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The Honorable Roger L. Wollman stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on January 31,

2002. He has been succeeded by the author of this opinion. 

2

The Honorable Louis F. Oberdorfer, United States District Judge for the

District of Columbia, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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Nos. 01-2731/2732/3787/02-1422

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United States of America,

Appellee,

v.

Randy Lee Vanhorn,

Appellant.

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Appeal from the United States

District Court for the

Eastern District of Arkansas.

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Submitted: January 15, 2002

 Filed: July 16, 2002

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Before WOLLMAN,1

 Chief Judge, HANSEN, Circuit Judge, and OBERDORFER,2

District Judge. 

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HANSEN, Circuit Judge.

Randy Lee Vanhorn appeals the judgment and sentence entered following his

jury trial on charges of mail fraud and money laundering. Vanhorn also challenges
2

the district court’s order finding that it lacked jurisdiction to address his request for

modification of the restitution order. We affirm in part and reverse and remand in

part. 

I. 

The police in Jonesboro, Arkansas, began investigating Vanhorn’s activities

after receiving a complaint from Robert Harrell, an acquaintance of Vanhorn, who

suspected that Vanhorn was unlawfully using Harrell’s name and social security

number to obtain credit cards through the mail. The Jonesboro police notified the

United States Postal Service of Vanhorn’s allegedly fraudulent use of a post office

box. The Postal Service then also began an independent investigation of Vanhorn.

On January 12, 2000, the police obtained a state search warrant to search a

motel room occupied by Vanhorn for evidence of credit card fraud relating to Mr.

Harrell. During this search, the police uncovered evidence relating to the Harrell

credit card fraud, along with evidence of other expansive and ongoing mail fraud

schemes. In particular, the police found that Vanhorn had obtained 171 credit card

numbers. They also found fraudulent unemployment documents and documents

indicating Vanhorn had made large deposits into an investment account with Morgan

Stanley Dean Witter. 

On January 13, 2000, the Postal Service obtained a federal search warrant for

the post office box. This search produced additional evidence of the Harrell credit

card fraud and indicated that Vanhorn was also using numerous other post office

boxes under various names. Ultimately, the Postal Service’s investigation revealed

that Vanhorn was using post office boxes in the names of several fictitious businesses

and nonexistent employees to obtain unemployment benefits through the mail. The

Postal Service obtained a federal seizure warrant to secure as evidence the proceeds

of the fraudulent schemes that Vanhorn had invested with Morgan Stanley Dean
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Witter. Federal investigators subsequently discovered evidence indicating that

Vanhorn had routed some of the unlawfully obtained employment benefit checks

through the bank accounts of the fictitious businesses, converted the money to cash

at a casino, and then deposited the proceeds into the Morgan Stanley Dean Witter

account. 

A federal grand jury charged Vanhorn in a 14-count superseding indictment

with 11 counts of mail fraud, in violation of 18 U.S.C. § 1341 (2000), and 3 counts

of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), all based on the

fraudulent unemployment benefits scheme. Vanhorn pleaded not guilty and filed a

motion to suppress the fruits of the search warrant executed by the state authorities

at his motel room. At the initial hearing on the motion to suppress, Vanhorn

challenged only the scope of the search. After an error on the face of the warrant

came to light, however, the court held a second hearing in which Vanhorn challenged

the validity of the warrant on the ground that it lacked any enumeration of the

particular items to be seized. The district court denied the motion to suppress, finding

good faith on the part of the officer. 

During trial, the government did not introduce any evidence that was seized

during the execution of the state search warrant at the motel room. Vanhorn filed

numerous motions for the return of the proceeds he had invested with Morgan Stanley

Dean Witter, asserting that this account held only his separate cash casino winnings.

Following the close of trial, Vanhorn moved to reopen the evidence to submit a

recently obtained copy of a casino statement showing his winnings at the casino. The

district court denied the motion, concluding that the proffered evidence was

cumulative. The jury convicted Vanhorn on all 14 counts of the superseding

indictment. 

The district court sentenced Vanhorn to a term of 71 months' imprisonment and

ordered restitution in the amount of $44,000. The court also held a revocation of
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supervised release proceeding because Vanhorn had committed the current offenses

while he was on supervised release for a 1996 conviction. Vanhorn admitted that he

violated the terms of his supervised release, and the district court imposed a 10-month

term of imprisonment to run consecutively to Vanhorn’s new sentence. Vanhorn

appeals, raising several arguments. 

II. 

