to conduct their defense. If Khanani

merely had employed illegal aliens without “knowingly” encouraging or inducing

them to reside in the United States, he would not have committed the elements of

the offenses–as the court instructed the jury–and Portlock would not have been

liable for the offense. See R992 at 5518-22; Pinkerton v. United States, 328 U.S.

640, 645-48, 66 S. Ct. 1180, 1183-84 (1946) (holding that a co-conspirator could

be guilty of a substantive offense even though he did no more than join the

conspiracy, provided that the offense was reasonably foreseeable and was

committed in furtherance of the conspiracy). The jury instructions regarding the §

1324(a) offenses correctly addressed all elements of the offenses and implicitly

acknowledged defendants’ theory of defense. The district court was not required

to instruct the jury that the employment of illegal aliens in and of itself did not

11
constitute a section 1324(a) offense because the instructions as given already

required the United States to prove a level of knowledge and intent beyond the

mere employment of illegal aliens.

B. The Warrant Searches

Khanani and Portlock both contend that the trial court erred in not

suppressing evidence obtained from the searches performed. Specifically, Khanani

and Portlock assert that the computer searches violated the Fourth Amendment in

that: 1) the agents flagrantly disregarded warrant terms; 2) the warrant and

supporting affidavit failed to identify any protocol or strategy for searching the

computers and for ensuring that search remained within the probable cause

limitations of the warrant; and, 3) the agents failed to keep any record or log of the

searches that they conducted of the computer hard drives. Separately, Portlock

contends that agents seized Portlock’s office computers without probable cause and

that the district court erred in denying his motions to suppress other tangible

evidence seized during searches of his office and storage unit. Khanani and

Portlock posit that we should vacate the convictions and remand for a

determination whether the government can carry its burden of showing that the

district court’s refusal to suppress computer evidence constituted harmless error.

12
 In reviewing the district court’s denial of the defendants’ motions to

suppress the fruits of the government’s searches, we examine the district court’s

legal conclusions de novo and its factual findings for clear error. See United States

v. Pratt, 438 F.3d 1264, 1268 (11th Cir. 2006) (citation omitted). Total

suppression of all items seized, including items within a warrant’s scope, is not

appropriate unless the executing officers’ conduct “exceeded any reasonable

interpretation of the warrant’s provisions.” United States Wuagneux, 683 F.2d

1343, 1354 (11th Cir. 1982) (citation omitted). “[A]bsent a ‘flagrant disregard’ of

the terms of the warrant, the seizure of items outside the scope of a warrant will not

affect admissibility of items properly seized,” id. (citations omitted), or “constitute

reversible error on a direct appeal from the conviction.” United States v. Lambert,

887 F.2d 1568, 1572 (11th Cir. 1989) (citations omitted).

The Fourth Amendment to the United States Constitution mandates that

search warrants “particularly describ[e] the place to be searched, and the persons or

things to be seized.” The point of the Fourth Amendment’s particularity

requirement is to protect individuals from being subjected to general, exploratory

searches. Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2002, 2038

(1971).

13
 After a review of the record and defendants’ arguments, we find that under

all the circumstances, the searches and seizures were reasonable. See Wuagneux,

683 F.2d at 1352. We do not find evidence that suggests a “flagrant disregard” of

the terms of the warrant such that blanket suppression of all items seized was

required. See id. at 1354. Testimony at the suppression hearing established that all

agents participating in the search of the first thirteen sites had been required to

attend a briefing and to read the Master Affidavit before the search began. See id.

at 1353-54. The district court credited “the agents’ testimony that agents [had

been] instructed not to, and [had] made efforts not to, seize” records that were

outside the warrant’s scope. R589 at 58. Portlock has not shown this finding to be

clearly erroneous. See, e.g., United States v. Travers, 233 F.3d 1327, 1331 (11th

Cir. 2000) (“We find nothing in the record that would indicate that these factual

findings that the officers obtained the warrant in cooperation with the United States

Attorney who advised them on the requirements for showing probable cause and

conducted their search in a conscious effort to stay within its limits are clearly

erroneous.” (citation omitted)).

