FILED

U.S. COURT OF APPEALS

 ELEV ENTH CIRCU IT

JUNE 12, 2003

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

Nos. 00-13180 & 00-14012

________________________

D. C. Docket No. 99-08063-CR-JLK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN ROBERT HASSON,

a.k.a. Heloneti Galera,

a.k.a. Jack Hasson,

Defendant-Appellant.

________________________

Appeals from the United States District Court

for the Southern District of Florida

_________________________

(June 12, 2003)

Before EDMONDSON, 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 designation.
2

ANDERSON, Circuit Judge:

This case comes to us on direct appeal from a criminal conviction, forfeiture,

and sentencing. Defendant-appellant John Robert Hasson ("Hasson") was

convicted of conspiracy to commit wire fraud, wire fraud, conspiracy to launder

money, and conspiracy to obstruct justice. Hasson was sentenced to 480 months

imprisonment, ordered to forfeit several properties, and ordered to pay restitution. 

On appeal, Hasson challenges the sufficiency of the evidence to demonstrate wire

fraud, conspiracy to commit wire fraud, and conspiracy to launder money, and the

legality of the restitution and forfeiture ordered against him. For the reasons stated

below, we hold that the convictions and sentence imposed should be affirmed.

I. BACKGROUND

A. Factual Background

Between 1981 and 1998, Hasson owned and operated an upscale jewelry and

gift store in North Palm Beach, Florida. His store catered to the Palm Beach area's

wealthy and famous residents and 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 several

customers gems, jewelry, and decorative pieces that failed to match the descriptions
1 The government stipulated before trial that the conspiracy began in 1988.

2 A synthetic stone is man-made. A synthetic ruby is, chemically, a ruby, but it is

not natural. A simulant is a stone that is chemically different from, but visually similar to,

another gem. Cubic zirconium, for example, is a diamond simulant.

3

he gave. Hasson frequently supported his representations with false appraisals

prepared by himself or by a co-conspirator falsely represented to have been

independent. Hasson also misrepresented his own credentials to give weight to

those appraisals and sometimes provided forged appraisals purporting to have been

prepared by third parties.

B. Procedural History

On May 24, 1999, Hasson was charged by superseding indictment with one

count of conspiracy to commit mail and wire fraud in 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 violation of 18 U.S.C. § 1341, one count of conspiracy to launder money in

violation of 18 U.S.C. § 1956(h), and one count of conspiracy to obstruct justice in

violation of 18 U.S.C. § 371. Hasson and his confederates were alleged to have

conspired from 19841

 through 1999 to devise a scheme "to enrich themselves by

defrauding diamond, jewelry and collectibles purchasers of their funds" by means

of misrepresenting Hasson's credentials; misrepresenting the various characteristics

of items sold; providing false and forged appraisals; misrepresenting Hasson's

clientele; billing for fictitious services; substituting flawed, synthetic, or simulant2
3 At trial, the government introduced evidence of other uses of the wires and uses

of the mails and private or commercial interstate carriers that were not charged as separate

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

gems and synthetics from out-of-state suppliers by phone, intending to fraudulently resell those

gems, and delivery of those stones to Hasson's store were by mail or by commercial carrier. (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 defraud. Pub. L. No.

103-322, Title XXV, § 250006, 108 Stat. 1796, 2087 (1994).)

4

stones for more valuable gems; creating false scenarios to induce purchases; and

covering up the scheme by blaming employees and settling fraud claims under

confidentiality agreements. Four interstate wire transmissions and two uses of the

mails provided the bases for the substantive counts of mail and wire fraud, though

one count of wire fraud was dropped.3

The charged object of the conspiracy to launder money, alleged to exist from

1995 to 1999, was to launder the proceeds of the mail and wire fraud by engaging in

financial transactions with such proceeds with the purpose of promoting mail and

wire fraud and with the purpose of concealing the source, location, 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 engaging in financial transactions of $10,000 or

more with the proceeds of mail and wire fraud in violation of 18 U.S.C. §1957. The

charged object of the conspiracy to obstruct justice was to conceal Hasson's and his

co-conspirators' involvement in mail and wire fraud and money laundering by

witness tampering in violation of 18 U.S.C. § 1512(b) and obstructing justice in
5

violation of 18 U.S.C. § 1503.

Following a seven-week trial, the jury returned a guilty verdict convicting

Hasson of conspiracy to commit wire fraud, three counts of wire fraud, conspiracy

to launder money, and conspiracy to obstruct justice. The jury found that the

objects of the conspiracy to launder money were violations of 18 U.S.C. §§

1956(a)(1)(A)(i) (promotion of unlawful activity), (a)(1)(B)(i) (concealment of

unlawful activity), and 1957 (transaction 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.

