PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4306

BILLIE J. CHERRY,

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of West Virginia, at Bluefield.

David A. Faber, Chief District Judge.

(CR-01-92)

Argued: February 28, 2003

Decided: May 30, 2003

Before MICHAEL, TRAXLER, and KING, Circuit Judges.

Affirmed in part and vacated in part by published opinion. Judge King

wrote the opinion, in which Judge Michael and Judge Traxler joined.

COUNSEL

ARGUED: Nathan A. Hicks, Jr., Charleston, West Virginia, for

Appellant. Susan Marie Arnold, Assistant United States Attorney,

Charleston, West Virginia, for Appellee. ON BRIEF: Kasey Warner,

United States Attorney, Charleston, West Virginia; John A.

Michelich, Senior Trial Attorney, Fraud Section, Criminal Division,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellee. 
OPINION

KING, Circuit Judge: 

On October 12, 2001, a jury in Parkersburg, West Virginia, convicted Billie J. Cherry of multiple counts of conspiracy, bank embezzlement, mail fraud, and money laundering. The jury also determined

that Cherry should be ordered to forfeit property derived from,

involved in, or traceable to her criminal activities. The court entered

judgment on the jury verdict, but it later vacated Cherry’s convictions

for bank embezzlement because the indictment had failed to allege an

essential element of that offense. United States v. Cherry, No. 1:01-

CR-92, Order (S.D. W. Va. Feb. 1, 2002) (the "Order"). Cherry has

appealed her money laundering convictions and the judgment of forfeiture. As explained below, we affirm Cherry’s convictions for

money laundering, but we vacate the judgment of forfeiture to the

extent that it is premised on the vacated embezzlement convictions.

I.

A.

The First National Bank of Keystone (the "Bank") operated for

many years in the southern West Virginia mining community of Keystone. In 1977, J. Knox McConnell purchased a substantial interest in

the Bank and began to operate it. At that time, the Bank held approximately $17 million in assets, and it served as the area’s community

bank. In the early 1990s, the Bank began a profitable business of purchasing loans from other loan originators, bundling similar loans

together, and reselling the bundled loans as securities. By the mid1990s, the Bank had acquired a reputation as one of the most profitable community banks in the country, with assets reportedly in the

realm of $1 billion. 

Rumors of the Bank’s financial success were, however, greatly

exaggerated. In truth, Bank employees had doctored the Bank’s books

to create a false appearance of profitability. In late 1999, following an

onsite examination, the Office of the Comptroller of the Currency (the

"OCC") — the federal agency that regulates national banking prac2 UNITED STATES v. CHERRY
tices — declared the Bank insolvent and appointed the Federal

Deposit Insurance Corporation (the "FDIC") as the Bank’s receiver.

When bank examiners were subsequently unable to verify more than

$515 million of loans — reflected as assets on the Bank’s books —

the Bank was closed. 

Thereafter, the federal authorities in southern West Virginia commenced an extensive investigation of the Bank’s failure. That investigation culminated in the prosecution of several of the Bank’s officers

and employees for criminal activities in the Bank’s operations. These

activities included bank fraud, money laundering, obstruction of justice, and tax and securities offenses. The investigation also led to the

indictment of Billie J. Cherry and her co-defendant, Terry L. Church,

for their activities in looting the estate of J. Knox McConnell. 

B.

From 1977 until his death in 1997, J. Knox McConnell served as

the President of the Bank and as an active member of its Board of

Directors. At the time of his death, McConnell owned significant

assets, including: (1) four savings accounts at the Bank containing the

aggregate sum of $4,282,588; (2) 146,619 shares of stock in the Bank,

valued at approximately $109 per share; (3) two condominiums, one

in Pittsburgh, Pennsylvania, and the other in Orlando, Florida; and (4)

a business known as Marbil, Inc., which held a $1.8 million certificate

of deposit at the First State Bank and Trust of Rainelle ("First State").1

1

In seeking restitution from Cherry, the FDIC suggested that McConnell had, in fact, orchestrated the criminal activity at the Bank. For example, the FDIC insisted that: 

Church, Cherry, J. Knox McConnell ("McConnell"), and

Michael H. Graham ("Graham") participated in a broad conspiracy to defraud [the Bank] through various criminal acts including embezzlement, a "due diligence" fee scheme, and a

securitization scheme, that ultimately resulted in the failure of

[the Bank], resulting in a loss to the FDIC of approximately $500

million. 

