### FILED U.S. COURT OF APPEALS ELEV ENTH CIRCU IT JUNE 12, 2003 THOMAS K.KAHN CLERK [PUBL ISH] IN THE UNITED STATES COURT OF APPEALS FOR TH E ELEV ENTH C IRCUIT

________________________ Nos. 00-13180 & 00-14012

________________________ D. C. Doc

ket No . 99- 08063- CR-JLK UNITED S TATES OF AMERICA , Plaintiff-Appellee,

versus JOHN ROB ERT HASS ON, a.k.a. Heloneti Galera, a.k.a. J ack Hasson, Defen dant-A ppellant.

________________________ Appeals from the United States District Court for the Southern Dis

trict of Florida

_________________________ (June 12, 2003)

Before EDMOND SON, Chief Judge, ANDERSON , Circuit Judge, and POGUE*, Judge.

___________________ *Honorable Donald C. Pogue, United States Judge for the United States Court of International Trade, sitting by desig nation.2

ANDE RSON, Circuit Judge: This case comes to us on direct appeal from a cri minal conviction, forfei ture, and sentencing. Defendant-appellant J ohn Robert Hasson ("Hasson") was convicted of conspiracy to commit wire fraud, wire f raud, conspiracy to launder money, and conspir

acy to obstr

uct justice. Hasson was sent enced to 480 months impriso nment, o rdered to forfeit sev eral prop erties, and ordered to pay res titution. On appeal, Hasson challenges the sufficie ncy of the evidence to demonstrate wire fraud, conspi

racy to commit

wire fraud, and c onspiracy t o launder money, a

nd the legality of t

he restitution and forfeiture ordered against him. For the r easons stated below, we hold that

the convict

ions and sente

nce imposed should be

affirmed.

I. B ACKGROUND A. Factual Background Between 1981 and 1998, Hasson owned and opera ted an upscal e jewelry and gift store in North Palm B each, Flo rida. His store cater ed to the P alm Bea ch area's wealthy and famous r

esidents a

nd visitors . His customers frequently

spent thousands or hundreds

of thousands of dollars on fine gems and jewelry. Not all of his customers, however, got what they bargained for. Hasson sold sever al customers gems,jewelry, a nd decorative

pieces tha

t faile d to match the de scriptions1 The government stipulated before trial that the conspiracy be gan in 1988.

2 A synthetic s

tone is man-made.

A synthetic r

uby is, chemi

cally, a ru by, but it is not natural. A simulant is a stone that is chemically different from, but visually similar to, another gem. Cub

ic zirconium, for e

xample, is a diamond s

imulant. 3 he gave . Hasso n frequ ently sup ported h is represe ntations w ith false ap praisals prepared by himself or by a co-conspirator fa lsely represented t

o have been indepen dent. H asson als o misrep resented his ow n creden tials to give weigh t to those appraisals and sometimes provided forged apprai sals purporting to have been prepared by third parties. B. Procedural History On May 24, 1999, Hasson was charged by supe rseding indictment with one count of conspir

acy to commit mai

l and wire fraud i

n violation of 18 U.S.C. § 371, four counts of wire

fraud in violation of 18 U.S.C. § 1343, two counts of mail

fraud in violatio n of 18 U.S.C . § 1341 , one cou nt of con spiracy to launder money in violation of 18 U .S.C. § 1 956(h ), and on e count o f consp iracy to ob struct justic e in violation of 18 U.S.C. § 371. Hasson and hi s confederat es were alle ged to have conspired from 1984 1 through 1999 to devis e a scheme "to e nrich themsel

ves by defrauding dia

mond, jewelry and c ollecti bles purchase

rs of their

funds" by means of misrepresenting Hasson's credenti als; misrepresenti ng the various characterist ics of items s old; pro viding f alse and f orged a ppraisals ; misrepr esenting Hasso n's cliente le; billing for fi ctitious services ; substit uting flawed,synthetic, or simula nt 23 At trial, the government introduced evidence of other uses of the wires and uses

of the mails and pr

ivate or commerc

ial interstate ca

rriers that wer

e not charged a

s separate substantive counts in the indictment. For example, Hasson and co-conspirators would order gems and sy

nthetics from out-

of-state supplier

s by phone, in

tending to fraud

ulently res

ell those gems, and delivery of those stones to Hasson's store were by mail or by commercial carr ier. (On September 13, 1994, the mail fraud statute was amended to criminalize the use of private or commercial interstate carriers for the purpose of executing a scheme to defra ud. Pub. L. No. 103-322, Title XXV, § 250006, 108 Stat. 1796, 2087 (1994).) 4 stones for more va

luable gems; creating f

alse scena

rios to induc e purchases; and covering up the scheme by blaming employees and settli ng fraud claims under confidenti ality a

greements. Four i

nterstat e wire transmi ssions and two uses of the mails provide d the bases for the substant

ive counts of mai

l and wire fraud,

though one count of wire fr

aud was dropped. 3 The charged object

of the conspir

acy to launde

r money, all eged to exist from 1995 to 1999, w as to laun der the p roceeds of the m ail and w ire fraud by enga ging in financial transact ions with such proc eeds with the pur pose of promoting mail and wire fraud and with t

he purpose of concea

ling the sour

ce, locat ion, or ownership of proceeds of mail and wire fraud in violation of 18 U.S.C. § 1956(a)(1)(A)(i), (a)(1)(B)(i), and (a)(2) (B)(i) and by enga ging in financ ial tra

nsactions of

$10,000 or more with the proce eds of mail and wir e fraud in violation of 18 U.S.C. §1957. The charged object ofthe cons piracy to o bstruct ju stice was to conce al Hasso n's and h is co-conspirat

ors' invol vement in mail

and wire fraud and money laundering by witness tamperin g in viola tion of 1 8 U.S .C. § 15 12(b) a nd obs tructing ju stice in5

violation of 18 U.S.C. § 1503. Following a seven-week t rial, t he jury ret

urned a guilt

y verdict c onvicting Hasson of conspiracy to commit wire fraud, three counts of wire fraud,conspiracy to launder money,

and conspiracy

to obstruct

justice . The jury found t hat the objects of t

he conspiracy

to launder money were violations of 18 U.S.C. §§ 1956(a)(1)(A)(i)