Following the trial, a criminal forfeiture proceeding was held under 18 U.S.C.

§ 982. The jury found that $40 million in cash, the contents of seven bank and

brokerage accounts, and two parcels of real estate in Jupiter, Florida, and

Breckenridge, Colorado, were involved in or traceable to property involved in the

conspiracy to launder proceeds of mail and wire fraud. The properties were thus

ordered forfeited. Following a sentencing hearing, Hasson was sentenced to 480

months imprisonment and ordered to pay $78,408,691 in restitution to four victims

under 18 U.S.C. § 3663A.

We now turn to Hasson's challenges to his convictions, forfeiture order, and

sentence. He argues that the evidence is insufficient to prove wire fraud or
4 Hasson raises various other challenges to his convictions, including a challenge to

the sufficiency of the evidence to prove a conspiracy to obstruct justice in violation of 18 U.S.C.

§ 1503. Evidence introduced at trial that Hasson and a co-conspirator suborned perjured grand

jury testimony and that Hasson submitted false documents in response to a grand jury subpoena

is sufficient to support this conviction. We have carefully reviewed the remaining challenges

and, finding them without merit, reject them without further discussion.

6

conspiracy to commit wire fraud, that the evidence is insufficient to prove a

conspiracy to launder money, that the restitution ordered against him fails to

account for amounts paid victims in civil settlements, and that the forfeiture order

and restitution are excessive fines.4

II. SUFFICIENCY OF THE EVIDENCE

The sufficiency of the evidence to support a conviction is reviewed de novo. 

United States v. Miles, 290 F.3d 1341, 1355 (11th Cir.), cert. denied, ___ U.S. ___,

123 S.Ct. 707 (2002). The record is viewed in the light most favorable to the

verdict, drawing all reasonable inferences and resolving all questions of credibility

in favor of the government. Viewed in such a light, the verdict will be affirmed if a

reasonable juror could conclude that the evidence establishes guilt beyond a

reasonable doubt. Id. We review de novo questions regarding the legality of a

restitution order. United States v. Cobbs, 967 F.2d 1555, 1556 (11th Cir. 1992). 

We review factual findings underlying a restitution order for clear error. United

States v. Vaghela, 169 F.3d 729, 736 n.6 (11th Cir. 1999). We review the legality
5

"Whoever, having devised or intending to devise any scheme or artifice to

defraud . . . transmits or causes to be transmitted by means of wire . . . in

interstate or foreign commerce, any . . . signals . . . 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 the sufficiency of

the evidence. See United States v. Goldin Indus., 219 F.3d 1271, 1278 (11th Cir.

2000) (reviewing RICO forfeiture for sufficiency of the evidence).

A. Sufficiency of the Evidence to Prove Wire Fraud and the Conspiracy to

Commit Wire Fraud

The elements of wire fraud under 18 U.S.C. § 1343 are (1) intentional

participation in a scheme to defraud and (2) use of the interstate wires in furtherance

of the scheme. United States v. Ross, 131 F.3d 970, 984 (11th Cir. 1997).5

 To

"cause" the interstate wires to be used, the use of the wires need not be actually

intended; it need only be reasonably foreseeable. Id. at 985.

The elements of a conspiracy under 18 U.S.C. § 371 are (1) an agreement

among two or more persons to achieve an unlawful objective; (2) knowing and

voluntary participation in the agreement; and (3) an overt act by a conspirator in

furtherance of the agreement. United States v. Adkinson, 158 F.3d 1147, 1153
6

"If two or more persons conspire . . . to commit any offense against the United

States . . . in any manner or for any purpose 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 conspiracy to commit wire fraud, the government

need not demonstrate an agreement specifically to use the interstate wires to further

the scheme to defraud; it is enough to prove that the defendant knowingly and

voluntarily agreed to participate in a scheme to defraud and that the use of the

interstate wires in furtherance of the scheme was reasonably foreseeable. Ross, 131

F.3d at 981; United States v. Smith, 934 F.2d 270, 275 (11th Cir. 1991).

Hasson challenges his convictions for wire fraud and conspiracy to commit

wire fraud on the same bases. First, he argues that the government did not prove a

scheme to defraud because the misrepresentations he made, if any, pertained solely

to the market values of the items sold, which, he claims, were easily verifiable or

were otherwise easily discernible to a person of ordinary prudence. Second, he

argues that the government did not prove the use of the interstate wires in

furtherance of the scheme to defraud because the uses of the wires were

unforeseeable and were made to make payments for items with regard to which no

material misrepresentations were made.