A. Motion to Suppress

Vanhorn challenged the validity of the state search warrant on the ground that

it failed to particularly describe the items to be seized. The Fourth Amendment

requires a warrant to “particularly describ[e] the place to be searched, and the persons

or things to be seized.” U.S. Const. amend. IV. The judicially created remedy for a

Fourth Amendment violation is the exclusion of evidence from the prosecutor’s case

in chief. See United States v. Leon, 468 U.S. 897, 906-07 (1984). When considering

the denial of a motion to suppress evidence, we review the court’s factual findings for

clear error and review de novo the court’s legal conclusions based on those facts.

United States v. Pierson, 219 F.3d 803, 805 (8th Cir. 2000). We will affirm an order

denying a motion to suppress unless the decision is unsupported by substantial

evidence, is based on an erroneous view of the applicable law, or in light of the entire

record, we are left with a firm and definite conviction that a mistake has been made.

United States v. Roby, 122 F.3d 1120, 1123 (8th Cir. 1997). 

Vanhorn’s challenge to the denial of his motion to suppress necessarily fails

because he has not alleged that any evidence obtained through the state search was

used against him at trial. Vanhorn complains that “all evidence derived from” the

state search should have been suppressed as fruit of the poisonous tree (Appellant’s

Br. at 14), but he fails to specify any “evidence derived from” the search that was

used against him at trial and, in this counseled case, it is not our duty to sift through

the record to determine what evidence may have derived from this search. Miller v.
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Citizens Sec. Group, Inc., 116 F.3d 343, 346 n.4 (8th Cir. 1997) (declining to search

the record for error). 

To the extent Vanhorn claims that the indictment should not have issued

because it was based on evidence obtained through this search, Vanhorn fares no

better. Again, Vanhorn fails to specify what evidence from the state search was used.

In any event, there is no doubt the indictment would have issued independently of the

state search of the motel room given the Postal Service’s extensive investigation,

which was the basis of the indictment. See United States v. Conner, 127 F.3d 663,

667 (8th Cir. 1997) (stating the elements of the inevitable discovery exception to the

exclusionary rule). In this case, the defendant effectively received the benefit of the

exclusionary rule, and thus, he has no basis on which to argue error in the denial of

his motion to suppress.

B. Sufficiency of Money Laundering Evidence

Vanhorn challenges the sufficiency of the evidence to support his convictions

of money laundering. There is sufficient evidence to support a verdict if "after

viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “We view the evidence in a

light most favorable to the verdict, giving the verdict the benefit of all reasonable

inferences, and we will reverse only if the jury must have had a reasonable doubt

concerning one of the essential elements of the crime." United States v. Dugan, 238

F.3d 1041, 1043 (8th Cir. 2001) (internal quotation and alteration omitted). The

essential elements of a § 1956(a)(1)(B)(i) money laundering violation are proof that

the defendant conducted a financial transaction involving the proceeds of unlawful

activity with knowledge that the funds were proceeds of an unlawful activity and with

the intent “to conceal or disguise the nature, the location, the source, the ownership,
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or the control of the proceeds of specified unlawful activity.” 18 U.S.C. §

1956(a)(1)(B)(i); see also Dugan, 238 F.3d at 1043. 

Vanhorn argues that no jury could have found proof beyond a reasonable doubt

that he concealed or disguised the funds or that his savings account included proceeds

of unlawful activity. He asserts that he used the money for his own purposes and in

his own name and that he deposited only his gambling winnings into his investment

account. From the evidence at trial, a jury could find that while Vanhorn was

working as a gas station attendant and on supervised release for a prior conviction,

he obtained approximately $44,000 in fraudulent unemployment benefit checks in the

names of numerous fictitious employees. Upon receiving the proceeds, he deposited

them into several bank accounts that he had opened in the names of fictitious

businesses and transferred these funds among the accounts. He then withdrew funds

totaling $12,000 from the bank accounts and redeposited them either by check,

cashier’s check, or as gambling winnings into his own investment account with

Morgan Stanley Dean Witter. 

“The purpose of the money laundering statute is to reach commercial

transactions intended (at least in part) to disguise” either the relationship between the

illegal proceeds and the defendant or the source and nature of the funds as proceeds

of illegal activity. United States v. Rounsavall, 115 F.3d 561, 565 (8th Cir.) (internal

quotations and alterations omitted), cert. denied, 522 U.S. 903 (1997). Even though

the funds remained traceable to Vanhorn, “[his] intent to conceal the nature or source

of the funds within the meaning of section 1956(a)(1)(B)(i) was evident.” United

States v. Nattier, 127 F.3d 655, 659 (8th Cir. 1997), cert. denied, 523 U.S. 1065

(1998). Vanhorn’s acts of placing the funds in the accounts of sham businesses,

withdrawing them through checks or cashier’s checks as seemingly legitimate

business funds, and then redepositing them into the investment account commingled

with gambling proceeds, provide sufficient evidence from which a jury could find

concealment within the meaning of the statute. See id. 
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We disagree with Vanhorn’s assertion that this was merely a case of money

spending. The facts are sufficient to demonstrate that “[t]his was not a case of a

person simply using illegally obtained funds to purchase personal items.” Id.