Portlock contends that the seizure of his computers was without probable

cause. Specifically, Portlock argues that the affidavit submitted to obtain the

warrant order provided no fact-specific reason to believe there were computers in

14
Portlock’s office, or that his computers had been used to facilitate the commission

of any criminal violation of Title 8 or 26. “A warrant, and its corresponding

search, violates the Fourth Amendment if it fails to specify the place to be searched

and the items to be seized, or if it is issued by an official who is not neutral and

detached, or if it is procured by a false statement made intentionally or recklessly,

or if it is not supported by probable cause.” United States Steel, LLC, v. Tieco,

Inc., 261 F.3d 1275, 1290 (11th Cir. 2001) (internal citations omitted). None of

the foregoing occurred in this case. Here, the Master Affidavit describes Portlock

as Maali’s accountant, and one of Maali’s tax returns had been found in the trash

outside Portlock’s office. While the Master Affidavit did not indicate that it was a

computer-generated tax form, in reviewing the affidavit to ascertain whether it

furnished probable cause for the warrant sought, the affidavit is given a “common

sense and realistic” interpretation. See United States v. Maestas, 546 F.2d 1177,

1180 (5th Cir. 1977). Additionally, task force coordinator Stephen Thomas

testified, that prior to the warrant application, he had entered Portlock’s office and

observed connected computers. The district court did not err in concluding that

the allegations of the Master Affidavit were sufficient to provide probable cause

for the seizure of computers from Portlock’s accouting business.

15
 Khanani and Portlock also contend that the lack of a written “search

protocol” required the district court to suppress all evidence agents seized as a

result of the search of the defendants’ computers. The testimony at the

suppression hearing established that the agents attempted to identify computers

that contained information that was responsive to the warrants and that they did not

seize every computer that they encountered. Thereafter, a computer examiner

eliminated files that were unlikely to contain material within the warrants’ scope.

The culling process winnowed down the files seized from approximately three

million to approximately 270,000. FBI Agent Scott Skinner testified that agents

used “keyword searches,” and “if a document was opened and it wasn’t . . .

covered by the warrant, then it wasn’t analyzed.” R423 at 928, 944. Khanani and

Portlock fail to cite any binding case law that would lead us to conclude the

procedures used in this case infringed defendants’ Fourth Amendment rights.

C. Extrinsic Influence on the Jury

Khanani argues that the district court erred in denying his motion for a

mistrial based on the jury’s exposure to inflammatory extrinsic influence.

Specifically, he contends that one of the jurors associated an “overwhelming

presence of danger or evil” with Khanani and his family. R884 at 24. The

government responds that no juror was exposed to an external influence; rather,

16
one juror stated, after the verdict had been rendered, that she thought that a person

in the courtroom gallery who resembled Khanani had “locked eyes” with her, id.,

but she insisted, along with the other jurors, that the incident had not influenced the

verdicts.

We review the district court’s denial of Khanani’s motion for a new trial

based on the allegation that the jury was exposed to prejudicial extrinsic influence

for abuse of discretion. See United States v. Carpa, 271 F.3d 962, 967 (11th Cir.

2001) (per curiam) (citation omitted). “In a criminal case, any private

communication, contact, or tampering directly or indirectly, with a juror during a

trial about the matter pending before the jury is . . . deemed presumptively

prejudicial, if not made in pursuance of known rules of the court and the

instructions and directions of the court made during the trial, with full knowledge

of the parties.” Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451

(1954); McNair v. Campbell, 416 F.3d 1291, 1307 (11th Cir. 2005) (citations

omitted). A juror’s exposure to extraneous material or influence requires a new

trial if the exposure “poses a reasonable possibility of prejudice to the defendant.”