1. Scheme or artifice to defraud
7 The "scheme or artifice to defraud" and "for the purpose of executing" language

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 requires proof of material misrepresentations, or the

omission or concealment of material facts, Neder v. United States, 527 U.S. 1, 25,

119 S.Ct. 1827, 1841 (1999), reasonably calculated to deceive persons of ordinary

prudence, United States v. Brown, 79 F.3d 1550, 1557 (11th Cir. 1996) (construing

the mail fraud statute).7 That is, not all misrepresentations or omissions constitute a

scheme to defraud; the misrepresentation or omission must be material and it must

be one on which a person of ordinary prudence would rely. A material

misrepresentation is one having a natural tendency to influence, or capable of

influencing, the decision maker to whom it is addressed. Neder, 527 U.S. at 16, 119

S.Ct. at 1837. A person of ordinary prudence would not rely on all

misrepresentations. Puffery, for example, is not part of a scheme to defraud

because a person of ordinary prudence would not rely on it; nor would a person of

ordinary prudence engaged in an arm's-length purchase rely on the seller's

representations regarding the market value of the property when the market value

can be, and should be, easily verified by consulting other sources. Brown, 79 F.3d

at 1559.

The record in this case is replete with evidence of material misrepresentations
8 The following is a brief, and incomplete, summary. In a diamond broach sold to

Greg Norman, Hasson misrepresented 11 diamonds irradiated to enhance their color as natural

stones. In a sale to John Campbell, Hasson misrepresented a 24.89-carat yellow diamond with a

color grade of U to V and clarity grade of VS1 as an internally flawless fancy intense yellow

diamond. Hasson sold Lawrence Dixon several ivory carvings by misrepresenting their history

and provenance. Hasson sold James Cunningham two diamonds, misrepresenting a 29.85-carat

fancy light yellow diamond with a clarity grade of VS2 as an internally flawless 30.16-carat

fancy intense yellow diamond and misrepresenting 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 yellow

diamond. In sales to Aben and Joan Johnson, Hasson misrepresented the type of gems or stones

in 314 items and the history and provenance of at least 80 items and gems. He also treated 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 characteristics.

10

regarding the physical and objective characteristics of the gems and jewelry sold. 

The government established that Hasson repeatedly misrepresented the carat

weight, color grading, and clarity grading of gems; misrepresented semi-precious

gems, synthetic gems, or simulants as natural gems and diamonds; misrepresented

stones that had been color- or clarity-treated as natural stones; and misrepresented

the history or provenance of items sold. The hundreds of misrepresentations made

over the life of the conspiracy are too numerous to catalogue here.8 Hasson's

conduct simply cannot be analogized to the mere misrepresentation of accessible

market values which, as we held in Brown, could not be reasonably calculated to

induce purchase by a person of ordinary prudence. These repeated affirmative

misrepresentations of physical characteristics of the items also defeats Hasson's

reliance on Langford v. Rite-Aid of Ala., 231 F.3d 1308 (11th Cir. 2000) (retail

seller's failure to disclose its pricing practices to customers is not a material
11

omission that can support mail or wire fraud liability).

There was also ample testimony regarding the special training and equipment

required to evaluate the physical qualities of fine gems and jewelry from which the

jury could reasonably conclude that the misrepresentations were not easily

verifiable by the person of ordinary prudence. Furthermore, Hasson prepared false

appraisals and arranged for false appraisals prepared by co-conspirator posing as an

independent appraiser, creating the impression that his representations were

independently verified and making it unlikely that a person of ordinary prudence

would invest the time and expense to obtain second or third evaluations of the items

purchased. Cf. Brown, 79 F.3d at 1558 n.13 (considering factors influencing the

decision of a person of ordinary prudence to invest resources in independent

investigation).

