PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-5218

ROGER CHARLES DAY, JR.,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

John A. Gibney, Jr., District Judge.

(3:07-cr-00154-JAG-3)

Argued: October 26, 2012

Decided: November 29, 2012

Before WILKINSON, KING, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Judge King and Judge Shedd joined.

COUNSEL

ARGUED: Richard Hans Maurer, MAURER/SONG PC,

Philadelphia, Pennsylvania, for Appellant. Ryan Scott Faulconer, OFFICE OF THE UNITED STATES ATTORNEY,

Alexandria, Virginia, for Appellee. ON BRIEF: Neil H. MacBride, United States Attorney, Alexandria, Virginia, Elizabeth
C. Wu, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Richmond, Virginia, for

Appellee.

OPINION

WILKINSON, Circuit Judge:

Roger Day Jr. was convicted of wire fraud, conspiracy to

commit wire fraud, conspiracy to commit money laundering,

and conspiracy to commit smuggling for his role as the mastermind of a multi-million dollar scheme to defraud the

Department of Defense ("DOD"). The crux of Day’s scheme

involved the knowing supply of defective and nonconforming

spare parts for use in U.S. military aircraft, vehicles, and

weapons systems. Many of these were "critical application

items"—that is, parts whose failure could jeopardize the lives

of military personnel and the success of military operations.

The district court imposed a sentence of 105 years in prison

along with substantial fines, forfeitures, and restitution. Day

now appeals his convictions and sentence on a variety of

grounds. Finding his arguments without merit, we affirm the

judgment of the district court.

I.

A.

In late 2004 and early 2005, Day began running a business

scheme involving his then-girlfriend, Susan Crotty Neufeld,

and his friends, Nathan Carroll and Greg Stewart. Acting at

Day’s direction, Neufeld, Carroll, and Stewart would set up

companies that could bid on parts-supply contracts for the

Defense Logistics Agency ("DLA"), the agency within the

DOD responsible for acquiring parts for the military services.

Using Day’s custom-designed software program, the compa2 UNITED STATES v. DAY
nies would then bid en masse on low-dollar value DLA contracts. When one of the newly formed companies won a

contract, Day would purchase the necessary parts and have

them shipped to Neufeld or Carroll, who would in turn deliver

the parts to a packaging company for shipping to the DLA to

complete the contract. Day would then share a portion of the

profit with the others.

The arrangement between Day and his co-conspirators

lasted three years, during which the various companies

secured some 987 contracts worth approximately

$8,670,380.78. Like all too many get-rich-quick ideas, however, this scheme was too good to be true. The trick was in

the parts: rather than delivering parts that complied with the

exacting military specifications called for in the various contracts, Day would purchase similar sounding—yet cheaper

and nonconforming—items. For example, instead of the special military aircraft dome antennas that were the subject of

one contract, Day obtained and directed his co-conspirators to

deliver ordinary citizens band radio antennas. Similarly,

rather than the valuable infrared halogen light filters requested

by the DLA for nighttime use on F-16 fighter jets, Day and

his co-conspirators delivered noncomplying recessed lighting

components. Fifty-nine percent of the contracts obtained during the scheme involved "critical application items," or items

that the military had determined to be essential to weapon system operation or the safety of operating personnel. When all

was said and done, Day purchased the various nonconforming

parts for, on average, just 3.77% of the amount that he

received back in payment from the government. 

The success of Day’s scheme was predicated on the fact

that, due to issues of cost and efficiency, the DLA could not

individually inspect each delivered part for quality assurance

prior to paying out many of its contracts. Thus, instead of

rejecting noncomplying parts upon receipt and refusing to

make payment, the DLA typically punished companies who

had shipped such parts by debarring them from winning

UNITED STATES v. DAY 3
future awards. Yet when the DLA identified the companies

used by Day and his co-conspirators as the proper subject of

debarment orders, Day circumvented those orders through the

simple expedient of instructing his co-conspirators to form

new companies, which could place and win bids on partssupply contracts anew. 

Early on in the scheme, in May 2005, Day moved to Mexico, where he directed Neufeld, Carroll, and Stewart through

emails, phone calls, and internet chats. He initially instructed

the three to route the proceeds of the scheme to him in Mexico in the form of checks that he would deposit in a Belizean

bank account. However, the bank eventually shut down Day’s

account, leaving him without an easy way to pocket the proceeds of his project. Day reacted by instructing Carroll to convert his funds into gold and to physically bring the gold to

him in Mexico. 

The task of purchasing and then transporting the gold to

Day in Mexico involved several complicated steps. First, Day

told Carroll to purchase a large quantity of gold—some 2,030

ounces in gold bars and 1,522 ounces in gold coins—from a

gold dealer in Arizona and to have the gold shipped to Carroll’s residence in New Jersey. However, because Day did not

wish to enter the United States to transport the gold personally, he instead asked other individuals to transport the gold

for him. Thus, in July 2006, Carroll drove 197 gold bars

(worth more than $1.3 million) from New Jersey to Houston,

Texas, where he met Juerg Mehr, an auto mechanic whom

Day had asked to help hide the gold inside the hollow front

bumper of a Toyota Land Cruiser. Once the gold was hidden,

Carroll picked up Stewart and drove across the U.S.-Mexico

border where they met up with Day. The three of them then

drove to Day’s home in Lo De Marcos, where after waiting

until nighttime, they hand-sawed the gold out of the Land

Cruiser’s bumper and placed it inside Day’s home.

The next effort to transport gold to Day in Mexico did not

meet with the same success, as Carroll was arrested by Mexi4 UNITED STATES v. DAY
can authorities while attempting to cross the border in September 2006. Although he was released shortly thereafter, the

arrest left Carroll unable to travel to Mexico and Day looking

for a new courier. Day eventually recruited Glenn Teal, a former law enforcement officer. In February 2007, Teal flew to

Houston where he met Carroll, Mehr, and a fourth individual.

Together they hid roughly $850,000 worth of gold that Carroll

had driven down from New Jersey inside the rear door panel

of an Austrian Pinzgauer military transport vehicle that

belonged to Day. Teal then drove the Pinzgauer into Mexico,

where he met Day, and the two transported the gold together

to Day’s home in Lo De Marcos. 