United States v. Rowe, 906 F.2d 654, 656 (11th Cir. 1990) (emphasis and citations

omitted). For the presumption to be triggered, a defendant must establish that an

extrinsic contact with a jury, in fact, occurred. United States v. Caporale, 806 F.2d

17
1487, 1503 (11th Cir. 1986) (citation omitted). After this showing is made, the

burden shifts to the government to prove that the extrinsic contact was not

prejudicial. Id. (citation omitted). “The factual determination of whether

consideration of extrinsic evidence caused the defendant prejudice is committed to

the trial court’s ‘large discretion.’” BankAtlantic v. Blythe Eastman Paine Webber,

Inc., 955 F.2d 1467, 1472 (11th Cir. 1992) (citation omitted). The juror’s

testimony “that the extrinsic information was harmless is not controlling.” United

States v. Bolinger, 837 F.2d 436, 440 (11th Cir. 1988) (citation omitted). “The

district court may consider such testimony, but it must also consider other factors

such as the nature of the extrinsic evidence and the strength of the evidence

properly presented by the government against the defendant.” Id.

We cannot say the district court abused its discretion in denying a motion for

a new trial based on the facts presented here. After interviewing the jurors

separately, the district court concluded that no juror had been improperly

influenced by Juror H’s experience. Juror H never alleged that anyone had

contacted her with any message or directive. Rather, she merely alleged that an

unidentified man vaguely resembling Khanani “locked eyes” with her on one

occasion, giving her a sense of danger and that she felt like someone had been

18
watching her in the parking garage although she had not seen anyone and

proceeded to her car without incident. R884 at 24.

After receiving the juror’s note, the district court conducted a hearing and

questioned each juror regarding the impact of Juror H’s experience on each juror’s

ability to resolve the case impartially and based on the evidence presented at trial.

See United States v. Winkle, 587 F.2d 705, 714 (5th Cir. 1979) (“Where a

colorable showing of extrinsic influence appears, a court must investigate the

asserted impropriety.”). The court questioned Juror H twice; both times she

confirmed that her experience had not affected her deliberations. Each juror stated

that although Juror H had recounted her experience to the others, the comments

had not affected their deliberations. Although Juror H’s testimony is not

controlling, the district court properly considered it, in conjunction with other

factors. See Bolinger, 837 F.2d at 440. There is additional evidence, apart from

Juror H’s own unequivocal subjective assessment, to support the district court’s

conclusion that she was and could remain impartial. For example, Juror H

declined an offer to provide her with an escort to her car during sentencing,

responding, “I don’t really feel unsafe, but I appreciate your offer.” R998 at 6020-

21; accord United States v. Vega, 285 F.3d 256, 267 (3d Cir. 2002) (finding that

juror’s declination of a courthouse escort to his car “conveyed that his level of fear

19
was mild and supported his subjective assessment that he could remain impartial

for the remainder of the trial”). As a result, even assuming an extrinsic contact

with a jury, in fact, occurred, it was not prejudicial.

D. Portlock’s Statement that he “would not be suprised” by Khanani’s
Involvement

Portlock’s direct testimony was that he had previously told federal agents

that Khanani hired undocumented workers for religious and charitable reasons.

The statement elicited from Portlock on the government’s cross-examination was

that Portlock “may have” told the agents that he “would not be surprised at Mr.

Khanani’s involvement [in “paying [undocumented workers] off the books”]

because Mr. Khanani was much more interested in finding ways around employing

the illegal aliens.” R965 at 4224. Khanani asserts that his co-defendant’s

statement that he “would not be surprised at Mr. Khanani’s involvement” in the

charged offenses because “Khanani was much more interested in finding ways

around employing the illegal aliens,” id., was inadmissible hearsay and highly

prejudicial.

We review the district court’s admission of Portlock’s statement for abuse of

discretion. See Mercado v. City of Orlando, 407 F.3d 1152, 1161 (11th Cir. 2005).

“Prior statements of witnesses are hearsay and are generally inadmissible as

affirmative proof.” United States v. Gregory, 472 F.2d 484, 487 (5th Cir. 1973). It

20
is a well-established principle of evidence, however, that prior inconsistent

statements of a witness are admissible to impeach that witness. See United States

v. Palacios, 556 F.2d 1359, 1362-63 (5th Cir. 1977) (citations omitted).

Even if an evidentiary ruling is erroneous, “that ruling will result in reversal

only if the error was not harmless.” United States v. Hands, 184 F.3d 1322, 1329

(11th Cir. 1999) (citations omitted). “An error is harmless unless there is a

reasonable likelihood that [it] affected the defendant’s substantial rights.” Id.