2. Use of the Wires in Furtherance of the Scheme to Defraud

A scheme to defraud is not, by itself, a federal crime. To support the

convictions for wire fraud, the government must prove not only a scheme to

defraud, but must also prove that the interstate wires were knowingly used in

furtherance of the scheme or that such use was reasonably foreseeable. Ross, 131

F.3d at 984-85. In this case, Hasson was convicted of three substantive counts of

wire fraud. The interstate wires which were the subject of the substantive counts
12

were three wire transfers made by Aben Johnson, the principal victim of the

scheme, from his Michigan bank account to Hasson's Florida bank account. These

wire transfers took place on March 6, 1995, for $300,000; May 14, 1996, for

$287,500; and July 11, 1996, for $290,000.

a. Foreseeability of the Use of the Wires

An essential element of the scheme to defraud in Ross involved establishing a

shell corporation in Florida to purchase a piece of real estate from a Mississippi

corporation. We held that it was reasonably foreseeable that correspondence

necessary to effectuate the purchase would be sent over the wires from the

Mississippi office of the selling corporation's chief counsel to the conspirators'

attorney in Florida. Ross, 131 F.3d at 985.

We think that the wire transfers in this case were also reasonably foreseeable. 

Mr. and Mrs. Johnson maintained homes in both Florida and Michigan during the

time when they purchased gems and jewelry from Hasson and, as was clear from

many of the checks written by the Johnsons, maintained out-of-state bank accounts. 

It was foreseeable that these customers would at some point make use of the

interstate wires to transfer large sums of money to complete some of their many

expensive purchases. Accord Ross, 131 F.3d at 985.

b. For the Purpose of Executing the Scheme
13

We now turn to the question of whether these wire transfers were "cause[d]

to be transmitted . . . for the purpose of executing" the scheme to defraud. 18

U.S.C. § 1343. Hasson contends that the wire transfers were made to purchase

items with regard to which no material misrepresentations were made. Because the

underlying sales were legitimate, Hasson argues, these wire transfers were not

caused "for the purpose of executing" the scheme to defraud.

To violate the wire fraud statute, it is not necessary that the transmitted

information include any misrepresentation. Schmuck v. United States, 489 U.S.

705, 715, 109 S. Ct. 1443, 1450 (1989) (construing mail fraud statute). The

transmission itself need not be essential to the success of the scheme to defraud. An

interstate wire transmission is "for the purpose of executing" the scheme to 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 omitted).

The March 6, 1995, wire transfer was for the purchase of two items, one of

which was represented to the Johnsons as a diamond ring featuring a flawless

22.11-carat diamond with a color grade of D. These representations were supported

with an appraisal prepared by a co-conspirator and provided by Hasson. This ring

in fact featured an 11.37-carat diamond with a clarity grade VS2 and a color grade

L to M. Several physical characteristics of this ring were misrepresented - the carat
14

weight, clarity, and color grade of the diamond. We think the jury could reasonably

have concluded that these misrepresentations were material and that the purchase

was fraudulently induced. This wire transfer was an interstate transmission over the

wires caused for the purpose of executing the scheme to defraud.

The May 14 and July 11, 1996, wire transfers were made to purchase a

diamond necklace and pin. Hasson originally sold these pieces of jewelry to the

Johnsons on July 21, 1990, for $370,000. Hasson bought the two pieces back on

December 7, 1994, as part of a repurchase of five items he had sold the Johnsons. 

Hasson later induced the Johnsons to repurchase these two pieces, falsely

representing that a potential buyer of the Johnsons' gem and jewelry collection, the

Sultan of Brunei, was interested in completing this very substantial purchase only if

these items were included in the transaction. The Johnsons repurchased the two

pieces of jewelry for $577,500.

Although Hasson is correct that the government introduced no evidence that

the physical and objective characteristics of these two pieces of jewelry were

misrepresented, the transaction was part of a larger fraudulent scheme, and the sale

of even these two pieces was specifically induced by the misrepresentation about

the potential resale to the Sultan. The Sultan was at the center of an elaborate con

devised by Hasson to induce the Johnsons to purchase more misrepresented items
15

between 1995 and 1997. Hasson represented that the Sultan was a diamond

collector interested in purchasing the Johnsons' jewelry collection for a very

substantial sum of money. The con included paying co-conspirators to play the

roles of the Sultan's nephew and the nephew's entourage at a meeting between

Johnson and the "nephew" held on Hasson's private jet, disguised as the nephew's

jet, in late 1995, and at a similar meeting held in a limousine at the Palm Beach

airport in late 1996. As a result of Hasson's representations regarding the Sultan's

interest and proposed purchase price, the Johnsons spent many millions of dollars

on gems to enhance the value of their collection to the Sultan. Almost all of the

gems purchased were misrepresented as to their physical composition, carat-weight,

color grade, clarity grade, and/or provenance. Included in these purchases were the

necklace and pin paid for by the May 11 and July 14, 1996, wire transfers. Hasson

specifically represented that the Sultan wanted these two pieces of jewelry included

in the Johnsons' collection because they had been stolen from the Sultan's mother. 