(promotion of unla

wful activi

ty), (a) (1)(B)(i) (c oncealment of unlawful acti

vity), a nd 1957 (transact

ion involving more

than $10,000 in unlawful proceeds). The jury found that the object of the conspiracy to obstruct justice was a violation of 18 U.S.C. § 1503. Followi ng the t rial , a cr imina l forf eitu re proc eedin

g was held under 1 8 U.S.C. § 982. The jury found t hat $40 million in cash, t he contents of

seven bank and brokerage account

s, and two parcel s of real estate in J upiter, Florida, and Breckenridge,Colorado, were invol ved in or trac eable to prope rty involve d in the conspiracy t

o launder procee ds of mail and wire fraud. The propert

ies were thus ordered forfei

ted. Following a

sentencing he aring, Hasson was se ntenced to 480 months i mprisonment a

nd order ed to pa y $78,4 08,691 i

n rest itut ion to four vi ctims unde r 18 U.S. C. § 3663 A. We now turn to Hasson's challenges to hi s convictions, forfei ture order,and sentence. He argues that t he evidence i s insuffic ient to prove wire fraud or4 Hasson raises va rious other chall

enges to his conv

ictions, including

a challenge to the sufficiency

of the evidence

to prove a conspir

acy to obstr

uct justice in viola

tion of 18 U.S.C. § 1503. Evidence introduced at trial that Hasson and a co-conspirator suborned perjured gra nd jury testimony and that Hasson submitted false documents in response to a g rand jury subpoena is sufficient to support this conviction. We have carefully reviewed the remaining c hallenges and, finding them without merit, reject them without further discussion. 6 conspiracy to commit wire fraud, that the evidence is insufficient to prove a conspir acy to laun der mo ney, that th e restitution ordered against h im fails to account for amounts paid victims in ci vil settle ments, and that the forfei ture order and restitution are excessive fines. 4

II. SUFFICI

ENCY OF THE EVIDENCE The sufficie

ncy of the evi dence to support a convicti on is reviewed de novo . United States v. Miles , 290 F .3d 134 1, 1355 (11th C ir.), cert. denied , ___ U.S. ___, 123 S.Ct. 707 (2002). The r ecord is vie

wed in the light

most favorable

to the verdict, d rawing all reason able infer ences an d resolv ing all qu estions o f credibility in favor of the government. Viewed in such a light, the ver dict will be affir

med if a reasonable j uror could concl ude that the

evidence est

ablishes gui

lt beyond a

reasona ble dou bt. Id. We revie w de novo questions regarding the legality of a restitution order. United States v. Cobbs , 967 F .2d 155 5, 1556 (11th C ir. 1992 ). We rev iew factu al finding s under lying a res titution or der for c lear error

. United States v. V aghela , 169 F .3d 729 , 736 n.6 (11th C ir. 1999 ). We re view th e legality5

"Whoever, havin

g devised or inte

nding to devise a

ny scheme o

r artifice to defraud . . . tra

nsmits or causes to b

e transmitted by

means of wire . . .

in interstate or foreign commerce, any . . . signa ls . . . for the purpose of executing such scheme or artifice, shall be fined . . . or imprisoned . . . or both." 18 U.S.C. § 1343 (2000). 7 of the forfeiture order de novo and the jury' s factual findings for t

he suffici ency of the evide nce. See United States v. Goldin Ind us. , 219 F.3d 1271, 1278 (11th Cir. 2000) (reviewing RICO forfeiture for sufficiency of the evidence)

. A. Sufficie ncy of th e Evide nce to P rove W ire Frau d and th e Cons piracy to Commit Wire Fraud The elements of wire fraud under 18 U.S.C. § 1343 are (1) intentional participati on in a scheme to defraud and (2) use of the interst ate wires in furtherance of the sch eme. United States v. Ross , 131 F.3d 970, 984 (11th Cir. 1997). 5 To "cause" th e interstate w ires to be u sed, the u se of the w ires need not be ac tually intended ; it need on ly be reaso nably fo reseeable

. Id. at 985. The elements of a

conspiracy unde

r 18 U.S.C. § 371 are (1) a n agreement among two or more persons to a chieve an unla

wful objecti

ve; (2) knowing and volunta ry particip ation in th e agreem ent; and ( 3) an ov ert act by a c onspira tor in furthera nce of th e agreem ent. United States v. Adkinson , 158 F.3d 1147, 11536

"If two or more persons conspire . . . to commit any of fense against the United States . . . in any manner or for any pur pose and one or more of such persons do any act to effect the object of the conspiracy , each shall be fined . . . or imprisoned . . . or both." 18 U.S.C. § 371 (2000). 8 (11th Cir. 1998). 6 To prove a conspirac y to commit wire f

raud, the gover

nment need not demonstrate an agreement specifically to use the i nterstate wires t

o further the scheme to de fraud; it is enough to prove t

hat the defe

ndant knowingly and voluntaril

y agreed to par

ticipat e in a scheme t

o defraud and that

the use of the interstate w ires in fur therance of the sch eme w as reason ably fore seeable. Ross , 131 F.3d at 9 81; United States v. S mith , 934 F.2d 270, 275 (11th Cir. 1991). Hasso n challen ges his co nviction s for w ire fraud and con spiracy to comm it wire fraud on the same bases. First, he ar gues that the government did not prove a scheme to defrau d becau se the mis represen tations he made, if a ny, pertain ed solely to the market

values of the

items sold,

which, he clai

ms, were easil

y verifia ble or were otherwise easily dis cernible t o a person of ordina

ry prudence. Sec ond, he argues th at the gov ernmen t did not p rove the use of th e interstate w ires in furtherance of the scheme to defraud because t he uses of the wires were unforeseeabl e and were made to make pay ments for it