J.A. 284. The FDIC asserted that, because McConnell’s assets were

criminally obtained, it (i.e. the FDIC) was entitled to priority in obtaining

restitution for its losses, over and above the beneficiaries of McConnell’s

estate. 

UNITED STATES v. CHERRY 3
Cherry was McConnell’s longtime companion, having maintained

a close relationship with him since 1957. In 1977, Cherry moved from

Pennsylvania to Keystone (located in West Virginia’s McDowell

County), and she thereafter held numerous positions with the Bank,

including Cashier, Controller, and Executive Vice-President. Cherry’s

co-defendant, Terry L. Church, met McConnell through Cherry in

1975. Like Cherry, Church moved to Keystone in 1977 and began

working at the Bank. Church worked her way through the Bank’s

chain of authority and ultimately became its Senior Executive VicePresident and its Chief Operations Officer. She also served as a member of the Bank’s Board of Directors. 

McConnell unexpectedly passed away on Sunday, October 26,

1997. In the ensuing days, Church directed Bank employees to secure

McConnell’s safe deposit boxes, to search bank records in order to

identify all of his accounts, and to obtain his savings account passbooks and signature cards. In a flurry of fraudulent activity, Cherry

and other Bank employees added Cherry’s name to McConnell’s

accounts, creating joint ownership of the funds held in those accounts.

Cherry then closed those accounts and transferred the funds into three

newly created accounts owned exclusively by her. After the new

accounts were opened, Cherry made no other deposits into them, but

she frequently withdrew large sums of money.2

In the course of these events, Cherry and Church also executed a

fraudulent codicil to McConnell’s will (the "fake codicil"). McConnell’s will, at the time of his death, devised the majority of his estate

2These large withdrawals formed the basis of Cherry’s money laundering convictions under 18 U.S.C. § 1957. For example, in the counts of

the indictment relevant to the judgment of forfeiture: Count Eighteen

alleged that, on November 18, 1997, Cherry withdrew $100,000 from

one of the newly created accounts and transferred it to another of her

accounts. The indictment alleged that she used this money to purchase

a 1956 Thunderbird. Count Twenty-Four alleged that, on April 22, 1998,

Cherry withdrew $67,000 from one of the accounts to purchase a Cashier’s Check, payable to the Estate of J. Knox McConnell for the purchase

of the Pittsburgh condominium. Count Twenty-Five alleged that, on

April 22, 1998, Cherry withdrew $117,000 from one of the accounts to

purchase the Orlando condominium. 

4 UNITED STATES v. CHERRY
to Waynesburg College, located in Waynesburg, Pennsylvania. In

order to thwart discovery of the ongoing fraud at the Bank, Cherry

and Church decided to alter McConnell’s will to prevent Waynesburg

College from obtaining control of McConnell’s stock in the Bank.

Thus, the day after McConnell’s funeral, Cherry, Church, and other

Bank employees met in Church’s office at the Bank, where Church

proceeded to draft the fake codicil. Church forged McConnell’s signature on the document, which was backdated to May 7, 1996, a date

specifically selected because McConnell and the witnesses to the fake

codicil had been present in the Bank that day. Another Bank

employee notarized the fake codicil, which purported to change

McConnell’s will and bequeath part of his stock in the Bank to Cherry

and Church. 

Shortly after the creation of the fake codicil, Cherry advised

Church that she also wanted McConnell’s condominiums. In an

attempt to give Cherry ownership of these properties, Church created

a second fraudulent codicil entitled "Disposition of Properties

Owned" (the "condominium document"), which provided that

McConnell was leaving the condominiums to Cherry. In order to

create the appearance that the condominium document had been properly executed, a Bank employee signed as a witness, and Church

forged McConnell’s signature. Church and Cherry failed, however, to

have this document notarized. The condominium document was backdated to August 16, 1996, Cherry’s birthday. 

On November 17, 1997, Cherry, Church, and other Bank employees offered three writings for probate — McConnell’s will, the fake

codicil, and the condominium document — delivering them to the

Clerk of the County Commission of Mercer County in Princeton,

West Virginia. Because the condominium document had not been

notarized, the Clerk declined to probate it, and it was returned to

Church. McConnell’s will and the fake codicil were probated in Mercer County, and Church was appointed by the County Commission to

serve as executrix of McConnell’s estate. Although the notarization

problem precluded Cherry from inheriting the two condominiums

under McConnell’s will, she later purchased them from his estate for

$184,000, using monies she had taken from McConnell’s savings

accounts at the Bank. 