Hasson represented that the failure to include the jewelry was a potential dealbreaker.

We readily conclude that the use of the wires to make payment for the two

pieces of jewelry whose purchase was fraudulently induced was "for the purpose of

executing" the scheme to defraud. Hasson's misrepresentations regarding a specific
16

interested buyer and the magnitude of that buyer's proposed purchase and his

misrepresentation that the deal was dependent on the number and quality of items in

the jewelry collection, were material to the Johnsons' decision to purchase the

jewelry. Unlike the misrepresentations in Brown, which related solely to market

value and were easily verifiable, the misrepresentations in the instant case were part

of a large scheme to defraud, including not only misrepresentations as to value but

also misrepresentations as to the physical and objective characteristics of jewelry

sold as part of the scheme, and misrepresentations with respect to the potential

resale to the Sultan. The wire transfers were caused for the purpose of executing

this scheme.

The instant case is unlike Brown in two additional respects. First, the nature

of the misrepresentations here was such that they were not easily verifiable. Also,

the Johnsons were fraudulently induced into believing that there was independent

verification, both by the appraisals falsely represented to have been independent,

and by the fraudulent, elaborately-staged meetings with the "Sultan's nephew." A

reasonable jury in this case could find that these two aspects of the scheme to

defraud inhibited a person of ordinary prudence in discovering the truth, making the

Johnsons' reliance on Hasson's representations reasonable.

The convictions for the three counts of wire fraud and one count of
9

"Any person who conspires to commit any offense 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 financial transaction

represents the proceeds of some form of unlawful activity, conducts or attempts to

conduct such a financial transaction which in fact involves the proceeds of

specified unlawful activity--

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

. . .

(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 federal crime to conspire to violate any

provision of §§ 1956 or 1957, the federal money laundering statutes. Hasson was

convicted of conspiring to promote specified unlawful activity using proceeds

derived from unlawful activity and conspiring to conceal proceeds derived from

specified unlawful activity in violation of § 1956(a)(1)(A)(i) and (a)(1)(B)(i),10 and

of conspiring to engage in a monetary transaction in criminally derived property

greater than $10,000 in value and derived from unlawful activity in violation of §
11

"Whoever . . . knowingly engages or attempts to engage in a monetary transaction

in criminally derived property of a value 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 constitute "specified unlawful activity" under 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 is insufficient to demonstrate a

conspiracy to launder money relies on his contention that the evidence is

insufficient to demonstrate that the laundered funds were proceeds of wire fraud. 

For the reasons stated above, the evidence is sufficient to support the jury's finding

in this regard.

Hasson also argues that the evidence is insufficient to demonstrate his intent

to conceal the proceeds of mail and wire fraud from anyone other than his ex-wife. 

The evidence demonstrated that Hasson funneled the proceeds of mail and wire

fraud through several accounts held under fictitious names and opened with forged

documents, including an account held in the name of a shell corporation in the Isle

of Man. Hasson lied to FBI investigators and to an IRS agent about the nature of

his relationship with this shell corporation, which he owned in fact (though not in

name). The evidence is clearly sufficient to demonstrate Hasson's attempts to
12 Careful review of the briefs and the transcript of the oral argument reveals that

Hasson only challenges the portion of the forfeiture order forfeiting $20,346,390.51 from a

particular account held in the name of Heloneti Galera, Trustee for the benefit of Peter

Westbrook.

19

conceal the source, ownership, location or control of the funds from the FBI and the

IRS. His argument furthermore fails to address the jury's finding that the

conspiracy also had the objects of promoting unlawful activity and of engaging in

financial transactions with criminally derived property with a value greater than

$10,000.

The conviction for conspiracy to launder money is supported by sufficient

evidence.

III. Forfeiture and Restitution

In addition to Hasson's 480-month prison sentence, he was ordered to pay

over $78 million in restitution to four victims of the scheme to defraud and ordered

to forfeit several accounts and properties, including a particular account in the

amount of $20,346,390.51. Hasson argues that the restitution order is in error

because it fails to offset for amounts Hasson has paid victims of the scheme to

defraud in civil settlements, that the restitution and forfeiture orders are based on

acquitted conduct, and that the restitution order and forfeiture of the $20 million12

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 defendant 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 restitution in this case was required by 18 U.S.C. § 3663A (2000), part of

the amendments to the Victim and Witness Protection Act ("VWPA"), Pub. L. No.