Within a month of this second delivery, however, the

scheme began to unravel. Carroll and Stewart had run-ins

with law enforcement officers in February 2007, after which

Day sent Carroll an email instructing him to "stop bidding" on

the DLA contracts. Carroll was arrested soon thereafter, on

March 9. Day then abandoned his Mexican residence,

assumed multiple fake identities, and began recruiting additional individuals to help him transport his gold, first from

Mexico back to the United States and then to a gold dealer in

Canada. Finally, after more than a year on the run, Day was

arrested in July 2008 by Mexican authorities at the Cancun

International Airport. He was subsequently detained at a Mexican prison where he awaited extradition to the United States.

In August 2008, a federal grand jury indicted Day for wire

fraud conspiracy, 18 U.S.C. § 1349; wire fraud, 18 U.S.C.

§ 1343; aggravated identity theft, 18 U.S.C. § 1028A; money

laundering conspiracy, 18 U.S.C. § 1956(h); smuggling conspiracy, 18 U.S.C. §§ 371, 554; and obstruction of justice, 18

U.S.C. § 1503. In December 2010, the Mexican government

agreed to extradite Day to the United States on all charges

other than the identity theft and obstruction counts. 

UNITED STATES v. DAY 5
B.

After his extradition to the United States, Day was scheduled to be tried by a jury in the U.S. District Court for the

Eastern District of Virginia in August 2011. 

Prior to the trial, Day filed a motion in limine seeking to

exclude a variety of evidence characterized as "uncharged

money laundering and miscellaneous bad acts" on the grounds

that such evidence would be unfairly prejudicial and irrelevant to the offenses that were actually charged. In particular,

Day’s counsel sought to bar the government from introducing

evidence concerning Day’s use of his Belizean and other bank

accounts to deposit proceeds from his scheme, his use of various false names and identifications, and his purchase of several expensive watches while living in Mexico. After

considering Day’s arguments, the trial court denied the

motion to exclude those disputed items of evidence, reasoning

that they were really "part and parcel of the money laundering

scheme" and not "attempts to slam [Day’s] character." 

During the eight-day trial, the government introduced testimony from a number of witnesses. One was Tom Higginbotham, a DLA engineer who tested several of the

nonconforming parts that the government purchased from

Day and his co-conspirators. On cross-examination of Higginbotham, Day’s counsel sought to admit into evidence an internal agency report that had concluded that some of the parts

Higginbotham tested had been mishandled by a government

investigator in the case.

The government objected to the report’s admission under

Rule 403 of the Federal Rules of Evidence, arguing that it

concerned a collateral matter whose probative value would be

substantially outweighed by the risk of confusing the issues.

The trial court agreed, reasoning that the "report does not suggest that . . . any of the evidence is tainted, or wrong in this

case," a characterization with which defense counsel con6 UNITED STATES v. DAY
curred. The court accordingly ruled that the report would

yield little probative value, while posing a high risk of prejudice. The court did, however, permit Day to cross-examine

the agent who had allegedly mishandled the evidence regarding the ways in which he may have violated agency procedures. 

At the close of the trial, the court turned to the task of

instructing the jury. During the charge conference, the government sought an instruction on aiding and abetting liability.

Day’s counsel did not object, and the trial court proceeded to

instruct the jury that Day could be held liable under an aiding

and abetting theory.

The trial judge also instructed the jury on the meaning of

the word "proceeds" as it is used in the money laundering

statute, 18 U.S.C. § 1956(a)(2)(B). Specifically, the judge

instructed the jury—without objection—that the term "proceeds" includes "any interest in property that someone

acquires or retains as a result of the commission of . . . a specified unlawful activity."

On August 25, 2011, the jury unanimously found Day

guilty on all counts. During Day’s sentencing hearing, the district court determined that based on his convictions and applicable sentencing enhancements, Day’s Guidelines range was

1,260 months’ imprisonment. One of the enhancements that

the court found applicable was for obstruction of justice,

U.S.S.G. § 3C1.1, which the court determined to be warranted

because Day had "attempted to bribe United States and Mexican officials," "attempted to escape while in Mexico," and "at

least plotted an escape while in jail" in Virginia. 

After calculating the Guidelines range, the court considered

the 18 U.S.C. § 3553(a) sentencing factors and determined

that the 1,260-month sentence was appropriate. In particular,

the trial judge noted that the "nature and circumstances of the

offense are just absolutely vile," and that with respect to his

UNITED STATES v. DAY 7
character, Day had exhibited "absolutely no conscience" and

"no regret." The judge also explained that the need to protect

the public from further crimes by Day was a "paramount consideration" in his sentencing determination because "if [Day]

was released today he would think of his next scheme before

sunset. . . . and would start to put it in action tomorrow."

Finally, in addition to the term of imprisonment, the court

imposed on Day a fine of $3 million, restitution of more than

$6 million, and forfeiture consisting of gold, vehicles, and

more than $2 million in cash. 

Day now appeals his convictions and sentences, raising

challenges on a number of grounds. We address each in turn.

II.

Day’s initial arguments concern the trial court’s decision to

instruct the jury that he could be convicted under an aiding

and abetting theory. Day’s counsel did not object to the aiding

and abetting instruction, so we review his claims for plain

error. See Puckett v. United States, 556 U.S. 129, 135 (2009).

As explained below, his claims fail the first prong of this standard, for the jury instruction was not erroneous.

A.

Day first argues that his convictions should be reversed

because the trial court’s aiding and abetting instruction

amounted to a constructive amendment of his indictment. "A

constructive amendment, also known as a ‘fatal variance,’

happens when the government, through its presentation of

evidence or its argument, or the district court, through its

instructions to the jury, or both, broadens the bases for conviction beyond those charged in the indictment." United

States v. Roe, 606 F.3d 180, 189 (4th Cir.) (internal quotation

marks omitted), cert. denied, 131 S. Ct. 617 (2010). Day

asserts that the aiding and abetting instruction broadened the

8 UNITED STATES v. DAY
bases of conviction in his case because his indictment neither

mentioned nor charged that particular theory of liability.

Day’s argument fails for the simple reason that—as this

court and other courts have repeatedly held—a defendant

"may be convicted of aiding and abetting under an indictment

which charges only the principal offense." United States v.

Duke, 409 F.2d 669, 671 (4th Cir. 1969); see also, e.g.,

United States v. McKnight, 799 F.2d 443, 445 (8th Cir. 1986);

United States v. Galiffa, 734 F.2d 306, 312 (7th Cir. 1984).

Indeed, we observed just two years ago, in United States v.