(citation and internal quotations omitted). No reversal will result if “sufficient

evidence uninfected by any error supports the verdict,” and the error did not have a

“substantial influence on the outcome” of the case. Id. (quotations and citations

omitted). We examine the entire record, comparing the error with “the strength of

the evidence of defendant’s guilt,” to determine “whether an error had substantial

influence on the outcome.” Id. (quotations and citations omitted).

We find that the district court did not abuse its discretion in admitting

Portlock’s statement, and that Portlock’s statement on cross-examination was

admissible to impeach. The district court stated that it did not believe the

testimony was hearsay because it was not being offered for the truth of the matter

asserted and the statement sought was relevant “because [Portlock]’s already given

a characterization about [Khanani]’s religious activities.” R965 at 4223.

21
Portlock’s counsel had elicited testimony from Portlock regarding his statements to

agents about Khanani’s motive for employing unauthorized aliens. The

government was entitled to cross-examine Portlock on this subject and to show that

his prior testimony was incomplete or dishonest. “[S]tatements need not be

diametrically opposed to be inconsistent.” United States v. Strother, 49 F.3d 869,

874 (2d Cir. 1995) (quotation and citation omitted). Here, Khanani was entitled on

request to an instruction limiting the jury’s consideration of Portlock’s statements

to impeachment purposes, in accordance with FRE 105, yet failed to make such a

request. As a result, Khanani procedurally defaulted his claim that the lack of an

instruction constituted error. Yeck v. Goodwin, 985 F.2d 538, 542 (11th Cir.

1993).4

E. Sufficiency of the Evidence

Portlock asserts that the district court erred in refusing to enter judgments of

acquittal on all charges against him. “Sufficiency of the evidence is a question of

law reviewed de novo.” United States v. Martinez, 83 F.3d 371, 374 (11th Cir.

1996) (citation omitted). In reviewing the sufficiency of the evidence, we must

4
Moreover, even if the district court erred, we find that any error was harmless. See
United States v. Cameron, 907 F.2d 1051, 1059 (11th Cir. 1990) (citations omitted). Here, the
district court’s admission of a single statement by a co-defendant that he may have said that he
would not have been surprised by Khanani’s involvement, in a trial that was over two months
long and where the testimony regarding Khanani’s involvement in numerous aspects of the
conspiracy was overwhelming, did not have a substantial influence on the outcome of the case.
See Hands, 184 F.3d at 1329.

22
“view the evidence in the light most favorable to the government, with all

reasonable inferences and credibility choices made in the government’s favor.” Id.

(citation omitted). When, as here, a defendant renews a motion for judgment of

acquittal at the close of all the evidence, we must also examine the evidence

presented by the defense in determining the sufficiency of the evidence.

See United States v. Evans, 572 F.2d 455, 479 (5th Cir. 1978).

The evidence showed that Portlock frequently worked in the BBW offices,

had met privately with Khanani and Maali, and had maintained an office in the

BBW warehouse. As comptroller of BBW, Portlock had been responsible for “all

of the tax issues, the insurance issues, [and] the [credit] card issues.” R931 at 944-

45; see also id. at 889-90. Portlock had handled all of the sales tax reports for

BBW, received some confidential reports regarding BBW’s sales performances

and labor status, and had attended some meetings of BBW’s executive committee.

Portlock also had received financial reports from the various companies so that he

could prepare the tax returns. The evidence reveals that Portlock participated in

creating sham companies to pay the unauthorized aliens and that he knew the

companies’ purpose. When asked whether one of the companies was paying its

taxes, Portlock stated that it was not. Suleiman Mussalam, who worked for BBW

under Portlock’s direction, testified that everyone who worked in the office knew

23
that BBW employed illegal workers. BBW’s operations manager, Mahmood

Jamal, testified that when he raised concerns about the large percentage of BBW’s

workforce that was unauthorized aliens, Maali told him that Portlock was taking

care of things.