ems with regard t

o which no material misrepresent

ations were made. 1. Scheme or artifice to def raud7 The "scheme o r artifice t o defraud" an d "for the pu rpose of ex ecuting" lan guage

in the mail and wire fraud statutes are construed identically. Pelletier v. Zweifel , 921 F.2d 1465, 1498 (11th Cir. 1991). 9 A scheme to defraud re quires proof of mat erial mis representa

tions, or t

he omissio n or con cealmen t of mater ial facts, Neder v. United States , 527 U.S. 1, 25, 119 S.Ct. 1827, 1841 (1999), reasonably calculated to deceive persons of ordinary pruden ce, Unit

ed St ate s v. Brown , 79 F.3d 1550, 1557 (11th Ci r. 1996) (const

ruing the mail fraud statut

e). 7 That is, not all misr epresentations or omissions const itute a scheme to defraud; the misrepresen tation or omission must be material and it must be one on which a person of ordinary prudence would rely. A material misrepresent

ation is one

having a natura

l tendency t

o influence,

or capable of influenc ing, the d ecision m aker to w hom it is a ddresse d. Neder , 527 U.S. at 16, 119 S.Ct. at 1 837. A person of ordin ary prud ence w ould no t rely on all misrepresent

ations. Puff

ery, for exa

mple, is not

part of a sche

me to defraud because a pers on of ordinary prude nce would not rely

on it; nor would a pe

rson of ordinar y prude nce eng aged in a n arm's- length p urchase rely on th e seller's representa

tions regar

ding the market

value of the pr

operty when the marke

t value can be, an d shou ld be, easily verified b y consu lting othe r source s. Brown , 79 F.3d at 1559. The record in thi s case is r eplete wit

h evidence of mat

erial mis representa

tions8 The following is a brief, and incomp

lete, summary

. In a diamond b

roach sold to Greg Norman, Hasson misrepresented 11 diamonds irradiated to enhance their color as na tural stones. In a sale to John Campbell, Hasson misrepresented a 24.89-carat y ellow diamond with a color grade of U to V and clarity gra de of VS1 as an internally flawless fancy intense yellow diamond. Hasson sold Lawrence Dixon several ivory ca rvings by misrepresenting their history and provenance. Hasson sold James Cunningham two diamonds, misrepresenting a 29.85-carat fancy light yellow diamond with a cla rity grade of VS2 as an internally flawless 30.16-carat fancy intense yellow diamond and misrepr esenting a 13.16-carat diamond with a color grade of X to Y and clarity grade of VS1 as an internally flawless 14.02-carat fancy intense y ellow diamond. In sales to Aben and Joan Johnson, Hasson misrepresented the type of ge ms or stones in 314 items and the history and provenance of at least 80 items and gems. He also tre ated 53 stones sold to the Johnsons as natural and induced them to purchase hundreds of stones by misrepresenting the interest of certain buyers in purchasing the Johnsons' gem and jewelry collection. Most of

these items were

misrepresented

in multiple charac

teristics. 10 regardin g the ph ysical and objective character istics of the gems an d jewelr y sold. The government established that Hasson repeatedly misrepresented the carat weight, color

grading, and clarity gra ding of gems; misr

epresented s emi-precious gems, synthetic gems, or si mulants as natural gems and diamonds; misrepresent ed stones that had been color- or cla rity-treat ed as natural stones; and misr epresented the histor

y or provenance of i

tems sold. The hundr

eds of misrepre sentati ons made over the life of the conspira cy are too numerous to catalogue here. 8 Hasso n's condu ct simply c annot b e analog ized to the mere m isreprese ntation o f accessib le market values

which, as we held i

n Brown , could n ot be reas onably c alculated to induce purchase

by a person of ordi

nary prudence. These repeate d affirmati ve misrepr esentation s of phy sical chara cteristics ofthe items a lso defea ts Hasso n's reliance on Langford v. Rite-Aid of Ala. , 231 F .3d 130 8 (11th Cir. 200 0) (retail seller's fai

lure to disclose i

ts pricing practi ces to customers is not a material11

omission that can support mail or wire fraud liability)

. There was also ample

testimony r

egarding the s

pecial t raining and equi

pment required to e

valuate t he physical

qualiti es of fine gems a nd jewelry from which t he jury cou ld reason ably con clude tha t the misre presenta tions w ere not ea sily verifiable by the person of ordinary pru dence. Furthermore, H asson prepared false appraisals and arranged for fals e appraisals prepared by co-conspira tor posing as an independent appraiser, creating the impression that his represen tations were independently verified and making it unlikely that a pers on of ordinary prudence would in vest t he ti me and ex

pense t o obtai n second or thi

rd eval uati ons of t

he it ems purcha sed. Cf. Brown , 79 F.3d at 1558 n.13 (considering f actors inf

luencing the decision of a

person of ordinar

y prudence to i

nvest resourc es in independe nt investigation). 2. Use of the Wires i

n Furtherance of t

he Scheme to Defraud A scheme to defraud i s not, by it self, a f ederal cri me. To support the convictio ns for w ire fraud , the gov ernmen t must pr ove no t only a sch eme to defraud , but mu st also pro ve that the interstate w ires wer e know ingly use d in furthera nce of th e schem e or that su ch use w as reason ably fore seeable. Ross , 131 F.3d at 984-85. In t

his case,Hasson was convicted of three subst

antive counts of wire fra ud. Th e interstate w ires wh ich wer e the sub ject of the s ubstantiv e counts12

were three wire t

ransfers made by

Aben Johnson, the pri

ncipal vic

tim of the scheme, from his M ichigan bank account to H asson's Florida bank accoun t. These wire transfe

rs took place

on March 6, 1995, for $300,000;May 14, 1996, for $287,500; and July

11, 1996, for $290,000. a. Foreseeabilit

y of the Use of the Wires An essential

element of t

he scheme to defr

aud in Ross involved est ablishing a shell corpor

ation in Flor

ida to purchas e a piece of r eal esta te from a Missis sippi corporation. We held that it was reasonabl y foreseeable that corr

espondence necessary t

o effectuat

e the purchase

would be sent over t

he wires from the Mississippi office of the selling corporation's chief counsel to the consp irators' attorney in Florida