(internal quotations omitted). Nor was this a case where illegal proceeds were simply

deposited into the defendant’s bank account. See United States v. Jolivet, 224 F.3d

902, 909-11 (8th Cir. 2000) (reversing § 1956(a)(1)(A)(i) convictions where money

was deposited in defendant’s account and used solely for personal expenses). On the

record before us, a reasonable juror could find that the defendant routed the proceeds

through sham business accounts and subsequently reinvested the proceeds into his

own investment account. This evidence is sufficient to sustain the money laundering

convictions.

C. Request for Return of Funds

Vanhorn argues that the district court improperly refused to return to him the

funds from the Morgan Stanley Dean Witter investment account that the government

froze pursuant to an evidentiary seizure warrant. The district court concluded that the

defendant was not entitled to lawful possession of the account and that he should not

be given access to the account because he still owes restitution. When considering

a district court’s denial of a motion to return property under Rule 41(e) of the Federal

Rules of Criminal Procedure, “[w]e review the district court’s legal conclusions de

novo and its findings of fact for clear error.” United States v. Felici, 208 F.3d 667,

669-70 (8th Cir. 2000), cert. denied, 531 U.S. 1201 (2001). 

The district court properly denied Vanhorn’s motion for return of property.

“Generally, a Rule 41(e) motion is properly denied if the defendant is not entitled to

lawful possession of the seized property, the property is contraband or subject to

forfeiture or the government's need for the property as evidence continues.” United

States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993) (internal quotations omitted).

Although the government did not seek a final forfeiture order in this case, the funds
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at issue (totaling approximately $10,000) are contraband. The jury concluded that

Vanhorn is guilty of fraudulently obtaining approximately $44,000 in state

unemployment benefits and that he laundered $12,000 of the illegal proceeds into the

Morgan Stanley Dean Witter account. Accordingly, the district court did not err in

concluding that Vanhorn is not entitled to lawful possession of these funds.

Furthermore, there exists an outstanding restitution judgment of $9,450 from

Vanhorn’s 1996 conviction, and the district court ordered restitution in the amount

of $44,000 in the current case. On this record, there is no error in the district court’s

decision to deny Vanhorn’s motion for return of property. 

D. Alleged Trial Errors

After the close of trial, Vanhorn sought to reopen the evidentiary record to

submit a copy of a casino statement showing that he had gambling winnings.

Vanhorn asserts that the evidence is exculpatory because it demonstrates that he

deposited gambling winnings in the investment account rather than illegal proceeds.

The district court excluded the evidence as cumulative. 

Questions concerning whether “to reopen a case after resting are entrusted to

the trial court’s wide discretion.” United States v. Shurn, 849 F.2d 1090, 1094-95

(8th Cir. 1988). We find no abuse of discretion. The allegedly exculpatory evidence

was cumulative. Vanhorn had already presented evidence that he gambled, that he

received large winnings, and that he sought investment advice at Morgan Stanley

Dean Witter. This evidence was undisputed. The casino statement did not refute the

government’s allegation that Vanhorn gambled with the illegal proceeds and

commingled illegal proceeds with the gambling winnings. Nor did it refute the

allegation that Vanhorn circulated the original illegal proceeds through various sham

bank accounts in an attempt to conceal their illegal nature, location, or source. The

district court did not abuse its wide discretion in refusing to reopen the evidentiary

record. 
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Vanhorn also argues that the district court erred in fashioning the jury

instructions because the court rejected his request for a special interrogatory to

designate the amount of intended loss on each count. He cites Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000), in which the Court held, “Other than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” We hold that Apprendi is not implicated in this case so there can be no

Apprendi error. 

The district court sentenced Vanhorn to a term of 60 months of imprisonment

on the mail fraud counts, which is the statutorily authorized maximum sentence

permitted under 18 U.S.C. § 1341, regardless of the amount of loss. On the money

laundering counts, the district court imposed a concurrent sentence of 71 months,

which is well within the 20-year maximum sentence authorized by 18 U.S.C. §

1956(a)(1)(B), without reference to the amount of loss. Where a defendant’s sentence

does not exceed the statutorily authorized maximum sentence for the crime, the case

does not implicate the principle announced in Apprendi. United States v. McIntosh,

236 F.3d 968, 976 (8th Cir.) (holding Apprendi is not implicated where sentence does

not exceed statutory maximum sentence authorized for the offense in its simplest

form), cert. denied, 532 U.S. 1022 (2001). “Until advised to the contrary by the

Supreme Court . . . we conclude a sentencing judge’s discretion to find facts relevant

to sentencing within the statutorily permissible range has not been replaced by a

requirement of jury fact-finding.” United States v. Kurkowski, 281 F.3d 699, 704

(8th Cir. 2002). On this basis, we deny all of Vanhorn’s claims of Apprendi error. 