Ashley, that aiding and abetting liability "need not be charged

in an indictment." 606 F.3d 135, 143 (4th Cir.), cert. denied,

131. S. Ct. 428 (2010). 

This conclusion follows ineluctably from the rule against

constructive amendments itself, which is focused not on particular theories of liability but on the offenses charged in an

indictment. That is, a constructive amendment occurs only

where an "indictment is altered to change the elements of the

offense charged, such that the defendant is actually convicted

of a crime other than that charged in the indictment." United

States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999) (emphasis added) (internal quotation marks omitted). Yet as we

explained in Ashley, aiding and abetting liability "does not set

forth an essential element of the offense with which the defendant is charged or itself create a separate offense." 606 F.3d

at 143. Instead, "aiding and abetting simply describes the way

in which a defendant’s conduct resulted in the violation of a

particular law." Id. We therefore reject Day’s contention that

the aiding and abetting jury instruction was a constructive

amendment.

B.

Day next argues that his convictions should be reversed

because the aiding and abetting jury instruction violated the

extradition rule of specialty. As expressed in the United

UNITED STATES v. DAY 9
States’ extradition treaty with Mexico, the rule provides that

"a person extradited under [this Treaty] shall not be detained,

tried or punished in the territory of the requesting Party for an

offense other than that for which extradition has been

granted." Extradition Treaty Between the United States of

America and the United Mexican States, art. 17, May 4, 1978,

31 U.S.T. 5059 ("U.S.-Mexico Extradition Treaty"). Day contends that the aiding and abetting instruction violated the rule

in this case because Mexico did not grant—or even consider

—extradition on the basis of aiding and abetting liability.

1.

Although the government disputes Day’s contention on the

merits, it argues as a threshold matter that Day lacks standing

to raise the specialty violation in the first place. As we have

noted before, the circuits are split on the question of whether

an individual defendant has standing to raise a specialty violation, and the Fourth Circuit has yet to rule on the matter.

United States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992). The

courts that have declined to find individual standing take the

view that "only an offended nation can complain about the

purported violation of an extradition treaty." United States v.

Kaufman, 874 F.2d 242, 243 (5th Cir. 1989) (per curiam)

(denying petition for rehearing and suggestion for rehearing

en banc); see also, e.g., Shapiro v. Ferrandina, 478 F.2d 894,

906 (2d Cir. 1973). In contrast, other courts have held that an

individual "may raise whatever objections the extraditing

country would have been entitled to raise." United States v.

Cuevas, 847 F.2d 1417, 1426 (9th Cir. 1988); see also, e.g.,

United States v. Diwan, 864 F.2d 715, 721 (11th Cir. 1989).

Because we conclude that Day’s specialty argument fails

on the merits, however, we need not resolve the government’s

standing argument now. To be sure, courts must resolve jurisdictional Article III standing issues before proceeding to consider the merits of a claim. Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 95 (1998). But the standing requirement

10 UNITED STATES v. DAY
at issue here does not flow from Article III, for there is little

question that an individual who is extradited for one offense

but then tried for a completely different one suffers a concrete

injury that is both fairly traceable to that prosecution and

redressable by a favorable judicial ruling. See Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,

180-81 (2000). The standing question here instead involves

the prudential requirement that the interest a litigant seeks to

assert must be within the "zone of interests" that the statute

(or in this case, treaty) is designed to protect. See, e.g., Shapiro, 478 F.2d at 906 (noting that the rule of specialty is "designed to protect [the asylum state’s] dignity and interests,"

not the interests of the accused). 

Unlike Article III standing, issues of prudential standing

are non-jurisdictional and may be "pretermitted in favor of a

straightforward disposition on the merits." Finstuen v. Crutcher, 496 F.3d 1139, 1147 (10th Cir. 2007) (internal quotation

marks omitted). Accordingly, this court and others have

assumed without deciding that an individual defendant has

standing to assert a specialty violation where the defendant’s

position is readily disposed of on other grounds. See, e.g.,

Davis, 954 F.2d at 186-87; United States v. Sensi, 879 F.2d

888, 892 n.1 (D.C. Cir. 1989). That is the case here as well.

2.

With respect to the merits, the flaw in Day’s specialty argument is fundamentally the same as the flaw in his constructive

amendment argument: aiding and abetting is a theory of liability, not a separate offense. Yet as the Supreme Court

explained in its seminal decision recognizing the rule of specialty, United States v. Rauscher, the rule is keyed to particular offenses: it bars trying an extradited defendant for crimes

other than "the offense with which he is charged in the proceedings for his extradition." 119 U.S. 407, 430 (1886)

(emphasis added). The treaty between the United States and

Mexico reinforces this point as it, too, prohibits the trial of a

UNITED STATES v. DAY 11
person for "an offense" for which extradition has not been

granted. U.S.-Mexico Extradition Treaty, art. 17, 31 U.S.T.

5059.

Thus, a paradigmatic example of a specialty violation

would be a case in which the requesting state seeks extradition of a defendant for one offense, such as drug trafficking,

but then proceeds to try the defendant on a different offense,

such as securities fraud. Such a prosecution would violate the

norm of international comity upon which the rule of specialty

is premised. After all, if the United States wishes to protect

its own citizens from bait-and-switch prosecutions when they

are extradited for trial in a foreign nation, so too must it honor

the same limitation in the reciprocal situation. See United

States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994). 

The rule’s concern with unexpected prosecutions on unextradited offenses accordingly makes great sense. But aiding

and abetting liability, far from being a separate offense, is

closely linked to the principal violation. Its capacity to surprise or prejudice either the extradited defendant or the extraditing sovereign is therefore sharply limited. Moreover, the

rule of specialty has never been used to limit a requesting

state’s ability to try a defendant for an extradited offense

under a particular theory of liability, rule of evidence, or rule

of procedure. See, e.g., United States v. Thirion, 813 F.2d

146, 152-53 (8th Cir. 1987) (rule of specialty not violated by

jury instruction regarding theory of co-conspirator vicarious

liability); United States v. Flores, 538 F.2d 939, 944 (2d Cir.

1976) (rule of specialty "has never been construed to permit

foreign intrusion into the evidentiary or procedural rules of

the requisitioning state"). Consistent with this long line of

decisions—and further undercutting Day’s claim that the rule

of specialty required Mexico to make a determination as to

whether he could be tried under an aiding and abetting theory

—the extradition treaty between the United States and Mexico

makes absolutely no mention of theories of liability. See U.S.-

Mexico Extradition Treaty, 31 U.S.T. 5059. 