UNITED STATES v. CHERRY 5
Cherry and Church also obtained $1.8 million from the certificate

of deposit (the "CD") owned by Marbil, Inc., a company wholly

owned by McConnell. Within two weeks of McConnell’s death,

Cherry and Church attempted to have First State redeem the CD and

transfer the resulting funds to an account at the Bank, but First State

refused to do so without the proper corporate resolutions.3 Thus,

Cherry and Church created false corporate records making themselves

members of Marbil’s Board and giving themselves an ownership

interest in the company. Cherry then wrote to First State, representing

herself to be President of Marbil and directing First State to redeem

the CD and transfer the resulting funds to Marbil’s account at the

Bank. On December 29, 1997, First State issued a cashier’s check,

payable to Marbil, Inc., in the sum of $1,838,650.89, which was

deposited in Marbil’s account at the Bank. The account name was

then altered to give Church control of those funds. 

C.

On March 21, 2001, Cherry and Church (collectively, the "defendants") were charged in a twenty-five count indictment returned by a

grand jury in the Southern District of West Virginia. Count One

charged the defendants with conspiracy to commit bank embezzlement and mail fraud, in violation of 18 U.S.C. § 371. Counts Two

through Five charged them with four separate acts of bank embezzlement, in contravention of 18 U.S.C. § 656 (the "Bank Embezzlement

Counts"). Counts Six through Nine charged them with mail fraud, in

violation of 18 U.S.C. § 1341. Counts Ten through Twenty-Five

charged Cherry with money laundering, in contravention of 18 U.S.C.

§ 1957 (the "Money Laundering Counts"). 

On September 28, 2001, Cherry filed a motion seeking the disqualification of the presiding judge. The disqualification motion, filed

pursuant to 28 U.S.C. § 455(a), was based solely on a letter the judge

had written to McConnell in 1991. In that letter, the judge had

expressed gratitude for support that McConnell had provided to the

3Cherry and Church also learned that the CD would not mature until

December 29, 1997, and that an early withdrawal would result in a loss

of more than $70,000. They therefore decided to wait until the maturity

date to move the CD’s funds. 

6 UNITED STATES v. CHERRY
judge’s nomination and appointment to the federal bench. Cherry

maintained that the letter evinced a relationship between the judge

and McConnell that would interfere with her right to a fair and impartial trial. On October 1, 2001, the district judge denied the motion,

declining to recuse himself from Cherry’s trial. United States v.

Cherry, No. 1:01-CR-92, Opinion and Order (S.D. W. Va. Oct. 1,

2002). 

The next day, the defendants’ trial commenced in Parkersburg,

West Virginia.4 Following the close of the government’s evidence

(and again upon the close of all the evidence), the defendants sought

a judgment of acquittal on each of the Bank Embezzlement Counts,

pursuant to Rule 29 of the Federal Rules of Criminal Procedure.5 In

these motions, the defendants maintained that the indictment did not

properly charge bank embezzlement because the Bank Embezzlement

Counts failed to allege an essential element of the offense. Pursuant

to Rule 29(b),6 the trial court reserved ruling on the judgment of

acquittal issue, and the case was submitted to the jury. 

On October 12, 2001, the jury returned a guilty verdict against the

defendants on all the substantive offenses. After the jury returned this

4The indictment was returned by a grand jury in the court’s Charleston

Division, and the case was initially docketed in its Bluefield Division.

Because of publicity surrounding the Bank’s failure, Cherry filed a

motion, pursuant to Rule 21(a) of the Federal Rules of Criminal Procedure, requesting that her trial be moved out of the Southern District of

West Virginia. While the court denied this motion, it ordered that the

case be tried in Parkersburg, which is about 175 miles from Bluefield.

United States v. Cherry, No. 1:01-CR-92, Order (S.D. W. Va. Aug. 31,

2001). 

5Rule 29(a) provides: "After the government closes its evidence or

after the close of all the evidence, the court on the defendant’s motion

must enter a judgment of acquittal of any offense for which the evidence

is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). 

6Pursuant to Rule 29(b): "The court may reserve decision on the

motion, proceed with the trial (where the motion is made before the close

of all the evidence), submit the case to the jury, and decide the motion

either before the jury returns a verdict or after it returns a verdict of

guilty or is discharged without having returned a verdict." Fed. R. Crim.

