1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-9-1996

United States v. Voigt

Precedential or Non-Precedential:

Docket 95-5092

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Recommended Citation

"United States v. Voigt" (1996). 1996 Decisions. Paper 97.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/97
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 _______________ 

 No. 95-5092 

 _______________ 

 UNITED STATES OF AMERICA 

 v. 

 JOHN VOIGT, 

 Appellant 

 _______________ 

 On Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. Criminal No. 93-cr-00300-1) 

 _______________ 

 Argued January 25, 1996 

 Before: COWEN and SAROKIN, Circuit Judges, and 

POLLAK, District Judge 

 (Filed July 9, 1996) 

 _______________ 

Lawrence S. Lustberg (ARGUED) 

Crummy, Del Deo, Dolan, 

 Griffinger & Vecchione 

One Riverfront Plaza 

Newark, New Jersey 07102-5497 

 COUNSEL FOR APPELLANT 

Kevin McNulty 

Allan Tananbaum (ARGUED) 

Faith Hochberg 

Office of United States Attorney 

970 Broad Street, Room 502 

Newark, New Jersey 07102 

 COUNSEL FOR APPELLEE 

 _______________ 

 

 OPINION OF THE COURT 

 _______________ 
COWEN, Circuit Judge. 

 John Voigt appeals from a judgment of conviction and 

sentence entered by the District Court for the District of New 

Jersey. The conviction arises from Voigt's role as the mastermind 

of a pernicious "advance fee" scheme whereby Voigt, operating under 

the auspices of the Euro-American Money Fund Trust, would obtain 

substantial fees in advance from, respectively, unsuspecting loan 

applicants and potential investors for various loans and 

investments that never materialized. Over a three-year period the 

Trust took in a total of 18.5 million dollars. 

 Of Voigt's eight assignments of error, two significant 

constitutional questions are presented for our review. The first 

is whether the government's use of acquitted codefendant Mercedes 

Travis, who Voigt alleges was counsel to the Trust and to him 

personally, as a confidential informant against him constitutes 

"outrageous government conduct" in violation of the Fifth 

Amendment's Due Process Clause. The second is whether the district 

court violated Voigt's Sixth Amendment right to counsel of choice 

when, citing potential conflicts, it disqualified a third attorney 

Voigt sought to add to his defense team without holding a formal 

evidentiary hearing. We also confront several questions of first 

impression in this Circuit pertaining to the money laundering 

statute, 18 U.S.C.  1956(a)(1), and its forfeiture counterpart. 

Id.  982. We must decide whether those statutes require formal 

"tracing" where laundered funds have been commingled in a bank 

account with untainted funds. We also must determine what is the 

proper burden of persuasion for forfeiture proceedings under 18 

U.S.C.  982, a question we have addressed previously in two other 

contexts. See United States v. Pelullo, 14 F.3d 881 (3d Cir. 1994) 

(RICO; reasonable doubt); see also United States v. Sandini, 816 

F.2d 869 (3d Cir. 1987) (CCE; preponderance). Finally, Voigt 

contests the legal sufficiency of his convictions for tax evasion 

under 26 U.S.C.  7201, and challenges the orders of the district 

court requiring him to make restitution in the amount of $7,040,000 

and refusing to grant his motions for severance. 

 For the reasons we set forth below, we will affirm 

Voigt's conspiracy, money laundering and tax evasion convictions, 

along with the order of restitution, in all respects. We will 

vacate the judgment insofar as it incorporates an erroneous order 

of forfeiture and remand for further proceedings consistent with 

this opinion. 

 I. 

THE FACTS 

 John Voigt was the mastermind of a scheme to defraud loan 

applicants and potential investors by inducing them to pay 

substantial "advance fees" for nonexistent loans and investments. 

To implement this scheme, Voigt created two fraudulent entities: 

Euro-American Money Fund Trust, and Meta Trading and Financial 

International [hereinafter collectively referred to as "the 

Trust"]. Voigt fabricated a fictitious genealogy for the Trust, 

claiming that it was a long-established European financial 

institution affiliated with the Catholic Church and the Knights of 

Malta and that it had access to billions of dollars. Voigt also 
falsely claimed that the Trust's headquarters was located in Paris, 

France, and that he was the U.S. Director. To facilitate the 

scheme Voigt used various aliases and required loan applicants to 

fill out bizarre confidentiality agreements that purported to bar 

customers from disclosing information about the Trust in this life 

and the afterlife. 

 The scheme operated from early 1990 until mid-1993. 

Brokers for the Trust recounted the false genealogy Voigt had 

concocted to unsuspecting victims. At first, the Trust marketed 

only "loans." These multi-million dollar loans were supposedly 

self-liquidating, which meant that, in return for a fee that ranged 

into the hundreds of thousands of dollars, customers would receive 

a loan that they did not have to repay. As soon as the fees were 

received they were distributed among the coconspirators. 

Eventually, the Trust began to market "Master Collateral 

Commitments" ("MCCs"), bogus financial instruments that were touted 

as special promissory notes issued by banks and available only 

through the Trust. They were marketed to unsuspecting investors 

for 3.5-4.5 million dollars with the representation that they 

eventually would yield hundreds of millions of dollars. All told, 

Voigt's three-year gain from marketing self-liquidating loans and 

MCCs was approximately seven and one-half million dollars. 

 On December 13, 1993, Voigt and four alleged 

coconspirators--Skip Alevy, Mercedes Travis, Ralph Anderskow, and 

Donald Anchors--were charged in a twenty-eight-count superseding 

indictment. The indictment charged Voigt personally with one count 

of conspiracy to commit wire fraud, fifteen counts of wire fraud, 

four counts of money laundering, two counts of tax evasion, and 

criminal forfeiture allegations arising out of the money laundering 

counts. After a three-month trial, a jury convicted Voigt of all 

counts except one count of wire fraud. After a nonjury proceeding 

at which the district court ordered forfeiture of certain 

automobiles and pieces of jewelry, the court sentenced Voigt to a 

term of imprisonment of 188 months and ordered him to make 

$7,040,000 in restitution. This appeal followed. 

 Voigt challenges the judgment against him on eight 

grounds. He argues that: (1) the government's use of his alleged 

attorney, Mercedes Travis, as an informant violated his Fifth 

Amendment due process rights and his Sixth Amendment right to 

effective assistance of counsel; (2) the district court erred in 

disqualifying one of his attorneys due to a potential conflict of 

interest without first making sufficient findings of fact, in 

violation of his Sixth Amendment right to counsel of choice; (3) 

there was insufficient evidence to support his conviction on moneylaundering counts twenty-five and twenty-six; (4) the forfeiture 

order should be vacated because the district court failed to 

require the government to prove beyond a reasonable doubt that the 

forfeited items were "traceable to" laundered money; (5) his 

convictions on the tax evasion counts should be vacated because the 

government failed to prove an affirmative act of evasion as 

required by statute; (6) the district court erred in imposing an 

order of restitution without making findings of fact regarding his 

ability to pay; (7) the district court should have granted his 

motion for a severance because his co-defendants asserted defenses 
antagonistic to his own; and (8) the district court erred in 

increasing his Guidelines offense level by two points for 

obstruction of justice. 

 II. 

 JURISDICTION 

 The district court had original jurisdiction over this 

criminal action pursuant to 18 U.S.C.  3231. We exercise 

appellate jurisdiction to review a final judgment of conviction 

under 28 U.S.C.  1291. 

 III. 

 OUTRAGEOUS GOVERNMENT CONDUCT 

 Voigt argues that the government infringed his Fifth 

Amendment right to due process by recruiting his attorney as a 

government informant "in deliberate and flagrant disregard for the 

attorney-client relationship." Voigt's Br. at 10. The premise of 

this claim is that codefendant Mercedes Travis, with whom the 

government had extensive investigative contacts, was his personal 

attorney during the time of the investigation. The precise nature 

of Travis' relationship with Voigt and with the government, 

however, is in dispute. 

 A. 

 The relevant facts are as follows. Mercedes Travis began 

working for the Trust in August, 1990. Voigt contends that she was 

engaged as an attorney at that time, and points to an engagement 

letter that supports his claim. The government, however, maintains 

that it justly and reasonably believed that Travis was not and had 

never been an attorney for the Trust. In any event, by Travis' own 

account, she became concerned about the legitimacy of the Trust and 

feared that she herself was being defrauded. As a result, she left 

her post in Europe and approached the FBI with her concerns. In 

June and July, 1991, she met with Special Agent Alvin Powell and 

voluntarily provided him with a package of relevant documents. 

Those documents indicated that the Trust was engaged in a fraud. 

 Over the course of a three-day interview at a New Jersey 

motel in mid-July of 1991, Travis detailed the fraud for Powell. 

Noting that Travis was an attorney, and having seen a letter on 

Trust letterhead purporting to appoint Travis as attorney for the 

Trust, Powell asked Travis whether she had acted in a legal 

capacity for the Trust. Travis indicated on several occasions that 

she had not acted as a legal representative for the Trust but, 

rather, that she had been primarily responsible for initiating and 

maintaining contacts with banks. Travis also insisted that the 

letter purporting to appoint her as an attorney for the Trust was 

false. 

 Travis indicated that she went to work for the Trust in 

1990, first in the U.S. and later in Europe, believing it to be a 

bona fide financial institution. Over time, however, she 

discovered that, notwithstanding Voigt's contention that the Trust 

possessed $75 billion in assets, the Trust was simply a shell 

corporation with few assets. Travis then related that the Trust 

was engaged in an advance-fee scheme for loans in which fees were 

paid but no loan was ever funded. Based on Travis' allegations, 

and on Powell's belief that she had not represented the Trust or 

its members in a legal capacity, Powell enlisted the assistance of 
Travis. Powell devised a pretext whereby Travis would reingratiate 

herself with the Trust by falsely informing Voigt that she had 

negotiated an MCC. Powell hoped that this would lead Voigt to 

divulge further information about the Trust's activities. Powell 

eventually had Travis officially designated as a "cooperating 

witness" on the FBI's records. 

 Having enlisted Travis as an informant, Powell asked her 

to sign a document allowing the consensual recording of her 

conversations with Trust members, including Voigt. In that 

document, however, Powell carefully noted that the purpose of the 

recordings was to corroborate her statements, based on the 

understanding that she had not acted, and would not act, as an 

attorney for the Trust or any of its members. In September of 

1991, Travis made three supervised calls from the FBI office in New 

Jersey, although apparently none involved Voigt or his 

coconspirators. 

 In October of 1991, Travis informed Powell that she had 

been invited to Europe by someone associated with the Trust. 

Powell asked her to maintain contact with him, and she called once 

during her trip to inform Powell that she had met with Voigt, but 

that they had discussed only personal matters. When Travis 

returned from Europe, Powell met her in an Atlantic City hotel, 

where she provided him with several cassette recordings of 

conversations, documents obtained during the trip, and information 

acquired by talking with Voigt. Travis was still convinced that 

the Trust was engaged in a fraud. According to Powell's version of 

the meeting, Travis indicated that she had not performed legal work 

for the Trust or Voigt during her trip to Europe. 

 In February of 1992, Travis informed Powell that she had 

prepared a tax opinion for Voigt. She claimed it was a "one-shot 

deal," and that it concerned Voigt and not the Trust, but she did 

not share the substance of the opinion with Powell. Powell had no 

prior knowledge that Travis would be providing legal advice to 

Voigt. In March of 1992, Travis advised Powell that she had 

persuaded Voigt to let her become the Trust's attorney, but that 

her role would be to facilitate communications between the Trust 

and other entities. Powell became concerned about this latest 

development because of potential attorney-client privilege problems 

and because Travis herself might become an active participant in 

what she had insisted was a fraud. He therefore instructed Travis 

to meet with Assistant United States Attorney ("AUSA") Paul Zoubek, 

who was supervising the investigation. Travis replied that she 

would inform Powell if her status changed from facilitating loans 

and investments to providing legal advice. Travis next called 

Powell on March 10 to inform him that she indeed had been appointed 

as attorney for the Trust. Powell again warned her about acting in 

a legal capacity and warned her not to engage in any illegal 

activity. He also gave her a firm date for their meeting with AUSA 

Zoubek. In another telephone call two days later, Powell again 

instructed Travis not to act as an attorney, and she reassured 

Powell that the information she was providing raised no issue of 

privilege. 

 On March 25, 1992, Travis and Powell met with AUSA Zoubek 

at the U.S. Attorney's Office in Newark. After listening to Travis 
recount her version of the events, AUSA Zoubek pointed out the 

stark inconsistency between her original allegation that the Trust 

was a fraud and her recent decision to rejoin the Trust as its 

attorney. Travis indicated that she wanted to determine for 

herself whether in fact the Trust was legitimate and would inform 

the government of her findings within two weeks. AUSA Zoubek 

nevertheless told her that she would be on her own, and that any 

time spent in Europe working for the Trust would not be as a 

government informant due to potential privilege problems. 

According to Zoubek, as verified by Powell's notes of the meeting, 

the only way that information otherwise privileged could be 

provided to the government would be if the crime-fraud exception 

were deemed to be applicable. Travis indicated that she 

understood. At the same time, however, Powell instructed Travis to 

report to him as to whether the Trust had sufficient funds to cover 

its existing loan commitments. 

 From the time of their last meeting on March 25, 1992, 

until May 1, 1992, Powell did not hear from Travis, but received 

information indicating that she was participating in the same type 

of fraudulent conduct that originally had motivated her to come 

forward to the FBI. On May 1, 1992, Travis made two separate calls 

to Powell from Europe. Her first call, which Powell maintained was 

unsolicited, was from a pay phone because, according to Travis, she 

was afraid her calls were being monitored. Travis again told 

Powell that the Trust had no funds to lend, and that she would make 

her "official" call later that day. In her second call, Travis 

indicated that she was representing Voigt in connection with two 

grand jury subpoenas for records of the Trust that Powell had 

served on Voigt. At trial, however, Travis testified that at that 

point she was representing only the Trust, and that attorney James 

Binns was representing the Trust and its directors for purposes of 

the criminal investigation. Powell advised Travis that she and 

Voigt should appear at the FBI office to discuss the matter. It 

was not until sometime after this May 1 call from Travis that 

Powell had Travis officially taken off the books as a confidential 

informant. 

 Travis did not contact the government again until 

September of 1992, when Travis called AUSA Robert Ernst (who had 

taken over the investigation) to discuss grand jury subpoenas that 

had been served on the Trust in August. Travis informed Ernst that 

she was representing the Trust in connection with the subpoenas. 

