PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No s . 06

- 1370 , 06

- 2535, 06

- 2536, 06

- 3043, 07

- 1525, 07

- 1526,
07

- 4618, 09

- 1827

_____________

UNITED STATES OF AMERICA

,

v.

AKHIL BANSAL

,

Appellant in N os. 06

- 1370,
06

- 2535, 07

- 1525

,

and

FREDERICK MULLINIX

,

A ppellant in Nos. 06

- 2536,
06

- 3043, 07

- 1526,
07

- 4618 , 09

- 1827

.

__________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2

- 05

- cr

- 00193

- 002 /011 ) District Judge: Hon. Paul S. Diamond

__________2 Submitted under Third Circuit LAR 34.1(a) October 27, 2011

Before: SLOVITER, GREENAWAY, JR

. and ALDISERT, Circuit Judges

.

(Filed: December 1 4 , 2011 )

Akhil Bansal (pro se) Schuylkill FCI
P.O. Box 75 9
Min ersville, PA 17954 Appellant

Frederick Mullinix (pro se) Federal Prison Camp
P.O. Box 3949 Pensacola, FL 32516 Appellant

Raymond S. Sussman (on brief) Law Office of Raymond S. Sussman 4523 Avenue H, First Floor Brooklyn, NY 11234

- 1409
Counsel for Appellant Frederick Mullinix

Zane David Memeger
Robert A. Zauzmer3 Frank R. Costello Office of the United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106

__________ Counsel for Appellee

OPINION OF THE COURT

__________
ALDISERT, Circ uit Judge

.

Akhil Bansal and Frederick Mullinix appeal from their jury convictions in the United States District Court for the Eastern District of Pennsylvania on a 42

- c ount i ndictment a lleging crimes arising from their multi

- national

, internet

based , cont rolled

- substance

- distribution scheme. The y have, in our estimation, challenged every decision of the District
Court

, at almost every moment of the litigation before, du ring, and after their convictions. Yet in the more than 1,100 pages of briefing submitte d to us by both defendants and the government, we have identified not a single instance of r eversible error. That the prior rulings and findings in this case
have emerged from such an onslaught wholly intact represents no small achievement by the District Court, whose decisions we will affirm in all respects. 1

1 We note at the outset that Bansal’s and Mullinix’s briefs raise appr oximately 75 issues for our consideration. Although the government responds by calling to our attention no fewer than 339 cases drawn from the span of more than 120 years (as well as 49 separate statutes and one book, for good mea s-4 I.

This case is about two defendants’ convictions for i llegal drug sales via websites purporting to be online pharm acies. From 2003 to 2005, Appellants Bansal and Mullinix i mported controlled and no n controlled substances from India

, which they then advertised on the internet and distributed to
customers in the United States via the mail without prescri ptions. In 2006 the Appellants were charged under a 42

- c ount indictment , tried, and convicted by a j ury on all c ounts . This is their direct appeal.

Bansal, who lived in Philadelphia, supervised the d omestic side of the multi

- national controlled substance distr ibution conspiracy at issue in this case

. He received bulk shipments of controlled substances f rom India, which he then stored, repackaged, and shipped directly to customers who ordered and paid for them online . He also oversaw the oper ation’s finances and payment system, which he managed by opening on

- and off

- shore bank accounts, accepting payment s from and delivering controlled substances to participating website operators, and transferring money between coconsp irators and various banks

.

Consumers were invited to purchase controlled su bstances through several of Mullinix ’s internet websites, the

ure), we reject any impli cation that we should pick up their torch and embark upon a similar adventure ourselves. We a ddress only those issues we deem worthy of discussion, and only to the extent we deem necessary to explain our reaso ning.5 most important of which was www.mymeds.com

. Visitors to his websites simply chose the type, strength, and quantity of the drug they desired

, paid with a credit card or online service
such as PayPal , and awaited postal delivery to any address they provided

. Between 2003 and 2005

, approximately $ 1.3
million in proceeds from controlled substance sales flowed
between Mullinix and B ansal

.

Bansal

, Mullinix , and many other coconspirators were indicted in April of 2005. Both of the Appellants here were arrested qu ickly

— Mullinix apparently without incident, and Bansal as he attempted to flee the country the morning after
his bank accounts were frozen. Bansal waived his Miranda rights, confessed to running an internet drug selling business,
and admitted that he knew the operation was illegal. At a pproximately the same time as Bansal’s arrest, federal agents executed search warrants upon at least two home s and a UPS
store in New York

, as well as two internet service providers in Mountain View, California. The se searche s produced a pproximately 450 gallons of contraband medication, as well as computer files and other records detailing the inner workings of the distribution operation.

Both Appellants hired and fired various attorneys throughout the course of their proceed ings in the District
Court. Ultimately, their cases proceeded to a jury trial and
each was convicted on all c ounts all eged in their joint indic tment. The convictions under that indictment

, portions of which charged Bansal but not Mullinix

, were :

Count 1 : C onspiracy to distribute co ntrolle d substances, in violation
of 21 U.S.C. § 846.6 Count 2 : Conspiracy to import co ntrolled substances, in violation
of 21 U.S.C. § 963

.

Count 3 : Operation of a continuing criminal enterprise , in viol ation of 21 U.S.C. § 848 (Bansal only)

.

Count 4 : Conspiracy to distribute m isbranded s ubstances, in viol ation of 21 U.S.C. § § 331(a)
and 333(a)(2)

.

Count 5 : Conspiracy to distribute co ntrolled substances, in violation
of 18 U.S.C. § 371

.

Count 6: International travel and money
transfers in furtherance of u nlawful activity, in violation of 18 U.S.C. § § 1952(a)(3) and
1957

.

Counts 7

- 10 : Money laundering, in violation
of 18 U.S.C. § 1956(a)(2)(A) (Bansal only)

.

Counts 11

- 13: Monetary transactions in property derived from crimina l activity, in violation of 18
U.S.C. § 1957

.7 Counts 14

- 29 : Money laundering in
violation of 18 U.S.C. § 1956(a)(1)(A)(i )

.

Counts 30

- 39: Monetary transactions in property derived from criminal
activi ty, in violation of 18
U.S.C. § 1957 (Bansal only)

.

Counts 40

- 41: Money launder ing in violation
of 18 U.S.C. § 1956 ( a)(1)(A)(i ) (Bansal only)

.

Counts 42

- 44: Monetary transactions in property derived from criminal
activi ty, in violation of 18
U.S.C. § 1957 (Bansal only)

.

Forfeiture : Of all proceeds and pr operty derived from the conspiracy to
distribute controlled su bstances, pursuant to 21 U.S.C. § § 853 and 970

.
Upon their convictions, b oth Appellants filed this d irect appeal, Mullinix through counsel and Bansal pro se. A fter briefing, Mullinix filed a mot ion seeking to proceed pro se as well, which we granted.

II.8 The District Court had jurisdiction because the defe ndants were charged with offenses against the United States.
See 18 U.S.C. § 3231. We have jurisdiction over its final judgments pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The relevant standard of review is set forth in each
subsection below.

III.

For simplicity’s sake, we rearrange and analyze Ba nsal’s and Mullinix’s most complex contentions in the follo wing order. First, both Ap pellants contend that their money laundering convictions impermissibly merge with their unde rlying predicate felonies under United States v. Santos , 553 U.S. 507 (2008) . Second, Bansal raises a host of issues r elated to his Continuing Criminal Enterprise ( “CCE”) convi ction, concerning the indictment, the sufficiency of the ev idence, and the jury instructions on that charge. Third, Bansal challenges the District Court’s decision to suppress evidence
obtained from untimely sealed surveillance records, on the ground that the g overnment did not provide a satisfactory e xplanation for its seven

- and ten

- day delay s in sealing the
records. See United States v. Carson , 969 F.2d 1480 (3d Cir. 1992) . Fourth, both Appellants allege a violation of Apprendi v. New Jersey

, 530 U.S. 466 (2000), during sentencing. For
the reasons set forth infra Part IV and V , we reject each of
these contentions.

The remaining, more

- frivolous contentions fall into two groups: shared arguments and those made by Bansal alone. Among the shared arguments, Appellants first cha llenge the ir conspiracy convictions under Counts One and Two of their indictment on the ground that the underlying9 conduct the government alleged

, distribution of controll ed substances via the internet, was not illegal at the time they were charged. Next , they challenge their money laundering

co nvictions on the related ground that they obtained the mo ney laundered by lawful means . Third, they contend their co nviction s under Count One were misdemeanor s and not fel onies . For t he se reasons set forth infra Part V I

, we will affirm the District Court with respect to each of the above issues.

Finally, Bansal alone raise s a number of issues. F irst

, he makes several contentions pertaining to the sufficiency of his indictment, the grand jury procedures in his case, and the voir dire procedures in empanelling his jury. Second, Bansal challenges the scope and sufficiency of the warrants by which evidence against him was obtained. Third, he challenges the sufficiency of the evidence support ing the jury’s verdict of guilty with respect to his controlled substance distribution and importation charges. Fourth, he contends various items of evidence were admitted against him in violation of the Sixth
Amendment’s Confrontation Clause and the Feder al Rules of Evidence. Fifth, he contends that various jury instructions misstated the law or directed a verdict for the prosecution. F inally, he alleges that prosecutorial misconduct and Brady v iolations mandate a new trial. We conclude, for the reasons
in

fra Part VI I , that all of these contentions are without merit.
We therefore will affirm the District Court.

IV.

We must d etermine: (1) whether Appellant s ’ money laundering convictions violated United States v. Santos , 553 U.S. 507 (2008) ; (2) with what s pecificity must the g over nment list predicate offenses in an indictment to support a CCE10 conviction after the Supreme Court’s decision in Richardson
v. United States , 526 U.S. 813 (1999); and (3) whether the government’s mistake of fact constitutes a “sati sfactory e xplanation” for its delay in sealing intercepted communic ations, pursuant to our decision in United States v. Carson , 969 F.2d 1480 (3d Cir. 1992). We ultimately side with the go vernment and the District Court on each of these contentions,
and wi ll affirm the District Court’s judgment

.

A.

Bansal and Mullinix challenge their convictions under various federal money

- laundering statutes, all of which pr ohibit concealing the source of “proceeds” from a criminal a ctivity. See, e.g. , 18 U.S.C. § 1956(a )(1)(A)(i)

. Appellants ’ specific contention is that their convictions are invalid for the reasons set forth in the plurality opinion in Santos , 553 U.S. 507. For the following reasons, we are not persuaded.

Whether the elements of a money laundering charg e merge with the elements of the crime that generated the mo ney to be laundered, and whether the “proceeds” laundered must be “profits” or “gross receipts,” ordinarily are questions
of law we review de novo. Cf. United States v. Yusuf , 536 F.3d 178, 185 (3 d Cir. 2008). When these issues are not raised in the District Court, however, we limit our review to plain error only. See United States v. Albertson , 645 F.3d 191, 196 (3d Cir. 2011).

In Santos , the Supreme Court issued a 4

- 1

- 4 decision that appears to conclude that the word “proceeds,” as used by
18 U.S.C. § 1956, refers to “profits” but not “gross receipts.”
Id. at 513

- 514. Santos can also be read, however, to support11 the conclusion that proceeds means both “profits” and “gross receipts.” Id. at 525 ( Stevens, J. concurring) . Bansal and Mu llinix contend, at bottom, that the government failed to de monstrate that the money they were convicted of laundering was “profit

, ” rather than “gross receipts,” and that, as a result, their money laundering crimes mer ged with the crimes that produced the money. We disagree and will affirm.

A jury convicted Bansal and Mullinix under § 1956, which provides that a person is guilty of money laundering if he or she knowingly uses the proceeds of criminal activity to
conduc t a financial transaction designed in whole or part to conceal the nature, the location, the source, the ownership, or
the control of the funds:

Whoever knowing that the property involved in a financial transaction represents the proceeds
of some form of u nlawful 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 ca rrying on of specified unlawful activity; or

(ii) with intent to engage in c onduct constituting a violation of se ction 7201 or 7206 of the Internal Revenue Code of 1986; or12 (B) knowing that the transaction is designed in whole or in part

—

(i) to conceal or disguise the nature, the location, the source, the ow nership, or the control of the proceeds of specified unlawful a ctivity; or

(ii) to avoid a transaction reporting requirement under State or Fede ral law

18 U.S.C. § 1956(a)(1) (emphases added). Although the Di strict Court denied Bansal’s and Mullinix’s general motions for a new trial, i t did not rule on the money laundering claims because they did not raise them in their motion.