. Ross , 131 F.3d at 985. We thin k that the w ire transfe rs in this ca se were also reaso nably fo reseeable

. Mr. and Mrs. Johnson mainta ined homes in both Florida and Michigan dur ing the time when they purc

hased gems and jewel

ry from Hasson and, as

was clear from many o f the chec ks writte n by the J ohnso ns, main tained ou t-of-state b ank acco unts. It was foresee able that

these cust

omers would at some point make use of the interst ate wires t

o transfer large sums of money to c omplete some of t heir many expens ive purc hases. Accord Ross , 131 F.3d at 985. b. For t he Purpos e of Exec

uting the Scheme13

We now turn to the question of whether these wire transfe

rs were "cause[ d] to be transmi

tted . . . for the purpos e of executi ng" the scheme t

o defraud. 18 U.S.C. § 1343 . Hasson contends that the w ire transfers were made to purch ase items with re gard to which no mater ial misre presentat ions were made. Beca

use the underlying sa

les were legi

timate,Hasson argues, t hese wire tra

nsfers were not caused "for t

he purpose of execut

ing" the sche

me to defraud. To violate the wire fraud statut e, it is not nece ssary that the t ransmitted inform ation inclu de any m isreprese ntation. Schmuck v. United States , 489 U.S. 705, 71 5, 109 S . Ct. 144 3, 1450 (1989 ) (constr uing m ail fraud s tatute). The tra nsmi ssion itself need

not be e sse nti al t o th e succe ss o f the scheme to defr aud . An interst ate wire tr

ansmission i s "for the purpos e of executi ng" the scheme t

o defraud if it is "incident to an essential part of the scheme" or "a step in the plot." Id. at 710-11, 109 S.Ct. at 1447-48 (citations omitt ed). The March 6, 1995, wire tr ansfer was for t

he purchase of t

wo items, one of which was represen ted to the Johnsons as a diamon d ring featuring a flawless 22.11-carat diamond with a color grade of D. These representations were supported with an apprais al prepared by a co-conspira

tor and provided by

Hasson. This ring in fact fe atured an 11.37- carat dia mond with a clari

ty grade VS2 and a color grade L to M. Several physical characteri stics of this ri ng were misrepresented - the carat14

weigh t, clarity, and color gr ade of th e diamo nd. W e think th e jury cou ld reason ably have concluded that these misrepresen tations were material and that the purchase was fraudulentl

y induced. This

wire transfe

r was an interstate tr

ansmission over

the wires caused for

the purpose of exe cuting the s cheme to defraud. The May 14 and July 11, 1996, wire transfers were made to purchase a diamond necklace

and pin. Hasson originally s old these pi eces of jewel ry to the Johnsons on July 21,1990, for $370,000. Hass on bought the two piec es back on Decem ber 7, 19 94, as pa rt of a rep urchase of five item s he had sold the J ohnso ns. Hasso n later ind uced the Johnso ns to rep urchase these tw o pieces, f alsely representi

ng that a pote

ntial buye

r of the Johnsons'

gem and jewelry col

lection, the Sultan o f Brun ei, was in terested in comple ting this v ery subs tantial pur chase on ly if the se i tem s wer e inclu ded in t he t ran sacti on. The J

ohns ons repurc has ed t

he t wo pieces of j ewelry for $577,500. Although Hasson is correct that the government introduced no evidence t hat the physical and objecti ve characteristics of these two pieces of jewelry were misrepr esented, th e transactio n was p art of a larg er fraud ulent sch eme, and the sale of even these t

wo pieces was speci ficall y induced by the

misrepresent

ation about the potential resal e to the Sult an. The Sultan was at

the center

of an elaborat

e con devis ed by Has son to i

nduce t he Johns ons to p

urchas e more mi srepr

esent ed it ems15

between 1995 and 1997. Hasson re presented t

hat the Sult

an was a diamond collector inte

rested in purchasing the Johnsons' j ewelry collection for a very substanti al sum of money. The con i ncluded paying c o-conspirat ors to play t

he roles of the Sultan's nephew and the nephew's entourage at a meet ing between Johnso n and th e "neph ew" he ld on H asson's p rivate jet, dis guised a s the nep hew's jet, in lat e 1995, and at a similar meeti ng held in a limousine at the Palm Beach airport in late 1996 . As a res ult of H asson's r epresen tations reg arding th e Sultan 's interest and proposed purchase price, the Johnsons spent many millions of dollars on gems to enhance t

he value of the ir colle ction to t he Sultan. Almost

all of the gems p urchase d were misrepr esented a s to their p hysical co mpositio n, carat-w eight, color grade,clarit

y grade, and/

or provenance. I

ncluded in the se purchases were the necklace and pi

n paid for by the

May 11 and July 14, 1996, wir e transfer

s. Hasson specificall

y represented that the Sult an wanted these two pieces of jewelry included in the Joh nsons' c ollection b ecause th ey had b een stolen from th e Sultan 's mothe r. Hasso n repres ented tha t the failure to includ e the jew elry was a potentia l dealbreaker. We re adi ly c onc lude that t he u se o f the wi res

to m akepay

ment for the two pieces of j ewelry whose purchase was fraudulentl

y induced was "for t

he purpose of executin g" the sch eme to d efraud. H asson's m isreprese ntations r egardin g a specif ic16

interested buyer an d the ma gnitude of that bu yer's pro posed p urchase and his misrepr esentation that the de al was d epende nt on the numb er and q uality of item s in the jewelry

collect ion, were mater

ial to t he Johnsons' dec ision to purc hase the jewelry. Unli

ke the misrepr

esentations in Brown , which related solely to market value and were easily verifi able, the misrepresent ations in the inst