12 UNITED STATES v. DAY
We accordingly hold that where, as here, a defendant is

tried for the exact offenses described in his extradition agreement, the principle of specialty does not bar a trial court from

instructing the jury that it may convict on such offenses under

an unmentioned aiding and abetting theory.

3.

Day presses an additional specialty argument with respect

to the trial court’s sentence of forfeiture, which he contends

was not mentioned in his extradition agreement. This, too, is

without merit. For like the issue of jury instructions regarding

particular theories of liability, a district court’s decision to

impose a judgment of forfeiture is collateral to the rule’s concern over prosecutions on un-extradited offenses. A forfeiture

judgment is not a free-standing criminal offense, but rather a

particular form of punishment for otherwise proscribed conduct. United States v. Saccoccia, 58 F.3d 754, 784 (1st Cir.

1995). Thus, as the First Circuit explained in Saccoccia, "a

defendant may be subjected to a forfeiture order even if extradition was not specifically granted in respect to the forfeiture

allegations." Id. Underscoring this fact, the U.S.-Mexico

Extradition Treaty says nothing about limitations on forfeiture. See U.S.-Mexico Extradition Treaty, 31 U.S.T. 5059. We

therefore hold that the rule of specialty was not violated by

the forfeiture judgment imposed against Day. 

III.

Day next challenges his conviction for conspiracy to commit transportation money laundering in violation of 18 U.S.C.

§ 1956(a)(2)(b)(i). The statute makes it a crime to transport

a monetary instrument or funds from a place in the

United States to or through a place outside the

United States . . . knowing that the monetary instrument or funds involved in the transportation . . . represent the proceeds of some form of unlawful

UNITED STATES v. DAY 13
activity and knowing that such transportation . . . is

designed in whole or in part . . . to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified

unlawful activity.

18 U.S.C. § 1956(a)(2)(b)(i). Day’s arguments concern three

aspects of this statute: first, whether the government proved

that Day transported gold with the requisite design to conceal;

second, whether gold is a "monetary instrument or funds"

covered under the statute; and third, whether the trial court

issued an improper jury instruction on the meaning of the

term "proceeds." We consider these arguments in turn.

A.

Day’s first argument involves the statute’s requirement that

a defendant must transport a monetary instrument or funds

knowing that such transportation "is designed in whole or in

part" to "conceal or disguise the nature, the location, the

source, the ownership, or the control of the proceeds." 18

U.S.C. § 1956(a)(2)(b)(i). Day contends that the government

did not prove the necessary design to conceal because even

though Day and his confederates hid the gold in the process

of transporting it across the Mexican border, the government

did not prove that the purpose of the concealment was to hide

the location, source, or ownership of the gold from the government. We review this challenge for sufficiency of the evidence, asking "whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319

(1979).

The essence of Day’s argument is that the outcome of his

case is dictated by the Supreme Court’s decision in Cuellar v.

United States, 553 U.S. 550 (2008). In that case, the Supreme

Court held that there was insufficient evidence to convict a

14 UNITED STATES v. DAY
defendant of transportation money laundering where the evidence only established that the defendant hid cash proceeds of

drug trafficking under a floorboard in his car for the purpose

of transporting it across the border to Mexico. Id. at 568. As

the Court explained, "[t]here is a difference between concealing something to transport it," which is not punishable under

the statute, and "transporting something to conceal it," which

is. Id. at 566 (internal quotation marks omitted). In Cuellar,

however, there was insufficient evidence of the latter purpose

—that is, no evidence that would permit a reasonable jury to

conclude that the transportation was designed to conceal an

attribute listed in the statute. Id. at 567 n.8, 568. In fact, the

only purpose of the transportation to which the government’s

own expert witness testified in Cuellar was to "compensate

the leaders of the operation." Id. at 566 & n.7. So too here,

argues Day, because even though the gold was hidden in

order to get it across the border, the purpose of the transportation was simply to get the gold to Mexico in order to compensate him.

We do not think Cuellar sustains Day’s argument.

Although it held that "merely hiding funds during transportation is not sufficient to violate the statute," id. at 563, Cuellar

also made clear that a jury may infer the requisite design to

conceal based on circumstantial evidence that the defendant

"knew that taking the funds to Mexico would have had one of

the relevant effects" listed in the statute, id. at 567 n.8. In

Cuellar, no such circumstantial evidence existed because the

government did "not point[ ] to any evidence in the record" to

support such an inference. Id. But here, the government has

pointed to a record replete with evidence showing that Day

not only knew that transporting the gold to Mexico would

have the effect of concealing the location, nature, and source

of his unlawful proceeds, but also that he transported the gold

for precisely that purpose. 

For example, just before Glenn Teal brought the second

shipment of gold to Day in Mexico in February 2007, Day

UNITED STATES v. DAY 15
told him that he "did not want to leave the gold" at Carroll’s

house in New Jersey. As Day explained to Carroll, he wanted

to move the gold because he was "afraid that things were

going to get hot" given that Stewart had just had a run-in with

law enforcement officers. Indeed, Day’s fears were confirmed

when, shortly after he made these remarks, Carroll was

arrested and his house was searched on March 9th—a search

that would have turned up the gold (amounting to roughly

$850,000 of the fraud scheme’s proceeds) had Day not successfully concealed its location by transporting it to Mexico

just days earlier. A rational jury could infer based on this evidence that one of the reasons why Day had the gold moved

to Mexico was to conceal its location from American authorities who he (correctly) feared were on the verge of discovering its whereabouts—a quintessential act targeted by the

transportation money laundering statute. 

Moreover, the government adduced additional evidence

indicating that Day intended through transportation of the

gold to conceal the source, nature, and ownership of the fraud

proceeds. For instance, Day steadfastly declined to move the

gold himself; at least eight witnesses testified that Day asked

them to help move the gold into and out of Mexico on his

behalf. Day also used a false name when negotiating with a

gold dealer to exchange the gold for a wire transfer. And a

reasonable jury could have relied on the byzantine path that

the gold took during the conspiracy. Just like Day himself

after his scheme unraveled, it can truly be said in this case

that the gold was on the lam: first from Arizona to New Jersey; then to Houston, Texas; next to Day’s home in Lo De

Marcos, Mexico; then to Juarez, Mexico; then back to the

United States in Albuquerque; then to Washington; and

finally to a gold dealer in Canada. In sum, based on that path

and the other evidence of Day’s purpose in moving the gold,

we hold that a rational jury could have found the design to

conceal element of transportation money laundering proven

beyond a reasonable doubt. 