Bansal and Mullinix challenge their money laundering convictions on two grounds. First, they contend that because they were unaware that their behavior was crim inal in 2006, they could not have been convicted of “knowing that the property involved in a financial transaction represent[ed] the proceeds of some form of unlawful activity.” 18 U.S.C. § 1956(a)(1). Second, they cite Santos to challenge both the jury in structions and the sufficiency of the evidence suppor ting the jury’s finding that the “proceeds” they laundered were “net profits” and not gross receipts. They contend that much of the money they were accused of laundering was used to pay for inventory, sh ipping costs, and other operating e xpenses, and that those transactions were part of running a drug operation in violation of the Controlled Substances Act, not money laundering.13 The government responds in two ways. First, it reads
the fractured decision in Santos to permit money laundering convictions for transactions involving “proceeds” that are used to pay operating expenses, and not just those proceeds that are net profit. In Santos , Justice Scalia, writing for four Justices, invoked the rule of lenit y to conclude that “proceeds,” as used in § 1956(a)(1), always means “profits.”
553 U.S. at 513

- 514. Justice Alito, writing for a four

- Justice dissent, would have held that “proceeds” means “gross r eceipts” and not merely net income or profits. Id. at 546 (Alito, J., dissenting) . Justice Stevens, whose concurring opinion provided the fifth vote for Justice Scalia’s judgment, co ncluded that if “proceeds” meant only gross receipts, then the government could charge money laundering in cases where the alleged l aundering transaction was actually an ordinary part of the underlying criminal activity. See id. at 526

- 527 (Stevens, J., concurring) . For example, in Santos

, the defe ndant was convicted of illegal gambling and of laundering the profits by paying his emplo yees and by paying the gambling
winners. Id. at 509. In Justice Stevens’ view, this created a merger problem because the elements of the laundering o ffense were also elements of the illegal gambling offense. See
id. at 526

- 527. Justice Stevens went on to s uggest that in ca ses that presented a “merger issue,” the word “proceeds” should be construed to mean “profits” and not “gross r eceipts,” but left open the question of whether

, in other cases

, a defendant could be convicted of laundering gross receipts. Id

. at 525 (“[T] his Court need not pick a single definition of “proceeds” applicable to every unlawful activity . . . .”).

Here, the government contends that Justice Stevens’ opinion controls because it represents the narrowest ground14 for the plurality dec ision. See Marks v. United States , 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be
viewed as that position taken by those Me mbers who co ncurred in the judgments on the narrowest ground s .” (internal quotation omitted)). Relying upon Justice Stevens’ opinion, the government urges us to affirm the convictions in this case because (1) in certain circumstances, “proceeds” may be ill egally laundered if they are gross receipts (and not just net profits), and (2) the Appellants’ case presents such circum stances because the “financial transaction” and “intent to co nceal” elements do not merge with the elements of drug distr ibution. The g overnment then cites cases from four other Courts of Appeals affirming money laundering convictions based upon financial transactions involving gross receipts of drug distribution. See Wilson v. Roy , 643 F.3d 433, 435 (5th Cir. 2011) (addressing the issue in an innocence claim raised by habeas petition); United States v. Quinones , 635 F.3d 590, 600 (2d Cir. 2011); United States v. Spenc er , 592 F.3d 866, 880 (8th Cir. 2010); United States v. Demarest , 570 F.3d 1232, 1242 (11th Cir. 2009). Finally, the govern ment co ntends that under our plain error standard of review, which we must apply because the defendants failed to raise this issue in their motions for a new trial, the unsettled state of the law precludes us from holding for the Appellants.

We agree with the government for the reasons that fo llow . As a threshold matter, we agree that, in the very narrow set of criminal cases arising from prescription

- less sales of controlled substances via the internet, money laundering charges can apply to “gross receipt s” of a criminal enterprise and not merely its profits. Cf. Quinones , 635 F.3d at 600 (2d15 Cir. 2011) (“[W]e hold that ‘proceeds’ under 18 U.S.C. § 1956 is not limited to ‘profits’ at least where, as here, the predicate offense involves the sale of contraba nd .”).

We agree also that our standard of review for this issue is plain error, but we reject the government’s interpretation of that standard. The plain error standard of review asks whether “the District Court plainly erred in such a way as to affect t he appellant’s substantial rights

. ” See Albertson , 645 F.3d at 196 (citing Rule 52(b), Federal Rules of Criminal Procedure) . A ruling under the plain error standard thus turns upon an a ssessment of whether “the error . . . [was] prejudicial: It must
have a ffected the outcome of the district court proceedings.”
United States v. Olano , 507 U.S. 725, 734 (1993) . It does not, as the government implies, turn on the correct answer to a question of law. Whether the jury’s verdict was plain error does not depend up on whether the current state of the law su rrounding “proceeds” under § 1956 is confused and the S upreme Court’s decision in Santos is confusing. Rather, the question we must ask is whether the evidence in this case supported the jury’s findings pursuant to the essential el ements of money laundering. For the following reasons, we
conclude that it does.

A person is guilty of money laundering under § 1956 if he, (1) knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, (2) conducts or attempts to conduct such a financial transaction involving the proceeds of unlawful activity, (3) with either (a) the intent to promote the carrying on of spec ified unlawful activity; or (b) knowing that the tran saction is designed in whole or in part (i) to conceal or disguise the n ature, the location, the source, the ownership, or the control of16 the proceeds of specified unlawful activity; or (ii) to avoid a transaction reporting requirement under State or Feder al law.
See § 1956(a)(1).

Here, the jury could have found evidence for element (1) in the Appellants’ intentional sale of morphine, ketamine, and steroids without prescriptions. Bansal and Mullinix co ntend that they could not have known that the proceeds from those sales were proceeds of illegal activity because they did not know that prescription

- less internet drug sales were ille gal. That contention misses the point. The elements of their crimes have nothing to do with the internet. They were co nvicted of prescription

- less sales to customers within the Uni ted States

— an activity that was clearly illegal at the time they were indicted. The jury could have inferred knowledge of that illegality from its findings that the defendants kept their bank

accounts o ffshore, and that they conducted their sales only with the help of the internet and its relative anonymity. The jury’s finding under element (2) was amply supported by its findings that the Appellants channeled money from one offshore account to another in what were clearly “financial transactions” within the meaning of § 1956(a)(1). Finally, the jury’s finding under element (3) above was supported by its findings that the Appellants used their proceeds to purchase controlled substances (i.e., “to promote t he carrying on of specified unlawful activity,” § 1956(a)(1)(A)(1)), and poss ibly, to hide the location or source of the money they received from customers (i.e., to conceal or disguise the nature, the l ocation, the source, the ownership, or the control of the proceeds,” § 1956(a)(1)(B)(i)). The jury could also have i nferred that the reason the Appellants kept their accounts offshore was “to avoid a transaction reporting requirement under State or Federal law,” § 1956(a)(1)(B)(ii). Because there was17 evidenc e to support the jury’s findings on the money launde ring Counts, we will affirm the Appellants’ convictions.

B.

Bansal next challenges his CCE conviction on two fronts , contending that (1) his indictment insufficiently stated
the elements of a CCE offen se, and (2) his subsequent convi ction was flawed due to improper jury instructions and insufficiency of the evidence . For the reasons that follow, we will affirm the District Court’s judgment on all issues relating to
Bansal’s CCE charge

.

1.

Bansal conte nds that his conviction under Count Three for conducting a Continuing Criminal Enterprise

, see

violated one or more provisions of subchapter I of Chapter 13 of Title 21, United States Code, which are felonies, and such violations were part of a continuing series of violations of su bchapter I of Chapter 13 of title 21, United States Code, including but not limited to, the offenses
contained in Counts One and Two of this i ndictment, and the Overt Acts listed in this I ndictment at paragrap hs 1 through 42 of Count
One of this indictment . . . . 21
U.S.C. § 848

, should be vacated because the CCE count in his indictment (Count Four) did not state three separate felony offenses, and therefore did not prope rly state a CCE charge. The pertinent part of Bansal’s indictment provided that he
committed a CCE offense when he:18 Supp. App. 05011. In Bansal’s view, his indictment should be dismissed because the language above does not allege three distinct violations of federal drug laws. We disagree and co nclude that the CCE count in the indictment was sound.

“The ‘sufficiency of an indictment to charge an o ffense is a legal question subject to plenary review.’” Yusuf

, 536 F.3d at 184 (quoting United States v. Conley , 37 F.3d 970, 975 n.9 (3d Cir. 1994)).

To obtain a CCE co nviction, the government must , in pertinent part, establish that the defendant’s felonious acts are

“ part of a continuing series of violations .” United States v. Grayson , 795 F.2d 278, 283

- 284 (3d Cir. 1986) (construing § 848(a)). The Supreme Court has hel d that the government must show that the defendant committed three separate pred icate offenses to establish a “continuing series of violations

. ”
See Richardson , 526 U.S. at 815

.

With regard to the sufficiency of a CCE indictment

,
we noted in United State s v. E cheverri , 854 F.2d 638 , 642 n.4 (3d Cir. 1988), that the government need not list in the i ndictment the three predicate offenses that would ultimately support a CCE conviction. Instead, we permitted the gover nment “to rely upon all [criminal] activit y, whether or not r eferred to in the indictment.” Id. In Richardson , however, the Supreme Court impliedly overruled the broadest reading of
Echeverri

. The Richardson Court held that a jury must f ind with specificity the predi cate offenses to a CCE charge

, and assumed without deciding that the necessary number of o ffenses was three

. See 526 U.S. at 818

- 819 . The Court re asoned that each predicate act constitutes an element of the o ffense. It necessarily follows, then, that, as elements of the o f-19 fense, each p redicate act must appear in the indictment. Cf.
id. at 826 (Kennedy, J., dissenting) (noting that the majority opinion means that indictments must specify predicate acts).

Although neither we nor the Supreme Court has eluc idated the contours of precisely what must appear in a post

Richardson indictment , the Court of Ap peals for the Second
Circuit has , and w e find its reasoning persuasive. In United States v. Flaharty , 295 F.3d 182 (2d Cir. 2002), the defe ndants contended that the indictment was deficient b ecause it failed to specify which felonies within the indictment const ituted the specific three felonies undergirding the CCE charge. Under the CCE count, the government had instead referred merely to vague “felony viola tions” of two criminal statutes,

as well as to Counts One and Two, which charged a conspir acy to violate the same statutes. The Flaharty court construed
Richardson to mean that although an indictment must contain
three felonies that could support a CCE conviction, it need not specify which o f those felonies will ultimately be used to
maintain the CCE conviction. Id. at 197. This holding makes practical sense of Richardson ’s dicta, comports with a na rrower reading of Echeverri , and maintains the purposes of an
indictm ent by apprising a defenda nt “ of the natur e of the a ccusation against him.” Russell v. United States , 369 U.S. 749, 766 (1962) ( citation omitted).

Using the Flaharty court’s reasoning to guide our ana lysis

, we conclude that an indictment must include the facts
and circumstances c omprising at least three felonies, but that the CCE count itself need not identify with exacting specific ity which three will ultimately pro ve the CCE charge. Incorp oration by reference is sufficient . T he indictment here , ther efore, passes muster under Ech everri and Richardson

. The20 CCE c ount alleged that Bansal committed “ a continuing s eries of violations of subchapter I of Chapter 13 of Title 21,
United States Code , including but not limited to, the offenses
contained in Counts One and Two of this indictme nt, and the
Overt Acts listed in this indictment at paragraphs 1 through
42 of Count One of this indictment.” Supp. App. 05011. The
notion that the three CCE offenses need not be “limited to” the indictment is incorrect; as discussed above, the offenses

mu st appear within the indictment . An evaluation of the i ndictment, however, reveals that the a cts comprising the CCE charge

— and

, more importantly, the acts undergirding the jury’s ultimate conviction

— did indeed appear within it

.