97-291, 96 Stat. 1248 (1982) (codified as amended at 18 U.S.C. §§ 1512 et seq.,

3579 et seq.) made by the Mandatory Victims Restitution Act ("MVRA"), Pub. L.

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

sentencing a defendant," to order the defendant to "make restitution to the victim of

the offense," § 3663A(a)(1), whenever the defendant is convicted of an offense "in

which an identifiable victim or victims has suffered a physical injury or pecuniary

loss," § 3663A(c)(1)(B). In the case of a conviction for an offense that "involves as

an element a scheme, conspiracy, or pattern of criminal activity," a "victim" is "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 required to order restitution

"in the full amount of each victim's losses," § 3664(f)(1)(A). Disputes over the

amount of the restitution are to be resolved by a preponderance of the evidence. §
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 financial

resources of the defendant and the financial needs of the defendant'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 civil proceeding; and (B) any State civil proceeding,

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 preparing the Presentence Investigation Report ("PSR")

recommended restitution to four victims of the conspiracy and scheme to defraud in

amounts totaling $78,408,691. In response to the PSR, Hasson filed several

objections, none of which contested the restitution order. On appeal, Hasson,

presumably relying on § 3664(j)(2),15 contends that the restitution order is in error

because it compensates three victims whom Hasson had already compensated

through civil settlements without offsetting by those amounts.

Because the offset objection was not raised below, we review this aspect of

the restitution order for plain error. Fed. R. Crim. P. 52(b); United States v. Jones,

289 F.3d 1260, 1265 (11th Cir.), cert. denied, ___ U.S. ___, 123 S.Ct. 661 (2002). 
16 "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted." U.S. Const. amend. VIII.

22

We will reverse only if there is (1) error, (2) that is plain, and (3) affected the

defendant's substantial rights. If these three conditions are found, we may reverse if

we decide the error seriously affects the fairness, integrity, or public reputation of

the judicial proceeding. Id.

In Jones, we held that a sentencing court does not commit plain error by

relying on factual findings contained in the PSR regarding a defendant's ability to

pay restitution when the defendant does not introduce evidence on the issue or

object to the PSR's findings in that regard. Id. at 1266. Hasson's civil settlements

occurred before sentencing. The fact and amount of compensation paid by Hasson

to victims pursuant to civil proceedings and whether the compensation was for the

"same loss" are issues well within Hasson's ability to bring to the attention of either

the probation officer or the sentencing court, yet he failed to do so. We conclude

that the court below did not err by relying on the factual findings in the PSR and

ordering Hasson to pay the full amount of the victims' losses.

B. Excessive Fine

Hasson argues that the forfeiture of $20,346,390.51 and the restitution of

$77,772,881 to the Johnsons are excessive fines16 because the jury convicted

Hasson of only three substantive wire fraud counts where the amount involved in
23

the wire transfers was $877,500. Hasson apparently contends that the amounts

involved in the conspiracy to commit wire fraud and the conspiracy to launder

money must be proven beyond a reasonable doubt and that the government only

proved that Hasson realized $877,500 in proceeds of wire and mail fraud beyond a

reasonable doubt. Because Hasson's Excessive Fines Clause challenge is founded

on an erroneous premise, and because he does not challenge the constitutionality of

the forfeiture and restitution orders on any other basis, we reject this challenge.

1. Forfeiture Order

The forfeiture in this case was authorized by 18 U.S.C. § 982 (2000), which

requires a court to order a defendant convicted of an offense in violation of 18

U.S.C. § 1956 to order the forfeiture of "any property, real or personal, involved in

such offense, or any property traceable to such property." 18 U.S.C. § 982(a)(1). 

21 U.S.C. § 853 governs the procedure for ordering the forfeiture. 18 U.S.C. §

982(b)(1).

The court instructed the jury that the government must prove the elements of

forfeiture under § 982(a) by a preponderance of the evidence. Hasson did not

object to this instruction, which his argument on appeal challenges. We review the

instruction for plain error. See United States v. Hall, 312 F.3d 1250, 1259 (11th

Cir. 2002) (jury instruction reviewed for plain error when the defendant did not
24

object). We conclude that the elements of forfeiture under 18 U.S.C. § 982(a) must

be proven by a preponderance of the evidence, and therefore this instruction was

not plain error.

a. Standard of Proof at the Forfeiture Hearing

We have held that the elements of forfeiture under 21 U.S.C. § 853(a)(1) and

(a)(2) must be proven under the preponderance standard. See United States v.