Notes in Portlock’s handwriting also indicate his knowledge of the

“[d]istortion of financial statements.” R931 at 926-27. Portlock admitted that he

wrote notes with the recognition that BBW’s method of handling the payment of

its employees might garner the attention of law enforcement, and that he suspected

that the other defendants had been using cash from sales to pay the unauthorized

aliens.

Testimony further established that the defendants created a work

environment that was well known in the alien community as being open to and safe

for workers not authorized to work in the United States. Moreover, the evidence

established that defendants had shielded their unauthorized workforce from

detection, by alerting the aliens to the presence of immigration officials in the

stores, by instructing workers not to wear name tags, and by sending them home or

to other locations undetected. Unauthorized aliens enjoyed housing assistance as

well. Numerous aliens testified that their employment with defendants’ companies

helped them continue to reside in the United States.

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 The evidence further demonstrated that Khanani and Portlock instructed

BBW employee Muzaffar Shuja to create General Services Supply, Inc. (“GSS”),

in Shuja’s name, to use to pay unauthorized aliens. Portlock told Shuja that GSS

would pay the required taxes, and Portlock prepared the necessary paperwork,

which Shuja signed. BBW hired a loss prevention company that submitted a

written report to Khanani noting that BBW employees were being paid in cash and

that no taxes were being withheld or remitted and “strongly [urging] [BBW] to

protect itself from what would be a genuinely painful experience of interaction

with the U.S. Government.” Govt. Exh. 95; see also R932 at 1129-30. Shortly

thereafter, Maali, Khanani, and Portlock set up four companies to help them hide

the cash that they were skimming from the jean sales and to allow them to pay the

unauthorized aliens with paychecks in a manner in which it would appear that the

unauthorized aliens were working for these companies rather than for BBW.

Portlock knew what these four companies were being used for and he approved

their use.

It is true that at trial, Portlock testified on his own behalf and denied that he

had known that BBW was using cash skimmed from profits to pay a workforce

consisting largely of unauthorized aliens. However, “when a defendant takes the

stand in a criminal case and exposes his demeanor to the jury, the jury may make

25
adverse determinations about his credibility and reject his explanation as a

complete fabrication.” See United States v. Vazquez, 53 F.3d 1216, 1225 (11th

Cir. 1995) (citation omitted).

Consequently, the jury could reasonably have found that Portlock knew that

his efforts in forming the four sham companies furthered the defendants’ actions in

harboring the aliens and in encouraging them to remain in the United States, and

that his preparation of BBW’s tax returns was done with knowledge that the

information in those returns improperly omitted sales that were diverted toward the

payment of unauthorized aliens. Because we find that Portlock’s conviction

for Count 54, the charge of conspiracy to violate 8 U.S.C. § 1324(a)(1)(A)(iii) and

(iv), and Counts 56 through 71 was supported by the evidence, we find that the

district court correctly denied Portlock’s motion for a judgment of acquittal.

F. Cumulative Effect of Errors

Portlock asserts that even if we determine that any errors he has identified

were harmless, a new trial should be ordered based on the doctrine of cumulative

error. “We have held that the cumulative effect of multiple errors may so prejudice

a defendant’s right to a fair trial that a new trial is required, even if the errors

considered individually are non-reversible.” United States v. Thomas, 62 F.3d

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1332, 1343 (11th Cir. 1995) (citations omitted). As detailed above, Portlock has

failed to identify any trial errors, and is thus is not entitled to a new trial.

G. Acquittal on the Money-laundering Conspiracy Count

In its cross-appeal, the government contends that the district court relied on

an overly narrow definition of the term “proceeds” as used in the money

laundering statutes, leading to the improper entry of judgments of acquittal on the

money-laundering conspiracy charges (Count 55). In entering post-verdict

judgments of acquittal on the charge that the defendants had conspired to launder

the proceeds of their immigration offenses, mail fraud, and wire fraud, the district

court ruled that “profits or revenue indirectly derived from labor or from the failure

to remit taxes” cannot constitute “proceeds of a specified unlawful activity”

pursuant to 18 U.S.C. § 1956 or § 1957. Maali, 358 F. Supp. 2d at 1160. The

government posits that the correct interpretation of the term “proceeds” includes

profits the defendants earned as a result of their § 1324(a) offenses and their mail

and wire fraud offenses. Such a definition, the government asserts, is consistent

with other provisions of the money-laundering statutes and with cases addressing

the term “proceeds” in contexts other than the sale of goods.