Count One (conspiracy to d istribute controlled su bstances) and Count Two (conspiracy to import controlled su bstances) are inarguably separate felony offenses. See 21 U.S.C. § § 846, 963. For the third felony

, al though neither the indictment nor the jury’s verdict on the CCE c ount ex pressly

states which act or acts made up the third CCE offense , the jury’s unanimous guilty verdicts on Counts One, Two, Three, Four, and Five removed any doubt that the jury found that
Bansal committed (at least) one additional subchapter

- I fel ony that ap peared in the indictment . Because the overinclusive language in the indictment did not affect the grand jury’s d ecision nor the outcome of the trial , any such error was har mless

. See United States v. Cotton , 535 U.S. 625, 634 (2002) (holding that defects i n an indictment do not deprive a court

or a petit jury of jurisdiction to ratify the indictment); Neder
v. United States , 527 U.S. 1, 9, 15 (1999) (holding that errors that “do[] not necessarily render a criminal trial fundamenta lly unfair or an unreliable vehicle for determining guilt or i nnocence” are subject to harmless error review) ; Arizona v.
Fulminante , 499 U.S. 279, 306 (1991) (“[M]ost constitutional21 errors can be harmless.”); United States v. Mechanik , 475 U.S. 66, 70 (1986) (holding that a petit j ury’s guilty verdict
made harmless a set of errors made in c onnection with the i ndictment); Russell , 369 U.S. at 763 (“Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused.” (quotation marks and citation omitted) ).

The overbroad language in the indictment did not a ffect the outcome because t he jury unanimously found Bansal guilty on Counts Four and Five. A lthough those Counts were brought under 18 U.S.C. § 371 ( conspiracy to commit any o ffense against the United States), Bansal’s guilt depended on
the jury find ing that he engaged in conspiracies i n violation of subchapter I of C hapter 13 of Title 21. See Supp. App.
05012

- 05020. To reach its verdict, the jury was required to
conclude that Bansal committed one or more Overt Acts
listed in Count One in furtherance of these conspiracies

. 2 See

2 Specifically, the indictment alleged th at Bansal conspired to: (1) “obtain substantial revenues and profits by illegally offe ring for sale and selling

— without prescriptions

— non

controlled prescription drugs, including [Sildenafil citrate (Viagra), Tadalafil (Cialis), Vardenafil (Levitra), Venl afaxine (Effexor XR), Carisoprodol (Soma), Sertraline (Zoloft), Tramdol (Ultram), Paroxetine (Paxil)], via internet websites and otherwise, by illegally importing and packaging those prescription drugs . . . . ,” Supp. App. 05016 (Count Four), and (2) “obt ain substantial revenues and profits by illegally offering for sale and selling

— without prescriptions

— controlled prescription drugs via internet websites and othe rwise, by illegally importing and packaging those prescription drugs .

. . . ,” Supp. App. 050 19 (Count Five).22 Supp. App. 03394

. Not only are the conspiracies alleged in Counts Four and Five themselves qualifying CCE felonies

, 3 but any of the many Overt Acts that the ju ry could have found
to sustain those Counts

— Overt Acts 1, 2, 3, 5, 8, 9, 12, 15, 21, 23, 24, 25, 29, 33, 35

, 38, 39, 41, and 42

— independently
violate Subchapter I. 4

3 The elements that necessarily underlie these conspiracies appear in the indictment as Overt Acts. For example, a co nviction on Count Four required the jury finding that Bansal committed some combination of Overt Acts 15, 21, 23, 29,
and/ or 35. Thus

, b y finding Bansal guilty of

4 Subchapter I makes felonious a dizzying array of activity, and each of the Overt Acts involving Bansal implicates some portion of that subchapter . Notably, 21 U.S.C. § 844 makes it felonious not only to (a) simply possess a controlled su bstance w ithout a prescription, but also to (c) “ conspir[e] to possess, distribute, manufacture, cultivate, sell or transfer any substance the possession of which is prohibited under this subchapter. ” See Supp. App. 04998

- 05007 (Overt Acts 1, 2, 3, 5, 8, 9, 21, 23, 24, 25, 41, 42). Section 841(a) similarly
makes it unlawful “ for any person knowingly or intentionally (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or d ispense, a controlled
substance

. ” See Supp. App. 049 98

- 05007 (same). Section 841(c) makes it felonious to intend to evade the reportin g r equirements for these drugs

— i mplicit in import ing drugs with
the intent to defraud the United States , as alleged in Counts
Four and Five

. See Supp. App. 05001 (Overt Act 1 5). Section 841(g)(1)(B) and (2)(A)(ii) makes it unlawful to impo rt and sell ketamine (a date rap e drug), specifically alleged in Count
Five. See Supp. App. 05000, 05003, 05017 (Overt Acts 14, 23). Section 841(h) makes even emailing potentially fel o-23 Counts Four and Five , the jury inexorably found that Bans al committed a third drug felony under subchapter I that nece ssarily appeared in the indictment

.

In short, Bansal had constitutionally sufficient notice
of the “nature of the accusation [s] against him.” Russell , 369
U.S. at 766. The indictment’s referenc e to Overt A cts listed
elsewhere within it

— and the petit jury’s subsequent convi ction based on those Acts

— s atisfies Richardson and Flaharty ’s requirement that three predicate felonies appear in the indic tment. Any erroneous clause pointing beyond the indic tment was, because of the jury’s findings , harmless. See, e.g.

,

nious, so long as it involves using the internet to aid or abet the distribution of a controlled substance. Subparts (2)(C) ( “ serving as an agent, intermediary, or other entity that causes the Internet to be used to bring together a buyer and seller to engage in the dispensing of a controlled substance ” ) and (E) are especially apt here

. See Supp. App. 04999

- 5007 (Overt Acts 8, 12, 15, 21, 23, 24, 25, 29, 33, 35, 38, 39). Section 842 (a)(4) makes it unlawful to alter a label on a prescription drug. Section 842(a)(5 ) makes it felonious “ to refuse or ne gligently fail to make, keep, or furnish any record, report, not ification, declaration, order or order form, statement, invoice, or information required under this subchapter or subchapter II of this chapter .” See Supp. App. 05001 (Overt Act 15). Se ction 844(a) makes it “ unlawful for any person knowingly or intentionally .

. . (9) to distribute, import, or export a list I chemical without the registration required by this subchapter or subchapter II of this chapter. ” See Supp. App. 04998

- 05007 (Overt Acts 1, 2, 3, 5, 8, 9, 15, 21, 41, 42). Many of the above, moreover, are necessary prerequisites for a guilty ve rdict on Counts Four and Five. M e-24 chanik , 475 U.S. at 70 (“[T] he petit jury’s subsequent guilty verdict means not only that there was probable cause to b elieve that the defendants were guilty as charged, but also that they a re in fact guilty as charged beyond a reasonable doubt.”) ; Chapman v. California , 386 U.S. 18, 22 (1967) (no ting that the harmless

- error doctrine “block[s] setting aside [the defendant’s conviction] for small errors or defects that have little, if any, lik elihood of having changed the result of
the trial ”). Here, the jury’s con clusions make apparent that
neither the grand jury’s charging decision nor the petit jury’s
conclusion would h ave changed whatsoever had the supe rfluous language in the indictment bee n omitted

. We therefore
will not disturb the District Court’s judgment with regard to
Bansal’s indictment

.

2.

Bansal raised a multitude of contentions with regard to the sufficiency of the evidence in this case, including three challenges of note relatin g to his CCE conviction . First, he contends that the jury did not sufficiently find three predicate felonies, which are essential to any CCE conviction. Second, he contends that the government failed to prove he managed five or more persons, as a CCE char g e requires. Third, he challenges the jury instructions as incorrect. We disagree as
to all three contentions and will affirm the CCE conviction.

To obtain a CCE conviction, the government must e stablish five material elements: “(1) a felony violation of t he federal narcotics law, (2) as part of a continuing series of v iolations, (3) in concert with five or more persons, (4) for whom the defendant is an organizer or supervisor, (5) from
which he derives substantial income or resources.”25 Grayson , 795 F.2d at 283

- 284 (3d Cir. 1986) (construing § 848(a)). As noted, the government must prove that the d efendant committed three separate predicate offenses to esta blish the second element

. See Richardson , 526 U.S. at 818. To prove the “organizer or supervisor” ele ment, the government must prove that the defendant supervised or managed five or more people in furtherance of the CCE. Id. at 815

- 816 (quo ting § 848(a)).

Bansal contends that the government did not produce evidence sufficient for the jury to find that he committed three predicate felonies in furtherance of a CCE, which the charge required. We disagree. As discussed above, Bansal’s indictment described a laundry list of felonious conduct i ncluding his participation in organized, serial violations of co ntro lled substances laws. The jury returned a unanimous guilty verdict supported by the evidence on every allegation in the
indictment , including Counts Four and Five, and found that
Bansal committed felonious Overt Acts listed in the indic tment . The jury’s un animous finding as to these felonies was a
sufficient basis for its conclusion that Bansal committed three predicate felonies in furtherance of his CCE offense.

Second, Bansal contends that the government failed to prove that he managed or supervised five or more persons, which a CCE charge requires. But the jury received testimony
that Bansal: (1) h ired coconspirator Richard Danby to be a “shipper” in furtherance of the CCE, see Supp. App. 00191

- 00193, 00411

- 00414, 00880

- 00890; (2) h ired David and Eli zabe th Armstrong to be “shippe rs” in furtherance of Bansal’s
C C E

, see Supp. App. 00193, 00891

- 00895, 02730, 02500

- 02004; (3) d irected codefendant Himanshu Kulshretha, who26 carried out Bansal’s instructions in India

, see Supp. App.
00891

- 00895; and (4) a ppointed Sanjeev Shrivastav to take over operations at Bansal’s distribution business while Bansal traveled to India, see Supp. App. 00893, 00906, 00915

- 00920. The testimony about these five individuals

— and we note that the jury heard testimony regarding many more

— was sufficient to support the jury’s finding that Bansal managed or supervised five or more people.

Third

, Bansal challenges t he jury instructions in seve ral discrete ways, none of which persuade us to disturb the District Court’s judgment. For instance , Bansal contends that the District Court failed to charge the jury with instructions that it must be unanimous in its findings on each of the three predicate felonies supporting Bansal’s CCE charge. But the
District Court did instruct the jury that its fi nding must be u nanimous. See Supp. App. 03387 (“You must unanimously agree on which three acts constitute the continuing series of violations.”). We therefore reject this contention.

B ansal also appears to contend that the District Court erred by not ins tructing the jury to unanimously find and sp ecify which individuals formed the basis of its conclusions on the CCE Count. We have rejected that argument and will not
reconsider it here. See United States v. Jackson , 879 F.2d 85, 88 (3d Cir. 1989) (stating that unanimous agreement is not required as to the identity of the five or more persons supe rvised or managed pursuant to a CCE), vacated in part on ot her grounds by , 2000 WL 157172 (E.D. Pa. 2000).

Finally, Bansal challenges the District Court’s instru ction to the jury that the third offense may come from acts
within the indictment or “acts not mentioned in the indictment27 at all.” Supp. App. 03387. Bansal did not object to the jury instructions at his trial, and consequently, we review his claim for plai n error only. Albertson , 645 F.3d at 196. Although we
now hold that acts not mentioned in the indictment cannot sustain a CCE conviction, the District Court’s reliance on a broader reading of Echeverri was hardly plain error. More over, any error was harmle ss: the jury unanimously convicted
Bansal on the CCE count for acts listed in the indictment. See
Neder , 527 U.S. at 8

- 15

.

We find no basis to reverse Bansal’s CCE conviction on any grounds, and will therefore affirm the District Court’s judgment in this respect

.

C.