16 UNITED STATES v. DAY
B.

Day contends that even if there was sufficient evidence to

support the design to conceal element, his conviction should

be reversed because gold is not "a monetary instrument or

funds" as required by 18 U.S.C. § 1956(a)(2). This challenge

implicates two issues and two standards of review. First,

Day’s argument that the district court erred in interpreting the

legal meaning of offense elements—in particular, the meaning

of "monetary instrument" and "funds"—is subject to de novo

review. See United States v. Weaver, 659 F.3d 353, 356 (4th

Cir. 2011). Second, insofar as Day challenges the jury’s finding that the government adequately proved the relevant

offense element, we review that argument for sufficiency of

the evidence. See Jackson, 443 U.S. at 319. 

1.

Day’s primary argument is that, as a matter of law, gold

does not constitute a monetary instrument or funds under the

money laundering statute. We note that the statute is phrased

in the disjunctive: a person violates the law by transporting "a

monetary instrument or funds" in accordance with the other

elements of the offense. 18 U.S.C. § 1956(a)(2) (emphasis

added). In order to prevail, then, Day must establish both that

gold is not "a monetary instrument" and that it is not "funds"

as expressed in the statute. Because we conclude that Day’s

argument fails with respect to the "funds" prong, we need not

address whether gold may also be "a monetary instrument." 

Day asserts that gold is not encompassed within the meaning of the term "funds" for two interrelated reasons: first, the

money laundering statute does not define the term; and second, in the absence of a statutory definition, to permit the

government to rely on definitions from dictionaries and other

criminal provisions would render the statute unconstitutionally vague. Day is correct as to the former proposition—the

money laundering statute does not define the meaning of

UNITED STATES v. DAY 17
"funds"—but he is wrong as to the latter. It is beyond cavil

that a criminal statute need not define explicitly every last

term within its text, for as the Supreme Court has repeatedly

explained, where "terms used in a statute are undefined, we

give them their ordinary meaning." Jones v. United States,

529 U.S. 848, 855 (2000) (internal quotation marks omitted)

(construing the meaning of "used" in 18 U.S.C. § 844(i)). In

fact, in Chapman v. United States, the Court construed the

undefined term "mixture" as it was used in 21 U.S.C.

§ 841(b)(1)(B)(v) by looking to its ordinary meaning—and

proceeded to hold that such a construction did not leave the

statute unconstitutionally vague. 500 U.S. 453, 462, 467-68

(1991).

Turning to the ordinary meaning of "funds," we think the

term refers to assets of monetary value that are susceptible to

ready financial use. This is the meaning captured by Black’s

Law Dictionary, which defines "fund" as a "sum of money or

other liquid assets established for a specific purpose." Black’s

Law Dictionary 743 (9th ed. 2009). A "liquid asset" is defined

by cross-reference to "current asset," id. at 1014, which means

"[a]n asset that is readily convertible into cash," id. at 134. So

too is this ordinary meaning expressed in non-legal dictionaries: Random House defines "funds" to mean "money immediately available; pecuniary resources." Random House

Dictionary of the English Language 776 (2d ed. 1987). "Pecuniary" is defined, in turn, to mean "of or pertaining to money."

Id. at 1428. We accordingly conclude that gold can constitute

"funds" under the transportation money laundering statute

where it is moved as a liquid, monetary asset. 

Our conclusion finds support in the purpose and structure

of the money laundering statute. At its core, Day’s argument

is that a defendant can violate the transportation money laundering provision if he moves cash or some other ordinary

financial instrument with a design to conceal its source, ownership, or other listed attribute, but not if he takes the further

deceitful step of first converting the cash into the more

18 UNITED STATES v. DAY
difficult-to-trace financial asset of gold. To accept Day’s

argument would turn the transportation money laundering

statute on its head, creating an odd safe harbor for criminals

to transport and conceal their criminal proceeds where they

engage in more deceit and concealment, not less. We do not

think Congress could have intended such a result, and we thus

hold that gold can constitute "funds" within the ordinary

meaning of 18 U.S.C. § 1956(a)(2).

2.

Having settled in the affirmative the legal question of

whether gold can ever constitute "funds" under 18 U.S.C.

§ 1956(a)(2), we must next consider whether the government

presented sufficient evidence for a jury to conclude in this

case that Day transported gold as "funds" under the ordinary

meaning of that term. We hold that it did. 

The government adduced testimony from Carroll, Neufeld,

and Stewart that Day specifically referred to gold as a good

financial "investment" in conversations with each of them.

The government also introduced testimony from a gold dealer

who explained that people commonly hold "gold funds" as a

pecuniary investment asset, and that "[g]old is an investment

for many many people." Significantly, during the conspiracy,

Day used his gold in a manner that took advantage of its

liquidity as an investment asset, essentially using it as a substitute for cash. To that end, a Canadian gold dealer testified

that Day made a "series of transactions" in which he shipped

gold in exchange for cash wire transfers. Day’s counsel even

declared during his opening statement that one reason why

Day "had gold shipped to him in Mexico" was "[s]o he can

spend it." Day’s counsel also highlighted the liquid, pecuniary

nature of gold during his closing argument, when he stated

that "gold is something you can hold in your hand with a

serial number on it. That is the value. That is what you can

take into the gold dealer." 

UNITED STATES v. DAY 19
That sufficient evidence existed for a jury to conclude that

Day transported gold in its capacity as "funds" does not mean,

of course, that every transportation of gold necessarily qualifies as such. If Day had transported the gold for the purpose

of filling or crowning a tooth, to make jewelry, or to manufacture microprocessors, such uses would not have fallen within

the ordinary understanding of a "fund" as a "sum of money or

other liquid asset" or "pecuniary resource." It hardly needs

mentioning, though, that no such evidence was adduced in

Day’s defense; the government instead demonstrated that

Day’s gold remained in bar and coin form throughout the

scheme and was used essentially as a bank account for his

various exchanges with gold dealers. In sum, there was ample

evidence for a jury to conclude that Day transported the gold

in its capacity as a liquid, monetary asset.1

IV.