Before any further discussion occurred, Ernst informed Travis that 

she was a target of the investigation and, given her earlier 

contacts with the government, that she had a conflict of interest 

and should withdraw as counsel for the Trust. AUSA Ernst 

documented this admonition in a letter sent to Travis eight days 

later. 

 On November 6, 1992, Travis again made an unsolicited 

call to Powell, warning him that an unsuspecting potential customer 

was about to transfer $21 million to the Trust and asking him to 

stop the transaction. In response to a question by Powell, Travis 

indicated that she was not represented by counsel. After 

reiterating that Travis was a target, Powell asked Travis whether 

she would appear voluntarily before a federal grand jury. Travis 
agreed to testify. After Travis had arrived in Newark, but prior 

to her grand jury testimony, she met with Powell and AUSA Ernst. 

Ernst repeated that Travis was a target, and informed her of her 

rights. Ernst warned Travis not to disclose any confidences 

between her and any person affiliated with the Trust because of 

potential attorney-client privilege issues, and stated that he 

would not ask any questions that would risk eliciting potentially 

privileged information. In fact, when Travis indicated that she 

had brought Trust documents with her to turn over to the 

government, Ernst refused to examine them. Notwithstanding Travis' 

insistence that the documents were not privileged because the Trust 

did not actually exist, Ernst turned them over to an AUSA who was 

not part of the investigation into the Trust to make an independent 

privilege determination. 

 Before the grand jury, Travis again was informed of her 

rights and that she was a target of the investigation. She was 

again admonished not to disclose privileged information, and when 

it appeared that she was about to do so, Ernst instructed her not 

to answer. On January 12, 1993, Ernst wrote to Travis informing 

her once more that she was a target of the grand jury's 

investigation and invited her to provide additional testimony or 

evidence in her own behalf, which she did on January 15, 1993. 

 B. 

 Contending that the government's reliance on Travis to 

build a case against him constitutes "outrageous government 

conduct" in violation of the Fifth Amendment's Due Process Clause, 

Voigt moved pretrial to dismiss the indictment. The district court 

declined to hold an independent evidentiary hearing because it 

determined that Voigt had failed to make a prima facie showing of 

outrageousness and the trial would address the issues raised by his 

motion. The district court ultimately denied Voigt's renewed 

posttrial motion to dismiss the indictment: 

 [A]s far as outrageous conduct by the 

 Government, I certainly can't find that here. 

 I have had the benefit of seeing Agent Powell 

 testify, I have seen Mercedes Travis testify 

 and the cross examination of both of them, and 

 I can't find that that was the case. 

 To the extent there is any conflict 

 between the testimony of Powell and Travis, I 

 credit the testimony of Powell . . . because 

 Powell convinced me that the Government was 

 acting reasonably based upon what Travis had 

 told them when they went forward, even though 

 she was an attorney, that she was not acting 

 as an attorney. I can't find any outrageous 

 conduct whatsoever here and, of course, we

 know later, Travis was not a Government agent, 

 [and] was really acting on her own at the 

 time. I can't see any outrageous conduct 

 whatsoever and I have had the benefit of the 

 full trial hearing on this. 
App. at 1122-23. 

 Our standard of review is mixed. When the district court 

decides a constitutional claim based on a developed factual record, 

we exercise plenary review of the district court's legal 

conclusion. United States v. Driscoll, 852 F.2d 84, 85 (3d Cir. 

1988). We defer to the factual findings supporting that conclusion 

unless they are clearly erroneous. United States v. Bonanno, 852 

F.2d 434, 437 (9th Cir.), cert. denied, 488 U.S. 1016, 109 S. Ct. 

812 (1989). 

 1. 

 In 1952 the Supreme Court recognized that outrageous 

misconduct by law enforcement officers in detecting and obtaining 

incriminating evidence could rise to the level of a due process 

violation. Rochin v. California, 342 U.S. 165, 72 S. Ct. 205 

(1952) (vacating conviction and dismissing indictment where police 

had pumped stomach of suspected drug pusher to obtain incriminating 

evidence). Since Rochin was decided the Court has discussed the 

viability of an outrageous government conduct claim only in the 

context of government instigation of and overinvolvement in the 

very criminal activity it seeks to punish. See United States v. 

Russell, 411 U.S. 423, 93 S. Ct. 1637 (1973); see also Hampton v. 

United States, 425 U.S. 484, 96 S. Ct. 1646 (1976) (five Justices 

reaffirm viability of due process claim for government 

overinvolvement in crime). In United States v. Payner, 447 U.S. 

727, 100 S. Ct. 2439 (1980), however, the Court discussed, in 

dictum, whether an illegal search of a third party's briefcase 

might constitute outrageous government conduct. Id. at 737 n.9, 

100 S. Ct. at 2447 n.9. Thus, we have no reason to doubt that the 

Court continues to recognize a due process claim premised upon 

outrageous law enforcement investigative techniques. 

 The showing required to establish a due process 

violation, though often recited, is by no means pellucid. Writing 

for the Court in Rochin, Justice Frankfurter said that "the 

proceedings by which this conviction was obtained do more than 

offend some fastidious squeamishness or sentimentalism about 

combatting crime too energetically. This is conduct that shocks 

the conscience." Rochin, 342 U.S. at 172, 72 S. Ct. at 209. In 

Russell, the Court elaborated on the standard it had enunciated in 

Rochin: 

 While we may some day be presented with a 

 situation in which the conduct of law 

 enforcement agents is so outrageous that due 

 process principles would absolutely bar the 

 government from invoking judicial processes to 

 obtain a conviction, the instant case is 

 distinctly not of that breed. . . . The law 

 enforcement conduct here stops far short of 

 violating that "fundamental fairness, shocking 

 to the universal sense of justice," mandated 

 by the Due Process Clause of the Fifth 

 Amendment. 

Russell, 411 U.S. at 431-32, 93 S. Ct. at 1643 (citation omitted). 
And in Hampton, the Court's most recent opportunity to visit the 

outrageous government conduct issue, Justice Powell, concurring in 

the judgment, noted that "[p]olice overinvolvement in crime would 

have to reach a demonstrable level of outrageousness before it 

could bar conviction." Hampton, 425 U.S. at 495 n.7, 96 S. Ct. 

1653 n.7 (Powell, J., concurring in the judgment). 

 We have also noted that the judiciary is extremely 

hesitant to find law enforcement conduct so offensive that it 

violates the Due Process Clause. In United States v. Janotti, 673 

F.2d 578 (3d Cir.) (in banc), cert. denied, 457 U.S. 1106, 102 S. 

Ct. 2906 (1982), we observed that "the majority of the Court has 

manifestly reserved for the constitutional defense only the most 

intolerable government conduct." Id. at 608 (emphasis added). 

Relying on well-settled separation-of-powers principles, we 

cautioned that 

 [w]e must necessarily exercise scrupulous 

 restraint before we denounce law enforcement 

 conduct as constitutionally unacceptable . . . 

 . Unless the behavior of the F.B.I. agents

 rose to the level of outrageousness which 

 would bar conviction, the conduct of agents of 

 the executive branch who must protect the 

 public from crime is more appropriately 

 considered through the political process where 

 divergent views can be expressed in the ballot 

 box. 

Id. at 607, 609. 

 Subsequent decisions have heeded Janotti's call for 

judicial restraint. As a result, the doctrine of outrageous 

government misconduct, although often invoked by defendants, is 

rarely applied by courts. See United States v. Santana, 6 F.3d 1, 

4 (1st Cir. 1993) ("The banner of outrageous misconduct is often 

raised but seldom saluted."). Although litigants continue to 

assert the doctrine as a defense against conviction, "courts have 

rejected its application with almost monotonous regularity." Id.at 4 

(collecting cases). Indeed, the doctrine has only once been 

applied by a federal appellate court since the Supreme Court's 

Hampton decision in 1976: in this court's decision in United States 

v. Twigg, 588 F.2d 373 (3d Cir. 1978). Since Twigg, however, "this 

court and other appellate courts have . . . exercised extreme 

caution in finding due process violations in undercover settings." 

United States v. Gambino, 788 F.2d 938, 945 n.6 (3d Cir.), cert.denied, 

479 U.S. 825, 107 S. Ct. 98 (1986). See United States v. 

DeRewal, 10 F.3d 100, 105 n.3 (3d Cir. 1993), cert. denied, 114 S. 

Ct. 1544 (1994). 

 2. 

 Bearing in mind the amount of restraint we must exercise 

in subjecting law enforcement conduct to judicial review, we must 

determine whether, as a matter of law, the conduct that Voigt 

alleges occurred in this case raises a cognizable claim of 

outrageous government conduct. Despite the paucity of directly 

relevant authority, we are not writing on a clean slate. Our 

review of the case law demonstrates that a claim of outrageous 
government conduct premised upon deliberate intrusion into the 

attorney-client relationship will be cognizable where the defendant 

can point to actual and substantial prejudice. 

 In United States v. Ofshe, 817 F.2d 1508 (11th Cir.), 

cert. denied, 484 U.S. 963, 108 S. Ct. 451 (1987), for example, the 

government used a defense attorney as an informant against the 

defendant in a matter unrelated to the subject of the attorney's 

representation (a drug prosecution). With the attorney's 

permission, the government placed a body bug on him to record 

conversations with the defendant. Despite strict instructions to 

the attorney not to elicit privileged information, secret defense 

strategy concerning Ofshe's drug prosecution was recorded by 

government agents. Nevertheless, the Eleventh Circuit concluded 

that this government misconduct was not so outrageous as to violate 

the Fifth Amendment. Id. at 1516. This conclusion was based on 

two findings: (1) that the attorney's cooperation concerned a 

different crime from the one for which he was representing the 

defendant, thus the invasion of the attorney-client relationship 

did not produce any evidence against the defendant; and (2) that 

the defendant was not prejudiced in his defense because the 

attorney's cocounsel continued to provide zealous representation to 

the defendant throughout the trial. Id. The court noted, however, 

that "[h]ad there been demonstrable evidence of prejudice, we would 

be compelled to reverse." Id. Accord United States ex rel. 

Shiflet v. Lane, 815 F.2d 457 (7th Cir. 1987) (dismissal not 

warranted where disclosure of privileged information to police lead 

to discovery of crucial evidence against defendant because 

government played no role in the breach of the privilege), cert. 

denied, 485 U.S. 965, 108 S. Ct. 1234 (1988); cf. United States v. 

Levy, 577 F.2d 200 (3d Cir. 1976) (dismissal of indictment on Sixth 

Amendment grounds warranted where government employs codefendant as 

confidential informant in order to obtain and reveal confidential 

defense strategy). 

 Only one decision has ordered that an indictment be 

dismissed due to preindictment intrusion into the attorney-client 

relationship so pervasive and prejudicial as to be considered 

"outrageous." United States v. Marshank, 777 F. Supp. 1507 (N.D. 

Cal. 1991). In Marshank, Ronald Minkin, the attorney for two 

cooperating defendants, provided information to the government 

leading to the indictment of another one of his clients. Minkin 

then encouraged that client to cooperate with the government in 

order to secure an indictment against Marshank, with whom Minkin 

also had an ongoing attorney-client relationship. The government 

never warned the attorney to avoid ethical impropriety, and 

affirmatively hid from both the court and the defendants the 

attorney's multiple, conflict-ridden representation while acting as 

a government informant. Granting Marshank's motion to dismiss the 

indictment based on a due process violation for outrageous 

preindictment conduct, the district court distinguished between 

passive tolerance and active encouragement of impropriety: 

 [T]he government actively collaborated with 

 Ron Minkin to build a case against the 

 defendant, showing a complete lack of respect 

 for the constitutional rights of the defendant 
 and Minkin's other clients and an utter 

 disregard for the government's ethical 

 obligations. . . . [T]he agents and the 

 prosecutor here never warned Minkin not to

 engage in unethical behavior and in fact 

 facilitated that behavior by hiding it from 

 the defendant. Moreover, the government 

 colluded with Minkin to obtain an indictment 

 against the defendant, to arrest the 

 defendant, to ensure that Minkin would 

 represent the defendant despite his obvious 

 conflict of interest, and to guarantee the

 defendant's cooperation with the government. 

Id. at 1524 (second emphasis added). 

 C. 

 1. 

 Voigt claims that, at the very least, the factual 

disputes raised by his moving papers and the government's response 

warranted an independent evidentiary hearing prior to trial, and 

that the district court's determination that he had failed to make 

out a prima facie showing of "outrageous government conduct" was 

erroneous. The district court had before it: (1) Agent Powell's 

affidavit, to which contemporaneous notes of his contacts with 

Travis were attached as exhibits; (2) Voigt's affidavit, in which 

Voigt claimed that Travis had been the Trust's and his attorney 

from the summer of 1990 through June of 1993; (3) Travis' 

affidavit; and (4) Travis' and Powell's grand jury testimony. 

Although we agree with Voigt that conducting a hearing prior to 

trial would have been more prudent and the better practice, a 

remand is unnecessary under the facts of this case since we find 

that the record developed at trial, taken together with Voigt's 

moving papers and the government's response, provided the district 

court an adequate basis with which to resolve Voigt's 

constitutional claim. 

 a. 

 Rule 12(b)(1) of the Federal Rules of Criminal Procedure 

requires that all "defects in the institution of the prosecution" 

be raised by pretrial motion. Fed. R. Crim. P. 12(b)(1). Although 

Rule 12 does not by its terms specify when such a motion entitles 

a defendant to a pretrial evidentiary hearing, we have held that a 

defendant's moving papers must demonstrate a "colorable claim" for 

relief. United States v. Brink, 39 F.3d 419, 424 (3d Cir. 1994) 

(remanding for hearing where Brink alleged facts that, if true, 

"could violate a defendant's rights under the Sixth Amendment"). 

See United States v. Soberon, 929 F.2d 935, 941 (3d Cir.) (if 

district court had "reasonable suspicion" of prosecutorial 

misconduct proper course was to hold evidentiary hearing), cert. 

denied, 502 U.S. 818, 112 S. Ct. 73 (1991). In order to be 

"colorable," a defendant's motion must consist of more than mere 

bald-faced allegations of misconduct. United States v. Sophie, 900 

F.2d 1064, 1071 (7th Cir.) ("A district court does not have to hold 

evidentiary hearing on a motion just because a party asks for 

one."), cert. denied, 498 U.S. 843, 111 S. Ct. 124 (1990). There 
must be issues of fact material to the resolution of the 

defendant's constitutional claim. See United States v. Panitz, 907 

F.2d 1267, 1273-74 (1st Cir. 1990) (refusal to hold evidentiary 

hearing on outrageousness claim proper because material facts were 

not in dispute); Sophie, 900 F.2d at 1071 (refusal to hold hearing 

proper where defendant's own submissions refuted his claim). 