ant case were part of a large sc

heme to defraud,including not only misrepre sentati ons as to value but also misrepresentations as to the physical and object ive characterist

ics of jewelry sold as part of the scheme, and misrepres entations with respect t o the potential resale t o the Sultan. The wire transfe rs were caused for

the purpose of exe cuting this scheme. The instant case is unli

ke Brown

in two additional respects . First, the nat ure of the misrepr

esentations here was such tha t they were not

easily ve

rifiabl e. Also, the Johnsons were fr

audulently

induced into be lieving t hat there was i

ndependent verificatio n, both b y the app raisals false ly represe nted to h ave been indepen dent, and by the fraudulent, elaborately-staged meetings w ith the "Sultan's nephew." A

reasona ble jury in this case co uld find that these tw o aspects of the sch eme to defraud inhibi

ted a person of or

dinary prudence

in discoveri

ng the truth,

making the Johnsons' reliance on Hasson's represent ations reasonable. The convictions

for the thre e counts of wire f raud and one count of9

"Any person who conspires to commit any of fense defined in this section or section 1957 shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy." 18 U.S.C. § 1956(h) (2000).

10 "(a)(1) Whoever, knowing that the property involved in a f inancial transaction represents the p

roceeds of some f

orm of unlawful ac

tivity, condu

cts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity-- (A)(i) with the intent to promote the carrying on of specified unlawf ul activity; or

. . . (B) knowing that the transaction is designed in whole or in part-- (i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity . . . shall be sentenced to a fine . . . or imprisonment . . . or both." 18 U.S.C. § 1956 (2000). 17 conspiracy to commit wire fraud are supported by sufficient evidence. B. Sufficiency of the Evidence to Prove the Conspiracy to Launder Money 18 U.S.C. § 1956(h) 9 makes it a fe deral cri me to conspire t

o violate a

ny provision of §§ 1956 or 1957, the federal money laundering statute s. Hasson was convicted of c onspiring to pr omote specified unlawful act ivity usi ng proceeds derived from unla

wful activi

ty and conspir

ing to conceal

proceeds deri

ved from specified unlawful activi ty in violation of § 1956(a)(1)(A)(i) and (a)(1)(B)(i), 10 and of cons piring to engage in a mon etary trans action in c riminally d erived p roperty greater than $10,000 in value and derived from unlawful acti vity in violation of §11

"Whoever . . . knowingly engages or attempts to engage in a monetary transaction in criminally derived property of a va lue greater than $10,000 and is derived from specified unlawful activity, shall be punished as provided in subsection (b)." 18 U.S.C. § 1957(a) (2000). 18 1957. 11 Mail and wire fraud c onstitut e "specified unlawful act ivity" unde

r the statutes. 18 U.S.C. § 1956(c)(7)(A) (incorporating RICO predicate offenses listed in 18 U.S.C. § 1961(1)). Hasson's primary argument that the evidence i s insufficient t o demonstrate a conspir acy to laun der mo ney relies o n his con tention th at the evid ence is insufficie nt to dem onstrate th at the laun dered fu nds w ere proc eeds of w ire fraud

. For the reasons s

tated above,

the evidence

is suffic ient to suppor

t the jury 's findi ng in this regard. Hasson also argues

that the e

vidence is i

nsufficie nt to demonstra

te his int ent to conce al the pro ceeds ofmail and wire fra ud from anyone other tha n his ex- wife. The evidence demonstrated that Hasson funneled the proceeds of mail a nd wire fraud through several accounts held under fict itious names and opened with forged docum ents, inclu ding an accoun t held in th e name o f a shell co rporatio n in the Is le of Man. Hasson lied t

o FBI investigat

ors and to an IRS agent about the nat

ure of his relation ship w ith this she ll corpor ation, w hich he o wned in fact (tho ugh no t in name). T he evide nce is clear ly sufficien t to demo nstrate H asson's a ttempts to12 Careful review of the briefs and the transcript of the oral argument revea ls that Hasson only c

hallenges the p

ortion of the forf

eiture order fo

rfeiting $20,34

6,390.51 from a particular account held in the name of Heloneti Galera, Trustee for the benefit of Peter Westbrook. 19 conceal the

source, ownershi

p, location or control of t he funds from the FBI and t he IRS. His argument furt hermore fail s to address t he jury's finding that

the conspir acy also h ad the ob jects of pr omotin g unlaw ful activity a nd of en gaging in financial transac

tions with criminally

derived property with a value greater than $10,000. The conviction f

or conspiracy

to launder money i s supported by suf ficient evidence.

III. Forfei ture and Resti

tution In addition to Hasson's 480-month prison sentence, he was ordered to pay over $78 million in restit ution to four victims of the sc heme to defraud and ordered to forfeit several ac counts and propert ies, inc luding a part

icular ac count in the amount of $20,346,390. 51. Hasson argues t hat the res

titution order is in e

rror because it fails to off set for am ounts H asson h as paid v ictims of th e schem e to defraud in ci

vil sett lements, t

hat the res

titution and forfeit

ure orders are

based on acquitte d conduct, and t hat the res

titution order and forfei ture of the $20 million 12 are unconstitutional excessive fines.13 Section 3663A(a)(2) uses language identical to that found in 18 U.S.C. §