Bansal next contends that various emails intercepted pursuant to two warrant

- authorized wiretaps should have been suppressed because they were not immediately sealed upon the warrants’ expiration pursuant to 18 U.S.C. § 2518(8)(a),
which re q uires that the recordings of “[t] he contents of any wire, oral, or electronic communication” obtained pursuant to
a search warrant be sealed “[i] mmediately upon the expiration of the period of the order.” § 2518(8)(a). Violation of this st atute requires su ppression if the sealing was not “immediate” and if the government fails to provide any “satisfactory e xplanation for the delay.” United States v. Ojeda Rios , 495 U.S. 257, 264

- 268 (1990). For the reasons that follow, w e hold that the government’s reasonab le mistake of fact pr ovided a satisfactory explanation for its delay, and we will a ffirm the District Court’s decision not to suppress the comm unications on that ground

.28 The pertinent facts involve two delays. Bansal’s inte rcepted emails were downloaded a nd copied to a laptop co mputer in Philadelphia. Both involved the Assistant United
States Attorney’s mistake of fact regarding when a CD co ntaining the communications was available for sealing. In the first instance, this resulted in a seven

- day delay befo re sea ling

. In the second, the initial delay was compounded by a great deal of confusion as to whether the computer containing the emails was functioning, as to who was to submit the CDs for sealing, and as to where the sealing order should be su bmitted (t he supervising judge, who was also the emergency motions judge, was unavailable). This resulted in a ten

- day delay before all copies of the CDs were sealed.

The District Court took testimony and concluded that the government’s delay was excusable because the Assistant United States Attorney

, who ultimately caused the delay s , fu lly understood and intended to comply with the § 2518(8)(a) sealing requirement, and indeed believed that she had done

so. See Supp. App. 04663

- 04664. It found that the delay was

ca used by her “mistaken understanding” and “a reasonable mistake.” Supp. App. 04664. We review the District C ourt’s denial of a motion to suppress for clear error as to the unde rlying factual findings, and we exercise plenary review of its application of the law to those facts. See United States v. P erez , 280 F.3d 318, 336 (3d Cir. 2002).

Because the District Court held, and the government concedes, that the sealing i n this case was not immediate, t he only issue before us on appeal is whether the government has offered a “satisfactory explanation” for its delay. In Carson

, we held that a satisfactory explanation can be based on “o bjectively reasonable causes like understandable mistakes of29 law and interference from unexpected, extrinsic events beyond the gove rnment’s control.” 969 F.2d at 1488. We went on to hold that the explanation must be the actual reason for the delay, and must “substantially correspond” to the e xplanation the government gave at the suppression hearing. Id. at 1492 (quoting Ojeda Rios , 49 5 U.S. at 264, 267). We did not, however, give abundant guidance as to what can const itute a satisfactory explanation. Indeed, although Carson ’s language expressly allows reasonable mistakes of law to pr ovide a satisfactory explanation for a delay , it did not expressly
state whether a reasonable mistake of fact

— like the mistakes
at issue here

— can also p rovide a satisfactory explanation . I nstead, we left the question open by stating that “satisfactory explanations for delays in sealing should relate directly to the practicalities of obtaining a sealing order,” id. at 1498, wit hout defining “practicalities” more specifically than as unfor eseen emergencies

— certainly graver than reasonable mistakes of fact, s ee id. We must determine, therefore, whether a re asona ble mistake of fact can constitute a satisfactory explan ation, and if so, whether the government’s mistakes were re asonable. We answer both queries in the affirmative.

After reading Carson closely, we conclude that a re asonable mistake of fact must necess arily be sufficient to co nstitute a satisfactory explanation for the purposes of § 2518

. In other arenas of criminal law, constitutional rights, and go vernment conduct, we have long espoused the proposition that a mistake of fact is less culpable than a mi stake of law. When judging criminal behavior, it is axiomatic that , although “i gnorance of the law will not excuse

, ” Shevlin

- Carpenter Co. v.
Minnesota , 218 U.S. 57, 68 (1910), a reasonable mistake of
fact is less culpable because of the absence of mens re a. With regard to government conduct vis

- à

- vis constitutional rights,30 we cannot find any support, in any setting, for the proposition that a government agent’s mistake of law might be excusable while a mistake of fact would not. For example, in Montanez

v. Thompson , 603 F.3d 243, 250 (3d Cir. 2010), we recently
noted that qualified immunity applies regardless of whether a government official’s conduct stemmed from a mistake of
law or a mistake of fact. In Curley v. Klem , 499 F.3d 199, 215 (3d Cir. 2007), we held that a police officer’s reasonable mistake of fact in shooting the wrong person meant that no constitutional violation had occurred, and thus obviated the need for the court to continue to the question of whether the
officer had committed a mistake o f law for qualified immun ity purposes. In the Fourth Amendment suppression context

— logically analogous to the s uppression remedy provided in § 2518(8)(a)

— we have held that an officer’s “reasonable mi stake of fact does not violate the Fourth Amendment,” whe reas a mistake of law, even a reasonable one, might. United States
v. Delfin

- Colina , 46 4 F.3d 392, 398 (3d Cir. 2006) (internal quotation and citation omitted) ; accord Illinois v. Rodriguez

, 497 U.S. 177, 185 (1990) (noting that factual determinations
made by government agents need not “always be correct,” but they always have to be “reasonable”)

. Finally, our sister Courts of Appeals have had little difficulty extending Ojeda
Rios to cover reasonable mistakes of fact. See, e.g.

, United States v. Coney , 407 F.3d 871, 875 (7th Cir. 2005) (permi tting a misunderstanding between attorneys as to who was supposed to seal tapes to constitute a satisfactory explanation
for a 10

- day delay); see also United States v. Pitera , 5 F.3d 624, 627 (2d Cir. 1993). We therefor e find no problem in r ecognizing that a reasonable mistake of fact can suffice to e stablish a satisfactory explanation pursuant to § 2518.31 Having concluded that a “mistake of fact” exception

e xists, we must next determine the contours of this exception

a nd whether the government’s conduct here f its within it . We
hold that the reasonable mistake of fact analysis should mirror
the reasonable mistake of law inquiry in Carson

. See 969 F.2d
at 1494. In Carson , we held that a mistake of law “ is obje ctively reas onable only when th e attorney involved acted as a ‘reasonably prudent’ attorney would to investigate the legal question involved in a reasonably prudent manner.” Id. Thus, absent any indication of tampering, bad faith, or deliberate disregard for the requ irements of Title III, we hold that an agent

, acting as a reasonably prudent government agent would have

, who has committe d a reasonable mistake of fact may qualify for the “satisfactory explanation” exception.

Applying the rule t o the facts here, althou gh the d i strict c ourt in Carson made inadequate findings to determine whether the attorneys in that case had acted reasonably, we face no such difficulty. The District Court here found that the attorney here had knowledge of and fully intended to comply
wi th the sealing requirement, and in fact, believed that she
had done so. See Supp. App. 04663

- 04664. Indeed, it found that the delay was caused by a “reasonable mistake made in good faith” regarding the mechanics of the sealing process. Supp. App. 04664. Th e Court also found that none of the data on the sealed CDs had been altered or corrupted. These fin dings are not clearly erroneous, and demonstrate that the atto rney here acted as a reasonably prudent attorney in her situ ation would have.

We therefore ho ld that the delay s here were an excus able breach of the § 2518(8)(a) sealing requirement and do not warrant a retrial.32 V.

We next must determine whether the District Court v iolated Apprendi v. New Jersey , 530 U.S. 466 (2000), during sentencing. We concl ude that no violation occurred

, and we will affirm the District Court’s judgment.

Bansal and Mullinix contend that the District Court
committed an Apprendi violation when calculating the se ntences for their convictions under Count One. They contend
that t he violation occurred when the District Court sentenced them pursuant to the Guidelines that apply to Schedule IV controlled substances even though (1) they were charged with conspiring to distribute Schedule II, III, and IV substances, and (2) the jury ma de no finding of fact as to which su bstances the two actually conspired to distribute. We will a ffirm their sentences.

Whether the District Court’s sentence in this case co ntravened Apprendi is “a pure question of law over which we exercise plenary review .” United States v. Barbosa , 271 F.3d 438, 452 (3d Cir. 2001); cf. United States v. Williams , 235 F.3d 858, 861 (3d Cir. 2000).

A federal statute classifies controlled substances a ccording to five Schedules: Schedule I describes the most s erious substance s, and Schedule V describes the least serious. The sentencing range for distribution of controlled substances varies depending upon which Schedule describes the su bstance in question. In this case, Count One of Bansal and Mullinix’s indictment alleged that they conspired to distribute 17 controlled substances, all of which fell into Schedule II,33 III, or IV. At trial, the jury returned a general verdict of guilty under Count One, but did not identify which of the 17 su bstances it concluded were actually invo lved in the conspiracy. At sentencing, the District Court calculated Bansal and Mu llinix’s sentences according to 21 U.S.C. § 841(b)(2), which applies to Schedule IV controlled substances, the least culp able of the 17 substances described in Count One. Ban sal and Mullinix objected that the District Court could not have d etermined that § 841(b)(2) and Schedule IV applied without making a finding of fact as to what drugs they actually co nspired to distribute, and they alleged that any such finding v iolated th eir right to a jury trial as set forth in Apprendi . The District Court overruled the objection, and they appealed.

Bansal and Mullinix’s contention is that because the jury in this case did not return a verdict specifying what drugs were involved, there w as no way for the District Court to a pply the provisions for Schedule IV drugs without engaging in
fact

- finding as to the drug or drugs involved. They contend
that this fact

- finding violated their Sixth Amendment right to a jury trial, because it increased the penalty for their crime beyond the statutory maximum for Schedule V controlled substances without a jury finding that Schedule IV controlled substances were actually involved. See Apprendi , 530 U.S. at 490. They rely primarily upon Barbosa , wherein we held that
a district court violated Apprendi because it sentenced a d efendant according to the Guidelines for cocaine trafficking, even though jury instructions resulted i n a finding that the d efendant had “ trafficked in a controlled substance, without an y finding as to a particular controlled substance or the amount at issue.” 271 F.3d at 454 . The defendant in Barbosa had ca rried into the country on an international flight what a labor atory later proved was cocaine, believing

— and maintaining at34 trial

— that it was heroin. Id. at 444, 450. Upon his charge for trafficking in heroin and cocaine, the jury returned a guilty verdict that did not specify the drug involved. The district court sentenced the defendant according to the relatively harsher provisions for cocaine. See id. at 449. Our Court co ncluded that the absence of a jury finding as to the drug’s type made it impossible for the trial judge to determine which Se ntencing Guidelines applied to the defendant without fact

finding. See id. at 456

- 457, 459. B ecause the district court implicitly found a fact that had the effect of increasing the bottom end of the Barbosa’s statutory range, an Apprendi v iolation occurred. Id. at 457. But we then went on to examine what effect, if any, a jury’s finding would have had upon the sentence the district court actually imposed and we concluded that “irrespective of which of the two drugs the jury could have found, Barbosa’s twenty

- year sentence falls [above the statutory minimum for both drugs and] well below the pr escri bed statutory maximum of life for either heroin or cocaine
base.” Id. at 460. Because the jury could only have found one of two drugs

— cocaine or heroin

— and because the sentence Barbosa received was appropriate for either drug, we co ncluded that the Apprend i violation in his case was a harmless
error and affirmed his sentence. Id.

Bansal and Mullinix’s position is that

— like in Barb osa

— the jury did not specify the drug they were accused of distributing. They contend that as a result the District Court
could not know which Schedule to apply unless it engaged in
its own fact

- finding, thereby committing an Apprendi viol ation. They urge us to vacate their sentences and remand for a new trial on the issue. The government responds that, like
Barbosa , the jury’s ch oice in this case was limited to a finite set of controlled substances, any of which would support the35 Appellants’ sentences. It points out that Count One of the i ndictment charged the Appellants with conspiring to distribute Schedule II, III, and IV contr olled substances, and went on to list 17 different substances the defendants had agreed to di stribute. Because the District Court sentenced the Appellants pursuant to the provisions providing for Schedule IV su bstances (which carry the least culpability), the government contends that even if the jury had identified which of the 17 substances were actually involved, a more lenient provision of the Sentencing Guidelines still could not have applied. It therefore urges us to hold that any Apprendi violation in this
case was harmless error.