P. 29(b). 

UNITED STATES v. CHERRY 7
verdict, the court directed it to consider the forfeiture issues. Under

the court’s forfeiture instructions, the jury assessed whether the government had proven, by a preponderance of the evidence, that the

property sought to be forfeited was derived from, involved in, or

traceable to the defendants’ criminal activities.7 In a special verdict,

the jury determined that Cherry and Church should be ordered to forfeit the sum of $4,282,588 on the bank embezzlement offenses, and

that Cherry should be ordered to forfeit a 1956 Ford Thunderbird, as

well as the Pittsburgh and Orlando condominiums, on the basis of the

money laundering convictions. On October 15, 2001, the court

entered judgment against Cherry and Church. 

Thereafter, the defendants filed motions challenging their convictions and the judgment of forfeiture. Of particular relevance to this

appeal, they renewed their motions for judgment of acquittal, maintaining that the Bank Embezzlement Counts were fatally flawed.8

 On

February 1, 2002, the court entered its Order arresting judgment on

the Bank Embezzlement Counts, on the ground that they failed to

allege a judicially created element of that offense, specifically, that

the defendants had acted with the intent "to injure or defraud the

bank." Order at 7 (quoting United States v. Caldwell, 544 F.2d 691,

696 (4th Cir. 1976)).9

On April 5, 2002, Cherry was sentenced to a term of imprisonment

of 197 months, consisting of consecutive sentences of fifty-three

months on Count One, twelve months each on Counts Six through

Nine, and six months each on Counts Ten through Twenty-Five.

Cherry was also sentenced to a three-year term of supervised release,

and she was ordered to make restitution (jointly with Church) in the

7

In instructing the jury on the standard of proof for the forfeiture determination, the court rejected Cherry’s proposed instruction, which would

have required the jury to apply a reasonable doubt standard. 

8Church also filed a post-trial motion, under Rule 34 of the Federal

Rules of Criminal Procedure, seeking to arrest judgment on the Bank

Embezzlement Counts. The motion for arrest of judgment reiterated the

contentions made in the renewed motion for judgment of acquittal. 

9The government has not appealed the Order vacating the bank embezzlement convictions. 

8 UNITED STATES v. CHERRY
sum of $6,121,238.89.10 After the court entered final judgment,

Cherry filed a timely notice of appeal.11 We possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 

In her appeal, Cherry raises multiple issues. First, she insists that

the presiding judge erred in failing to recuse himself from her trial.

Second, she contends that her money laundering convictions should

be vacated because the district court vacated the predicate offenses of

bank embezzlement. Finally, she challenges the judgment of forfeiture, contending: (1) that the court erred in its instructions to the jury

regarding the standard of proof under 18 U.S.C. § 982; and (2) that

she should not be required to forfeit property related to the vacated

bank embezzlement convictions.12 We address each of these contentions in turn. 

II.

We review a trial judge’s decision on matters of recusal for abuse

of discretion. United States v. Cole, 293 F.3d 153, 164 (4th Cir.), cert.

10The restitution figure of $6,121,238.89 includes the sum of

$4,282,588 embezzled from McConnell’s accounts, as well the sum of

$1,838,650.89 that Cherry, together with Church, fraudulently obtained

from the Marbil CD. 

11Church initially also sought to appeal, but she later filed an unopposed motion to dismiss her appeal, which we granted on July 12, 2002.

See United States v. Church, No. 02-4324, Order (4th Cir. July 12,

2002). 

12While Cherry has challenged the judgment of forfeiture, she has not

contested the restitution aspect of her sentence. We note that there are

competing claims for restitution. The FDIC has made a claim on Cherry’s assets, insisting that it — in its capacity as receiver for the Bank —

was the sole victim of Cherry’s criminal activities. Waynesburg College,

as the primary beneficiary of McConnell’s estate, has also made a claim

for restitution. Acknowledging these competing claims, the court, in

entering its judgment, ordered that the "[r]estitution payments, along

with assets liquidated for restitution purposes, . . . be paid into the registry of the court and held until the court can determine an appropriate disbursement amount for the victims, pending further developments in civil

litigation." United States v. Cherry, 1:01-CR-92, Judgment in a Criminal

Case, at 10 (S.D. W. Va. April 5, 2002). 

UNITED STATES v. CHERRY 9
denied, 123 S. Ct. 387 (2002). By contrast, we apply a plain error

standard of review to issues not previously raised in the district court,

such as Cherry’s challenges to her money laundering convictions. See

Fed. R. Crim. P. 52(b) ("Plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention

of the court."). Finally, "[w]e review de novo the claim that jury

instructions fail to correctly state the law." Al-Abood ex rel. Al-Abood

v. El-Shamari, 217 F.3d 225, 235 (4th Cir. 2000). 

III.

A.