Dicter, 198 F.3d 1284, 1289-90 (11th Cir. 1999) (§ 853(a)(2)); United States v.

Elgersma, 971 F.2d 690, 697 (11th Cir. 1992) (en banc) (§ 853(a)(1)). We have

also said that, generally, criminal forfeiture is part of sentencing where the

preponderance standard governs. United States v. Cabeza, 258 F.3d 1256, 1257-58

(11th Cir. 2001) (rejecting a challenge to criminal forfeiture under the drug statutes

based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000)). See also

Libretti v. United States, 516 U.S. 29, 39, 116 S.Ct. 356, 363 (1995) ("Forfeiture is

an element of the sentence imposed following conviction . . . . Our precedents have

. . . characterized criminal forfeiture as an aspect of punishment imposed following

conviction of a substantive criminal offense.") (discussing applicability of Fed. R.

Crim. Proc. 11(f) to forfeiture count under 21 U.S.C. § 853). But see Goldin Indus.,

219 F.3d at 1278 n.10 (reserving question of whether forfeiture under 18 U.S.C. §

1963(a)(1) and (a)(3) is governed by preponderance or reasonable doubt standard).
25

The standard of proof that applies to a forfeiture hearing under 18 U.S.C. §

982(a)(1) is a question of statutory construction. Elgersma, 971 F.2d at 694. In

Elgersma, we relied primarily on 21 U.S.C. § 853(d) as evidence of Congressional

intent to require the elements of forfeiture under § 853(a)(1) to be proven by a

preponderance. Id. at 694. Section 853(d) creates a rebuttable presumption that the

defendant's property is forfeitable when the government proves, by a preponderance

of the evidence, that the property was acquired by the defendant during or soon

after the commission of an offense that triggers the forfeiture provision and that

"there was no likely source for such property other than the violation." 21 U.S. C. §

853(d); Elgersma, 971 F.2d at 694. Because the property described in § 853(d) is

the same type of property as that described in § 853(a)(1) ("property constituting, or

derived from, any proceeds obtained . . . as the result of such violation"), we

concluded that Congress contemplated demonstrating the elements of forfeiture

under § 853(a)(1) by a preponderance of the evidence. Elgersma, 971 F.2d at 694.

In Dicter, we concluded that nothing in § 853 evinces an intent to apply a

higher standard of proof to the elements of forfeiture under § 853(a)(2). Dicter, 198

F.3d at 1289. We also noted that the introductory language of § 853(a) clearly

indicates that forfeiture under that provision is an element of sentencing. Id. The

statute requires the forfeiture to be ordered against a person already convicted of a
26

substance offense. The court is required to order the forfeiture when "imposing

sentence" on the defendant, "in addition to any other sentence imposed[.]" Noting

that the preponderance standard generally applies to sentencing matters, Dicter, 198

F.3d at 1289 (citing United States v. Barakat, 130 F.3d 1448, 1452 (11th Cir.

1997)), we concluded that Congress intended the preponderance standard to apply

to § 853(a)(2), as well. Id.

Our analysis in Dicter applies with equal force to the language of 18 U.S.C. §

982(a)(1). The subsection requires an order of forfeiture against "a person

convicted of [a money laundering] offense." The court is required to order

forfeiture "in imposing sentence" on the defendant. This language clearly indicates

Congressional intent that forfeiture under § 982(a)(1) is part of the sentencing

process, where the preponderance standard generally applies. See Barakat, 130

F.3d at 1452; accord Dicter, 198 F.3d at 1289. See also United States v. Bornfield,

145 F.3d 1123, 1138 n.12 (10th Cir. 1998) (forfeiture under § 982 is a sentencing

issue).

The parallels between § 982 and 21 U.S.C. § 853 are reinforced by §

982(b)(1), which provides that forfeiture under § 982 "shall be governed by the

provisions of" 21 U.S.C. § 853. While the presumption described in § 853(d) does

not apply to § 982 forfeitures, see 18 U.S.C. § 982(b) (the provisions of 21 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 governs forfeitures under § 982(a)(1)); United States v. Voigt, 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 subsection (d) of that section"), subsection (d) did not

create the preponderance standard governing § 853 forfeitures; it is simply clear

evidence of Congress's understanding that the preponderance standard governs such

forfeitures. It is perfectly reasonable for Congress to adopt the standard of proof

under 21 U.S.C. § 853 for forfeitures under 18 U.S.C. § 982(a), but not the

rebuttable presumption of § 853(d). Section 982(b)'s incorporation of a forfeiture

provision that applies a preponderance standard is clear evidence of Congressional

intent to apply the preponderance standard to forfeitures under § 982(a).17

 Cf.