We agree with the government. An Apprendi violation occurs if a district court makes a finding of fact that “increa ses the penalty for a crime beyond the prescribed statutory maximum.” 530 U.S. at 490. The 17 drugs Bansal an d Mull inix were indicted with conspiring to distribute ranged from Schedule II to Schedule IV substances, but the sentences that the two received were based only upon the guidelines appl icable to Schedule IV substances. The sentences, therefore,
were based upon the lowest conceivable liability under the indictment. To the degree the District Court found any facts as to what substances were involved in the conspiracy, the finding did not increase the penalty for their crimes because it represented the lowest possible sentencing range compatible with the jury’s verdict. We therefore hold that any Apprendi
violation was harmless. We will affirm the sentences Bansal
and Mullinix received for their convictions under Count One.

V I

.36 Of the remaining joint content ions, Appellants cha llenge their conspiracy convictions under Counts One and Two of their indictment on the ground that the underlying conduct the government alleged, distribution of controlled substances via the internet, was not illegal at the time they were charged. T hey then challenge their money laundering convictions on the related ground that they obtained the mo ney laundered by lawful means. Finally , they contend their
convictions under Count One were misdemeanors and not felonies. We will affirm th e District Court ’s conclusion in all respects.

A.

Bansal and Mullinix challenge their convictions for (1) conspiracy to distribute controlled substances in vi olation of
21 U.S.C. § 846; (2) conspiracy to import controlled su bstances in violation of 21 U .S.C. § 963; and (3) illicit money transfers and laundering in violation of 18 U.S.C § § 1956 and 1957, on the ground that their conduct

— distributing co ntrolled substances via the internet

— was not illegal when they were indicted. The cornerstone of their po sition is that co ntrolled substance distribution via the internet could not have been illegal in 2006 because the relevant statute did not e xpressly address the internet until 2008. We disagree.

We exercise plenary review over a challenge to the
sufficien cy of an indictment. See United States v. Whited

, 311 F.3d 259, 262 (3d Cir. 2002).

The predicate felonies alleged in the conspiracy charge s under Counts One and Two were distribution and i mportation of controlled substance s in violation of § 841(a).37 Thes e also were the “specified unlawful activit[ies]” that
formed the basis for the money laundering charg es under § 1956

. Section 841(a), which is unchanged since 2006, pr ovides :

Except as authorized by this subchapter, it shall be unlawful for any person kn owingly or inte ntionally

—

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispe nse, a controlled su bstance; or

(2) to create, distribute, or dispense, or po ssess with intent to distribute or dispense,
a counterf eit substance.

21 U.S.C. § 841(a). An exception to this blanket prohibition permits physicians or other authorized health professionals to distribute controlled substances pursuant to a prescription.
See 21 U.S.C. § 829. The Code of Federal Regulations fu rther provides that every “prescription for a controlled substance

. . . must be issued for a legitimate medical purpose by an i ndividual practitioner acting in the usual course of his profe ssional practice.” 21 C.F.R. § 1306.04. Any distribution of a

cont rolled substance pursuant to a prescription that does not
meet this standard is a criminal violation of § 841.

Bansal and Mullinix contend that their convictions for conspiracy to distribute controlled substances are invalid b ecause their conduct did not violate § 841. They rely primarily upon the Ryan Haight Online Pharmacy Consumer Protection38 Act (“the Ryan Haight Act”), which in 2008

, imposed direct federal regulation upon online pharmacies. See Pub. L. No.
110

- 425, 122 Stat. 4820. T he Ryan Haight Act s ought to e xpand the Cont rolled Substances Act, the statute under which
Bans al and Mullinix were convicted, by expressly regulating
distribution of controlled substances over the internet. It does
so b y defining a va lid doctor

- patient relationship and provi ding “ statutory clarification ” to the law surrounding internet
controlled

- substance sale s

. See App. 59 (Senate Hearing Transcription). Rely ing upon statements by various s enators and by then

- Attorney General Alberto Gonzales, Bansal and
Mullinix contend th at because the word “internet” was not added to the Controlled Substances Act until 2008, their i nternet

- based conduct must have been legal when they were
indicted in 2006 . They con tend that any application to this

case of the Ryan Haight Act ’s prohibition of internet drug
sales is therefore ex post facto and unconstitutional. Their fallback position is tha t even if the 2006 version of § 841 could be read to apply to online pharmacies, such a reading would be open to interpretation and debate, thereby rende ri ng it unconstitutionally vague

— at least as applied to pre

- 2008 online pharmacy operations.

The government responds that § 841 clearly and u nambiguously applied to Bansal and Mullinix’s online oper ations in 2006. In support of its contention that Bansal and Mullinix could be prosecuted under the pre

- Ryan Haight Act version of the statute, it cites United States v. Moore , 423 U.S. 122, 124 (1975) (holding that physicians may be pros ecuted under § 841 if they distribute medication “outside the
usual course of professional practice”), as well as cases from
federal courts ac ross the country holding that § 841 applied to controlled substance distributions by online pharmacies even39 before Congress enacted the Ryan Haight Act amendments

, e.g. , United States v. Bi rbragher , 603 F.3d 478, 484

- 490 (8th Cir. 2010); United States v. Lovern , 590 F.3d 1095, 1103 (10th Cir. 2009); United States v. Quinones , 536 F. Supp. 2d 267, 268

- 271 (E.D.N.Y. 2008 )

, aff’d 635 F.3d 590 (2d Cir. 2011)

. The government’s position is that , b ecause the pre

Ryan Haight Act version of § 841 (a) applied to all distrib utions of controlled substances, Bansal ’s and Mullinix’s co nvictions were not an ex post facto application of the Ryan Haight Act.

We agree with the government. Strictly speaking, B a nsal and Mullinix were not charged with distributing controlled substances via the internet; they were charged with distribu ting controlled substances, period. Their conduct

— prescription

- less sales of controlled substances

— fell squarely
within § 841(a)’s blanket statement that “it shall be unlawful for any person knowingly or intentionally to manufacture,
di s tribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance

, ” and does not qualify for the exception that § 849 affords to sales in the
usual course of medical business pursuant to valid prescri ption s . We find this text abundantly clear: it was illegal in 2006 to sell controlled substances without a valid prescri ption. That the Ryan Haight Act later crimi nalized the precise machinery by which the y effected their illegal transactions
does not alter the basic fact that they were selling controlled substances without prescriptions. We therefore conclude that Bansal and Mullinix were properly indicted and conv icted
under § 841(a).

B.40 Bansal and Mullinix contend that their money

laundering convictions are invalid because they laundered
from lawful sources

— i. e., because it was legal in 2006 to sell
controlled substances over the internet without prescriptions

. As explained above, prescription

- less sales of controlled su bstances were illegal when the Appellants were indicted, r egardless whether the sale took place online. Consequently, we
will affirm the District Court.

Whether the money a defendant has laundere d represents the “proceeds” of “specified unlawful activity” u nder 18 U.S.C. § 1956(c)(7) is a question of law we review de

novo. Cf. United States v. Yusuf , 536 F.3d 178, 185 (3d Cir. 2008).

A person is guilty of money laundering under 18 U.S.C § § 1956 a nd 1957 if, with the intent to commit a crime, he conducts a financial transaction designed in whole or in part to conceal the source, ownership, or control of “the proceeds of specified unlawful activity.” The statute then sets forth a list of “specified unlawful activit[ies].” Id. § 1956(c)(7). Importantly, a person commits money launde ring only if the laundered money is “proceeds” from at least one of the criminal activities specified in § 1956(c)(7).

A ppellants contend that their money laundering co nv ictions are invalid because the government did not prove that the money involved was proceeds from a “specified unlawful activity.” They insist that the ir underlying conduct was the “sale of pharmacy medication,” which is not listed in § 1956(c)(7). The go vernment responds that the “proceeds” were generated by felonies enumerated in § 1956(c)(7). It points out that § 1956(c)(7) (A) includes any “offense listed in41 section 1961(1) of Title 18.” Subsection D of 18 U.S.C. § 1961(1) includes “the felonious manufa cture, importation, receiving, concealment, buying, selling, or otherwise dealing
in a controlled substance . . . (as defined in section 102 of the Controlled Substances Act).” The government contends that the money laundering in this case involved the pro ceeds of
Bansal and Mullinix’s dis tribution of prescription drugs wit hout prescriptions. In the government’s view, the laundered money was therefore proceeds of felonious activity described
in § 1961(1), which § 1956(c)(7) incorporates in full.

We agree w ith the government. The evidence at trial established that Bansal and Mullinix committed felony viol ations of the C ontrolled S ubstances A ct. Their conduct i ncluded “the distribution of, and conspiracy to distribute, co ntrolled substances,” which

— by way of § 1956(c)(7)’s inco rporation of § 1961(1)

— is an “enumerated felony” for the purposes of money laundering. We therefore will not disturb the jury’s verdict.

C.

Bansal and Mullinix contend that their convictions u nder Count One were misdemeanors and not fe lonies

— a co nclusion that, if correct, might (1) undermine their money laundering convictions (which require that proceeds be from specified “felonies”), (2) alter their Sentencing Guideline ca lculations, or (3) bear upon the mutual understanding of the
def endants and the government in executing their forfeiture agreement. We need not address these issues in detail, ho wever, because Bansal and Mullinix are wrong; their convi ctions under Count One are indeed felonies.42 Whether a crime is a felony or misdemean or is a que stion of law we review de novo. Biskupski v. Att’ y Gen

. , 503 F.3d 274, 279 (3d Cir. 2007) (stating that “issues of statutory construction are questions of law over which we exercise pl enary review” while examining the felony and misdemeanor
clas sifications set forth in 18 U.S.C. § 3559(a)).

The United States Code classifies crimes according to the maximum possible sentence the crime can receive. It pr ovides that offenses punishable by more than one year impr isonment (or by death) are felonies, a nd offenses punishable by no more than one year are either misdemeanors or infra ctions. See 18 U.S.C. § 3 559(a)(5)

- (6), (9). Federal statute s further provide that the maximum sentence for distribution of
a S chedule IV controlled substance is five years, pl us fines.
See 21 U.S.C. § 841(b)(2). Schedule III substances carry a maximum sentence of 15 years, see § 841 (b) (1)( E ), and Schedule II substances carry a maximum sentence of life i mprisonment, see § 841 (b) (1)(C). Because the maximum se ntence for each of th ese crimes is greater than one year

, any distribution of a Sc hedule II, III, or IV substance is a felony

.

Bansal and Mullinix were charged and convicted of conspiracy to distribute Schedule II, III, and IV controlled
substances , all of which carry maximum s entences greater than one year of imprisonment

. Further, Bansal and Mullinix actually received sentences greater than one year

. Their co nvictions clearly are felonies. We therefore reject all of the Appellants’ arguments that require us to accept as a pr emise
that their convictions under C ount One were misdemeanors. 5

5 Mullinix relatedly contends that his forfeiture agreement is
invalid because he and the government mutually mistook the43 VI I

.

Bansal argues for reversal on several matters that r elate only to his appeal. Bansal first raises several issues pe rtaining to the sufficiency of his indictment, the grand jury procedu res in his case, and the voir dire procedures in emp anelling his jury. Second, Bansal challenges the scope and su fficiency of the warrants by which evidence against him was obtained. Third, he challenges the sufficiency of the evidence supporting the jury’ s verdict of guilty with respect to his co ntrolled substance distribution and importation charges. Fourth, he contends various items of evidence were admitted against him in violation of the Sixth Amendment’s Confro nt a tion Clause and the Federal Rules of E vidence. Fifth, he contends that various jury instructions misstated the law or directed a verdict for the prosecution. Finally, he alleges that prosecutorial misconduct and Brady violations mandate a new trial. We conclude, for the reasons that follow, th at all of
these contentions are without merit. We therefore will affirm
the District Court.