E. Revocation of Supervised Release and

Refusal to Appoint Substitute Counsel

Vanhorn also appeals the revocation of his supervised release relating to his

1996 conviction and the district court's refusal to appoint substitute counsel in this
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case. We have reviewed the record and find both claims to be without merit.

Accordingly, we affirm on these issues for the reasons stated by the district court.

See 8th Cir. R. 47B. 

F. Restitution

After Vanhorn filed his appeal in this case, he requested the district court to

clarify or modify its restitution order, asking the court to set a payment schedule. The

district court initially granted the request but later vacated that order, concluding it

had lacked jurisdiction to modify the restitution order due to Vanhorn’s pending

appeal. Vanhorn challenges the district court’s denial for lack of jurisdiction of his

motion to modify the restitution order. He asserts that the district court had

jurisdiction to modify the order and asks this court to stay the collection of restitution.

Initially, we deny Vanhorn’s motion to stay the collection of restitution. His

assertion, however, that the district court had jurisdiction to adjudicate his motion to

modify the restitution order notwithstanding the pendency of his appeal and the

seven-day time limit of Fed. R. Crim. P. 35(c) has merit.

The district court’s judgment of conviction and sentence in this case, dated

June 22, 2001, does not set a schedule of payments for restitution while Vanhorn is

incarcerated, and this is contrary to current law. 18 U.S.C. § 3664(f)(1)(B)(2)

(requiring the court to specify the schedule for payment); United States v.

McGlothlin, 249 F.3d 783, 784-85 (8th Cir. 2001) (holding the district court must

fashion a payment schedule designating a specific percentage of the prisoner’s

monthly earnings to go toward his restitution obligation). Seeking a specified

payment schedule, Vanhorn asked the district court to modify his restitution order,

and the government did not object. On October 3, 2001, the district court modified

the judgment, specifying a restitution payment schedule of $25 per quarter or 10% of

Vanhorn’s gross income. 
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Vanhorn filed a second request for modification, and this time the government

resisted, asserting that because Vanhorn had appealed the original judgment of

conviction and more than seven days had passed since the imposition of sentence, the

district court lacked jurisdiction to modify the order. See Fed. R. Cr. P. 35(c)

(permitting correction of sentence only within seven days after the imposition of the

sentence). The district court agreed and on November 20, 2001, vacated the

modification order of October 3, 2001, for lack of jurisdiction, leaving the original

nonspecific restitution order in effect. Vanhorn appeals the November 20, 2001,

order, arguing that a district court retains jurisdiction to modify a restitution order

even where a defendant is appealing other issues in the case. 

This case involves an order of mandatory restitution because the offense was

committed by fraud or deceit. 18 U.S.C. § 3663A(c)(1)(A)(ii). A mandatory order

of restitution is governed according to the terms of 18 U.S.C. § 3664. Id. § 3663A(d).

Section 3664 specifies that “this chapter [Miscellaneous Sentencing Provisions],

chapter 227 [Sentences], and Rule 32(c) of the Federal Rules of Criminal Procedure

[Sentence] shall be the only rules applicable to proceedings under this section.” 18

U.S.C. § 3664(c) (emphasis added). This explicit language indicates to us that Rule

35(c)’s seven-day limitation on the district court’s ability to correct a sentence does

not apply in this context. Additionally, § 3664 expressly permits the district court to

adjust the payment schedule “as the interests of justice require.” 18 U.S.C. § 3664(k).

We have previously held that the notice of appeal challenging a conviction “[does]

not divest the district court of jurisdiction to clarify its restitution order as additional

information [is] discovered.” United States v. Allen, 247 F.3d 741, 794 (8th Cir.

2001), petition for cert. filed, (U.S. Oct. 22, 2001) (No. 01-7310). We hold that the

district court in this case did not lack jurisdiction to modify the restitution order

despite the previously filed notice of appeal challenging Vanhorn’s convictions and

the passage of more than seven days since the imposition of sentence. Accordingly,

we reverse the district court’s order which found that it lacked jurisdiction, and we

remand for further consideration of the restitution order consistent with this opinion.
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III. 

We deny Vanhorn’s motion for stay of collection of restitution. We reverse

and remand the district court’s order of November 20, 2001, in which the district

court concluded that it lacked jurisdiction to consider Vanhorn’s motion to modify

the restitution order, and we remand this issue for further proceedings consistent with

this opinion. In all other respects, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.