3663(a)(2). That language was added by Pub. L. No. 101-647, 104 Stat. 4789, 4863 (1990) (amended without substantive changes by Pub. L. No. 104-132, 110 Stat. 1214, 1229 (1996) ), which supersedes our interpretation of § 3663(a) in United States v. Stone , 948 F.2d 700, 704 (11th Cir. 1991), that restitution for mail or wire fraud is limited to the specific act of fraud underlying the mailing or use of the wires for which the de fendant is convicted, rather than the entire scheme or artifice to defraud furthered by the mailing or use of the wires. See United States v. Obasohan , 73 F.3d 309, 311 (11th Cir. 1996). 20 A. Restitution Offset The restit

ution in thi s case was requi red by 18 U.S.C. § 3663A (2000), par t of the amendments t

o the Victim and Wit

ness Protect

ion Act ("VWPA"), Pub. L. No. 97-291, 96 Stat. 1248 (1982) (codifi ed as amended at 18 U.S. C. §§ 1512 et seq. , 3579 et seq. ) made

by the Manda

tory Vict ims Re sti tut ion Ac t (" MVRA"), Pu

b. L. No. 104-132, 110 Stat. 1214 (1996). Section 3663A requires a court, "when sentencing a

defendant," to order the de fendant to "make restit ution to the

victim of the offen se," § 36 63A( a)(1), w heneve r the defe ndant is c onvicted of an of fense "in which an identifiable vict im or victims has suffered a physica l injury or pecuniary loss," § 3663A(c)(1)(B). In the case of a conviction for an offense that "involves as an element a s cheme, conspir acy, or pat

tern of cri

minal acti

vity," a "victim" i s "any person directly harmed by the defendant' s conduct in the course of the scheme, conspiracy, or pattern. " § 3663A(a)(2). 13 The court is re quired to order restit ution "in the full amount of each victim's losses," § 3664(f )(1)(A). Dispute s over the

amoun t of the res titution are to be reso lved by a prepon derance of the ev idence. §14

"Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence . The burden of demonstrating the amount of loss sustained by a victim as a result of the offense shall be on the attorney for the Government. The burden of demonstrating the f inancial resources of the

defendant and th

e financial nee

ds of the defenda

nt's dependents, shall be on the defendant. The burden of demonstrating such other matters as the court deems appropriate shall be upon the party designated by the court as justice requires." 18 U.S.C. § 3664(e) (2000).

15 "Any amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim in -- (A) any Federal c ivil proce eding; and (B ) any State civi l proceedin g, to the extent provided by the law of the State." 18 U.S.C. § 3664(j)(2) (2000). 21 3664(e). 14 The probation officer prep aring the Presentence Investigation Repo rt ("PSR")

recomm ended r estitution to four vic tims of th e consp iracy and scheme to defrau d in amounts totaling $78,408,691. In response to the PSR, Hasson filed several objections , none of which conte sted the re stitut ion order. On appeal , Hasson, presumably relying on § 3664(j)(2), 15 contends that the resti tution order

is in error because it compensates three victims whom Hasson had already compensated through civil settlements without offsetting by those amo unts. Because the off

set object

ion was not rais ed below, we review thi s aspect of the restitutio n order for plain error. F ed. R. C rim. P. 5 2(b); United States v. Jones , 289 F .3d 126 0, 1265 (11th C ir.), cert. denied , ___ U .S. ___ , 123 S .Ct. 661 (2002 ).16 "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusu al pun ishm ents i nflic ted." U.S. C onst. amend . VIII. 22 We will reverse onl

y if there is (1) error, (2) that

is plain, and (3) affect

ed the defend ant's sub stantial righ ts. If these th ree cond itions are f ound, w e may rev erse if we decide the er

ror seriousl

y affects the fairne ss, integrity, or public reput

ation of the judicia l proceed ing. Id. In Jones , we held that

a sentenci

ng court does not c ommit plain er ror by relying o n factual f indings containe d in the P SR reg arding a defend ant's ability to pay resti tution when the de fendant does not introduce evidence on the is sue or object to th e PSR 's finding s in that reg ard. Id. at 1266 . Hasso n's civil settle ments occurred before

sentencing. The fact and amount of compensation paid by Hasson to victi ms pursuant to ci

vil proceedi

ngs and whether the c ompensation was for t he "same loss" are issues well within Hasson's ability t o bring to the attention of either the probati on officer or t he sentenci

ng court, yet

he failed t

o do so. We conclude that the c ourt below did not e rr by relyi

ng on the factua

l findings i

n the PSR and ordering Hasson to p ay the full amount of the victims' losses. B. Excessive Fine Hasson argues that

the forfei

ture of $20,346, 390.51 and the restitution of $77,772,881 to the Johnsons are excessive fines 16 because the jury convicted Hasso n of on ly three su bstantive wire fra ud cou nts wh ere the am ount inv olved in23

the wire transfers was $8 77,500 . Hasso n appar ently con tends tha t the amo unts involved in the conspiracy to commit wire fra ud and the conspiracy to launder money must be proven beyond a reason able dou bt and th at the gov ernmen t only proved that Hasson r

ealized $877, 500 in proceeds of wir e and mail fra

ud beyond a reasonable doubt. Because Hasson's Excessive Fines Clause chal lenge is founded on an erroneous premi se, and becaus e he does not chal lenge the cons

titutionality of the forfeiture and rest

itution orders on any other basi s, we reject this chal lenge. 1. Forfeiture Order The forfeiture in this cas e was authorized by 18 U.S.C. § 982 (2000), which requires a c ourt to order a defendant convi cted of an offe nse in viola

tion of 18 U.S.C . § 1956 to order the forfe iture of "a ny prop erty, real or person al, involv ed in such of fense, or any pro perty trace able to su ch prop erty." 18 U .S.C. § 9 82(a)(1 ). 21 U.S .C. § 85 3 gove rns the p rocedu re for or dering th e forfeitu re. 18 U .S.C. § 982(b)(1). The court inst

ructed the j ury that t

he government must prove the elements of forfeitur e under § 982(a) by a pr eponderance of t

he evidence. Hasson did not object to t

his instr uction, which hi s argument on appeal challenges . We review the instructio n for pla in error. See United States v. H all , 312 F .3d 125 0, 1259 (11th Cir. 2002) (jur

y instruct

ion reviewed for plain error when the defendant did not24

object). We conclude that the elements of fo rfeiture under 18 U.S.C . § 982(a) must be proven by a preponderance of the evidence, and therefore t his instruction was not plain error. a. Standard of Proof

at the Forfei

ture Hearing We have held that t

he elements of

forfeitur e under 21 U.S.C. § 853(a)( 1) and (a)(2) m ust be pr oven u nder the prepon derance standard