A.

charges in Count One for felonies when they were misdeme anors. The only mistake in this connection is Mullinix’s appa rent belief that the charges were misdemeanors. They were

not. See 18 U.S.C. § 3559(a). At any rate , that mistake was not mutual. The government was well aware

— and made a bundantly clear to Mullinix

— that he faced felony charges u nder Count One. We will therefore not disturb the forfeiture agreement.44 Bansal contends first that his grand jury proceedings

were tainted by the pres ence of an allegedly improperly a ppointed Special Assistant United States Attorne y. We reject
that claim because any error he created in the grand jury’s finding was cured by Ba nsal’s later conviction on all C ounts by the petit jury. Second , Bansal contends that prosecutors
made material misstatements and elicited false testimony at hi s grand jury proceedings. We reject this contention on the same ground: any alleged misstatements by prosecutors du ring the grand jury proceedings were cured by the petit jury’s verdict of guilty on all C ounts. Third, Bansal contends that
his indictment fo r engaging in a CCE insufficiently stated the
elements of the offense because the CCE Count did not allege with particularity three predicate felonies upon which a valid CCE charge must rely. We reject this contention because
Bansal misunderstands the law: when seeking a CCE convi ction

, the government must allege at least three predicate fel onies, but they need only be alleged wi thin the indictment ta ken as a whole . Finally, Bansal contends that he is entitled to a new trial because portions of the District Court’s voir dire procedures effectively closed his trial to the press and public. Because we conclude that Bansal waived this objection and
that the District Co urt did not actually bar access to his voir dire procedures at any time, we will not order a n ew trial. We
will affirm the District Court on each of the se issues.

1.

Bansal did not challenge in the District Court the grand jury proceedings in his case. The issue likely is waived in its entirety. See Rule 12(b)(3), Federal Rules of Criminal Proc edure (setting forth objections that “must” be raised prior to
trial )

. Assuming we reach ed the question, we would review45 Bansal’s claim for plain error only, because “a guilty verdict by a petit jury remedies any possible defects in the grand jury
indictmen t. ” United States v. Eltayib

, 88 F.3d 157 , 173 (2d Cir. 1996) (citing United States v. Mechanik , 475 U.S. 66, 70 (1986) )

.

Bansal contends that the participation of James R. Pa vlock in the grand jury proceedings warrants the dismissal of
the indictment

. Un ited States Attorney Patrick Meehan a ppointed Pavlock

, pursuant to 28 U.S.C. § 543

, to serve as a Special Assistant United States Attorney in this case. Pavlock
then participated in the grand jury proceedin gs. Bansal co ntends that the appointment was inval id because Meehan did
not have statutory authority to make the appointment

.

We reject Bansal’s contentions

— raised for the first time on appeal

— for three reasons. First, Bansal has waived his right to challenge the sufficiency of his indictment. Rule 12(b )(3) provides that objections based upon defects in an i ndictment, other than those attacking jurisdiction or alleging that the indictment fails to charge an offense, “must be raised
before trial” or are otherwise waived. Bansal’s contention is
therefore u ntimely. See United States v. Coppola , 526 F.2d 764, 772

- 773 (10th Cir. 1975) ( holding that a defendant’s failure to object before trial to the presence of a “special a ttorney” before the grand jury was waiver of the issue). Second, to the degree Pavlock’s presence improperly affected the grand jury’s co nclusions as to probable cause

, any error was cured by the petit jur y’s verdict of “guilty” on all c ounts charged in the indictment. See Mechanik , 475 U.S. at 70 (“[T] he petit jury’s verdict rendered harmles s any conceivable error in the charging decision” of the grand jury, which may have been affected by improper persons at the proceeding).46 For both of these reasons

— waiver and cure

— we will
not reach the merits of Bansal’s argument as to Pavlock.

2.

Bans al contends that his prosecutors committed mi sconduct during the grand jury proceedings, either by making misstatements of fact to the grand jury or by eliciting false testimony. We disagree.

We exercise plenary review over the District Court’s legal conc lusions. United States v. Nolan

- Cooper , 155 F.3d 221, 229 (3d Cir. 1998).

Bansal and the government quibble as to whether the other side has misrepresented the record of testimony before the grand jury. We will not enter the fray. Because dismissal
of an indictment is “the most drastic remedy,” United States
v. Morrison , 449 U.S. 361, 365 n.2 (1981), a defendant who
seeks to set aside an indictment must show that misstatements to a grand jury caused actual prejudice to the defendant, see Bank of Nova Scot ia v. United States

, 487 U.S. 250 , 256 (1988). We agree with the government that Bansal cannot make that showing here. In this case

, the grand jury found that there was probable cause to indict him on multiple c ounts for multiple crimes. A petit jury later returned a verdict fin ding beyond a reasonable doubt that he was guilty under all of
those c ounts. Even if it were true that prosecutors made m aterial misstatements to the grand jury

, each of the grand jury’s findings of probable cause was later ratified in full by the p etit jury, thus curing the defects Bansal now alleges. See Uni t ed States v. Console , 13 F.3d 641, 672 (3d Cir. 1993)47 ( hol d ing that a petit jury’s guilty verdict renders “any pros ecutorial misconduct before the indicting grand jury harmless” as a matter of law). We therefore reject Bansal’s contention s in this vein.

3

.

Bansal requests a new trial on the ground that the Di strict Court improperly limited public and press access to the pretrial jury selection procedures. We will not order a ne w trial because we do not that agree the District Court imprope rly closed the courtroom.

Because Bansal did not object to the vo ir dire proc edures at his trial, we review his challenges on appeal for plain error only. United States v. Albertson , 645 F.3d 191, 196 (3d Cir. 2011)

.

The District Court conducted voir dire in this case a ccording to the following procedures. First, prospective jurors were screened based upon their responses to general questio ning in open court. Then, members of the voir dire pan el were individually questioned about more sensitive subjects

— in the presence of the defendant s and attorneys for both sides

— in a closed jury room adjacent to the courtroom. Neither party o bjected to the se procedures at that time.

Bansal contends that the closed

- room questioning v iolated the Sixth Amendment’s publ ic trial guarantee. We di sagree for several reasons. First, this is classic sandbagging of the trial judge, as Bansal complains for the first time on a ppeal about a decision by the trial court to which he did not o bject at the time

. Second, a t no time did anyone

— Bansal, the48 press, or the public

— request access to the closed jury

- room

. At most

, the judge prevented the members of the voir dire panel from hearing other members’ responses, and we are

aw are of no case holding that such procedures offend the
Sixth Amendment. Third , to the extent Bansal complains about the right of the press to access his entire voir dire pr oceedings, Bansal l ikely l acks standing to challenge the Di strict Court’s action on the media’s behalf

. See, e.g.

, Press

- Enter. v. Superior Court , 464 U.S. 501, 505

- 506 (1984) (noting that the press has a longstanding right to access cri minal voir dire proceedings); United States v. Hitt , 473 F.3d 146, 155 (5th Cir. 2006) ( holding that a failure to object to
closed

- questioning waives any right to a public trial the d efendant may have asserted ). Finally , the entire jury selection

process was transcribed and recorded; nothing was sealed or concealed from public view. Given these facts

, we wi ll not order Bansal a new trial on these grounds.

B.

Bansal’s pro se brief alleges nine constitutional defects surrounding the search warrants and warrant application pr ocedures in this case. Bansal goes on to assert that the District
Court should have s uppressed three categories of evidence: information obtained from the internet service provider s that managed his email accounts , items obtained during the search of a garage in New York, and items obtained from his vehicle pursuant to his arrest . Because we conclude that none of this
evidence was tainted by a constitutional violation , we will a ffirm the District Court’s denial of Bansal’s suppression m otions.49 We review a district court’s denial of a motion to su ppress for clear error as to the underlying factual findings, and we exercise plenary review of its application of the law to
those facts. See United States v. Perez , 280 F.3d 318, 336 (3d Cir. 2002).

1.

Five Magistrate Judges, sitting for the Eastern District of Pennsylvania , granted requests by agents of the Drug E nforcement Administration (“DEA”) for warrants authorizing a search for, and seizure of, information believed to be co ntained in Bansal’s Gmail and MSN hotmail email accounts. The agents obtained the warrants and found what they were
lo oking for. Bansal moved to suppress the evidence, and the
District Court denied his motion. We will affirm

.

First, Bansal contends that the Pennsylvania Mag istrate J udges who issued the warrants lacked jurisdiction to
do so because the warrants were ultim ately executed upon i nternet service providers in California. We disagree. The pr ocedures that federal and state law enforcement officers must follow when compelling disclosure from network service provide rs is s et forth at 18 U.S.C. § 2703(a) . The version of
the statute in effect when these warrants were issued in 2004 authorized any “court with jurisdiction over the offense under investigation” to issue a warrant for electronic communic ations

— even if the warrants were ultimately executed in
another state. See § 2703(a). Bansal contends that Rule 41(b),
which limits a Magistrate Judge’s jurisdiction to the District
in which he or she sits , trumps § 2703(a). W e, along with ot her courts to consider the question, reject that contention. E.g.

, United States v. Berkos , 543 F .3d 392, 396

- 398 (7th Cir.50 2008) (holding that Rule 41(b) “does not apply to § 2703(a)”)

. We therefore conclude that the Pennsylvania Magistrate Judges had authority to issue the warrants in this case, even though they were ult imately executed in Califo rnia.

Second, Bansal contends that the warrants authorizing
search es of his email accounts were unconstitutional general warrants. We disagree. The United States Constitution r equires that warrants “particularly describ [e] the place to be
search ed, and the persons or things to be seized.” U .S. Const.

a m en d. IV. The warrants in this case met that requirement. They particularly described several categories of records: i nformation on accounts, billing, payment, and “stored electro nic information or files” associated with Bansal’s email a ccounts. Supp. App. 0 4847. In short, these were not general

warrants.

Third, Bansal contends that the warrants for the search
of his email account s were invalid because they lacked pro bable cause. We disagree. The Co nstitution provides that “no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation.” U.S. Const. a m end . IV. Such oath or affirmation is generally provided in the form of a sworn affidavit attached to the search warrant application . This was the procedure used in Bansal’s case. Our rev iew of the warrant application, see Supp. App. 04849

- 04857, reveals nine single

spaced pages of sworn statements from D EA Agent Eric M.
Russ detailing his investigation, surveillance, and monitoring
of Bansal’s controlled substance distribution operation. T he affidavit more than sufficiently establishes probable cause to
believe Bansal’s email account s contained evidence of his i n-51 ternet

- based illegal controlled substance distribution oper ation.

Fourth, Bansal contends that evidence obtained from his email accounts should have been suppressed on ground that the agents executing the warrants failed to adhere to the “notice requirements” imposed by Rule 41 because the e xecuting agents did not provide him w ith a copy of the wa rrants. Rule 41 requires that searching officers put searched persons on notice of any property seized:

The officer executing the warrant must give a copy of the warrant and a receipt for the prope rty taken to the person from whom, or f rom whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property.

Rule 41(f)(1 )(C). The plain text of Rule 41 thus requires n otice only “to the person from whom, or from whose premises, the property was taken .” Id. (emphasis added). Because Ba nsal does not deny that the warrant was provided to the internet
service providers upon whom the search warrants were e xecuted, we conclude that notice was properly made in this

case. We will therefo re affirm the District Court.

2.

Bansal contends that the approximately 450 gallons of controlled substances found in a garage in Point Lookout, New York, should not have been admitted at his trial because they were seized in violation of the Fourth Amen dment. We disagree.52 In 2005 a federal Magistrate Judge sitting for t he Eas tern District of New York approved a search warrant for a house described as “the premises known and described as 23 Garden City Avenue [,] Point Lookout, New York.” Supp. App. 0 4286

- 0 4245. When DEA agents executed the warrant, they discovered

— contrary to their expectation

— that the g arage was not attached to the house. Wanting to search the g arage, they telephoned the Assistant United States Attorney assigned to the case, who told the agents that the garage was within the scope of the warrant

. Inside the garage, agents
found and seized ten 45

- gallon plastic containers filled with controlled substances, some of which were packaged for del ivery to customers. Bansal moved to suppress the evidence on the ground s that (1) the garage was not part of the “premises” at 23 Garden City Avenue, and (2) the agents had not acted in good faith in searching the garage. The District Court co ncluded as a matter of fact that the garage was part of the cu rt ilage of th e residence at 23 Garden Avenue and as a matter of
law that the agents acted in good faith.