United States v. 1988 Chevrolet Silverado, 16 F.3d 660, 663-64 (5th Cir. 1994)

(burden of proof in forfeiture under 19 U.S.C. § 1615 incorporated by 18 U.S.C. §

512, which states that "[a]ll . . . procedures for summary and judicial forfeiture

applicable to [customs laws] violations [(19 U.S.C. § 1615)] . . . shall apply to

forfeitures under this section").

b. Sufficiency of the Evidence

The jury was properly instructed that the government was required to prove

the elements of forfeiture by a preponderance of the evidence. The jury returned a
18 Hasson did not object to the form of the special verdict below or to the inclusion

of the properties identified therein.

28

detailed special verdict18 identifying each of the forfeited properties and accounts

(including the $20,346,390.51) as property that "constitutes property involved in the

offense charged in Count Eight of the Indictment and/or constitutes property

traceable to such property." Count Eight charged a conspiracy to launder the

proceeds of mail and wire fraud. The special verdict, then, shows that the jury

found, by a preponderance of the evidence, that the $20 million was involved in, or

traceable to property involved in, the conspiracy to launder the proceeds of mail and

wire fraud.

Property is "involved in" a money laundering transaction if the transaction

involves the proceeds of mail or wire fraud and the transaction 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 fraud. In determining what transactions

involved the proceeds of mail and wire fraud, the jury was not restricted to the three

substantive counts of wire fraud on which it returned a guilty verdict. The jury was

free to reconsider evidence of acquitted conduct under the preponderance standard,

cf. Barakat, 130 F.3d at 1452, and to consider evidence of mail and wire frauds

adduced by the government in support of the money laundering count, though not
19 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. Watts, there is no constitutional prohibition

against relitigating acquitted conduct in a later proceeding governed by a lower standard of

proof, 519 U.S. 148, 156, 117 S.Ct. 633, 637 (1997) (per curiam) (citing Dowling v. United

States, 493 U.S. 342, 349, 110 S.Ct. 668, 672 (1990)), and it is well-established that sentencing

courts may consider both uncharged and acquitted conduct in determining the appropriate

sentence. Id. at 152-53, 117 S.Ct. at 635-36. We do not mean to imply that 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 restitution to victims of a convicted offense for losses caused by that offense). 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 separate substantive counts of mail or wire fraud.19

Hasson does not challenge the sufficiency of the evidence to demonstrate, by

a preponderance of the evidence, that the $20 million was involved in, or is

traceable to property involved in, the money laundering conspiracy, and we see no

defect in the government's proof. The jury had before it evidence of the three wire

fraud counts on which it convicted and the two mail fraud counts on which it

acquitted, as well as evidence of other uses of the wires, mailings, and uses of

private and commercial interstate carriers during the course of the conspiracy to

commit wire and mail fraud charged in the indictment. It could reasonably

conclude that these mailings and wirings were proven by a preponderance of the

evidence and that they were made or caused for the purpose of executing the

scheme to defraud. The jury also had before it abundant evidence of the extensive
30

scheme to defraud furthered by these various mailings and uses of the wires.

In sum, Hasson's contention that only $877,500 was demonstrated to 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 the restitution order is identical

to his challenge to the forfeiture order -- that the order is excessive in light of the

fact that the substantive wire fraud counts for which he was convicted involved only

$877,500. Again, this argument is made with the apparent understanding that the

losses caused to victims of the wire fraud and conspiracy to commit wire fraud must

be demonstrated beyond a reasonable doubt and that only the $877,500 involved in

the three wire fraud counts were proven under this standard. The amount of the

losses caused to the victims of Hasson's wire fraud and conspiracy to commit wire

fraud was proved at sentencing by a preponderance of the evidence. See 18 U.S.C.

§ 3664(e). Hasson does not challenge the trial court's factual findings with respect

to the losses suffered by the victims under this standard of proof. Finding no other

argument offered in support of his Excessive Fines Clause challenge, we reject it.
31

III. CONCLUSION

There is sufficient evidence in the record to support the convictions for wire

fraud, conspiracy to commit wire fraud, and conspiracy to launder money. The

sentencing court did not commit plain error in the restitution order, and the orders

of restitution and forfeiture are properly founded on facts proven with sufficient

evidence under a preponderance of the evidence standard. In light of the foregoing

discussion, Hasson's convictions, restitution and forfeiture orders are

AFFIRMED.