On appeal, Cherry first asserts that the district court erred in denying her recusal motion. She bases this contention on the guiding principle that due process requires a trial judge to be neutral. As Cherry

suggests, a judge must possess neither actual nor apparent bias against

a party, and "in the most extreme of cases" of bias, where, for example, a judge has a personal stake in the outcome of litigation, the

judge’s recusal will be required. Aetna Life Ins. Co. v. Lavoie, 475

U.S. 813, 821 (1986); see also Aiken County v. BSP Div. of Envirotech Corp., 866 F.2d 661, 678 (4th Cir. 1989) ("The due process

clause protects not only against express judicial improprieties but also

against conduct that threatens the ‘appearance of justice.’" (quoting

Aetna Life Ins. Co., 475 U.S. at 825)). If a judge possesses actual or

apparent prejudice either for or against a party, federal law provides

the aggrieved party with a statutory remedy. See, e.g., 28 U.S.C.

§ 455. 

A federal judge is obliged to recuse himself if a person with knowledge of the relevant facts might reasonably question his impartiality.

28 U.S.C. § 455(a). The test is an objective one: as we have previously observed, a judge must disqualify himself whenever his "‘impartiality might reasonably be questioned.’" In re Beard, 811 F.2d

818, 827 (4th Cir. 1987) (quoting 28 U.S.C. § 455(a)). In other words,

"[d]isqualification is required if a reasonable factual basis exists for

doubting the judge’s impartiality. The inquiry is whether a reasonable

person would have a reasonable basis for questioning the judge’s

impartiality, not whether the judge is in fact impartial." In re Beard,

811 F.2d at 827 (citation omitted). A presiding judge is not, however,

10 UNITED STATES v. CHERRY
required to recuse himself simply because of "unsupported, irrational

or highly tenuous speculation." United States v. DeTemple, 162 F.3d

279, 287 (4th Cir. 1998) (internal quotation marks omitted). Put simply, "[t]he proper test to be applied is whether another with knowledge of all of the circumstances might reasonably question the judge’s

impartiality." Beard, 811 F.2d at 827. 

In other circumstances, we have held that a presiding judge need

not recuse himself simply because he possesses some tangential relationship to the proceedings. For example, in Beard, we decided that

a bankruptcy judge was not required to disqualify himself because of

statements he made during the course of Chapter 11 proceedings in

his court. In those proceedings, the judge had indicated that he

thought the president of the debtor corporation was a "fine man." Id.

at 828. Similarly, in DeTemple, we held that a presiding judge was

not required to recuse himself from a criminal prosecution arising out

of bankruptcy fraud, even though the judge had previously represented victims of the fraud. 162 F.3d at 287-88. By the same token,

in Cole, we affirmed the decision of a district judge to preside over

a trial even though the judge had a personal relationship with a government witness. 293 F.3d at 164. The witness was the son of the

judge’s deceased godparents, but the judge had not had contact with

the witness in over ten years. We decided that, because this relationship had become attenuated, a reasonable observer would not question

the judge’s impartiality. Id.

Applying these principles here, we are unable to conclude that the

presiding judge abused his discretion in declining to recuse himself.13

The judge had less than a dozen personal contacts with McConnell

during the course of McConnell’s life. The 1991 letter, which formed

the sole basis for Cherry’s recusal motion, represents no more than a

13Contrary to Cherry’s contention, the court was not required to conduct an evidentiary hearing on the recusal issue. Indeed, § 455(a) does

not specify any particular procedures that a judge should employ in

deciding a recusal motion. A judge may, of course, in his discretion, conduct an evidentiary hearing or transfer a recusal request to another judge

for determination. See, e.g., United States v. Heldt, 668 F.2d 1238, 1271-

72 (D.C. Cir. 1981). But the failure to conduct such a hearing does not,

in these circumstances, entitle Cherry to a new trial. 

UNITED STATES v. CHERRY 11
perfunctory letter of appreciation.14 It is common and perfectly appropriate for citizens to lend support to judicial nominees, and it is also

proper for nominees to acknowledge such support with letters of

appreciation. As we have previously acknowledged, "the more common a potentially biasing circumstance and the less easily avoidable

it seems, the less that circumstance will appear to a knowledgeable

observer as a sign of partiality." DeTemple, 162 F.3d at 287 (internal

quotation marks omitted). Furthermore, even if the judge had maintained a close friendship with McConnell, McConnell has only a tangential relationship to this case. Cherry’s criminal activities

victimized the beneficiary of McConnell’s estate, Waynesburg College, rather than McConnell himself. In these circumstances, we are

unable to say that a reasonable observer would question the presiding

judge’s impartiality. The judge was thus within his discretion in

declining to recuse himself. 