Bansal reargues on appeal that the garage was not
within the curtilage and that the agents’ reliance upon an i nterested prosecutor’s telephone advice is not sufficient to e stablish a good faith defense. We will not reach the good faith inquiry because we conclude that the warrant authorized the search of the garage. First, the warrant was not limited only to
a search of the home at 23 Garden Avenue. It authorized a search of the entire “premises,” which included the garage. Second, we are puzzled as to how Bansal’s case is advanced by his assertion that the garage was outside the curtilage of
the home at 23 Garden Avenue. It is axiomatic that “[a] pe rson ’s curtilage is the area immediately adjacent to his home53 in which he has a legitimate expectation of privacy.” Estate of
Smith v. Marasco , 430 F.3d 140, 156 n.14 (3d Cir. 2005) (ci ting United States v. Dunn , 480 U.S. 294, 300 (1987 ) ). We are puzzled becau se Bansal’s contention that the garage was ou tside the curtilage actually decreases his legitimate expectation of privacy in the building, and presumably places it merely on
the “premises” at 23 Garden Avenue, squarely within the
terms of the search warran t. In sum, we conclude that if the garage was within the cu rtilage, as the District Court found, then for Fourth Amendment purposes it was part o f the pr emises at 23 Garden Avenue ( the search of which n o party di sputes was authorized) ; if it was instead be yond the curtilage,
Bansal’s expectation of privacy was diminished to the point
that no violation could have occurred

.

At bottom, we find the curtilage and good faith conte ntions ancillary to the validity of the search in this case. We
conclude that the p lain text of the warrant authorized the search of the garage at 23 Garden Avenue , and we will affirm the District Court’s denial of Bansal’s motion to suppress.

3.

Bansal contends that a laptop computer, compact discs, and computer thumb drives seized d uring the search of his car
when he was arrested were obtained in violation of the Fourth
Amendment

, and thus should not have been admitted at his trial. We disagree.

A fter realizing that DEA agents were about to arrest him, Bansal attempted to flee the c ountry a t 1:30 in the mor ning of April 19, 2005 . FBI agents were conducting su rvei llance of his apartment at the time because they planned to e x-54 ecute a search warrant at 6:00 that morning. Realizing that
Bansal was about to flee

, the FBI agents stopped his vehicle and arrested him. DEA agents then arrived at the scene. Knowing that Bansal’s vehicle was under a forfeiture order, and thus subject to impoundment pursuant to Bansal’s already issued indictment, the DEA agent began an inventory search.
Prosecutor s later offered various items the agents had disco vered , some of which they found in closed containers, as ev idence at Bansal’s trial. Bansal filed a motion to suppress

, which the District Court denied on the ground that the sear ch was a proper inventory s earch , a proper search incident to v alid arrest, or a proper search pursuant to the automobile e xception

.

We agree that the search was a proper inventory search
and do not address the sear ch

- incident

- to

- arrest exception or the automobile exception. The se arch was a proper inventory
search because the forfeiture order authorized agents to take custody of the car. After taking custody of property, officers may make a warrantless inventory search so long as the search is conducted pursuant to standardized pro cedures. See South Dakota v. Opperman , 428 U.S. 364, 369 (1976). Such a search may extend to closed containers. See Illinois v. L afayette , 462 U.S. 640, 648 (1983).

The District Court took testimony and issued a finding
of fact that the search of Bansal’ s car was conducted pursuant to standardized DEA procedures

. Bansal has not adduced any evidence indicating that the District Court’s factual finding, which it based upon testimony it deemed credible, was clear

error. Further, even if the search did violat e DEA procedures in some way, any evidence obtained from Bansal’s car at the scene eventually would have been discovered pursuant to i m-55 poundment under the forfeiture order. This places this case squarely within the “inevitable discovery rule

. ” See Nix v.
W illiams , 467 U.S. 431, 443

- 444 (1984). Accordingly, we
hold that evidence obtained from Bansal’s car therefore was not tainted by an unconstitutional search. We will affirm the
District Court. 6

C.

Bansal was convicted of various conspiracy charges,
set f orth in Counts One, Two, Three, Four, and Five of his indictment. He contends that the government produced insu fficient evidence at trial for a jury to find beyond a reasonable doubt that he was guilty of each of the crimes. We disagree.

6 Bansal also challenges warrants issued by Eastern Dis trict of Pennsylvania Magistrate Judges authorizing two wiretaps of
his email accounts. These also were executed in California. He contends first that the Magistrate Judges in this case lacked jurisdiction to issue warrants outside the Eastern Di strict of Pennsylvania

— a contention we have already rejected. He contends also that the intercepted emails should be su ppressed because the warrants were not supported by probable cause. We disagree. The wiretaps of Bansal’s email accounts were authorized by two war rants, which are reproduced at pages 04136

- 04210 of the Supplemental Appendix. These 74 pages, almost all of which represent the affidavit of probable cause, spell out in great detail why there was probable cause
to believe that Bansal’s email accounts con tained evidence of illegal controlled substance distribution. We are satisfied, without restating that record here, that they more than sufficiently established probable cause to support the warrants.56 We apply a partic ularly deferential standard of review when deciding whether a jury verdict rests on sufficient ev idence. “It is not for us to weigh the evidence or to determine the credibility of the witnesses.” United States v. Voigt , 89 F.3d 1050, 1080 (3d Cir. 1996) (c itation omitted). W e must view the evidence in the light most favorable to the gover nment, see United States v. Thomas , 114 F.3d 403, 405 (3d
Cir. 1997), and we will sustain the verdict if “ ‘ any rational
trier of fact could have found the essential element s of the

cr ime beyond a reasonable doubt.’ ” Voigt , 89 F.3d at 1080 (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)).

1.

Bansal contends that his convictions under Counts One
and Two of his indictment, alleging conspiracy to distribute
and conspira cy to import controlled substan ces in violation of
21 U.S.C. § 846, were not supported by evidence sufficient to sustain the jury’s verdict. We disagree.

In United States v. Iglesias , 535 F.3d 150, 156 (3d Cir. 2008)

, we stated that to obtain a conviction under § 846, the government must establish: (1) a unity of purpose

, (2) an i ntent to achieve a common goal, and (3) an agreement to work
toward the goal.

The government may prove the existence of the above el ements by circumstantial evidence. See United States v. A pplew h aite , 1 95 F.3d 679, 684 (3d Cir. 1999). Further, in e xamining the circumstantial evidence relevant to the above elements, we “must view the evidence in the light most favo rable to the government, and will sustain the verdict if any r ationa l trier of fact could have found the essential elements of57 a crime beyond a reasonable doubt.” United States v. Dent

, 149 F.3d 180, 187 (3d Cir. 1998) (internal quotations and c itations omitted).

Here, we have no difficulty concluding the gover nment carr ied its burden. The jury received evidence that the defendants knowingly distributed, without prescriptions, co ntrolled substances that were imported from India. See, e.g.

, Supp. App. 00 104

- 00 111 (testimony from a DEA agent e xplaining how customers purchas ed controlled substances from Bansal’s website); id. at 0 1309

- 0 1310 (emails from coconsp irator stating “we” ship from India, and process packages in the United States); id. at 0 1874

- 0 1875 (testimony by cocon spirator as to how “we” set up and managed websit es). From this evidence, a rational trier of fact could have found a unity of purpose, intent to achieve a common goal, and agreement to work toward that common goal. In short, the evidence re adily supports the jury’s conclusion that the defendants co nspir ed to carry out the acts that they did in fact carry out t ogether. We will not disturb the jury’s verdict. 7

2.

7 Counts Three, Four, and Five of Bansal’s indictment also represented conspiracy charges. Although Bansal’s brief pu rports to challenge the evidentiary sufficiency for “all” of his conspiracy convictions, his brief addresses only Counts One and Two. To the extent that his evidentiary challenge to his
convict ions under Counts Three, Four, and Five are indeed before this Court, we conclude that Bansal

— having not a sserted any argument on his behalf

— has not carried the “very heavy burden” of demonstrating insufficient evidence. Dent

, 149 F.3d at 187 . We will affi rm the convictions.58 Bansal, who under Count Four of his indictment was convicted of conspiracy to commit felony misbranding of drugs, contends that the government f ailed to prove he m isbranded drugs with intent to defraud . I f true, the failure would reduce his crime from a felony to a misdemeanor. We disagree with Bansal’s contention, however, and will affirm his felony conviction. Bansal was convicted of conspiring to distribute misbranded prescription dru gs, in violation of 21
U.S.C. § 331(a). This offense is a felony if committed “with
the intent to defraud or mislead

. ” Id. § 333(a)(2). Bansal co ntends that the government failed to produce evidence sufficient to su pport the jury’s finding that he committed the o ffense with intent to defraud. He is wrong. The jury received evidence that Bansal was aware that he was distributing m isbranded controlled substances that ordinarily would require a prescription

, see Supp. A pp. 00 197, 00 911, 0 1277

- 0 1278, and
that he had commented that his customers’ lack of presc ri ptions was cause for concern

, see Supp. App. 00 911 . Yet he continued to represent falsely to customers that either no pr escriptions were necessary or that his busin ess would provide prescriptions

, see Supp. App. 0 1277 , and he continued to di stribute controlled substances to customers after making such

assurances, see Supp. App. 0 1280. From this evidence

, the jury could have concluded that Bansal ’s misrepresentations of customers’ liability evidenced an inten t to fraudulently induce them into making prescription

- less purchases. That concl usion, based upon permissible inferences from evidence the jury received, is sufficient to support its finding that he distr ibuted mi sbranded medication with intent to defraud.

D.59 Bansal contends that various items of evidence were admitted against him in violation of the Sixth Amendment’s
Confrontation Clause or in violation of the Federal Rules of Evidence. We disagree and will affi rm each of the District Court’s rulings.

“We review the District Court’s decisions as to the admissibility of ev idence for abuse of discretion. ” United
States v. Serafini , 233 F.3d 758, 768 n.14 (3d Cir. 2000) (ci ting United States v. Pelullo , 964 F.2d 1 93, 199 (3d Cir. 1992)). “ T o the extent that these rulings were based on an i nterpretation of the Federal Rules of Evidence, however, our review is plenary.” Id.

1.

During Bansal’s trial, the District Court permitted records kept by domestic and foreign business es to be admi tted

, subject to authentication by dec larations of record cust odians pursuant to Rule 803(6) Federal Rule of Evidence and
18 U.S.C. § 3505(a)(1) . Bansal claims first that these record s contained testimonial hearsay and their admission violated his Sixth Amendment right to confrontation ; and second, that

va r ious exhibits lacked foundation to qualify as business
records. We disagree on both points

.

Rule 803(6) creates a hearsay exception for business
records that : “(1) Were made at or ne ar the time of the event the record describes; (2) Were made by a person with kno wledge of the record’s contents; (3) Were kept in the regular
course of business. ”60 Rule 803(6) further provides that the above prerequisites may be established by the testimo ny of a record custodian, either in person or by sworn declaration. Finally, § 3505(a)(1) pr ovides that “foreign records of regularly conducted activity” (e.g., records kept by entities overseas) may be admitted a ccording to essentially the same criteria.

First, the evidence to which Bansal claims a confront ation right were records from domestic and foreign banks, car dealerships, and other business entities . All were authent icated by sworn declarations of record custodians. See App.
00 255

- 00 384 (custodian s’ declarations). His primary conte ntion is that the records contain testimonial statements, so he had a right to confront the documents’ authors and cust odians. We disagree, first

, because the Supreme Court has i ndicated that business records are almost n ever “testimonial” for Confrontation Clauses purposes, see Melendez

- Diaz v. Massachusetts , 129 S. Ct. 2527, 2539

- 2540 (2009) (“Business and public records are generally admissible absent confront ation

. . . . ”), and because the statements in the records he re were made for the purpose o f documenting business activity, like car sales and account balances, and not for providing ev idence to law enforcement or a jury.

Next, Bansal claims that certain excel spreadsheets
that were attached to emails to and from h is coconspirators
should not have been admitted as business records. Bansal is correct that these spreadsheets do not qualify as business records. But they were n ot admitted as business records; they were admitted as coconspirator statements i n furtherance of the conspiracy and as admissions of party opponents. See Supp. App. 00 128

- 00 190. Their admission on these grounds

was proper.61 Bansal claims that all of the government’s bank check
and wire

- transfer exhibits were improperly admitted as bus iness records , even though the trial court sustained his obje ction to their admission. But the objection that the trial judge
sustained was to the admi ssion of one particular record

— not

to every bank and wire transfer document. See Supp. App.
00 298. The portions of tha t record to which Bansal objected
were redacted. See Supp. App. 00 298

- 00 299. The remaining
bank and wire transf er records to which Bansal now contends he objected were admissible business records.