Day next argues that venue for his criminal trial was

improper in the Eastern District of Virginia. To establish

venue, the government must adduce sufficient evidence for a

reasonable jury to conclude that the defendant committed an

overt act in furtherance of the charged conspiracy inside the

1Day’s last challenge to his money laundering conspiracy conviction

concerns the trial court’s jury instruction that the term "proceeds" encompassed "any interest in property that someone acquires or retains as a

result of . . . specified unlawful activity." This challenge fails, however,

because a "defendant in a criminal case cannot complain of error which

he himself has invited." Shields v. United States, 273 U.S. 583, 586 (1927)

(internal quotation marks omitted). Here, Day and the government jointly

proffered the very "proceeds" jury instruction that he now objects to on

appeal, precluding him from challenging the instruction at this juncture.

See United States v. Collins, 372 F.3d 629, 635 (4th Cir. 2004) (challenge

to jury instructions that defendants themselves requested was barred as

invited error). Moreover, his claim is meritless in any event because Day’s

exposure to money laundering liability is not based on transactions that

were essential to his predicate fraud offenses, but rather on the entirely

separate criminal act of concealing the location and ownership of his fraud

proceeds by transporting gold to Mexico. 

20 UNITED STATES v. DAY
appropriate judicial district. United States v. Green, 599 F.3d

360, 374 (4th Cir. 2010); see also 18 U.S.C. § 1956(i)(2). 

Contrary to Day’s claims, venue was proper in the Eastern

District of Virginia based on at least two classes of overt acts.

First, a jury could have reasonably concluded that venue was

justified based on phone calls that Carroll made in furtherance

of the conspiracies while in the Eastern District of Virginia.

Carroll testified that in May 2006, while in Crewe, Virginia,

he made phone calls to (and received a phone call from) a

gold dealer in Arizona to "shore up the pricing" for Day’s

gold purchases. In addition, the jury could have reasonably

concluded that emails sent by Day’s co-conspirators to DLA

personnel in Richmond, Virginia, constituted overt acts in furtherance of the wire fraud, money laundering, and smuggling

conspiracies. For instance, Stewart sent multiple emails to

DLA personnel located within the district regarding contracts

that one of his companies had won during the wire fraud

scheme and on which he had received payment from the DOD

in a specified account. Day and his co-conspirators subsequently used funds from that same account to, among other

things, pay Mehr and Teal to transport the gold to Mexico.2

Day argues that the foregoing acts were "de minimis in

context" and "completely legal," and therefore insufficient to

give rise to venue in the district. In making this argument,

however, Day confuses the question of how much an overt act

furthers a conspiracy with the question of whether it furthers

the conspiracy. It is the latter question that matters for venue

purposes, and the circuits have recognized that simple acts

such as phone calls from a district can give rise to venue in

conspiracy cases. See, e.g., United States v. Smith, 198 F.3d

377, 382 (2d Cir. 1999); United States v. Lewis, 676 F.2d 508,

2Because we find the emails and phone calls sufficient to establish

venue, we need not reach the question of whether certain flights that Teal

took over the Eastern District of Virginia en route to Houston, Texas also

gave rise to venue. 

UNITED STATES v. DAY 21
511 (11th Cir. 1982). Venue was therefore proper in the Eastern District of Virginia.

V.

Day’s final challenges to his convictions concern the trial

court’s evidentiary rulings with respect to (1) a government

report describing mishandled evidence, and (2) bad act evidence under Federal Rule of Evidence 404(b). We review the

trial court’s rulings for abuse of discretion and "will only

overturn an evidentiary ruling that is arbitrary and irrational."

United States v. Cloud, 680 F.3d 396, 401 (4th Cir.) (internal

quotation marks omitted), cert. denied, 81 U.S.L.W. 3164

(2012). Upon examining the record, we hold that the district

court did not err in either ruling. Moreover, given the volume

of incriminating evidence produced, any error would have

been harmless.

A.

Day argues that the district court abused its discretion by

declining to admit a government report of an investigation

that described how several pieces of evidence used to convict

him—namely, certain nonconforming parts that Day had

delivered to the DOD during his wire fraud scheme—were

mishandled by a particular lead investigator. Day first contends that the report should have been admitted into evidence

under Federal Rules of Evidence 401 and 402 because the

report was relevant to the integrity of the evidence presented

to the jury, including issues regarding chain of custody and

unauthorized access to the evidence. 

We find this argument unpersuasive. For starters, the trial

court’s decision to exclude the report was founded not on a

determination that the report was irrelevant under Rules 401

and 402, but rather on a Rule 403 finding that the report’s

"improperly prejudicial harm" would "exceed[ ]" its probative

value. This finding was soundly reasoned. In particular, with

22 UNITED STATES v. DAY
regard to the report’s limited probative value, the trial court

specifically asked Day’s counsel whether he had any reason

to "contend that any of these chain of custody rules were violated," to which counsel candidly responded "[n]ot at this

time." The court then inquired whether Day’s counsel had

"any evidence that shows that" the "[mishandled] evidence

was in any way mutilated or damaged so that the quality of

the testing [might be] called into question." Again, Day’s

counsel forthrightly responded "no." The district court itself

found that the report "does not suggest . . . that any of the evidence is tainted, or is wrong in this case." Given the limited

probative value of the report, the district court reasonably

concluded that introducing the report would present a real

danger of unfair prejudice given its general conclusion that a

lead investigator had not complied with certain DOD evidentiary procedures. 

Day also argues that he should have been permitted to

introduce the report for a separate purpose: to impeach the

lead investigator’s character for truthfulness under Federal

Rule of Evidence 608(b). This argument fares no better. In

contrast to Day’s assertion, Rule 608(b) does not require the

admissibility of extrinsic evidence for the purpose of

impeaching a witness’s character for truthfulness—it actually

does the opposite. The rule provides that "[e]xcept for a criminal conviction under Rule 609, extrinsic evidence is not

admissible to prove specific instances of a witness’s conduct

in order to attack or support the witness’s character for truthfulness." Fed. R. Evid. 608(b) (emphasis added). Rule 608(b)

instead allows for precisely what the district court did here:

"the court may, on cross-examination, allow [instances of a

witness’s conduct] to be inquired into if they are probative of

the character for truthfulness or untruthfulness." Id. Thus, the

district court properly gave Day wide latitude to crossexamine the lead investigator regarding his conduct, permitting inquiry into his unauthorized access to the evidence

room, inaccurate inventory of parts, and failure to document

evidence transfers, custody forms, and shipping information.

UNITED STATES v. DAY 23
We accordingly hold that the district court did not abuse its

discretion in excluding the report.

B.