 As our survey of the relevant case law indicates, see 

supra III.B.2, in order to raise a colorable claim of 

outrageousness pertaining to alleged governmental intrusion into 

the attorney-client relationship, the defendant's submissions must 

demonstrate an issue of fact as to each of the three following 

elements: (1) the government's objective awareness of an ongoing, 

personal attorney-client relationship between its informant and the 

defendant; (2) deliberate intrusion into that relationship; and 

(3) actual and substantial prejudice. See Ofshe, 817 F.2d at 1516; 

Lane, 815 F.2d at 466; United States v. Santopietro, 809 F. Supp. 

1008, 1015 (D. Conn. 1992) (no due process violation where 

defendant fails to demonstrate that attorney/informant revealed 

client confidences); Marshank, 777 F. Supp. at 1524. 

 Although the issue is a close one, after comparing 

Voigt's motion and Travis' affidavit with the government's 

response, we think the district court should have conducted an 

evidentiary hearing. Travis' relationship with both Powell and 

Voigt was highly disputed. Furthermore, Voigt's moving papers 

raised enough of a specter of ethical impropriety on the 

government's part to warrant closer scrutiny. Even the district 

court, skeptical though it was as to the degree of purposeful 

intrusion, believed that whatever factual disputes existed on that 

issue would be resolved at trial. This was an acknowledgement by 

the court that there were some disputed factual issues raised by 

Voigt's motion that needed to be resolved. Since the government 

itself notes that suppression of evidence is a more appropriate 

remedy than dismissal of the indictment, factual determinations 

that can lead to suppression logically should be resolved at an 

evidentiary hearing conducted prior to trial. 

 Conducting a pretrial evidentiary hearing certainly has 

its advantages. The district court is then in a position to 

place in the record its findings of facts and conclusions of law, 

see Fed. R. Crim. P. 12(e), which greatly facilitates appellate 

review. Prieto-Villa, 910 F.2d at 610. This is especially true 

where the legal claim, outrageous government conduct, is so highly 

fact sensitive. While we are not unmindful of the district court's 

strong interest in avoiding duplicative proceedings, judicial 

economy is not fostered when substituting trial testimony for a 

pretrial hearing generates postverdict and appellate litigation and 

potentially frustrates appellate review. 

 b. 

 Nevertheless, any "error" arising from the district 

court's failure to hold an independent evidentiary hearing in this 

case is unquestionably harmless. Most of the factual issues 

depended for their resolution on assessing Powell's and Travis' 

credibility. In our view, their trial testimony, when taken 

together with Voigt's motion papers and the government's response, 

provided the district court with a sufficient evidentiary record 
against which to measure Voigt's outrageousness claim. At trial, 

Voigt cross-examined Powell thoroughly about whether he in fact 

believed that Travis had acted in a legal capacity on behalf of the 

Trust or Voigt when she first approached the government. Powell 

also was cross-examined extensively about the degree to which he 

encouraged Travis to reestablish contact with the Trust and whether 

it was his understanding that she would do so in her capacity as an 

attorney. Travis testified in her own behalf and was crossexamined at length by the government as to her understanding of her 

relationship with Powell and her role as a confidential informant. 

Finally, during the trial the district court ruled on numerous 

claims of attorney-client privilege, which certainly provided it 

with insight into the nature and degree of any alleged government 

intrusion into the attorney-client relationship. Thus, the 

district court's failure to conduct a hearing, although illadvised, was at worst harmless error. 

 2. 

 Voigt claims, however, that even assuming the record as 

it now stands is sufficiently developed, and we determine that it 

is, the district court should have dismissed the indictment because 

the record unequivocally demonstrates outrageous government 

conduct. Relying on the three-part test we set forth above, 

supraIII.C.1.a, we hold that Voigt's claim of outrageousness fails as a 

matter of law with respect to the period between July 13, 1991, and 

May 1, 1992, because Voigt failed to establish the first element-- 

the government's objective awareness of an attorney-client 

relationship between Travis and Voigt during that time. We further 

agree with the district court's implicit determination that there 

is insufficient evidence in the record on the second and third 

elements, purposeful intrusion and prejudice, as to the period 

thereafter. 

 a. 

 Voigt's claim of outrageousness based on the government's 

contacts with Travis during the period from July 13, 1991 (when 

Travis first approached the government), to May 1, 1992 (when 

Travis first announced that she was representing Voigt in response 

to the grand jury subpoenas), fails as a matter of law for two 

reasons. First, the record is wholly devoid of any evidence that 

the government was or should have been aware of a personal 

attorney-client relationship between Travis and Voigt during that 

time. Voigt argues that the tax opinion Travis prepared for him 

should have alerted Powell that by February or March of 1992 Travis 

had an ongoing personal attorney-client relationship with Voigt. 

According to Powell, however, Travis claimed that it was a "oneshot deal" and did not share the opinion with him. The district 

court credited Powell's version of the events, and we find nothing 

in the record to indicate that the district court's finding in this 

respect was clearly erroneous. In any event, the record clearly 

indicates that at about the same time Travis informed Powell of the 

tax opinion AUSA Zoubek discontinued Travis as a confidential 

informant. 

 Voigt also argues inferentially that the government's 

entire case at trial was based on the premise that the Trust was 

essentially his "alter ego." Since the Trust was a fictitious 
entity, Voigt reasons, any legal work Travis performed for the 

Trust in reality must have been performed for him personally. In 

this way Voigt attempts to bootstrap himself into an attorneyclient relationship that is essential to the maintenance of his 

outrageousness claim, at least with respect to the period preceding 

May 1, 1992. Voigt cannot have it both ways. Having abused the 

corporate structure such that the Trust, in effect, became his 

"alter ego," we think that Voigt may not now rely on that abuse as 

a shield by claiming a personal attorney-client relationship with 

the attorney for the fraudulent corporate entity. Moreover, far 

from creating additional protections for officers of fraudulent 

corporations, the "alter ego" doctrine exists to pierce the 

corporate veil, thereby stripping those officers of the protections 

normally associated with the corporate form. See generally Charles 

Clark, Corporate Law  2.4, at 71 (1986). 

 In any event, even if Travis' status as an attorney for 

the Trust were relevant to our resolution of the outrageousness 

issue, the record fully supports the district court's implicit 

finding that Powell reasonably believed that Travis was not acting 

as counsel for the Trust during the period between July 13, 1991, 

and May 1, 1992. Accordingly, any claim of outrageousness must be 

premised upon the government's contacts with Travis after May 1, 

1992, for that is the day Travis informed the government that she 

was representing the Trust and Voigt in connection with the very 

investigation in which she had acted as an informant. 

 b. 

 As for Travis' contacts with the government from May 1, 

1992, until her indictment, the record falls woefully short of 

establishing the sort of purposeful intrusion into her attorneyclient relationship with Voigt that would rise to the level of 

outrageousness. For example, Travis made two phone calls to Powell 

on May 1 1992. Contending that these calls were "staged" to 

maintain Travis' cover, Voigt asserts that they constitute proof of 

"purposeful intrusion." We are not persuaded. First, by the time 

Travis placed these calls to Powell, AUSA Zoubek had affirmatively 

cut off contact with Travis given her decision to rejoin the Trust 

as counsel. This demonstrates the government's awareness of and 

sensitivity to Travis' ethical obligations and belies Voigt's 

sinister characterization. Second, Powell asserted that he did 

nothing to solicit the calls, and the record supports his 

contention. Thus, to the extent that Travis disclosed privileged 

information, and there is no proof that she did, it was not at the 

behest of government agents. 

 All of Travis' post-May 1, 1992, contacts with the 

government were unsolicited except for her appearances before the 

grand jury. The government's actions during this period 

demonstrated sensitivity to potential ethical problems and 

contradicts Voigt's claim of "purposeful intrusion." Illustrative 

of the government's sensitivity was Travis' call to AUSA Ernst in 

September of 1992. Ernst did not attempt to extract information 

from Travis. Instead, he informed her that she was a target of the 

investigation and admonished her to withdraw as counsel given her 

obvious conflict of interest. Travis' next contact with the 

government was her unsolicited call to Powell in November of 1992 
to warn him about an impending fraud. To the extent that such 

information was privileged, it was volunteered and cannot have 

constituted "deliberate intrusion" on the part of the government. 

Similarly, we find no impropriety in Powell's asking Travis to 

appear before the grand jury. By this time Travis knew she was a 

target of the investigation and had been warned to withdraw as 

counsel for Voigt. Therefore, to the extent Travis continued to 

provide legal advice to Voigt in connection with the criminal 

investigation, she was violating her ethical obligation to avoid a 

conflict of interest. Finally, AUSA Ernst's efforts to steer clear 

of privileged information during Travis' grand jury testimony 

demonstrate that the government was attentive to ethical 

constraints. We fail to see any purposeful intrusion on the 

government's part. 

 Voigt's alternative claim of purposeful intrusion, which 

arguably has some merit, might be that the government had an 

affirmative duty to inform him that Travis had acted as an 

informant when it discovered that she was representing him in 

connection with the very criminal investigation in which she had 

acted as an informant. At least one court of appeals has 

speculated as to whether the government, during the investigative 

phase of a prosecution, may have some affirmative duty to inform a 

defendant of a potential conflict of interest caused by its prior 

association with the defendant's lawyer. See, e.g., United States 

v. Lopez, 71 F.3d 954, 963-64 (1st Cir. 1995) (attorney for 

defendant had begun grand jury investigation into his client as 

AUSA before switching sides). We need not reach that issue, 

however, because as our discussion in the next subsection 

indicates, Voigt has made no showing of prejudice. 

 c. 

 We find no evidence in the record of significant 

prejudice--the third element of our outrageous government conduct 

test. As the party bearing both the burden of production and 

persuasion on his outrageousness claim, Voigt has failed to 

demonstrate that he suffered any ill effects flowing from the 

government's allegedly improper investigative activity. For 

instance, Voigt does not cite even a single occasion on which 

Travis gave him legal advice that was calculated to damage him to 

the benefit of the government. Nor does he claim that Travis 

intentionally declined to assert the attorney-client privilege in 

response to the government's grand jury subpoenas or that Travis 

advised him to pursue a course of conduct she knew to be illegal 

simply to help the government build its case. More significantly, 

however, Voigt failed to demonstrate that any of the information 

Travis provided the government after May 1, 1992, was in fact 

privileged. We think this alone is fatal to his claim of 

outrageousness. Voigt contends on appeal that he does not assail 

the district court's attorney-client privilege rulings because of 

the lenient standard of review we would apply. But we think if 

Voigt's assertion that "the evidence introduced both prior to and 

at the trial included hundreds, if not thousands, of privileged 

attorney-client communications" (Voigt's Br. at 12) had any merit 

whatsoever, he would have pointed to at least one document Travis 

provided the government that was privileged. By failing to meet 
his burden to establish the privilege he claims, Voigt has 

precluded us from finding that an attorney-client relationship 

between Travis and him ever existed, let alone that it was 

violated. 

 Finally, Voigt invokes our decision in Levy, 577 F.2d at 

200, along with other similar decisions, in an attempt to have us 

find that the government's intrusion into his attorney-client 

relationship, standing alone, is per se prejudicial. Levy, 

however, is distinguishable on two fronts. First, Levy was decided 

under the Sixth Amendment. Second, and more importantly, Levy, 

like most of the cases that Voigt has cited, concerned the 

government's deliberate intrusion into a defendant's attorneyclient relationship in order to gain access to confidential defense 

strategy. See, e.g., United States v. Valencia, 541 F.2d 618 (6th 

Cir. 1976) (dismissal appropriate where government obtains defense 

strategy). The record in this case demonstrates that the 

government was scrupulous in its effort to avoid procuring 

confidential defense strategy. See generally Ofshe, 817 F.2d at 

1516 (no dismissal warranted where inadvertently intercepted 

defense strategy not used against the defendant). If any 

privileged information was disclosed to the government in this 

case, it concerned the workings of the Trust, not Voigt's legal 

strategy in responding to the criminal investigation into his 

activities. Voigt's claim of severe prejudice amounts to little 

more than an argument that "where there's smoke, there must be 

fire." We find neither. 

 IV. 

 RIGHT TO COUNSEL OF CHOICE 

 Voigt claims that the district court's disqualification 

of James Binns, a third attorney he sought to add to his defense 

team, violated his right to counsel of choice under the Sixth 

Amendment. Voigt seeks per se reversal of his conviction on the 

theory that the manner in which the district court disqualified 

Binns was arbitrary. 

 A. 

 1. 

 The nature and extent of James Binns' relationship with 

the Trust, like that of Travis, is somewhat ambiguous and eludes 

precise definition. An attorney who also was Voigt's long-time 

friend, Binns first came into contact with the Trust in April of 

1992 when he was contacted by Travis and Voigt in connection with 

the government's investigation into the Trust. Shortly thereafter, 

he accompanied Voigt to the Linwood, New Jersey offices of the FBI 

and "attempted" to meet with Powell. 

 Binns then met with Anderskow regarding the grand jury 

subpoenas that had been served on him. By Binns' own account, he 

told Anderskow that he would be acting as counsel for Voigt only, 

but would "facilitate the production of documents to the 

Government" in connection with Anderskow's subpoena. In a June 

interview with the FBI, however, in response to the FBI's request 

to review certain documents, Anderskow apparently stated that Binns 

had been retained by the Trust and was representing Voigt, 

Anderskow, and any other Trust members who came under investigation 

regarding the activities of the Trust. Binns was not present at 
Anderskow's interviews, nor did he have any contact with the FBI 

around that time. 

 In June of 1992, Travis and Binns spent five days 

together in a New Jersey hotel assembling documents responsive to 

grand jury subpoenas that had been served on Voigt and Anderskow 

that spring. Travis asserted that "Binns was operating in the role 

of attorney for the Trust and its various members" at that time; 

Binns maintained that Travis was the attorney for Voigt, Anderskow, 

and the Trust, and that she withheld many documents from Binns on 

grounds of attorney-client privilege with respect to those parties. 

 Binns and Travis also worked together that weekend and 

periodically until November of 1992, to devise Voigt's defense 

strategy. According to Binns, he advised Travis numerous times 

that as a potential target of the grand jury's investigation she 

should seek a criminal defense attorney to represent her. Travis 

replied that she did not want an attorney and that she would 

represent herself. 

 On November 12, 1992, Binns sent a letter to AUSA Ernst 

that stated as follows: 

 Please be advised that for the limited purpose 

 of responding to outstanding subpoenas I am 

 representing . . . [the Trust], Ralph 

 Anderskow, John Voigt and Jack Dunn. 