B.

Cherry also maintains on appeal that her money laundering convictions should be vacated because the district court has vacated her four

bank embezzlement convictions. Put differently, Cherry contends that

her money laundering convictions necessarily depend on her bank

embezzlement convictions because bank embezzlement is alleged to

be the specified unlawful activity in the Money Laundering Counts.

Although Cherry has simply raised a general challenge to her money

laundering convictions, we address three more specific arguments she

seems to be making: (1) the evidence was insufficient to support her

money laundering convictions; (2) the indictment did not validly

charge her with money laundering; and (3) the jury was not properly

instructed as to the elements of money laundering. We discuss each

of these issues separately.

14McConnell apparently claimed to have influence in the nation’s capital, as the letter states: "It was great joining you for dinner in Bluefield

on Monday. . . . I also want to thank you for copying me in on all of your

recent correspondence with officials at the White House and Department

of Justice. Your continued support is a source of great comfort and inspiration." 

12 UNITED STATES v. CHERRY
1.

We must first determine whether the government presented sufficient evidence to convict Cherry of money laundering, even though

she was not convicted of the specified unlawful activity of bank

embezzlement. Money laundering, under § 1957, is defined as "knowingly [engaging] in a monetary transaction in criminally derived property of a value greater than $10,000 and is derived from specified

unlawful activity." 18 U.S.C. § 1957(a).15 It is clear that a defendant

may be convicted of money laundering even if she is not a party to,

much less convicted of, the specified unlawful activity. United States

v. Smith, 46 F.3d 1223, 1234 (1st Cir. 1995) ("There is no requirement that the defendant must have committed the crime . . . from

which the property was derived." (internal quotation marks omitted));

see also United States v. Richard, 234 F.3d 763, 768-69 (1st Cir.

2000) (upholding money laundering convictions even though defendant had been acquitted of specified unlawful activity); United States

v. Mankarious, 151 F.3d 694, 703 (7th Cir. 1998) (upholding convictions for money laundering even though court dismissed counts alleging specified unlawful activity); United States v. Kennedy, 64 F.3d

1465, 1479-80 (10th Cir. 1995) (affirming money laundering convictions despite acquittal of specified unlawful activity). Pursuant to this

principle, it was not essential to Cherry’s money laundering convictions that she also be convicted of bank embezzlement. 

2.

Second, we assess whether the indictment sufficiently charged

Cherry with money laundering, even though the four Bank Embezzlement Counts were fatally flawed. Each of the Money Laundering

Counts in the indictment alleged that Cherry violated 18 U.S.C.

§ 1957, in that: 

15Section 1957(f)(1) defines a "monetary transaction" as "the deposit,

withdrawal, transfer, or exchange, in or affecting interstate or foreign

commerce, of funds or a monetary instrument . . . by, through, or to a

financial institution." 18 U.S.C. § 1957(f)(1). Section 1957(f)(2) defines

"criminally derived property" as "any property constituting, or derived

from, proceeds obtained from a criminal offense." Id. § 1957(f)(2). 

UNITED STATES v. CHERRY 13
[o]n or about the date indicated below for each Count . . .

defendant BILLIE J. CHERRY knowingly engaged in and

caused others to engage in a monetary transaction affecting

interstate commerce in criminally derived property, that was

of a value greater than $10,000, and that was derived from

a specified unlawful activity, that is, bank embezzlement, in

violation of 18 U.S.C. § 656, by causing the withdrawal and

transfer of funds and monetary instrument from defendant

BILLIE J. CHERRY’S account. 

The Money Laundering Counts further charged that "[w]hile engaging in and causing others to engage in [certain] monetary transactions,

defendant BILLIE J. CHERRY knew that the property involved was

criminally derived." The indictment, however, nowhere specified the

essential elements of bank embezzlement. Because neither the Money

Laundering Counts nor the Bank Embezzlement Counts set forth all

of the elements of the predicate offense, we must decide whether the

indictment nonetheless sufficiently alleged the offense of money laundering. 

In United States v. Smith, 44 F.3d 1259 (4th Cir. 1995), we

addressed the precise question at issue here, namely, whether an

indictment charging money laundering must allege all of the elements

of the specified unlawful activity. As we observed there, "details

about the nature of the unlawful activity underlying the [money laundering] need not be alleged." Id. at 1265; see also United States v.