Day next contends that the trial court abused its discretion

in admitting certain uncharged "bad act" evidence against

Day, including evidence about his use of foreign bank

accounts and false names, and his purchase of several expensive watches. Day argues that the introduction of this evidence violated Federal Rule of Evidence 404(b), which

prohibits introduction of such other acts for the general purpose of "prov[ing] a person’s character in order to show that

on a particular occasion the person acted in accordance with

the character." 

We reject this argument for the simple reason that it fails

to recognize the distinction between extrinsic other act evidence and intrinsic other act evidence. See United States v.

Lighty, 616 F.3d 321, 352 (4th Cir. 2010). As we have

explained, evidence of uncharged other acts is intrinsic and

not subject to Rule 404 if the acts "arose out of the same

series of transactions as the charged offense, or if [evidence

of the uncharged conduct] is necessary to complete the story

of the crime on trial." United States v. Siegel, 536 F.3d 306,

316 (4th Cir. 2008) (alteration in original) (internal quotation

marks omitted). The evidence of which Day complains falls

within this definition because each item arose out of the same

series of transactions as the charged offenses and was necessary to complete the context of the crime on trial: Day’s foreign bank transfers took place during the heart of the scheme,

in 2006-07, and involved proceeds from the DLA contracts;

the false name evidence demonstrated Day’s effort to conceal

his connection to the scheme’s proceeds; and evidence concerning his watch purchases showed one in-kind medium

through which Day received proceeds from the scheme. The

trial court did not abuse its discretion in admitting this evidence.

24 UNITED STATES v. DAY
VI.

We turn now to Day’s challenges to his sentence of imprisonment. Specifically, Day argues that his 1,260-month prison

sentence should be vacated because it was both procedurally

and substantively unreasonable. We reject each argument for

the reasons below.

A.

Day argues that the district court committed procedural

error when it imposed an unwarranted two-level enhancement

for obstruction of justice, resulting in an incorrect calculation

of his Guidelines range. The trial court’s obstruction enhancement was proper for many reasons, however, among them that

Day had attempted to bribe Mexican officials in an effort to

escape from custody. Day also physically tried to escape from

Mexican authorities. Further, Day had formulated a plan to

enlist Mexican cartel members to conduct an attack on a

prison van in which he would be transported in yet another

attempted prison escape, this time in Virginia. Day has shown

none of these factual findings to be clear error. See United

States v. Chandia, 675 F.3d 329, 337 (4th Cir. 2012).

B.

Day next argues that his prison sentence should be vacated

as substantively unreasonable. "Substantive reasonableness

examines the totality of the circumstances to see whether the

sentencing court abused its discretion in concluding that the

sentence it chose satisfied the standards set forth in

§ 3553(a)." United States v. Mendoza-Mendoza, 597 F.3d

212, 216 (4th Cir. 2010). If "the sentence is within the Guidelines range," we are permitted to apply on appeal "a presumption of reasonableness." Gall v. United States, 552 U.S. 38, 51

(2007).

Our review of the sentencing transcript reveals that the trial

court closely considered the § 3553(a) sentencing factors and

UNITED STATES v. DAY 25
chose the 1,260-month sentence based on the serious nature

of Day’s offense, his dangerous character, and the need to

protect the public. With regard to the severity of the offense,

the court observed that Day’s scheme "was a calculated,

sophisticated theft" that exposed the men and women of the

armed services to serious risk of injury, or worse. For

instance, the court noted that because of Day’s scheme

"[t]here could be a soldier in the field who is wounded and

needs cover from a jet, and that jet has the wrong antenna

shipped out there and is unable to provide that cover." Or

"[t]here could be a soldier in the field who needs a Humvee

to come pick him up because he is wounded and that Humvee

can’t come because the wrong parts were there." "Day never

thought about those impacts on others, or he thought about

them and said, I am going to go ahead with my offense any

way." At bottom, the court concluded, the "nature and circumstances of [his] offense are just absolutely vile." 

With respect to the defendant’s character, the court repeatedly emphasized that Day possesses "absolutely no conscience," noting that he "steals everything he can lay his

hands on," and "has no regret about dragging his friends

down." And with respect to the need to protect the public

from further crimes by Day, the court observed that this sentencing factor was a "paramount consideration" because "if

[Day] was released today he would think of his next scheme

before sunset. . . . and would start to put it in action tomorrow." 

Notwithstanding the court’s detailed consideration of the

§ 3553(a) factors, Day argues that the sentence was substantively unreasonable for two reasons. First, he argues that the

trial court’s sentence failed to account for alleged prison

abuses he suffered in Mexico. Not so. In point of fact, the

court expressly took his claim of mistreatment "into account,"

concluding that it was "not convinced that [Day’s] imprisonment in Mexico was as bad as he says it is." Moreover, the

court explained that even if it "was convinced" that the abuse

26 UNITED STATES v. DAY
occurred, "what happened to him in Mexico does not outweigh what he did in his criminal behavior in this case." Thus,

the district court considered Day’s prison abuse argument and

had a reasonable basis for its sentence notwithstanding it.

Second, Day argues that the district court’s imposition of

the 1,260-month sentence under the Guidelines was unreasonable because the court based the sentence on a factor—harm

to military personnel—that was "speculative" and "unsupported by the evidence." Specifically, Day complains of the

government’s inability to "identify a bona fide ‘warfighter’

who was frustrated, limited in her mission, or even wounded."

But the trial court’s choice of sentence was not predicated on

particular injuries suffered by particular servicemen and servicewomen. The trial court instead focused on the risk of

harm to members of the armed forces as powerful evidence of

Day’s "absolute lack of consci[ence]." And on that front, the

trial court’s conclusion was fully supported by the record: as

a chief DLA engineer explained, fully 59% of the contracts

obtained by Day were for "critical application items," or items

that the military itself has classified as "essential" to the "preservation of life or safety of operating personnel" or "weapon

system performance." We accordingly reject Day’s substantive unreasonableness claim. 

VII.

Day’s final arguments concern the interplay between the

Supreme Court’s recent decision in Southern Union Co. v.

United States, 132 S. Ct. 2344 (2012), and the trial court’s

decision to impose (1) a $3 million fine, (2) more than $6 million in restitution, and (3) a forfeiture award of more than $2

million plus gold and vehicles. In Southern Union, the

Supreme Court held that the rule of Apprendi—that "any fact

that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt"—applies to criminal fines. Id. at

2350 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490

UNITED STATES v. DAY 27
(2000)). Day contends that under this rule, his fine, restitution, and forfeiture must all be vacated because each required

fact-finding by a jury that did not occur. For the reasons that

follow, we disagree.