App. at 56. When Binns filed a notice of appearance in July of 

1993 indicating that he was joining Voigt's defense team, which 

already consisted of two privately retained attorneys, the 

government submitted a letter to the district court suggesting a 

potential conflict arising out of Binns' prior representation of 

the Trust and Anderskow during the investigative phase of the case 

and requesting a hearing. The government also indicated that there 

was a possibility that Binns would be called to testify at trial 

since a potential victim of the Trust had been instructed to 

deposit his advance fee into Binns' escrow account.

 Shortly thereafter, codefendant Mercedes Travis filed a 

formal motion to disqualify Binns. She submitted an affidavit 

describing her professional interaction with Binns and his actions 

in representing the Trust and its members in response to government 

subpoenas. She argued that when Binns formerly represented the 

Trust he "was loosely representing all members of the Trust," and 

that she had consulted with him numerous times when he was acting 

in that capacity, such that she was in effect a former client of 

his. 

 Travis also alleged that Binns might be in possession of 

certain documents or recordings material to her defense. According 

to her affidavit, four boxes of her Trust documents and personal 

material had been shipped to Binns, but only two of those boxes 

were produced to the government. The remaining boxes and their 

contents have not been seen since they were shipped from Geneva. 

Travis maintained that they are in Binns' possession and control. 

The only missing item that Travis mentioned specifically is a tape 

of a two-and-one-half-hour telephone conversation between Voigt, 

and Dunn and herself that she had surreptitiously recorded in March 

of 1992. Travis stated that she phoned and faxed Binns repeatedly 
in an effort to recover her papers and this tape in particular, but 

Binns did not respond. Travis asserted this as a separate ground 

for Binns' disqualification, arguing that 

 it is possible in the defense of this matter 

 that I may need to have access to this tape or 

 documents or to account for their absence. 

 Mr. Binns may well have duties to his current 

 client not to provide access to this tape or 

 these documents. Mr. Binns could conceivably 

 be the only witness available to me should it 

 be necessary for me to account for the absence 

 of the tape or the documents. 

Id. at 71. 

 In response to the government's letter and Travis' 

disqualification motion, Binns submitted a letter to the district 

court attempting to dispel any notion that his representation of 

Voigt at trial would raise a conflict problem. First, Binns 

asserted that he never had an attorney-client relationship with 

Travis. Binns claimed, therefore, that he could not have acquired 

any confidential information in the course of his association with 

Travis that would prejudice her defense. Binns also disavowed any 

knowledge of the potential use of his escrow account in connection 

with a victim of the Trust. Binns asserted that "[t]here is no 

possibility that anyone acting in good faith would call me as a 

fact witness at the trial of this case." App. at 87. Finally, 

Binns asserted that his alleged "representation" of codefendant 

Anderskow had been limited to facilitating the Trust's response to 

the government's subpoenas. Binns also claimed that after 

Anderskow's meeting with the FBI, in which Anderskow had indicated 

that Binns was representing the Trust and its members, he made 

clear to Anderskow that he was representing only Voigt. 

 With respect to the documents, Binns offered the 

following account of the way in which they came into his possession 

and the manner in which he disposed of them: 

 In October, 1992 I received four (4) 

 boxes of documents from Jack Dunn. He sent 

 them from Geneva, Switzerland. Messrs. Voigt 

 and Dunn told me that they couldn't get 

 Mercedes Travis to either come to the United 

 States or send documents responsive to Agent 

 Powell's 2nd Grand Jury subpoena. They told 

 me that she refused their repeated requests to 

 send the documents unless she was paid a 

 considerable sum of money. 

 When I received the boxes I did not open 

 them or look at the contents. I asked Mr.

 Voigt to come to my office to pick up the 

 boxes. He said he wanted to produce 

 everything. . . . Mr. Voigt produced all of 

 the documents to the Grand Jury. According to 

 him, Ms. Travis withheld a number of documents 
 which she had in her possession. 

Id. at 86. 

 2. 

 Before hearing oral argument on Travis' motion, the 

district court stated: 

 I must say that the record before me raises 

 great concern in my mind. We have here 

 additional counsel. My concern is if we allow 

 this additional counsel to participate, we may 

 wind [] up polluting an otherwise hopefully 

 error-free trial and creating issues of 

 conflict of interest, as well as the 

 possibility that this person who seeks to act 

 as an attorney is, in fact, a potential 

 witness. 

Id. at 190-91. Binns then addressed the district court, 

essentially reiterating his reasons as to why the motion to 

disqualify should be denied, and offered to take the stand to 

repeat them under oath. Attorneys for codefendants Anderskow and 

Anchors indicated their clients' willingness to waive any issue of 

conflict arising out of Binns' representation of Voigt. Both the 

government and Travis reiterated why Binns should be disqualified. 

 The district court did not hold an evidentiary hearing. 

Instead, relying on the affidavits and Binns' oral representations, 

the court decided to grant the disqualification motion: 

 We have here a number of very serious

 issues. As a matter of fact, I would 

 characterize it really as a foaming caldron of 

 representation issues here. Such that I am 

 convinced that it would be foolhardy for me to 

 go forward and inject potential error and 

 possible violation of the rights of 

 codefendants in what purports to be a lengthy 

 and complicated criminal case right at its

 inception before we have even heard any 

 motions. 

 . . . . 

 . . . Mr. Binns has had substantial 

 involvement in pre-indictment events 

 concerning the case. I don't need to pass on 

 his credibility versus Ms. Travis's 

 credibility or to the extent that Mr. 

 Anderskow did or did not authorize his 

 representation. We have a letter that he 

 represented him for a limited purpose. We

 have Mr. Anderskow, according to counsel's

 submission, saying that he thought Mr. Binns 

 was going to represent him and later saying 

 that he didn't. While Mr. Anderskow certainly 

 can waive any conflict, the waiver would have 
 to be knowing and voluntary, and we'll get

 into that a bit later. 

 And certainly Ms. Travis doesn't waive 

 any issue here. . . . 

 And I am convinced, based upon the 

 precedent, that it would be very foolish for 

 me to proceed and to allow [Binns to represent 

 Voigt]. . . . [T]o allow him to come into 

 court and cross-examine other persons based 

 upon his personal knowledge, possibly to 

 examine persons as to whom he has represented 

 beforehand, whether directly or otherwise, is 

 exactly the concern that the cases have 

 raised. 

Id. at 216-18. The district court went on to note that it did not 

think that Anderskow's or Anchor's waiver could be considered 

knowing and voluntary at the beginning of a large multi-defendant, 

multi-count trial. Binns ultimately was never called to testify at 

trial, although there were sporadic references to him during 

testimony. 

 B. 

 The Sixth Amendment provides that "[i]n all criminal 

prosecutions, the accused shall enjoy the right . . . to have the 

Assistance of Counsel for his defence." U.S. Const. amend VI. One 

element of this basic guarantee is the right to counsel of choice. 

Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 58 (1932). The 

right to counsel of choice, however, is not absolute. Wheat v. 

United States, 486 U.S. 153, 108 S. Ct. 1692 (1988). Thus, where 

"considerations of judicial administration" supervene, the 

presumption in favor of counsel of choice is rebutted and the right 

must give way. Fuller v. Diesslin, 868 F.2d 604, 607 & n.3 (3d 

Cir.), cert. denied, 493 U.S. 873, 110 S. Ct. 203 (1989). 

 Our decision in Fuller reveals that counsel of choice 

cases can further be divided into two categories. The first and 

most common type of case involves "arbitrary" denials of the right 

to counsel. Fuller, 868 F.2d at 604; United States v. Flanagan, 

679 F.2d 1072, 1075 (3d Cir. 1982) (Sixth Amendment "goes no 

further than preventing arbitrary dismissal of the chosen 

attorney."), vacated on other grounds, 465 U.S. 259, 104 S. Ct. 

1051 (1984). A disqualification of counsel of choice is arbitrary 

not because it is substantively "erroneous," but because it was the 

product of a failure to balance proper considerations of judicial 

administration against the right to counsel. See Fuller, 868 F.2d 

at 604 (flat refusal to admit out-of-state attorneys pro hac vice); 

United States v. Romano, 849 F.2d 812 (3d Cir. 1988) (summarily 

denying request for chosen counsel); United States v. Rankin, 779 

F.2d 956 (3d Cir. 1986) (summarily denying request for continuance 

that would permit defendant to retain chosen counsel); United 

States v. Laura, 607 F.2d 52 (3d Cir. 1979) (failure to make 

findings essential to balancing required by Sixth Amendment). 

Under current circuit precedent, arbitrary denials of the right to 
counsel of choice mandate per se reversal. Fuller, 868 F.2d at 

607-08 (citing Romano, 849 F.2d at 818, 820). 

 The second type of right to counsel of choice case 

concerns "a nonarbitrary, but erroneous denial." Id. at 609 n.4. 

In these cases, as Fuller's dictum describes, "a trial court could 

make a reasoned determination on the basis of a fully prepared 

record (hence a nonarbitrary determination), but still err in 

concluding that counsel of choice should be denied." Id. Thus, 

although a trial court's disqualification decision may be 

substantively erroneous, it is nonarbitrary because the trial court 

engaged in the balancing required by the Sixth Amendment and 

developed the record necessary to do so. Id. This is an important 

distinction for two reasons. First, and most importantly, 

Fullersuggested, albeit in dictum, that nonarbitrary-yet-erroneous 

denials of the right to counsel of choice might be subject to 

harmless error analysis, and noted that no Third Circuit case has 

decided that issue definitively. Id. Second, the standard of 

review may be different, for the question whether a

disqualification is "arbitrary" is quite different from the 

question whether the disqualification was substantively unjustified 

under Wheat and its progeny. 

 C. 

 Voigt claims that the district court failed to conduct 

the sort of inquiry required by our cases and, thus, that it 

arbitrarily violated his right to counsel of choice. In the 

alternative, Voigt contends that even if nonarbitrary, the district 

court's disqualification decision constituted an abuse of 

discretion. 

 1. 

 Although two potential grounds for disqualification were 

raised in the district court (Binns' prior representation and his 

status as a potential witness), it appears that the court relied on 

only the former. 

 a. 

 The district court's oral disqualification decision, 

which spanned four pages of transcript, indicates that the 

principal, if not the sole, basis for its decision was Binns' prior 

status as an attorney for the Trust, Anchors, Anderskow and, 

perhaps, Travis during the grand jury investigation. See, e.g., 

App. at 218 ("[T]o allow him . . . possibly to examine persons as 

to whom he represented beforehand . . . is exactly the concern that 

the cases have raised."). The court viewed this as raising the 

potential for serious conflicts. Clearly, the potential for 

serious conflicts is a consideration of judicial administration 

that can outweigh a defendant's right to counsel of choice. Wheat, 

486 U.S. at 163, 108 S. Ct. at 1699; United States v. Moscony, 927 

F.2d 742, 750 (3d Cir.), cert. denied, 510 U.S. 1211, 111 S. Ct. 

2812 (1991); Davis v. Stamler, 650 F.2d 477, 480 (3d Cir. 1981). 

There is no question that the trial court performed the balancing 

required by our cases and considered a factor legitimately weighing 

against the right to counsel of choice. 

 Voigt contends that the district court's refusal to hold 

a separate evidentiary hearing renders the district court's 

disqualification of Binns per se arbitrary. He relies on two 
authorities in support of his claim: Fuller, 868 F.2d at 604, and, 

to a lesser extent, United States v. Romano, 849 F.2d 812 (3d Cir. 

1988). In Fuller, a defendant who was represented by in-state 

counsel filed a motion for admission of two out-of-state lawyers 

pro hac vice to represent him. The state trial court denied the 

motion without holding a hearing or making particularized findings 

of fact, on the grounds that the local counsel was competent to try 

the case and that the admission of the two out-of-state attorneys 

would likely result in delays and administrative hassles. 868 F.2d 

at 605. On appeal from the grant of Fuller's petition for a writ 

of habeas corpus, this court held that "the trial court's wooden 

approach and its failure to make record-supported findings 

balancing the right to counsel with the demands of the 

administration of justice resulted in an arbitrary denial of 

Fuller's motion for counsel pro hac vice." Id. at 611. 

 Contrary to Voigt's assertion, our decision in Fullerdoes not 

stand for the proposition that a trial court's denial of 

a defendant's chosen counsel must be based on a hearing and 

supported by factual findings in order to pass constitutional 

muster. While we held in Fuller that a trial court may not deny a 

defendant's right to counsel of choice on the basis of 

generalizations alone, we took pains to clarify that "we d[id] not 

hold that a court is prohibited from using its 'instinct and 

judgment based on experience' when it weighs the competing rights 

of the litigant to counsel of his choice and wise judicial 

administration." Id. (citation omitted). As long as the court 

makes a "reasoned determination on the basis of a fully prepared 

record," its decision will not be deemed arbitrary. 868 F.2d at 

609 n.4. 

 Voigt also cites United States v. Romano, 849 F.2d at 

812, in support of his argument that the district court's failure 

to hold a hearing and make factual findings was reversible error. 

In Romano, a pro se defendant sought to reserve the right to select 

counsel of her choice in the event that the court found it 

necessary to have stand-by counsel take over. The district court 

summarily denied her request, instead appointing stand-by counsel 

to back up defendant and potentially take over her defense. This 

court ruled, as it did in Fuller, that the failure to conduct a 

hearing and make findings of fact as to the suitability of 

defendant's chosen counsel violated the defendant's Sixth Amendment 

rights and constituted reversible error. 

 Taken together, Fuller and Romano do no more than 

illustrate the well-established principle that a trial court may 

not arbitrarily deny a defendant's right to counsel of choice. 

While in both of those cases the court's failure to hold a hearing 

or make factual findings was fatal, neither case establishes formal 

procedures that a court must follow in weighing a defendant's Sixth 

Amendment right to counsel of choice against the interests of the 

proper and fair administration of justice. Rather, we found 

hearings and/or factual findings necessary in those cases because 

the district courts' determinations had no basis in fact or reason; 

the trial court in Fuller denied the defendant's request for 

admission of counsel pro hac vice on the basis of generalizations 

and speculation, while the district court in Romano denied the 
defendant's request for no apparent reason at all. Without some 

sort of fact finding or hearing, these determinations could only be 

considered arbitrary. 

 In determining whether to disqualify counsel on conflict 

of interest grounds, the district court need not find an actual, 

existing conflict of interest. As the Supreme Court stated in 

Wheat, the court 

 must recognize a presumption in favor of 

 petitioner's counsel of choice, but that 

 presumption may be overcome not only by a 

 demonstration of actual conflict but by a 

 showing of serious potential for conflict. 