Caldwell, 302 F.3d 399, 413 (5th Cir. 2002) (finding indictment sufficiently charged defendant with money laundering even though it did

not allege elements of specified unlawful activity); cf. United States

v. McGauley, 279 F.3d 62, 70 (1st Cir. 2002) ("[W]e do not require

the indictment to specify the predicate offense underlying a money

laundering charge." (internal quotation marks omitted)). Thus, it was

not necessary for the Money Laundering Counts to have alleged the

elements of the specified unlawful activity (i.e., bank embezzlement).

It was sufficient for those counts to have alleged, as they did, that the

money laundering transactions involved funds derived from a specified unlawful activity, and that such activity violated 18 U.S.C. § 656.

As in Smith, "[n]othing more need be alleged." 44 F.3d at 1265. 

14 UNITED STATES v. CHERRY
3.

Third, we assess whether the jury was properly instructed on the

elements of money laundering. The offense of money laundering

requires "proof beyond a reasonable doubt that the defendant knowingly participated in a monetary transaction involving criminally

derived proceeds." United States v. Najjar, 300 F.3d 466, 481 (4th

Cir.), cert. denied, 123 S. Ct. 705 (2002). Here, the jury was properly

instructed that, in order to convict Cherry on the Money Laundering

Counts, it was required to find that the financial transactions at issue

in those counts involved proceeds derived from a specified unlawful

activity, that is, bank embezzlement under § 656. Further, the jury

was instructed on each element of bank embezzlement, including the

element that the indictment had failed to allege, i.e., that Cherry acted

"with the intent to injure and defraud the bank" in embezzling funds

from McConnell’s accounts. Thus, the jury was adequately instructed

on the essential elements of money laundering under § 1957. 

In these circumstances, there was no error in Cherry’s money laundering convictions. Absent error, there can be no "plain error," and

each of her convictions must be affirmed. 

C.

Finally, Cherry contests the validity of the judgment of forfeiture.

With respect to the forfeiture award, Cherry raises two contentions:

first, she asserts that the court erroneously instructed the jury on the

standard of proof relevant to assessing the forfeiture issues; second,

she insists that the judgment of forfeiture must be vacated because the

court has vacated her convictions on the Bank Embezzlement Counts.

We address each of these contentions in turn. 

1.

By the indictment, the grand jury sought the criminal forfeiture of

property involved in Cherry’s criminal activities at the Bank, pursuant

to 18 U.S.C. § 982.16 Specifically, it sought forfeiture of the aggregate

16Section 982 provides a criminal (in personam) forfeiture remedy

against defendants convicted of certain offenses. By contrast, § 981 proUNITED STATES v. CHERRY 15
sum of $4,282,588; the 1956 Ford Thunderbird; and the Pittsburgh

and Orlando condominiums. Prior to the court’s submission of the

forfeiture issue to the jury, Cherry proposed an instruction that would

have required the jury to apply a reasonable doubt standard of proof

in deciding whether she should be ordered to forfeit property. The

court, however, rejected Cherry’s proposal and instead instructed the

jury that it should apply a "preponderance of the evidence" standard.17

On appeal, Cherry contends that the court erred in authorizing criminal forfeiture on the basis of a preponderance standard.18

vides for civil (in rem) forfeiture of property involved in certain offenses.

The most notable distinction between civil and criminal forfeiture is that

civil forfeiture proceedings are brought against property, not against the

property owner; the owner’s culpability is irrelevant in deciding whether

property should be forfeited. See United States v. Sandini, 816 F.2d 869,

872 (3d Cir. 1987) ("Civil forfeiture is an in rem proceeding. The property is the defendant in the case, and the burden of proof rests on the

party alleging ownership. The innocence of the owner is irrelevant — it

is enough that the property was involved in a violation to which forfeiture attaches."). By contrast, the prime objective of criminal forfeiture is

to punish the property owner. Id. at 873. 

17The court’s instruction advised the jury, in relevant part, that: "[t]o

find that the alleged proceeds and property described in the Indictment

are subject to forfeiture, you must be convinced by a preponderance of

the evidence that the sums charged fairly represent the amounts derived

from proceeds that the defendants obtained directly or indirectly from the

offenses charged in [the Bank Embezzlement Counts] and that the property charged fairly represents the property which was involved in, or is

traceable to property involved in [the Money Laundering Counts]." Cherry’s proposed instruction substituted the highlighted language with the

phrase "beyond a reasonable doubt." 

18Cherry bases her contention regarding the standard of proof on the

Third Circuit’s decision in United States v. Pellulo, 14 F.3d 881 (3d Cir.