A.

Day asks us to vacate his $3 million fine because it "was

not based upon facts already found by the jury, which was

concerned strictly with whether Day had violated the wire

fraud, money laundering, smuggling, [and] conspiracy" statutes. Because Day’s counsel did not raise this argument

below, we review it now for plain error. See Puckett, 556 U.S.

at 135.

In Southern Union, the Supreme Court explained that the

rule of Apprendi precludes "judicial factfinding that enlarges

the maximum punishment a defendant faces beyond what the

jury’s verdict or the defendant’s admissions allow." 132 S. Ct.

at 2352 (emphasis added). As relevant here, the criminal fine

statute provides that the maximum fine to which a defendant

may be subject is "twice the gross gain or twice the gross

loss" produced by the offense. 18 U.S.C. § 3571(d). Thus, for

Day’s $3 million fine to be consistent with Apprendi, either

the jury’s verdict or Day’s own admissions must establish that

Day enjoyed a gross gain of $1.5 million through his wire

fraud scheme (or that his victims suffered a loss of the same

amount). 

Based on our review of the record, we hold that no

Apprendi error occurred because Day’s admissions established both that he enjoyed a gross gain in excess of $1.5 million and that his offense produced a loss of at least the same

amount—either of which alone would be sufficient to support

the $3 million fine. To wit, Day admitted in a Rule 29 motion

filed in September 2011, that it was "undisputed at trial" that

he received "94.7% of the total gold" purchased during his

scheme. Given that Day proffered bank records indicating that

28 UNITED STATES v. DAY
the total value of the gold purchased during the scheme was

$2.29 million, Day’s own admissions established that he

received a gain of at least $2.16 million, which would support

a fine of up to $4.32 million. Likewise, Day admitted at sentencing that his offense caused a loss of no less than $2.5 million, an amount that would support a fine of up to $5 million.

Thus, because Day’s admissions enlarged the maximum fine

to which he could be sentenced to an amount in excess of the

$3 million sum that was actually imposed, we hold that no

Apprendi error took place. Moreover, given the substantial

undisputed evidence of loss far in excess of the amount necessary to justify the fine imposed, Day cannot demonstrate that

any error affected his substantial rights, much less the integrity or public reputation of the criminal proceedings.

B.

Day next argues that the trial court’s imposition of restitution in excess of $6 million violated Apprendi because the

jury did not find facts giving rise to that amount. Again,

because Day’s counsel did not press any Apprendi challenge

below, we review for plain error. See Puckett, 556 U.S. at

135.

Day’s restitution argument is unavailing, although for a different reason than that which supports the imposition of his

fine. For unlike that challenge, which is encompassed by

Southern Union’s holding that "Apprendi applies to the imposition of criminal fines," 132 S. Ct. at 2357, there is the initial

question in the restitution context of whether Apprendi applies

at all. Prior to Southern Union, every circuit to consider

whether Apprendi applies to restitution held that it did not.

See United States v. Milkiewicz, 470 F.3d 390, 403 (1st Cir.

2006) ("[L]ike all of the other circuits to consider this question, we conclude that [Apprendi does] not bar judges from

finding the facts necessary to impose a restitution order.").

Day argues that we should break ranks with these prior deciUNITED STATES v. DAY 29
sions in light of Southern Union and apply Apprendi to restitution because it is "similar" to a criminal fine.

We decline to take Day’s suggested course. As an initial

matter, we note that Southern Union does not discuss restitution, let alone hold that Apprendi should apply to it. Instead,

far from demanding a change in tack, the logic of Southern

Union actually reinforces the correctness of the uniform rule

adopted in the federal courts to date. That is, Southern Union

makes clear that Apprendi requires a jury determination

regarding any fact that "increases the penalty for a crime

beyond the prescribed statutory maximum." 132 S. Ct. at

2350 (quoting Apprendi, 530 U.S. at 490). Thus, in Southern

Union itself, the Apprendi issue was triggered by the fact that

the district court imposed a fine in excess of the statutory

maximum that applied in that case. Id. at 2349. 

Critically, however, there is no prescribed statutory maximum in the restitution context; the amount of restitution that

a court may order is instead indeterminate and varies based on

the amount of damage and injury caused by the offense. See

18 U.S.C. §§ 3663(b), 3663A(b). As a consequence, the rule

of Apprendi is simply not implicated to begin with by a trial

court’s entry of restitution. As the Sixth Circuit aptly

explained in United States v. Sosebee, "restitution is not subject to [Apprendi] because the statutes authorizing restitution,

unlike ordinary penalty statutes, do not provide a determinate

statutory maximum." 419 F.3d 451, 454 (6th Cir.), cert.

denied, 546 U.S. 1082 (2005). That logic was sound when

written before Southern Union, and it remains so today.

C.

Finally, Day argues that the district court erred in imposing

a forfeiture award of 3,496 ounces of gold, two vehicles, and

a $2,128,549.50 money judgment. This claim fails at its

inception, however, because like our conclusion with respect

to restitution, Apprendi does not apply to forfeiture. As we

30 UNITED STATES v. DAY
explained in United States v. Alamoudi, "[b]ecause no statutory or other maximum limits the amount of forfeiture, a forfeiture order can never violate" Apprendi. 452 F.3d 310, 314

(4th Cir. 2006). Nor, as discussed above, does the Supreme

Court’s decision in Southern Union change this fact, as that

decision did not concern forfeiture and instead reinforces the

essential requirement that a statute must prescribe a maximum

punishment in order to implicate Apprendi concerns. 

What is more, the Supreme Court has expressly held that

"the right to a jury verdict on forfeitability does not fall within

the Sixth Amendment’s constitutional protection." Libretti v.

United States, 516 U.S. 29, 49 (1995). We do not think the

Supreme Court intended to overrule this holding, sub silentio,

in Southern Union. We therefore hold that the rule of

Apprendi does not apply to a sentence of forfeiture. Moreover, nothing in Day’s contentions persuades us that the fairness or integrity of proceedings was affected in any manner

that would cause us to vacate under plain error review either

the restitution or forfeiture rulings.

VIII.

We have reviewed each of Day’s various claims with care

and find them all without merit. For the foregoing reasons, we

affirm the judgment of the district court.

AFFIRMED

UNITED STATES v. DAY 31