Khanani and Portlock respond that the district court correctly granted a

judgment of acquittal on the charge of conspiracy to launder money. They assert

27
that the court properly concluded that the government’s theory of tax and cost

savings did not give rise to “proceeds” capable of being laundered in a financial

transaction. Essentially, the defendants posit that the predicate offense conduct

involved no sale or exchange by which they received money or property and the

funds actually being deposited into the accounts of the nominal companies

consisted of revenues generated through lawful retail sales.

We review de novo a district court’s decision to grant a judgment of

acquittal. See United States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005). To

establish that defendants violated 18 U.S.C. § 1956(h), the government had the

burden of showing that Khanani and Portlock conspired to launder or to engage in

a monetary transaction involving the “proceeds of specified unlawful activity

[“(SUA”)].” 5

5
The text of 18 U.S.C. § 1956 reads, in relevant part:

(a)(1) Whoever, knowing that the property involved in a financial
transaction represents the proceeds of some form of unlawful activity,
conducts or attempts to conduct such a financial transaction which in fact
involves the proceeds of specified unlawful activity--

(A)(i) with the intent to promote the carrying on of specified unlawful
activity; or

(ii) with intent to engage in conduct constituting a violation of section
7201 or 7206 of the Internal Revenue Code of 1986; or

(B) knowing that the transaction is designed in whole or in part--

(i) to conceal or disguise the nature, the location, the source, the

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 Here, the United States charged that the defendants had conducted financial

transactions in the “proceeds” of the section 1324(a) violations charged in counts

1-54 of the indictment, mail fraud as charged in Count 57 of the indictment, and

wire fraud as charged in Count 56 of the indictment, all of which are delineated as

SUAs under the money laundering statute. See 18 U.S.C. §§ 1956(c)(7)(A),

1961(1). At trial, the government claimed that the tax and cost savings from hiring

illegal aliens constituted “proceeds” that Khanani and Portlock then deposited into

the accounts of shell companies for the purposes of concealing their unlawfully

derived income and promoting their illegal employment scheme. The defendants,

citing United States v. Christo, argued that they never completed a predicate

offense that yielded “proceeds” that they could have laundered. See 129 F.3d 578,

579-80 (11th Cir. 1997) (per curiam) (holding that it is only after a “predicate

crime becomes ‘a completed offense’” that a “money laundering can occur.”).

Moreover, they continued, neither the tax nor labor cost savings that they enjoyed

from hiring illegal aliens constituted “proceeds.”

While rejecting the defendants’ broad interpretation of Christo, the district

court nevertheless granted their motions for acquittal, finding that the

ownership, or the control of the proceeds of specified unlawful activity . . .
.

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government’s “cost savings theory [was] at odds with the plain and ordinary

meaning of ‘proceeds,’” Maali, 358 F. Supp. 2d at 1158, because the underlying

predicate offense conduct had contained no sale, transaction, or exchange

component by which the defendants had obtained proceeds. In other words, the

district court refused to equate BBW’s jean retail sales revenues with “proceeds”

on the rationale that the revenues were illegally obtained because BBW had used

illegal workers and had filed false employment tax forms.

In granting the judgments of acquittal, the district court acknowledged that

the United States had proved that the defendants had paid unauthorized aliens with

income skimmed from sales at their businesses; had not reported that income to the

IRS; and had failed to remit federal or state employment taxes on the workers’

wages. Id. at 1156. The district court also acknowledged that there is

disagreement among courts and dictionaries as to whether “proceeds” contemplates

“net profits,” “gross receipts,” or “gross profits,” but, where the basic meaning of

“proceeds” is concerned (as opposed to the precise scope of the term), it found

courts generally in accord. Essentially, the district court concluded that “proceeds

“are something which is obtained in exchange for the sale of something else as in,

most typically, when one sells a good in exchange for money.” Id. at 1158. The

district court observed that: “[T]he government’s approach would stretch the

30
definition of ‘proceeds’ well beyond any ordinary conception of the term and

thereby lay the foundation for an unprecedented expansion of the money

laundering statute.” Id. at 1159.