 The evaluation of the facts and circumstances 

 of each case under this standard must be left 

 primarily to the informed judgment of the 

 trial court. 

486 U.S at 164, 108 S. Ct. at 1700. Determining whether such a 

potential conflict exists is no simple task. "The likelihood and 

dimensions of nascent conflicts of interest are notoriously hard to 

predict, even for those thoroughly familiar with criminal trials." 

Id. at 162-63, 108 S. Ct. at 1699. 

 In this case, the district court heard oral argument, but 

did not hold an evidentiary hearing. At the time of the argument, 

however, the court had before it the submissions of the various 

parties, including sworn affidavits and documentary evidence 

attached as exhibits. This record was fairly substantial-- 

certainly far more so than anything that was before the courts in 

Fuller and Romano. The government's eleven-page letter of August 

6, 1993, attached exhibits including: (1) correspondence between 

Binns and the U.S. Attorney's Office regarding whom he represents; 

(2) a memorandum and notes by Mercedes Travis regarding litigation 

strategies and mentioning Binns; and (3) communications with 

investors in the Trust directing them to contact Binns or deposit 

funds into his escrow account. Travis' motion included a sworn 

affidavit setting forth her relationship with Binns. Binns' 

letter to the court laid out his version of events in great detail 

and attached ninety-six pages of documentary support, including but 

not limited to affidavits, grand jury transcripts, correspondence 

to and from Binns, and FBI reports. Indeed, Binns' letter and 

supporting documentation were so thorough that he told the court at 

the hearing, "in substance, you have the story. The story is 

contained in my letter . . . ." App. at 204. Under these 

circumstances, we conclude that the record was more than sufficient 

to enable the district court to make a reasoned and well-informed 

decision. Formal findings of fact are not required. 

 b. 

 We agree with Voigt, however, that Binns' status as a 

potential witness, standing alone, cannot render the district 

court's disqualification order nonarbitrary. Although Binns' 

status as a potential witness is certainly a proper consideration 

of judicial administration, Stamler, 650 F.2d 480-81, the record 

indicates that the decision to disqualify Binns was based primarily 

on his alleged prior representation of the Trust and its members. 
To be sure, the district court made passing reference to the 

possibility of Binns' becoming a witness at trial. See App. at 

190-91. Yet none of the reasons referred to by the district court 

in its final oral decision indicated that Binns' status as a 

potential witness was one of the "considerations of judicial 

administration" that weighed into its balancing. Moreover, the 

record is devoid of any "findings" as to Binns' status as a 

potential witness that would have allowed the district court 

properly to weigh that consideration against Voigt's presumed right 

to counsel of choice (and allowed us to exercise appellate review). 

 The government's retort that "Voigt conspicuously fails 

to argue that the district court could not have made the necessary 

findings . . . .," Government's Br. at 34, is unsatisfactory in 

several respects. First, it all but concedes that the district 

court failed to make any findings with respect to Binns' status as 

a potential witness. Second, the government appears to make this 

argument in suggesting that the district court's disqualification 

was nonarbitrary. But to be nonarbitrary, as we have noted, the 

district court actually must make findings based on evidence in the 

record and weigh those findings against the right to counsel. 

Permitting the government to argue that there was evidence in the 

record upon which the district court could have based findings that 

it concededly failed to make would simply inject a harmless error 

inquiry into the one area that our right to counsel of choice 

jurisprudence indicates is singularly inappropriate. Therefore, 

since the district court failed to address adequately the 

likelihood that Binns would be called as a witness, record evidence 

concerning that potential is irrelevant to the "arbitrariness" 

question. 

 In any event, we have determined that the court had 

sufficient other evidence before it to suggest that

disqualification was appropriate. It specifically referred to that 

evidence in announcing its decision to disqualify Binns. That is 

all our decisions prohibiting arbitrary denials of the right to 

counsel of choice require. See, e.g., Fuller, 868 F.2d at 604; 

Romano, 849 F.2d at 812. We therefore reject Voigt's claim that 

the district court arbitrarily denied his Sixth Amendment right to 

counsel of choice. 

 2. 

 In the alternative, Voigt contends that the 

disqualification decision amounted to an abuse of discretion 

because it was unwarranted given the information before the 

district court. We disagree. In Wheat, 486 U.S. at 153, 108 S. 

Ct. at 1692, the Supreme Court considered the circumstances under 

which a trial court, consistent with the Sixth Amendment, could 

disqualify a defendant's chosen attorney. Wheat involved an 

attorney's potential representation of several codefendants in the 

same trial. Referring to the balancing required of trial courts in 

determining whether a potential conflict warranted 

disqualification, the Court wrote: 

 [A] district court must pass on the issue 

 whether or not to allow a waiver of a conflict 

 of interest by a criminal defendant not with 

 the wisdom of hindsight after the trial has 
 taken place, but in the murkier pre-trial 

 context when relationships between parties are 

 seen through a glass, darkly. The likelihood 

 and dimensions of nascent conflicts of 

 interest are notoriously hard to predict, even 

 for those thoroughly familiar with criminal 

 trials. . . . For these reasons we think the 

 district court must be allowed substantial

 latitude in refusing waivers of conflicts of 

 interest . . . in the more common cases where 

 a potential for conflict exists which may or 

 may not burgeon into an actual conflict as the 

 trial progresses. . . . 

 . . . . 

 . . . The District Court must recognize a 

 presumption in favor of [a defendant's] 

 counsel of choice, but that presumption may be 

 overcome not only by a demonstration of actual 

 conflict but by a showing of a serious 

 potential for conflict. 

Id. at 162-64, 108 S. Ct. at 1699-1700. The court also noted that, 

even apart from the requirements of the Sixth Amendment, the 

district court's independent duty "to investigate potential 

conflicts arises in part from the legitimate wish of district 

courts that their judgments remain intact on appeal." Id. at 161, 

108 S. Ct. at 1698. Finally, the Court noted with approval that in 

the case before it "the District Court relied on instinct and 

judgment based on experience in making its decision." Id. at 163, 

108 S. Ct. at 1699. 

 We begin by observing that the unique factual scenario 

presented by Binns' proposed representation of Voigt is quite 

different from the one presented in Wheat. This is not a case 

where the district court's sole or even primary interest was in 

protecting Voigt's right to the effective assistance of counsel by 

disqualifying an attorney whose potential conflicts of interest 

might impede his ability to defend his client. See, e.g., United 

States v. Lussier, 71 F.3d 456 (2d Cir. 1995) (reviewing propriety 

of trial court's decision to accept defendant's waiver of conflictfree representation), cert. denied, 116 S. Ct. 1321 (1996); United 

States v. Ross, 33 F.3d 1507 (11th Cir. 1994) (reviewing propriety 

of disqualification ordered to safeguard defendant's right to 

conflict-free representation), cert. denied, 115 S. Ct. 2558 

(1995). 

 On the contrary, as the record makes clear, what 

concerned the district court was the possibility that Binns' prior 

representation of the Trust and its members during the grand jury 

investigation might affect Anderskow's, Anchor's and Travis' 

ability to receive a fair trial. Nevertheless, because the effect 

of a disqualification is to deny a criminal defendant his or her 

presumptive right to chosen counsel, the question under Wheat is 

the same, even where the trial court's disqualification of chosen 
counsel is aimed at protecting the rights of persons other than the 

defendant. Thus, we must determine whether the district court's 

conclusion that there was an actual or serious potential for 

conflict of interest constituted an abuse of discretion. Cf.Moscony, 927 

F.2d at 750-51 (reviewing disqualification of 

defendant's attorney aimed, in part, at protecting rights of 

several government witnesses attorney represented at grand jury); 

United States ex rel. Stewart v. Kelly, 870 F.2d 854 (2d Cir. 1989) 

(reviewing disqualification of attorney aimed, in part, at 

protecting rights of witness attorney had represented in the 

past). 

 We find no abuse of discretion in the district court's 

disqualification of Binns. It was undisputed that Binns 

represented the Trust and Anderskow for purposes of responding to 

the grand jury subpoenas. There was also a very real possibility 

that Anderskow might testify at trial, thereby subjecting himself 

to cross-examination by Binns. We noted in Moscony that 

"[c]onflicts of interest arise whenever an attorney's loyalties are 

divided, and an attorney who cross-examines former clients 

inherently encounters divided loyalties." 927 F.2d at 750 

(citation omitted). Since there was a strong possibility that 

Anderskow might face cross-examination by a former attorney, there 

was a serious potential for a conflict of interest which, 

notwithstanding Voigt's attempt to downplay it on appeal, warranted 

disqualification. Wheat, 486 U.S. at 153, 108 S. Ct. at 1692 

(disqualification due to conflict proper despite defendant's 

attempts on appeal to minimize its extent). 

 Voigt makes much of the district court's refusal to 

accept Anchors' and Anderskow's proffered waiver of the attorneyclient privilege in the event that Binns would have to crossexamine them at trial. Nevertheless, we find no abuse of 

discretion in the district court's decision. As the Wheat Court 

noted, at the beginning of a criminal trial, "[t]he likelihood and 

dimensions of nascent conflicts of interest are notoriously hard to 

predict . . . ." Id. at 162-63, 108 S. Ct. at 1699. Here, the 

district court obviously feared that if during trial the nature of 

Binns' relationship with Anderskow and Anchors turned out to be 

more significant than first thought, Anchors' and Anderskow's 

rights to a fair trial could be jeopardized, thereby generating 

potential appellate issues. We have recognized that the district 

court has "an institutional interest in protecting the truthseeking function of the proceedings over which it is presiding . . 

. [and] an independent interest in protecting a fairly rendered 

verdict from trial tactics that may be designed to generate issues 

on appeal." Moscony, 927 F.2d at 749. Accord Stewart, 870 F.2d at 

856-57 ("Wheat emphasized the trial judge's duty to preserve the 

integrity of the justice system by assuring [all] defendants a fair 

trial."). We find nothing improper in the district court's refusal 

to accept Anchors' and Anderskow's proffered waiver. 

 Moreover, at least one codefendant vehemently refused to 

waive the attorney-client privilege. Travis was a member of the 

Trust during the grand jury investigation and had substantial 

interaction with Binns during that period. Apart from the fact 

that this only added to the district court's growing concern about 
the ability of Voigt's codefendants to receive a fair trial, Binns' 

prior interaction with Travis may have been sufficient, in and of 

itself, to warrant disqualification since Binns may have acquired 

confidential information about her. 

 In Stamler, for example, we held that a trial court had 

properly disqualified counsel for a corporation from serving as the 

criminal defense attorney to the corporation's former president 

despite the counsel's insistence that he had received no 

information about the president's criminal activities while acting 

as counsel to the corporation. "[I]t was not unreasonable for the 

[trial court] to find that [the lawyer] might have obtained 

information related to the criminal proceeding." 650 F.2d at 480. 

In United States v. Rogers, 9 F.3d 1025 (2d Cir. 1993), cert. 

denied, 115 S. Ct. 95 (1994), the Court of Appeals for the Second 

Circuit upheld the disqualification of a corporate attorney who 

sought to represent a corporate officer after having previously 

attended a deposition with one of the corporation's employees. The 

deposition concerned the same matter giving rise to the 

prosecution, and the employee was to testify against the officer 

during the criminal trial. The Second Circuit rejected the 

defendant's claim that the disqualification was improper because 

the attorney-client relationship allegedly giving rise to the 

conflict was between the corporation and the attorney: "in this 

case, [the witness], as an employee at [the corporation] when he 

was deposed, should be considered a privy of the company. As such 

his joinder in the motion to disqualify [the attorney] was 

sufficient to assert the adverse nature of his interest and the 

confidences he may have disclosed . . . ." Id. at 1031. 

 Here, Travis was adamant that she had imparted 

confidential information to Binns, and she indicated that she would 

take the stand in her own defense at trial, thereby subjecting 

herself to potential cross-examination by Binns. The district 

court once again had an independent duty to safeguard Travis' right 

to a fair trial and to protect a potential judgment against her 

from attack on appeal. See Moscony, 927 F.2d at 751; Stamler, 650 

F.2d at 480; see also Rogers, 9 F.3d at 1025. 

 In sum, we conclude that the district court acted 

prudently given the unenviable situation with which it was 

presented. James Binns had substantial involvement in the grand 

jury investigation and he had sent a letter to the government 

tacitly acknowledging his multiple representation of Voigt, 

Anderskow and the Trust. In light of the district court's obvious 

interest in safeguarding the codefendants' rights to a fair trial 

by avoiding the possibility that they would be cross-examined by 

Binns, we hold that the presumption in favor of Voigt's 

constitutional right to counsel of choice had been adequately 

rebutted. Accordingly, we reject Voigt's claim that the disqualification of Binns violated his Sixth Amendment right to counsel of 

choice. 

 V. 

 THE MONEY LAUNDERING CONVICTIONS 

 Voigt alleges that his convictions on two counts of money 

laundering in violation of 18 U.S.C.  1956(a)(1)(A)(i) are 

legally insufficient because the government failed to prove beyond 
a reasonable doubt that the financial transactions forming the 

basis of the laundering convictions "in fact involve[d] the 

proceeds of specified unlawful activity." Id. We review 

sufficiency of the evidence claims under a deferential standard. 

"It is not for us to weigh the evidence or to determine the 

credibility of the witnesses. The verdict of a jury must be 

sustained if there is substantial evidence, taking the view most 

favorable to the Government, to support it." United States v. 

Schoolcraft, 879 F.2d 64, 69 (3d Cir.) (internal citations and 

quotation marks omitted), cert. denied, 493 U.S. 995, 110 S. Ct. 

546 (1989). If "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, 99 S. Ct. 2781, 2789 (1979), then 

the verdict of the jury must be sustained. 

 A. 

 In this case, Voigt was convicted of depositing the 

proceeds of a certain transaction known as the "Neville Price 

transaction" into an account in the First Fidelity Bank in 

violation of 18 U.S.C.  1956(a)(1)(A)(i). The evidence adduced at 

trial demonstrated that on October 1, 1991, a $500,000 advance fee 

from the "Neville Price" transaction was deposited into codefendant 

Ralph Anderskow's escrow account, which at the time contained over 

$600,000 from other sources. On October 4, 1991, two wire 

transfers were made from Anderskow's account to Voigt's First 

Fidelity account, one for $90,000 and the other for $32,000. These 

deposits formed the basis of the two money-laundering convictions 

that Voigt now challenges. Voigt contends that because only 

$500,000 out of the $1.1 million in Anderskow's account was 

"tainted," the government failed to prove beyond a reasonable doubt 

that the two wire transfers, which totaled $122,000, "involve[d] 

the proceeds of specified unlawful activity." Id. 