1994), where the court held that the reasonable doubt standard governs

forfeiture determinations under RICO’s criminal forfeiture provision, 18

U.S.C. § 1963. While we have not decided the standard of proof applicable to forfeiture determination under § 1963, other circuits have suggested that the preponderance standard may apply. See United States v.

Houlihan, 92 F.3d 1271, 1299 n.33 (1st Cir. 1996). 

In any event, the Third Circuit, in United States v. Voigt, 89 F.3d 1050

(3d Cir. 1996), decided that Pellulo’s reasoning should not be extended

16 UNITED STATES v. CHERRY
A judgment of forfeiture, imposed pursuant to 18 U.S.C. § 982, is

not a separate conviction; rather, it constitutes part of the sentence, in

that it is utilized to enhance the punishment of a defendant who has

already been convicted of a particular offense. Section 982(a) provides in part that a court "in imposing a sentence on a person convicted of an offense in violation of section . . . 1957 . . . shall order

that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such

property." 18 U.S.C. § 982(a) (emphasis added). Because forfeiture

represents a penalty, rather than a separate criminal offense or an element of a criminal offense, the court properly instructed the jury that

the preponderance standard governed its findings under § 982. See

United States v. Tanner, 61 F.3d 231, 234 (4th Cir. 1995) (holding,

under different forfeiture statute, that "forfeitures are a penalty" and

thus that "the preponderance standard should govern"); see also

Libretti v. United States, 516 U.S. 29, 42 (1995) (emphasizing that

criminal forfeiture is part of sentence). 

Two of our sister circuits have previously addressed the appropriate standard of proof in the context of § 982 forfeiture determinations.

They have both decided, consistent with the instruction of the district

court here, that the preponderance standard applies. In United States

v. Voigt, 89 F.3d 1050 (3d Cir. 1996), the Third Circuit concluded

that forfeiture is a sentencing sanction, rather than a separate offense

or an element of an offense. Accordingly, it held "that the preponderance, not the reasonable doubt, standard governs forfeiture under

§ 982(a)(1)." Id. at 1083. Similarly, in United States v. Myers, 21 F.3d

to forfeitures under 18 U.S.C. § 982, the forfeiture provision at issue

here. As that court held, "there are good reasons for employing the reasonable doubt standard in the RICO context but not in the money laundering context." 89 F.3d at 1083. In particular, "[t]he RICO forfeiture

provision is by far the most far reaching" forfeiture provision, "sweeping

far more broadly" than "the substantive RICO offense itself." Id. at 1084.

"Accordingly, since the identity and extent of property subject to forfeiture will not have been addressed in the course of proving the substantive

RICO charge, a reasonable doubt burden of persuasion ensures greater

accuracy in determining the scope of property subject to forfeiture." Id.

Forfeiture proceedings under § 982, by contrast, are more limited, and

relate more closely to the substantive offense of money laundering. 

UNITED STATES v. CHERRY 17
826 (8th Cir. 1994), the Eighth Circuit decided that Congress intended

"that forfeiture under the money laundering provision is . . . a sentencing sanction, not an offense or element of an offense. Therefore, the

preponderance standard of proof applies to forfeiture under 18 U.S.C.

§ 982(a)(1)." Id. at 829. We agree with our sister circuits that the preponderance standard applies to forfeiture under § 982(a). Accordingly, the district court properly rejected Cherry’s proposed

instruction. 

2.

Cherry also contends that the judgment of forfeiture must be

vacated to the extent that it is premised on her now-vacated bank

embezzlement convictions. As Cherry observes, a judgment of forfeiture must be based on the conviction of one of a variety of offenses.

18 U.S.C. § 982. The jury returned a special verdict against Cherry

on the judgment of forfeiture, which tied the aggregate sum of

$4,282,588 to her four bank embezzlement convictions and linked the

balance of the forfeited property — the 1956 Ford Thunderbird and

the condominiums — to her separate money laundering convictions.

Significantly, the government concedes on appeal that it is not entitled to collect the forfeited sum of $4,282,588, and it has not sought

to enforce the forfeiture judgment as to these monies. In these circumstances, we agree that the judgment of forfeiture may not include the

sum of $4,282,588, which was premised on Cherry’s defective and

now-vacated bank embezzlement convictions. 

IV.

For the foregoing reasons, we affirm Cherry’s money laundering

convictions, but we vacate the judgment of forfeiture insofar as it is

premised on Cherry’s now-vacated bank embezzlement convictions.

AFFIRMED IN PART AND VACATED IN PART

18 UNITED STATES v. CHERRY