. See United States v. Dicter , 198 F .3d 128 4, 1289 -90 (11 th Cir. 19 99) (§ 8 53(a)(2 )); United States v. Elgers ma , 971 F.2d 690, 697 (11th Ci r. 1992) (en banc)

(§ 853(a)(1)). We have also said t

hat, genera

lly, cr iminal forf

eiture i s part of sent

encing where the prepon derance standard govern s. United States v. Cabeza , 258 F.3d 1256, 1257-58 (11th Cir. 2001) (

rejecti ng a challenge to criminal forfeiture under the drug stat utes based on Apprendi v. New Jersey , 530 U .S. 466 , 120 S .Ct. 234 8 (200 0)). See also Libretti v. United State s , 516 U .S. 29, 3 9, 116 S .Ct. 356 , 363 (1 995) (" Forfeitu re is an element of t

he sentence i

mposed following

conviction . . . . Our prece dents have . . . char acterized criminal

forfeitur e as an aspect

of punishment impose d following convic tion o f a subs

tant ive cr imina l offe nse." ) (dis cussi

ng appl icabi

lit y of Fed. R. Crim. P roc. 11( f) to forf eiture cou nt unde r 21 U .S.C. § 8 53). But see Goldin Indus. , 219 F .3d at 12 78 n.10 (reservin g questio n of w hether fo rfeiture u nder 18 U.S.C . § 1963(a)(1) and (a)(3) is governed by preponderance or reasonable doubt standard).25

The stan dard ofproof th at applies to a forfeitu re hearin g unde r 18 U .S.C. § 982(a) (1) is a qu estion ofstatutory c onstruc tion. Elgers ma , 971 F.2d at 694. In Elgers ma , we relied primarily on 21 U.S.C. § 853(d) as evidence of Congressional intent to require the elements of forfeiture under § 85 3(a)(1) to be proven by a prepon derance

. Id. at 694. Section 853(d) create s a rebutta ble presumpti on that the defendant's property is forf eitable when the government proves, by a preponderance of the evidenc e, that t

he property was ac quired by the de fendant during or soon after the commission of an offense that triggers the forfeit

ure provision and that "there w as no like ly source for such proper ty other th an the vio lation." 21 U.S. C . § 853(d ); Elgers

ma , 971 F .2d at 69 4. Becau se the pro perty des cribed in § 853( d) is the same type

of property as

that descr

ibed in § 853(a)( 1) ("property constitut ing, or der ive d from, any

pro cee ds o bta

ine d . . . as

the res ult of such vio lat ion "),we concluded that Congress contemplated demonstrati ng the elements of forfeiture under § 853(a) (1) by a p repond erance o f the evid ence. Elgers ma , 971 F.2d at 694. In Dicter , we concluded that nothing in § 853 evinces an intent to apply a higher s tandard of proo f to the elem ents of fo rfeiture u nder § 8 53(a)(2 ). Dicter , 198 F.3d at 1 289. W e also no ted that the introdu ctory lang uage of§ 853( a) clearly indicates th at forfeitu re unde r that pro vision is a n elemen t of senten cing. Id. The statute requires

the forfeiture to be ordered agai nst a person already convicted of a26

substance off

ense. The court

is require d to order the f orfeiture when "imposing sentence" on t

he defendant,"in addition to any other s entence impose d[.]" Noting that the pr epond erance sta ndard g enerally ap plies to sen tencing m atters, Dicter , 198 F.3d at 1289 (cit

ing United States v. Barakat , 130 F.3d 1448, 1452 (11th Cir. 1997) ), we co ncluded that Con gress inte nded th e prepo nderan ce standa rd to app ly to § 853 (a)(2), as well. Id. Our analysis i

n Dicterapplies w ith equal f orce to th e langua ge of 18 U.S.C . § 982(a)(1). The subs ection requi res an order of f

orfeiture against "a

person convicted of [a money laundering] offense." The court is required to order forfeiture "in imposing sent ence" on the defendant. This language clea rly indicates Congressional i

ntent that

forfeitur e under § 982(a)(1) i s part of the sentencing process , where the prep ondera nce stand ard gen erally app lies. See Barakat , 130 F.3d at 1 452; accord Dicter , 198 F .3d at 12 89. See also United States v. B ornfield , 145 F.3d 1123, 1138 n.12 (10th Ci r. 1998) (forfe iture under § 982 i s a sentenci ng issue). The parallels between § 982 and 21 U.S.C . § 853 are reinforced by § 982(b)(1), which provides that for feiture unde

r § 982 "shall be

governed by the provisions of" 21 U.S.C. § 853. While the presumption described in § 853(d) does not app ly to § 98 2 forfeitu res, see 18 U.S .C. § 98 2(b) (th e provis ions of 2 1 U.S .C. §17 This holding is consistent with the interpretation of 18 U.S.C. § 982 by other

circuits. See United States v. Rutgard , 116 F.3d 1270, 1293 (9th Cir. 1997) (preponderance standard gover

ns forfeitures u

nder § 982(a)(1 )); United St ates v. Voi gt , 89 F.3d 1050, 1084 (3d Cir. 1996) (same) ; United States v. Myers , 21 F.3d 826, 829 (8th Cir. 1994) (same). 27 853 govern, "other

than subsect

ion (d) of that

section") , subsection (d) did not create the preponderance standard governing § 853 forfeit ures; it is si

mply clear evidence of Congress's understanding that t he preponderance standard governs such forfeitur es. It i s perfectl

y reasonable

for Congress to adopt

the standar

d of proof under 21 U.S.C. § 853 for forf eitures unde

r 18 U.S.C. § 982(a), but not the rebuttable presumption of § 853(d). Section 982(b)'s i ncorporation of a forfeiture provision that applies a

preponderance standard is clear evidence of Congressional intent to apply the pre