 B. 

 Voigt concedes that not all of the money involved in a 

financial transaction that is the subject of a money laundering 

charge must derive from the proceeds of money laundering activity. 

Rather, he contends that because Congress required that the 

financial transaction "in fact involve[]" the "proceeds of 

specified unlawful activity," id. (emphasis added), the government 

must prove that at least one dollar (or, even, one penny) is 

traceable to the proceeds of unlawful activity--a mathematical 

impossibility in cases such as this where (1) the wire transfers 

came from an account in which tainted funds had been commingled 

with untainted funds, and (2) the amount of the transfer was less 

than the amount of untainted funds in the account. Both the 

government and Voigt characterize the issue as one involving "which 

side should bear the uncertainty when tracing becomes an 

impossibility." Government's Br. at 46. 

 While the trend in our sister circuits has been to reject 

the sort of legal sufficiency challenge raised by Voigt as a matter 

of statutory construction, see United States v. Cancelliere, 69 

F.3d 1116, 1120 (11th Cir. 1995), we need not decide this issue, 

because we conclude that Voigt's claim fails on the facts. While 

the flow-chart that the government relied on to establish the 

source of the $122,000 deposit does not reveal the source of the 
other funds in Anderskow's account, Anderskow himself conceded on 

cross-examination that all but $26,000 of the funds deposited into 

his Continental Bank account between 1990 and 1993 were advance 

fees paid by borrowers of and investors in the Trust. As there was 

uncontroverted evidence at trial that no borrower or investor ever 

received any funds from the Trust, and as the jury found that the 

Trust was the engine of a scheme to defraud, we conclude that a 

rational trier of fact could easily have concluded that virtually 

all of the funds in Anderskow's account at the time of the $122,000 

transfer represented the fruits of specified illegal activity. 

 VI. 

 THE FORFEITURE ORDER 

 In connection with the four money laundering counts 

charged in the superseding indictment, the government brought 

separate criminal forfeiture allegations under 18 U.S.C.  982 

seeking forfeiture of certain vehicles and pieces of jewelry either 

as "involved in" or "traceable to" Voigt's money laundering 

activity, id.  982(a)(1), or as substitute assets under 21 U.S.C.

 853(p)(5), the CCE criminal forfeiture provision, which is 

incorporated in 18 U.S.C.  982(b)(1). At a nonjury proceeding 

conducted prior to sentencing, the district court determined that 

Voigt's money laundering convictions rendered him liable to the 

government for $1,661,960 in criminal forfeiture. In satisfaction 

of that amount, the court ordered forfeiture of, inter alia, two 

pieces of jewelry, finding "by a preponderance of the evidence" 

that they were "items personal property . . . traceable to the 

money involved in the [money-laundering] violations. App. at 1246. 

The jewelry had been purchased with funds from an account in which 

money laundering proceeds had been commingled with other funds -- 

numerous deposits and withdrawals having intervened between the 

deposit of the laundered funds and the purchase of the jewelry. 

 Voigt raises two assignments of error. First, he 

contends that the district court applied the wrong burden of 

persuasion. He maintains that our decision in United States v. 

Pelullo, 14 F.3d 881 (3d Cir. 1994), requires the government to 

prove its forfeiture allegations beyond a reasonable doubt. 

Second, Voigt asserts that the government failed to prove that the 

jewelry it sought was "traceable to" the proceeds of his money 

laundering activity, since it had been purchased with commingled 

funds from an account subject to numerous intervening deposits and 

withdrawals after the original deposit of the laundered funds. 

 Both of these contentions raise issues of first 

impression in this circuit. With respect to the burden-of-proof 

issue, we conclude, as did the district court, that the 

preponderance standard applies. We agree with Voigt, however, that 

the numerous intervening deposits and withdrawals into his account 

subsequent to the deposit of the tainted funds make it impossible 

to say that the two items of jewelry are "traceable to" property 

"involved in" the money laundering offense. Accordingly, we will 

vacate the forfeiture order that was incorporated into the judgment 

and remand for further proceedings. 

 A. 

 The forfeiture provision upon which the court's order was 

based, 18 U.S.C.  982, provides that a district court sentencing 
a person convicted of, inter alia, money laundering in violation of 

18 U.S.C.  1956, "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)(1). Voigt first contends that the government's burden of 

persuasion for criminal forfeiture under 18 U.S.C.  982(a)(1) is 

proof beyond a reasonable doubt. We have not yet had occasion to 

address the burden-of-proof issue with respect to  982(a)(1), and 

to date only one other court of appeals has considered it, 

concluding that preponderance-of-the-evidence standard applies. 

United States v. Myers, 21 F.2d 826, 829 (8th Cir. 1994), cert. 

denied, 115 S. Ct. 742 (1995). We have, however, addressed this 

issue twice previously in the context of other criminal forfeiture 

provisions. Pelullo, 14 F.3d at 881 (RICO; reasonable doubt); 

United States v. Sandini, 816 F.2d 869 (3d Cir. 1987) (CCE; 

preponderance). A description of the Sandini, Pelullo and Myersdecisions 

is in order. 

 1. 

 In Sandini, 816 F.2d at 869, we addressed the appropriate 

burden of persuasion under 21 U.S.C.  853, the CCE criminal 

forfeiture provision. The defendant there argued that  853(d)'s 

inclusion of a rebuttable presumption of forfeitability if the 

government could demonstrate two factors by a preponderance of the 

evidence was unconstitutional to the extent it failed to require 

proof beyond a reasonable doubt. After discussing the history of 

and distinction between civil in rem and criminal in personamforfeiture, 

we concluded that criminal forfeiture under CCE 

constitutes punishment for a crime, and not a separate element of 

the offense, notwithstanding Fed. R. Crim. P. 7(c)(2) (requiring the 

indictment to specify the extent or interest of the property 

subject to forfeiture) and Fed R. Crim. P. 31(e) (requiring the jury 

to return a special verdict on same). Sandini, 816 F.2d at 875 & 

n.7 ("assumption" in Rule 31(e) that forfeiture is element of the 

offense to be tried and proved is akin to nonbinding legislative 

history). Because other federal statutes providing for enhanced 

penalties have established the government's burden of proof as a 

preponderance of the evidence, we concluded that  853(d) 

withstands constitutional scrutiny as long as the forfeiture 

proceeding follows a conviction by proof beyond a reasonable doubt. 

 Seven years later we confronted the same question in the 

context of 18 U.S.C.  1963, the RICO statute's criminal forfeiture 

provision. Pelullo, 14 F.3d at 881. We held that the beyond-areasonable-doubt standard governs such forfeitures. Our conclusion 

was premised mainly on Congress' simultaneous amendments to the 

RICO and CCE forfeiture statutes in 1984, and its decision not to 

add a rebuttable presumption provision to  1963(a) when it added 

such a provision to the CCE statute. See 21 U.S.C.  853(d) 

(discussed in Sandini, 816 F.2d at 874-75). We concluded that the 

omission was deliberate and, hence, dispositive: "This indicates 

that Congress intended the higher beyond a reasonable doubt 

standard to control in a  1963(a) proceeding. If Congress wanted 

a preponderance standard for  1963(a), it would have so stated as 

it specifically did for CCE." Pelullo, 14 F.3d at 905. See id. at 
903 ("Most important, the CCE rebuttable presumption . . . does notexist 

in the RICO forfeiture provisions.") (citations omitted). We 

distinguished our decision in Sandini on the basis that it 

pertained only to CCE and could not bind a future panel of this 

court considering a different forfeiture provision. See id.("Sandini does 

not decide the issue in this case because the 

statute at issue there was CCE, not RICO."). 

 In Myers, 21 F.3d at 826, the Court of Appeals for the 

Eighth Circuit concluded that the government's burden of proof 

under  982(a)(1) was the preponderance standard. Noting that it 

had decided in a different case handed down the same day that the 

preponderance standard governed forfeitures under CCE, the court 

reasoned that 

 [t]he language of the money laundering 

 forfeiture statute is very similar to the 

 language of section 853(a). By stating that 

 "the court, in imposing sentence on a person 

 convicted" of a money laundering offense, 

 shall forfeit property involved in the 

 offense, Congress indicates that forfeiture 

 under the money laundering provision is also a 

 sentencing sanction, not an offense or element 

 of an offense. 

Id. at 829 (alteration omitted). 

 2. 

 While Sandini and Pelullo are useful guides, we begin by 

observing that prior decisions of this court interpreting different 

criminal forfeiture provisions do not constitute binding precedent 

on the issue before us. Similarly, the reasoning underlying those 

decisions is not binding, although to the extent that the statutes 

are analogous it may be persuasive. We must begin the task afresh 

and determine which burden of proof Congress intended to apply to 

 982(a)(1). 

 Perhaps the most striking feature of the forfeiture 

provision is that it requires the district court to order 

forfeiture "in imposing sentence on a person [already] convicted of 

an offense in violation of . . . section 1957 . . . of this title 

. . . . " 18 U.S.C.  982(a)(1) (emphasis added). As the Myerscourt 

observed, the plain language of the statute reveals that 

forfeiture is a form of sentence enhancement that follows a 

previous finding of personal guilt. Myers, 21 F.3d at 829. As a 

result, we conclude that the preponderance, not the reasonable 

doubt, standard governs forfeiture under  982(a)(1). 

 Voigt's most forceful argument to the contrary is that 

when Congress enacted the money laundering forfeiture statute, it 

specifically incorporated in  982(b)(1), the statute's procedural 

component, virtually all of the subsections of 21 U.S.C.  853, the 

procedural provisions of the CCE forfeiture statute, yet it omitted 

 853(d), the rebuttable presumption provision we found dispositive 

in Sandini. Relying on Pelullo, where we attached much 

significance to Congress' failure to add a provision like  853(d) 

to RICO's forfeiture provision, Voigt argues that Congress' 

decision not to include  853(d) as one of the subsections 
incorporated via  982(b)(1) evinces an intent to require 

application of the reasonable doubt standard. We think Voigt's 

argument proves too much. At most, Congress may have decided it 

did not want the rebuttable presumption to apply in money 

laundering cases. But that by no means compels us to conclude that 

the reasonable doubt standard should apply in such cases. 

 Furthermore, acknowledging that the burden of proof is 

simply a means of expressing our tolerance for erroneous outcomes, 

there are good reasons for employing the reasonable doubt standard 

in the RICO context but not in the money laundering context. The 

RICO forfeiture provision is by far the most far reaching, 

requiring the district court to order forfeiture of "any interest 

the person has acquired or maintained in violation of section 

1962," 18 U.S.C.  1963(a)(1), as well as any "interest in," 

"security of," "claim against," or "property or contractual right 

of any kind affording a source of influence over[] any enterprise 

which the person has established, operated, controlled, conducted, 

or participated in the conduct of in violation of section 1962." 

Id.  1963(a)(2). The statute further requires forfeiture of "any 

property constituting, or derived from, any proceeds which the 

person obtained, directly or indirectly, from racketeering activity 

. . . in violation of section 1962." Id.  1963(a)(3). Section 

1963(a)'s coverage, to say the least, is extremely broad and 

sweeping. See Rusello v. United States, 464 U.S. 16, 26, 104 S. 

Ct. 296, 302 (1983) ("The legislative history clearly demonstrates 

that the RICO statute was intended to provide new weapons of 

unprecedented scope for an assault upon organized crime and its 

economic roots."); Craig W. Palm, RICO Forfeiture and the Eighth 

Amendment: When is Everything Too Much?, 53 U. Pitt. L. Rev. 1, 27 

(1991) ("The most striking aspect of RICO's forfeiture provisions 

is their unprecedented nature and breadth. The language of the 

forfeiture provisions is extremely broad and comprehensive . . . 

."). Indeed,  1963(a) sweeps far more broadly than the elements 

of the substantive RICO offense itself. See 18 U.S.C.  1962. 

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. 

 In the money laundering context, by contrast, the 

forfeiture provision makes clear that the government is entitled 

only to property "involved in" or "traceable to" money laundering 

activity. See generally United States v. $448,342.85, 969 F.2d 

474, 476 (7th Cir. 1992) (government entitled only to "funds" used 

in offense, not whole account into which such funds had been 

deposited). Furthermore, "property involved in a financial 

transaction" is part of an element of the money laundering offense, 

see 18 U.S.C.  1956(a)(1), and the term "transaction" is defined 

in the statute. See id.  1956(c)(3). Unlike the RICO context, we 

have no reason to doubt that the amount of the transaction that 

forms the basis of a substantive money laundering offense will be 

identified in the indictment and, thus, that its connection to 

money laundering activity will have been proved beyond a reasonable 

doubt at trial. As the government has observed, in many cases the 
only factual issues left for resolution after trial will be whether 

particular items bought with tainted funds are "traceable to" money 

laundering activity. Applying a beyond-a-reasonable-doubt standard 

to that issue appears unnecessary. Accordingly, we agree with the 

Eighth Circuit's decision in Myers that the government's burden for 

forfeiture under  982(a)(1) is the preponderance standard. 

 B. 

 Voigt next argues that the government failed to prove 

that the money used to purchase the jewelry in question was 

"traceable to" money laundering proceeds, as required by 18 U.S.C. 

 982(a)(1). His argument is based on the fact that the jewelry 

was purchased with funds drawn from an account in which money 

laundering proceeds had been commingled with other funds, and that 

those funds were further "diluted" by numerous intervening deposits 

and withdrawals. Voigt asserts that if the jewelry was subject to 

forfeiture, it was under 21 U.S.C.  853(p)(5), the CCE substitute 

asset provision incorporated into the money laundering forfeiture 

scheme via 18 U.S.C.  982(b)(1). The government counters by 

observing that criminal forfeiture is an in personam punishment, 

which obviates the need for strict tracing, especially where 

tainted and untainted funds are commingled in a bank account, 

making tracing a virtual impossibility. 

 1. 

 The government's observation concerning the in personamnature of 

criminal forfeiture is helpful to a certain extent: the 

amount of forfeiture to which the government is entitled under 18 

U.S.C.  982 is not dictated by whether the government can prove 

that certain of the defendant's property is in fact property 

"traceable to" money laundering activity. When a defendant has 

been convicted of committing $1.6 million in money laundering 

offenses (as Voigt was here), the government has proved beyond a 

reasonable doubt that it is entitled to $1.6 million in criminal 

forfeiture; that amount represents property "involved in" money 

laundering activity for purposes of  982(a)(1). What is at issue 

here is the question of how the government may go about seizing 

property in satisfaction of that $1.6 million amount. 