Ban s al also contends that IRS Special Agent Carp was
incom petent to testify about domestic and international wire transfers in general. But Special Agent Carp testified about his personal examination of the bank and wire transfer

recor ds actually introduced at trial; his testimony did not turn on pontification ab out wire transfers in general. See Supp. App. 2793. Although there was some general discussion of wire transfers, that discussion came after general testimony
about wire transfers from a fraud investigator, who was co mpetent to render it. See Supp. App. 14 37

- 1440. Special Agent Carp’s testimony was admissible personal knowledge under
Federal Rule of Evidence 602.

2.

The District Court admitted into evidence screenshots of Bansal’s website, which included information about his online pharmacy operation. Ba nsal contends that these screenshots were not properly authenticated. We disagree. Rule 901(b)(1) requires that before evidence is admitted

, its proponent must produce evidence “sufficient to support a62 finding that it is what it purports to be.” Testimony of a wi tness with personal knowledge is sufficient. Id. In this case, the government obtained the screenshot images from a co mpany called the Internet Archive, which runs a web site called

t he Wayback Machine. The Wayback Machine seeks to cat alog ue all webs ites on the internet and currently has a database spanning more than a decade. To authenticate that the scree ns hot was what it purported to be, the government called a witness to testify about how th e Wayback Machine website
works and how reliable its cont ents are. The witness also compared the screenshots with previously authenticated and admitted images from Bansal’s website and concluded, based upon her personal knowledge, that the screenshots were a uthentic. This was evidence “sufficient to support a fi nding”
that the screenshots were “what they purport[ed] to be,” re ndering them admissible under Rule 901(b)(1). Accordingly,
we will affirm the District Court.

3.

Bansal contends that the District Court abused its di scretion in admitting two summary exhi bits, each of which

was based upon spreadsheets and invoices that Bansal’s o rganization had sent to various website operators. We find no
abuse of discre tion. Rule 1006 permits parties to use charts or
other exhibits to summarize voluminous materials if a su mmary would be helpful to the jury. Decisions in this conne ction are committed to the sound discretion of the trial court

, which in this context is very broad

. See Pritchard v. Liggett & Myers Tobacco Co. , 295 F.2d 292, 299 (3d Cir. 1961) (“[T] he
use of a summary is a matter that rests within the sound di scretion of the trial court.”). Bansal objects first to Exhibit 837, which was a summary of the entire collection of invoices that63 an analyst for the National Drug Intelligence Center had co llected from w ebsite operators working with Bansal’s oper ation. He also objects to Exhibit 838, which contained the
same information as Exhibit 837 but included a column ide ntifying what percentage of each website operator’s revenues represented controlled substance sal es. Both Exhibits were derived entirely from other exhibits that had been authent icated and admitt ed without objection by Bansal. Given the volume of documents each Exhibit summarized, we have no difficulty holding that the trial court was within its discr etion when it concluded that summaries would be helpful to the jury. We will therefore affirm its decision to admit the Exh ibits. 8

E.

Bansal’s appeal raises numerous issues pertaining to the jury instructions. His various contentions are iterations of

a single theme: that the District Court made statements that implicitly directed a verdict for the prosecution. This conte ntion has no merit. We will affirm the District Court on all points.

8 Bansal also makes a number of other challenges to the Di strict Court’s decisions to admit evidence, including conte ntions that it should not have admitted evidence of DEA and FDA guidelines pertaining to online sales of controlled su bstances, and that Summary Exhibit 1016

— which was admi tted under Rule 611(a)

— should have been excluded because it did not qualify for admission under Rule 1006. Simply put,
these contentions are meritless. We are content to affirm the
District Court’s decis ions for the reasons it has stated on the
record.64 Bansal did not object to the jury instructions at his tr ial

— conseq uently, we review his claim for plain error only.
Albertson , 6 45 F.3d at 196; c f. Henderson v. Kibbe , 431 U.S. 145, 154 (1977) (“It is the rare case in which an improper i nstruction will justify reversal of a criminal conviction when no objection has been made in the trial court.”).

Bansal contends

, first

, that when instructing on Count
One , the District Court erred in stating, “You are instructed as a matter of law that [each of the drugs listed in the indic tment] are controlled substances.” Supp. App. 0 3 377

. In Ba nsal’s view, this statement usurped the jury’s role as fact

- finder because it instructed a finding of fact on a material element of
a crime. Contrary to Bansal’s contention, however, each drug alleged in the indictment was a controlled substance, as a

ma t ter of law. Each substance is listed in Schedule II, III, or IV of the Controlled Substances Act, and the indictment d efined the substances it listed as “controlled substances” within the meaning of that Act. There was no plain error.

Bansal also contends that the District Court erroneou sly defined “business enterprises involving narcotics ” when charging the jury as to money laundering. The District Court, which essentially read the elements of the definition from 18
U.S.C. § 1852, committed no pl ain error.

Bansal contends that the District Court “ implicitly i nstructed the defendant’s guilt in several other jury instru ctions.” Bansal Br. at 160. In particular, he points to the Di strict Court’s cautionary instruction regarding cooperating
witnesses

, see Supp. App. 0 3368

- 0 3369 (“I also caution you that you have heard testimony from persons having pled65 guilty to charges arising o ut of similar facts of the case

. ” ), and
its instruction to consider whether witnesses who have pleaded guilty have an incent ive to lie, see id

. We disagree
with Bansal. N either of these statements “ instructs ” the jury to find for the government, and similar statements have been approved by this Court. See United States v. Universal R ehab. Servs. (PA), Inc. , 205 F.3d 657, 667 (3 d Cir. 2000) (en banc).

Bansal contends that the District Court lowered the government’s burden of proof by instructing jurors to “seek
the truth” in B ansal’s case. Bansal ignores , however, the
Court’s voluminous instructions as to what constitutes re ason able doubt

, see Supp. App. 00 432

, the role of the jury in
fact

- finding, see id. at 00 430, 00 445, and which party to a criminal prosecution carries the burden of proof, see id. at 00 430

- 00 431. Given all of these instructions, we have difficulty understandin g how the trial judge committed plain error by also telling jurors to “seek the truth.”

Bansal also contends that the District Court ’s “willful blindness” instruction regarding deliberate indifference l owered the government’s burden of proof. He contends first
that the instruction should not have been given at all because it was not warranted by the evidence at trial. W e disagree. Bansal’s staunch denial of his knowledge of criminal activity in the face of overwhelming contrary evidence strongly su ggests t hat he closed his eyes to what would otherwise have
been obvious to him. He next contends that the District Court failed to identify which facts proved willful blindness. This contention misses the point because precise identification of the facts supporti ng the charge was exactly the decision the jury was being charged to make. Bansal also contends that the66 Court failed to emphasize the subjectiv e nature of willful
blindness. A gain, we disagree, because although the jury i nstruction did not use the word “s ubjective

, ” it focused entirely upon how to determine a person’s state of m ind. S ee Supp. App. 0 3373

- 03374

.

Finally, Bansal conte nds that the District Court mis i nstructed the jur y on the elements of conspiracy and on the i ntent element of felony misbrandi ng. He is wrong. The Di strict Court’s conspiracy instruction, which it set forth in great detail, see Supp. App. 00 449, 00 473

- 00 475, and summarized as “an agreement or a mutual understanding knowingly made or knowingly entered into by two or more people t o commit a crime by some joint or common plan or course of action,” Supp. App. 00 453, properly set forth the essential elements of conspiracy, which are : (1) a mutual agreement or understan ding

, (2) knowingly entered by the defendant , with (3) an i ntent to jointly commit a crime. See Third Circuit Model Jury Instruction 6.18.371A. Similarly, the District Court’s instru ction on the intent element of felony misbranding was proper. It stated that the jury “must also determine whether [Bansal]
acted with intent to defraud and mislead in connection with the conspiracy to introduce drugs into interstate commerce,” and then explained what type of evidence the jury could use to infer intent. Supp. App. 00 470

- 00 471. We are satisfied that
the se instruction s , to which Bansal did no t object at trial

,
were not plain error.

F.

Bansal’s final category of contentions focuses on a lleged prosecutorial misconduct and Brady violations, which67 he contends warrant a new trial. The District Court cons idered and rejected these clai ms. We will affirm.

1.

Ordinarily, we review for abuse of discretion a district
court’s denial of a motion for new trial made on the basis of newly discovered evidence. See United States v. Pelullo , 14 F.3d 881, 886 (3d Cir. 1994) (citation omitted) . A B rady claim, however, presents questions of law and fact. Acco rdingly, we conduct a de novo review of the District Court’s
conclusions of law and we review its findings of fact for clear

error

. See i d

.

Bansal contends that the District Court should have

gr a nted his motion for a new trial because prosecutors wit hheld exculpatory evidence in violation of Brady v. Maryland

, 373 U.S. 83 (1963) . We disagree

. Under Brady and Federal Rule of Criminal Procedure 16, the government must disclose
evidence that is (1) materia l to either guilt or punishment and (2) favorable to the accused. See United States v. Bagley , 473 U.S. 667, 674 (1985). A Brady violation occurs if the go vernment does not turn over such ev idence and its failure to do so causes prejudice to the def endant. See Strickler v. Greene

, 527 U.S. 263, 281

- 28 2 (1999). Importantly, our “prejudice” inquiry turns not on whether the defendant would have r eceived a different verdict had the evidence been produced, but upon “whether in its absence he received a fa ir trial, under stood as a trial resulting in a verdict worthy of confidence.” Id.

at 289

- 290.

Bansal calls to our attention several alleged violations
of the Brady rule. He contends that prosecutors should have68 produced c ertain intercepted phone calls

, e mails, an indic tment filed against his coconspirators in New York , proffer statements from one of his coconspirators, and impeachment evidence against one of his coconspirators. The District Court held a hearing, after which it determined that all of the a bove

described evidence either (1) had been produced, (2) had not been requested by Bansal even though he was aware of it, (3) was in Bansal’s (and not the government’s) possession, or (4)

was not in any way favorab le to Bansal. These conclusions,
which ar e findings of fact, support the District Court’s denial
of Bansal’s motion for a new trial. E ven if Bansal were co rrect and the District Court reached each of these factual fin dings in error

, we remain convinced that Bansal received “a fair trial, understo od as a trial resulting in a verdict worthy of
confidence.” Id. at 289

- 290. For those reasons, we will affirm
the District Court.

2.

Bansal moved in the District Court for a new trial on the ground that the government had intruded into the defense camp b y intercepting telephone calls he made while incarc erated in a federal detention center. The District Court denied the motion, and we will affirm.

We review for abuse of discretion a District Court’s
denial of a motion for a new trial. See Hook v. Ernst & Young , 28 F.3d 366, 370 (3d Cir. 1994).

After Bansal was arrested, the government advised
him that all telephone calls to and from the federal detention

center where he was to be held would be monitored and re corded. And that is exactly what happened . Ba nsal contends69 that certain calls between him and his attorney were priv ileged communications that the gove rnment was not entitled to
hear . The District Court conducted a hearing on th is issue, at which a Postal Inspector

— who was not involved in the pro secu tion

— testified that he screened all of Bansal’s calls and personally verified that (1) no privileged communication b etween Bansal and his attorney was intercepted, and (2) none of the taped conversations were ever distributed to the pros ecutors or agents i nvolved with Bansal’s case. Based on this evidence, which was uncontroverted , the District Court ruled
that prosecutors did not access any privileged information

, and denied Bansal’s motion for a new trial. Its conclusion will
be affirmed. 9

V III

.

We have considered all of the contentions made by the parties and we conclude no further discussion is necessary.
We will AFFIRM the orders and decisions of the District Court in all respects.

9 Bansal also challenges, for the first time, certain allegedly prejudicial prosecutorial statements made at trial, a claim we review for plain error because this issue was not raised in the
District Court. See Albertson , 645 F.3d at 196. These conte ntions are so baseless

— several of the allegedly prejudicial statements actually were recitations of the jury instructions that Bansal had already approved, see Supp. App. 03592

- 03593

— that we will not restate them here. The District Court considered and rejected each of these issues in its denial of
Bansal’s motion for a new trial and we are content that there was no error, much less plain error, in its conclusions.