We agree with the district court that “it is clear that the term [‘proceeds’]

does not contemplate profits or revenue indirectly derived from labor or from the

failure to remit taxes. While it is natural and clearly correct to say that Defendants

received ‘proceeds’ from the sale of jeans, it is, by contrast, both causally tenuous

and decidedly unnatural to say that the moneys one has received from the sale of a

good are, not the ‘proceeds’ from the sale of a good, but ‘proceeds’ of the labor

used to produce the good.” Id. at 1160; see also Anderson v. Smithfield Foods,

Inc., 209 F. Supp. 2d 1270, 1275 (M.D. Fla. 2002) (“Saving money as a result of

the alleged noncompliance with the requirements of an environmental statute does

not make the money illegally obtained for the purposes of the money laundering

statute.”).

The government fails to point to any binding case law that requires us to

construe “proceeds” as broadly as it advocates in this situation here.6 In fact, two

6
In United States v. Silvestri, 409 F.3d 1311, 1333 (11th Cir.), cert. denied, 126 S. Ct.
772 (2005), we used Webster’s Third New International Dictionary 1807 (3d ed. 1961) to state
that “[t]he term ‘proceeds’ simply represents ‘what is produced by or derived from something
(as a sale, investment, levy, business) by way of total revenue; the total amount brought in.’”
There, however, the issue was whether the term “proceeds” includes check deposits, and we
held, citing Black’s Law Dictionary, that “proceeds” may be in a form other than cash. Id. at
1333-35. Silvestri did not address whether the term contemplated profits or revenue indirectly

31
cases cited by the government support the district court’s construction of the term

“proceeds.” See United States v. Rudisill, 187 F.3d 1260, 1262, 1267 (11th Cir.

1999) (where the SUA was interstate transportation of securities taken by fraud,

“proceeds” were the monies that the defendants obtained from the victims of their

fraudulent telemarketing scheme in the form of checks); United States v. Baker,

227 F.3d 955, 958, 964 (7th Cir. 2000) (where instances of SUA were violations of

the Travel Act, “proceeds” were the monies that defendants obtained from their

prostitution business by credit card and ATM transactions); see also United States

v. Adams, 74 F.3d 1093, 1096 (11th Cir. 1996) (where SUA was impeding the

lawful functions of the Resolution Trust Corporation, defendants obtained

proceeds by fraudulently inducing transfers of funds from the RTC in the form of

checks).7 As a result, the district court did not err by entering a judgment of

acquittal.

derived from labor or from failure to remit taxes.
7
The government’s assertion that United States v. Dennis, 237 F.3d 1295, 1302 (11th
Cir. 2001), which upheld a money-laundering conviction of a defendant where the underlying
SUA was bankruptcy fraud, conflicts with the district court’s construction of “proceeds” is
unavailing. In Dennis, we held that where a defendant had taken money, in the form of checks,
from concealed corporate bank accounts and transferred them into personal brokerage accounts
during bankruptcy proceedings, the monies were proceeds of bankruptcy fraud. Id. at 1302.
Dennis did not address a definition of “proceeds” based on a theory of cost or tax savings.

32
 III. CONCLUSION

We hold that the district court did not err in declining to give the requested

“mere employment” instruction or in refusing to suppress all the evidence seized or

the evidence found from the search of certain computers. Nor did the court abuse

its discretion in denying a motion for a new trial based on the allegation that the

jury was exposed to prejudicial extrinsic influence. We find that the district court

did not abuse his discretion by admitting Portlock’s statement that he “would not

be surprised” by Khanani’s involvement in the charged offenses. R965 at 4224.

Moreover, the district court correctly denied Portlock’s motion for a judgment of

acquittal on Counts 54, and 56 through 71 and a new trial is not warranted.

Finally, the district court did not err in entering judgments of acquittal on Count

55, the money-laundering conspiracy count.

AFFIRMED.

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