 The government's principal contention is that money is 

fungible, making it impossible to differentiate between "tainted" 

and "untainted" dollars in a bank account. The government also 

advances what is clearly a policy argument, contending that 

interpreting the term "traceable to" to require even some tracing 

"would perversely permit money launderers to escape with all of 

their proceeds intact simply by commingling such tainted proceeds 

with untainted sums--a result Congress could not have intended." 

Government's Br. at 53. 

 To support its arguments, the Government has cited a 

number of cases dealing with the tracing issue in the context of 18 

U.S.C.  1963(a), the RICO statute's criminal forfeiture provision. 

See generally United States v. Robilotto, 828 F.2d 940, 949 (2d 

Cir. 1987), cert. denied, 484 U.S. 1011, 108 S. Ct. 711 (1988); 

United States v. Ginsburg, 773 F.2d 798, 802-03 (7th Cir. 1985) (en 

banc), cert. denied, 475 U.S. 1011, 106 S. Ct. 1186 (1986); United 

States v. Conner, 752 F.2d 566, 576 (11th Cir.), cert. denied 474 

U.S. 821, 106 S. Ct. 72 (1985). These cases hold that where crime 
proceeds have been commingled in a bank account with untainted 

funds, tracing is not required. The reasoning supporting those 

holdings is (1) the in personam nature of criminal forfeiture, and 

(2) the courts' conclusion that when Congress used the term 

"traceable to," it could not have intended to require the 

government to demonstrate some nexus between the criminal activity 

and the property sought--at least not where cash has been deposited 

into a bank account. 

 Regardless of whether these cases were correct on their 

merits, however, they were decided before the President signed into 

law the Anti-Drug Abuse Act of 1988. Pub. L. No. 100-690, 102 

Stat. 4374-75 (1988). With that act Congress added subsection (b) 

to  982, which incorporates the CCE forfeiture statute's 

"substitute asset" provision: 

 [i]f any of the property described in 

 subsection (a) of this section, as a result of 

 any act or omission of the defendant . . . has 

 been commingled with other property which 

 cannot be divided without difficulty; the 

 court shall order the forfeiture of any other 

 property of the defendant up to the value of 

 any property described in paragraph[] . . . 

 (5). 

21 U.S.C.  853(p)(5). The inclusion of the substitute asset 

provision in the money laundering forfeiture scheme represents 

Congress' express recognition that property subject to criminal 

forfeiture can be commingled with "untainted" property. It may 

also be an acknowledgement by Congress that its earlier-enacted 

criminal forfeiture provisions, such as RICO and CCE, were 

unartfully drafted to the extent that they failed to address the 

problem posed by commingled property. 

 In our view the specific inclusion in  982 of a 

substitute asset provision precludes us from interpreting the term 

"traceable to," as did the courts in the RICO context, to avoid a 

perceived bad policy result. See United States v. Ripinsky, 20 

F.3d 359, 365 n.8 (9th Cir. 1994) (" 982 . . . defines forfeitable 

assets to be only those associated with the underlying offense or 

traceable to the offense and distinguishes between 'forfeitable' 

and 'substitute' assets."). Because Congress has made the 

determination not to "perversely permit money launderers to escape 

with all of their proceeds intact simply by commingling such 

tainted proceeds with untainted sums . . . .," Government's Br. at 

53, we should not be in the business of overlooking the plain terms 

of a statute in order to implement what we, as federal judges, 

believe might be better policy. Accordingly, the government's 

policy arguments, along with the cases supporting them, are 

inapposite. 

 Seeking to avoid our conclusion that cases decided prior 

to the enactment of the money laundering forfeiture statute are not 

controlling, the government observes that in 1986 Congress added a 

substitute asset provision to RICO's forfeiture scheme. Relying on 

In re Billman, 915 F.2d 916, 920 (4th Cir. 1990), cert. denied, 500 

U.S. 952, 111 S. Ct. 2258 (1991), the government contends that the 
addition of a substitute asset provision to the RICO statute could 

not affirmatively undo the settled judicial determination that the 

words "traceable to" in the RICO forfeiture statute do not require 

tracing of commingled funds. The government therefore suggests 

that in the money laundering forfeiture context it can seek 

forfeiture of items purchased with commingled funds either as 

"traceable to" or as substitute assets. We disagree. 

 As the Ninth Circuit's decision in Ripinsky makes clear, 

the government's position is internally inconsistent. The 

substitute asset provision comes into play only when forfeitable 

property cannot be identified as directly "involved in" or 

"traceable to" money laundering activity. Clearly, if funds 

commingled in a bank account are sufficiently identifiable as to be 

considered "traceable to" money laundering activity, then the 

substitute asset provision should have no applicability whatsoever. 

Accordingly, the government's contention that the "traceable to" 

and substitute asset theories merely create alternative paths to 

forfeiture, which the government may choose at its option, is 

illogical. 

 We also do not understand why an amendment to a statute 

cannot affirmatively reverse, or at least cast substantial doubt 

on, prior court decisions interpreting earlier versions of that 

statute. This is especially true where, in undertaking to discern 

the plain meaning, those decisions essentially held (for policy 

reasons) that Congress simply could not have meant what it said. 

Indeed, if the legitimacy of the courts' interpretation of the RICO 

statute had been beyond doubt, then the addition of a substitute 

asset provision to the RICO, CCE and money laundering criminal 

forfeiture schemes would seem superfluous. 

 Furthermore, we think the government's interpretation of 

Billman proves too much. In Billman the Fourth Circuit cited to 

the prior case law holding that the in personam nature of criminal 

forfeiture makes tracing under the RICO statute's forfeiture 

provision unnecessary. It then made the unremarkable observation, 

which the government apparently finds significant, that "[t]hese 

principles are embodied in an amendment to the act, which makes 

provision for the forfeiture of substitute assets." 915 F.2d at 

920. Contrary to the government's interpretation, however, that 

observation may signal the Fourth Circuit's view (which we 

expressed above) that Congress recognized its unartfulness in using 

the term "traceable to" in its forfeiture statutes. Moreover, the 

Fourth Circuit may have recognized that in amending forfeiture 

statutes to include a substitute asset provision, Congress may have 

appreciated that courts had been stretching to avoid the result of 

applying the plain meaning of the term "traceable to" to commingled 

property. 

 Even if Billman can be read to suggest that the addition 

of a substitute asset provision to RICO's criminal forfeiture 

scheme cannot undo prior judicial interpretations of the words 

"traceable to" in the RICO context, we simply cannot ignore the 

plain fact that the money laundering criminal forfeiture provision 

contains a substitute asset provision that appears to be addressed 

directly to the situation confronting us in this case. We are 

unaware of any decision that has imported the restrictive 
definition of "traceable to" prevalent in the RICO context into the 

money laundering forfeiture scheme. 

 In sum, to accept the government's argument that 

"traceable to" does not mean what it says for purposes of 

commingled property, in effect would render the substitute asset 

provision a nullity, in contravention of a well-settled canon of 

statutory construction that "courts should disfavor interpretations 

of statutes that render language superfluous." Connecticut Nat'l 

Bank v. Germain, 503 U.S. 249, 253, 112 S. Ct. 1146, 1149 (1992). 

 2. 

 We hold that the term "traceable to" means exactly what 

it says. In light of our holding on the burden of proof, this 

means that the government must prove by a preponderance of the 

evidence that the property it seeks under  982(a)(1) in 

satisfaction of the amount of criminal forfeiture to which it is 

entitled has some nexus to the property "involved in" the money 

laundering offense. For example, if the defendant receives 

$500,000 cash in a money laundering transaction and hides the cash 

in his house, the government may seize that money as property 

"involved in" the money laundering offense. If the defendant 

purchased a $250,000 item with that money, the government may seek 

the remaining cash as "involved in" the offense, whereas the item 

purchased is subject to forfeiture as property "traceable to" 

property involved in the money laundering offense. 

 Where the property involved in a money laundering 

transaction is commingled in an account with untainted property, 

however, the government's burden of showing that money in the 

account or an item purchased with cash withdrawn therefrom is 

"traceable to" money laundering activity will be difficult, if not 

impossible, to satisfy. While we can envision a situation where 

$500,000 is added to an account containing only $500, such that one 

might argue that the probability of seizing "tainted" funds is far 

greater than the government's preponderance burden (50.1%), such an 

approach is ultimately unworkable. As the Seventh Circuit, 

speaking through Judge Easterbrook, has observed, a bank account is 

simply a number on a piece of paper: 

 Bank accounts do not commit crimes; people do. 

 It makes no sense to confiscate whatever 

 balance happens to be in an account bearing a 

 particular number, just because proceeds of 

 crime once passed through that account. . . . 

 An "account" is a name, a routing device like 

 the address of a building; the money is the 

 "property" [for purposes of the forfeiture

 statute]. Once we distinguish the money from 

 its container, it also follows that the 

 presence of one illegal dollar in an account 

 does not taint the rest--as if the dollar 

 obtained from [money laundering activity] were 

 like a drop of ink falling into a glass of

 water. 

$448,342.85, 969 F.2d 474, 476 (7th Cir. 1992). 

 The solution, we think, is to give effect to the 
substitute asset provision. See 18 U.S.C.  982(b)(1) 

(incorporating 21 U.S.C.  853(p)(5)). Thus, once a defendant has 

commingled laundered funds with untainted funds--whether in a bank 

account or in a tattered suitcase--such that they "cannot be 

divided without difficulty," 21 U.S.C.  853(p)(5), the government 

must satisfy its forfeiture judgment through the substitute asset 

provision. Once property subject to forfeiture under  982(a)(1) 

is no longer identifiable due to some act of the defendant, the 

government may seek any property, cash or merchandise, in 

satisfaction of the amount of criminal forfeiture to which it is 

entitled. 

 3. 

 In light of our analysis, the district court's forfeiture 

order, which is incorporated into Voigt's judgment of conviction 

and sentence, cannot stand. Even under the preponderance standard, 

the items of jewelry cannot be considered "traceable to" the 

proceeds of money laundering activity; the jewelry was purchased 

with funds from an account into which money laundering proceeds had 

been commingled with other funds, and after numerous intervening 

deposits and withdrawals. We therefore cannot say that, more 

probably than not, the jewelry is "traceable to" money laundering 

activity. 

 Notwithstanding our conclusion, the government continues 

to be entitled to $1.6 million in criminal forfeiture. But to the 

extent that the forfeiture order incorporated in the judgment 

required Voigt to hand jewelry over to the government under an 

erroneous legal determination, the government is improperly in 

possession of that jewelry. We do not envision that the district 

court will have to conduct a de novo forfeiture proceeding on 

remand. Since all that is at issue is the process by which the 

government may seize property in satisfaction of the $1.6 million 

to which it is lawfully entitled, on remand the government should 

be permitted to move to amend the judgment to reflect that the 

jewelry is forfeitable as a substitute asset. Cf. United States v. 

Hurley, 63 F.3d 1, 23 (1st Cir. 1995) (no error where, after notice 

of appeal from conviction was filed, government moved for and 

received from district court permission to seize certain property 

as "substitute assets"); Todd Barnet & Ivan Fox, Trampling on the 

Sixth Amendment: The Continued Threat of Attorney Fee Forfeiture, 

22 Ohio N.U. L. Rev. 1, 55 (1995) ("The substitute assets 

provisions constitute a procedural alternative for collecting a 

forfeiture judgment and are not a form of punishment in their own 

right . . . ."). 

 VII. 

 THE TAX EVASION CONVICTIONS 

 Voigt contends that his convictions on two counts of tax 

evasion under 26 U.S.C.  7201 (relating to the 1990 and 1991 tax 

years) are legally insufficient because the government failed to 

adduce evidence of an "affirmative act" of tax evasion, which is an 

essential element of the offense. 

 A. 

 Prior to trial, Voigt moved for and received a bill of 

particulars relating to the tax evasion counts because the 

indictment failed to specify the affirmative acts on which the 
government intended to rely at trial. The bill of particulars 

indicated four separate acts of evasion: (1) Voigt's submission of 

a partially false and partially incomplete Internal Revenue Service 

("IRS") Form 433-A understating the amount in his First Fidelity 

Bank account, his failure to fulfill his promise to provide the 

missing information to an IRS agent, and his failure to tell the 

agent of his advance-fee income earned in 1989 and 1990; (2) 

Voigt's decision not to purchase a piece of jewelry with cash when 

informed that a Currency Transaction Report would have to be filed 

with the IRS; (3) Voigt's role in requiring potential victims of 

the Trust to fill out bizarre confidentiality agreements that 

forbade them from disclosing details of their transaction; and (4) 

Voigt's maintenance of overseas bank accounts and his direction to 

Anderskow to wire funds into those accounts. At trial the 

government introduced evidence on all four affirmative acts. 

 B. 

 Essential to a conviction under 26 U.S.C.  7201 is "1) 

the existence of a tax deficiency, 2) an affirmative act 

constituting an attempt to evade or defeat payment of the tax, and 

3) willfulness." United States v. McGill, 964 F.2d 222, 229 (3d 

Cir.), cert. denied, 506 U.S. 1023, 113 S. Ct. 664 (1992). Voigt 

claims that the government's proof at trial failed to establish the 

second element as a matter of law because none of the alleged 

affirmative acts shows that his purpose was to evade the payment of 

taxes. Bearing in mind that "[o]ur review of the sufficiency of 

the evidence is 'governed by strict principles of deference to a 

jury's findings,'" id. (quoting United States v. Ashfield, 735 F.2d 

101, 106 (3d Cir.), cert. denied, 469 U.S. 858, 105 S. Ct. 189 

(1984)), we reject Voigt's legal sufficiency challenge. 

 1. 

 With respect to the first affirmative act charged by the 

government, the submission in September of 1990 of a materially 

misleading Form 433-A, Voigt claims that "[t]hese false statements 

could not . . . have been used to evade taxes for 1990 and 1991, 

taxes which were not even due until April 15, 1991 and April 15, 

1992, respectively." Voigt's Br. at 36. The IRS uses Form 433-A 

to identify potential assets with which a taxpayer who owes back 

taxes can pay them and to establish a method of collection. Since 

the form at issue dealt with payment of taxes owed in (or prior to) 

1990, and since it was submitted before the deficiencies that are 

the focus of the tax evasion charges arose, Voigt contends that it 

cannot have been calculated "to mislead the government or conceal 

funds to avoid payment of an admitted and accurate deficiency" as 

a matter of law. McGill, 964 F.2d at 230 (emphasis added). 

 In McGill we addressed the question whether an 

affirmative act can predate the existence of a tax deficiency and 

cited to conflicting authority on that issue. We declined to 

answer that question definitively, however, because the crime 

charged in the indictment pointed to the date the deficiency arose 

as the date of the offense: "The indictment by its terms required 

the jury to look forward in time for evidence of affirmative acts." 