ponderance standard to forfeitures under § 982(a). 17 Cf. United States

v. 1988 Chevrolet Silverado , 16 F.3d 660, 663-64 (5t h Cir. 1994) (burde n of pro of in for feiture un der 19 U .S.C. § 1 615 inc orpora ted by 18 U.S.C . § 512, which states that "[a] ll . . . procedures for summary and judicial forfeit ure applicab le to [custo ms law s] violation s [(19 U .S.C. § 1 615)] . . . sh all apply to forfeitures under this se ction"). b. Sufficiency of the Evidence The jury was properl

y instruct

ed that the

government was requir ed to prove the elements of forfeit

ure by a prepondera

nce of the evi dence. The jury returned a18 Hasson did not object to the form of the special verdict below or to the inclusion

of the properties identified therein. 28 detailed special

verdict 18 identifyin g each o f the forf eited pro perties an d accou nts (including t

he $20,346,390.51) as property t hat "consti

tutes proper

ty involved i

n the offense charged in Cou nt Eigh t of the In dictmen t and/or c onstitutes proper ty traceabl e to such propert y." Count Eight c

harged a conspir

acy to launde

r the proceeds of mail and wire fraud. The special verdi ct, then, shows that the j ury found, by a preponder

ance of the evidence, that the $20 million was involved in,or traceabl e to property

involved in,the conspira cy to launder

the proceeds of

mail and wire fraud. Property is " involved in" a money laundering t

ransacti on if the tr

ansaction involves the

proceeds of mail

or wire fraud and t

he transact

ion had the purpose

of concealing the proceeds or promoting mail or wire fraud,or involved more than $10,000 in proceeds

of mail or wire f

raud. In dete

rmining what tra

nsactions involved the proceeds of mail and wire fraud, the j ury was not restricted to t he three substantive counts of wire fraud on which it ret urned a guilty verdict. The jury was free to rec onsider evide nce of acquit

ted conduct under

the preponderanc e standard, cf. Barakat , 130 F.3d at 1452, a nd to consider e

vidence of mail

and wire frauds adduced by the gover

nment in support of

the money launder

ing count, t

hough not19 The jury verdict acquitting Hasson of the two mail fraud counts does not preclude

a fact-finder from relying on the evidence introduced in support of those counts for other purposes. As the Court noted in United States v. Watt s , there is no constitutional prohibition against relitigating acquitted conduct in a later proceeding g overned by a lower standard of proof, 519 U.S. 148, 1 56, 117 S. Ct. 633, 6 37 (1997) (p er curiam) (c iting Dowling v. United States , 493 U.S. 342, 349, 110 S.Ct. 668, 672 (1990)), and it is well-established that sentencing courts may c

onsider both uncha

rged and acqu

itted conduct in de

termining the ap

propriate sentence. Id. at 152-53, 117 S.Ct. a t 635-36. We do not me

an to imply tha

t a court could impose a forfeiture order based on a money laundering offense with which the defendant was not charged or for which he was acquitted. See 18 U.S.C. § 982(a)(1) (requiring forfeiture of property involved in or traceable to a convicted offense) . Similarly, a court could not order restitution based on an uncharged or acquitted offense. See 18 U.S.C. §§ 3663A, 3663 (providing rest

itution to victims of a

convicted offen

se for losses cau

sed by that of

fense). But, money laundering conviction in hand, the government need only prove that property was involved in or traceable to property involved in that offense by a preponderance of the evidence. 29 charged as sepa

rate subst

antive count

s of mail or wire

fraud. 19 Hasson does not challenge the suf ficiency of the evidenc e to demonstrat e, by a prepo nderan ce of the e vidence , that the $2 0 million was inv olved in , or is traceabl e to property

involved in,the money launder ing conspirac

y, and we see no defect in the government's proof. The jury had before it evidence of the three wire fraud co unts on which it convicte d and th e two m ail fraud c ounts o n whic h it acquitte d, as well as

evidence of ot

her uses of the

wires, mailings, and uses of private an d comm ercial inters tate carriers during the cour se of the c onspira cy to

comm it wire an d mail fra ud char ged in th e indictm ent. It cou ld reason ably conclude that

these mailings and wirings were proven by a prepondera nce of the evidence and t

hat they were made

or caused for t

he purpose of execut

ing the scheme to defra

ud. The jury al so had before it abundant evidenc e of the exte nsive30

scheme to defraud furthered by these various mailings and uses of the w ires. In sum, Hasson's c ontention t hat only $877,500 was de monstrated t

o be proceeds of mail and wire fraud is incorrect and, because he advances no other argument in support of his Excessive Fines Clause challenge, we reject that challenge. 2. Restitution Order Hasson's Excessive Fines Clause challenge to t he restitution order is identical to his challenge to the

forfeitur e order -- tha

t the order i s excessive

in light of

the fact that the substan tive wire fraud co unts for which he was convicte d involv ed only $877,500. Again, t

his argument i s made with the appa rent underst

anding that t

he losses caused to victims of the wire fraud an d conspiracy to commit w ire fraud must be dem onstrated beyond a reason able dou bt and th at only the $877,5 00 invo lved in the three wir

e fraud counts were

proven under this

standard. The a

mount of the losses caused to the vict ims of Hasson's wire fraud and conspiracy to commit wire fraud w as prov ed at sente ncing b y a prepo nderan ce of the e vidence

. See 18 U.S.C. § 3664(e). Hasson does not challenge the trial court's factual f

indings with respect to the losses suffered by t he victims under this sta ndard of proof. Finding no other argum ent offer ed in sup port of h is Exces sive Fin es Claus e challeng e, we reje ct it.31 III . CONC LUSION There is sufficient evidence in the record to support the convict ions for wire fraud, conspi

racy to commit

wire fraud, and c onspiracy t o launder money. The sentencing court did not commit plai n error in the restit

ution order, and the orders of restit ution and forfe iture are

properly founded on f

acts proven wit

h sufficie

nt evidence under a

preponderance of t

he evidence st

andard. In li

ght of the fore going discussion, Hasson's convictions, restitution and forfeiture orders are AFFIRMED

.