Id. at 231. Once again, we decline the parties' invitation to rule 

as a general matter on whether predeficiency conduct can satisfy 

the statute's "affirmative act" element. For here, as in McGill, 
the superseding indictment charged Voigt with violating 26 U.S.C. 

 7201 "[o]n or about April 15, 1991" and "[o]n or about April 15, 

1992." App. at 432, 433. Accordingly, even if conduct predating 

the existence of a deficiency can constitute proof of an 

affirmative act of tax evasion, the government's failure to include 

the predeficiency period in the indictment's specification of the 

offense charged precludes it from relying on conduct predating the 

existence of the deficiency as substantive evidence of affirmative 

acts of evasion. McGill, 964 F.2d at 231 ("The Government must 

prove attempted evasion for each count beginning at the dates 

[charged in the indictment]."). 

 This same reasoning applies to the government's 

contentions that Voigt's failure to fulfill his promise to provide 

the IRS agent with income information missing from his Form 433-A 

and his failure to disclose to the IRS agent advance-fee income 

earned in 1989 and 1990 constitute affirmative evasive acts. These 

actions, like the submission of the false Form 433-A in the first 

place, were taken in the context of a collection action for 

delinquent taxes from prior years, and preceded the tax liabilities 

on which the evasion charges are based. As with the submission of 

the false Form 433-A, we believe that the circumstances do not 

warrant a finding that these prior acts were affirmative evasive 

acts that laid the groundwork for later tax evasion. 

 2. 

 Nevertheless, the three additional affirmative acts 

proved by the government at trial, when taken together, are 

sufficient to sustain the jury's verdict. The Supreme Court has 

said of the affirmative act element that "[i]f the tax evasion 

motive plays any part in such conduct[,] the offense may be made 

out even though the conduct may also serve other purposes such as 

concealment of other crime." Spies v. United States, 317 U.S. 492, 

499, 63 S. Ct. 364, 368 (1943). Elaborating on the "affirmative 

act" requirement, we stated in McGill that an "affirmative act is 

anything done to mislead the government or conceal funds to avoid 

payment of an admitted and accurate deficiency." McGill, 964 F.2d 

at 230. We also noted that "[o]ne act will suffice." Id. at 229 

(citing United States v. Conley, 826 F.2d 551, 556-57 (7th Cir. 

1987)). Whereas simple nonpayment of taxes owed cannot sustain a 

conviction under the statute, acts intended to conceal or mislead 

are sufficient. 

 Voigt argues that the government's proofs as to the 

second, third and fourth affirmative acts were legally insufficient 

because they were equally consistent with innocent activity and, 

more specifically, because there was no evidence linking them to a 

"motive" or "intent" to evade. According to Voigt, therefore, 

there must be direct evidence of intent before a rational trier of 

fact can conclude beyond a reasonable doubt that an affirmative act 

was undertaken, in part, to evade the payment of income tax. 

Voigt's legal proposition is without precedential support. 

 In the majority of criminal cases, the element of intent 

is inferred from circumstantial evidence. See generally United 

States v. Iafelice, 978 F.2d 92, 98 (3d Cir. 1992) ("It is not 

unusual that the government will not have direct evidence. [Mens 

rea] is often proven by circumstances."). The rule is no different 
in tax evasion prosecutions. The Supreme Court in Spies stated 

that "any conduct, the likely effect of which would be to mislead 

or conceal," is sufficient to satisfy the "affirmative act" 

element. Spies, 317 U.S. at 499, 63 S. Ct. at 368 (emphasis 

added). Accord United States v. Mal, 942 F.2d 682, 687 (9th Cir. 

1991) (evasion of payment "involves conduct designed to place 

assets beyond the government's reach after a tax liability has been 

assessed") (emphasis added); Conley, 826 F.2d at 556 (rational jury 

can infer intent to evade upon learning of manner in which 

defendant conducted his financial affairs); United States v. 

Shorter, 809 F.2d 54, 57-58 (D.C. Cir.) (jury could infer intent to 

evade where defendant carried on "cash lifestyle"), cert. denied, 

484 U.S. 817, 108 S. Ct. 71 (1987); United States v. Voorhies, 658 

F.2d 710, 714-15 (9th Cir. 1981) ("Voorhies' conduct in 1974 [of 

liquidating assets and transporting proceeds to Switzerland] had 

the 'likely effect' of misleading or concealing."). These cases 

simply require that there be some evidence from which a jury could 

infer an intent to mislead or conceal beyond mere failure to pay 

assessed taxes; it is for the jury to determine, as a matter of 

fact, whether the affirmative act was undertaken, in part, to 

conceal funds from or mislead the government. 

 We have no difficulty concluding, therefore, that Voigt's 

refusal to pay for a piece of jewelry in cash; his use of bizarre 

confidentiality agreements; and his maintenance of overseas bank 

accounts, taken together, provided the jury with sufficient 

evidence from which it could infer that they were "designed" to 

evade the payment of admitted tax deficiencies, even if such 

actions otherwise might constitute wholly innocent conduct. SeeUnited 

States v. Jungles, 903 F.2d 468, 473-74 (7th Cir. 1990) 

(activity that is lawful itself can constitute affirmative act to 

evade); see also United States v. Pollen, 978 F.2d 78, 86 (3d Cir. 

1992) (transporting funds to foreign countries, thereby making it 

more difficult to trace, provides inference of intent to evade), 

cert. denied, 508 U.S. 906, 113 S. Ct. 2332 (1993).

 The evidence at trial indicating a possible motive 

unrelated to tax obligations for some or all of the affirmative 

acts, upon which Voigt heavily relies on appeal, was before the 

jury. It chose to reject Voigt's proffered interpretation and 

accept the government's. Given our deferential standard of review, 

United States v. Casper, 956 F.2d 416, 421 (3d Cir. 1992), along 

with the settled rule that we draw all reasonable inferences in 

favor of the jury's verdict, Jackson v. Virginia, 443 U.S. 307, 

319, 99 S. Ct 2781, 2789 (1979), we may not substitute our (or 

Voigt's) judgment for that of the jury; Voigt's legal sufficiency 

challenge is essentially a futile attempt to rehash his closing 

argument. 

 Finally, even were we to agree that, standing alone, the 

three remaining affirmative acts were insufficient to establish 

Voigt's intent to evade payment, our decision in McGill instructs 

that the jury was entitled to consider Voigt's submission of a 

materially misleading Form 433-A in 1990 as relevant evidence on 

the question whether his later actions were intended to be evasive. 

See supra n.25. This provided the jury with ample basis on which 

to convict, since in 1990 Voigt had materially misled the IRS in 
order to hamper its attempts to collect back taxes. The jury 

readily could have concluded that Voigt's later actions were not 

innocent as Voigt claimed but, rather, were part of a conscious and 

continued attempt to thwart the IRS's collection efforts. 

Accordingly, we reject Voigt's legal sufficiency challenge to his 

tax evasion convictions. 

 VIII. 

 THE RESTITUTION ORDER 

 At sentencing, the district court ordered Voigt to make 

$7,040,000 in restitution. Finding that Voigt had secreted 

substantial sums of money derived from the Trust's advance-fee 

scheme, the district court noted in its amended judgment that 

 as was demonstrated at trial and at various 

 motion hearings, [] defendant has himself 

 deposited or forwarded to others for deposit 

 in various accounts in various European banks, 

 millions of dollars in cash and other 

 property. To cite but two examples, the 

 Government has already obtained a release and 

 assignment of funds and property currently

 frozen at United Overseas Bank in Switzerland 

 in the account of defendant's former 

 girlfriend; and the Government has received a 

 similar release and assignment from defendant 

 pertaining to funds frozen in his accounts at 

 the same bank. 

App. at 1394. Voigt now challenges the district court's 

restitution order and, more specifically, the lack of "specific 

findings" as to his ability to pay. Claiming that "there is no 

evidence of any funds elsewhere," Voigt's Br. at 48, Voigt asks us 

to vacate the restitution order and remand for recalculation. We 

review the restitution award for abuse of discretion. United 

States v. Graham, 72 F.3d 352, 355 (3d Cir. 1995), cert. denied, 

116 S. Ct. 1286 (1996). 

 A. 

 In United States v. Logar, 975 F.2d 958 (3d Cir. 1992), 

we held that when a district court imposes an order of restitution 

under the Victim and Witness Protection Act ("VWPA"), codified at18 U.S.C. 

 3663-64, it is required "'to make specific findings as 

to the factual issues that are relevant to the application of the 

restitution provisions . . . .'" Id. at 961 (quoting United States 

v. Palma, 760 F.2d 475, 480 (3d Cir. 1985)). One of the relevant 

provisions to which the requirement of specific factual findings 

applies is "the defendant's ability to pay and the financial need 

of defendant and the defendant's dependents." United States v. 

Copple, 24 F.3d 535, 549 (3d Cir.) ("Copple I") (citing Logar, 975 

F.2d at 961), cert. denied, 115 S. Ct. 488 (1994)). The 

restitution amount must reflect the defendant's ability to pay 

within five years after the date of sentencing. 18 U.S.C. 

3663(e)(2)(C). 

 In Copple I, the district court ordered restitution of 

approximately four million dollars after simply adopting as its 

factual findings the amount of loss to the victims calculated in 
the presentence report, but without specific findings on either the 

amount of loss or Copple's ability to pay. After the case had been 

remanded to the district court and a resentencing hearing had been 

held, the court reinstated its restitution order of four million 

dollars. Although it had made specific findings concerning the 

amount of the loss, which Copple did not challenge, the district 

court found that despite the defendant's current financial 

hardship, he had the potential to earn money in the future given 

his past success as a businessman. 

 On appeal a different panel of this court again vacated 

the restitution award and remanded for resentencing. United States 

v. Copple, 74 F.3d 479 (3d Cir. 1996) ("Copple II"). We found that 

a defendant's past success as a businessman, alone, could not 

justify the four-million-dollar restitution award, since it was 

unrealistic that the defendant would be able to earn that amount of 

money over five years. The court made no "findings about Copple's 

financial needs, and observed only that 'the family is in dire 

financial straights at this time,' an assertion hardly supportive 

of the exceptionally large restitution amount it ultimately 

ordered." Id. at 483. 

 As to the government's contention that the restitution 

award should be sustained because it implicitly reflected amounts 

attributable to assets Copple acquired with misappropriated funds, 

we agreed that 

 [t]he proceeds from a defendant's illegal 

 conduct that the defendant still retains or 

 can recoup are certainly encompassed within 

 the "financial resources of the defendant"

 that the district court should consider in

 fashioning a restitution order. Of course, 

 the continued existence of such proceeds is a 

 factual issue that should be accompanied by 

 "specific findings." 

Id. at 484 (citation omitted). We went on to note that, in 

determining a restitution award based on "the court's reasonable 

belief that there are secreted assets," id., the district court may 

calculate the total proceeds of defendant's crime minus amounts 

already accounted for, and then place the burden of accounting for 

the remainder on the defendant. The defendant may point to 

specific disbursements indicating that he is no longer in 

possession of funds obtained as a result of his crimes or assets 

purchased therewith. "Unless [the defendant] can disprove 

possession of any remaining amount in this manner, the court may 

consider the resulting figure as constituting 'financial resources 

of the defendant.'" Id. 

 B. 

 In light of our decision in Copple II, which was filed 

after briefing and argument in this case had been completed, we see 

no basis for setting aside the district court's restitution award 

as an abuse of discretion. In fact, the district court's analysis 

was prescient in that it essentially employed the framework 

contemplated by Copple II for ordering restitution where there is 

reason to believe that a defendant has secreted proceeds from 
illegal activity. Relying on Copple II, we divide our analysis 

into two parts. We first determine whether the district court's 

finding that Voigt had secreted the proceeds of his crime, thereby 

shifting to him the burden to explain their whereabouts, was an 

abuse of discretion. We then determine whether the district 

court's ultimate restitution order constituted an abuse of 

discretion given that the burden of persuasion as to the location 

of the proceeds, as well as on financial resources and ability to 

pay, had shifted to defendant. Copple II, 74 F.3d at 484; 18 

U.S.C.  3664(d). 

 1. 

 That the district court was entitled to proceed with the 

sort of analysis contemplated in Copple II cannot seriously be 

disputed. The district court's restitution order, along with the 

evidence at trial, provided ample basis for the court's conclusion 

that Voigt had attempted to secrete the proceeds of his criminal 

activity in foreign bank accounts and in his former girlfriend's 

name. Since there is evidence in the record to support the 

district court's "reasonable apprehension that [Voigt] has secreted 

certain assets," Copple II, 74 F.3d at 484, the derivation of a 

"starting point" and the concomitant shifting of the burden to the 

defendant cannot constitute an abuse of discretion.

 To the extent that Voigt complains that the district 

court's starting point ($7,040,000) did not represent the amount of 

his actual holdings at sentencing, he misses the point. Copple IImakes 

clear that once the district court has reasonably concluded 

that the defendant is concealing the proceeds of his crime, the 

district court may use as a starting point the entire amount of the 

loss caused minus any amount already accounted for (in this case, 

the amount sought by the government in forfeiture). Again, we see 

no abuse of discretion in the district court's decision to require 

Voigt to account for the entire $7,040,000. 

 2. 

 The essence of Voigt's complaint is that the district 

court's ultimate restitution award was the same amount as the 

starting point it had derived. Voigt assails the district court's 

failure to make specific findings on his ability to pay or on his 

financial resources. But under Copple II and 18 U.S.C.  3664(d), 

it was Voigt who bore the burden of persuasion (and, logically, the 

burden of production) on whether he possessed the $7,040,000 in 

crime proceeds and on the issue of his financial resources and 

needs. Voigt failed to adduce sufficient evidence on either 

subject. For instance, Voigt never submitted to the Probation 

Department a completed Personal Financial Statement form. Instead, 

he claimed that he was "living off savings and other assets," yet 

never accounted for the source of those funds. This was simply 

insufficient to demonstrate by a preponderance of the evidence his 

financial resources and needs. United States v. Cannistraro, 871 

F.2d 1210, 1214 (3d Cir. 1989) (no abuse of discretion where 

restitution amount not reduced to reflect ability to pay when 

defendant fails to adduce evidence on that subject). 

 Given Voigt's complete failure to meet his statutory 

burden of demonstrating his financial resources and needs, it is 

not surprising that the district court was unable to announce 
"specific findings" on that subject. Quite simply, because Voigt 

had failed to account for the $7,040,000 in crime proceeds, and 

because he failed to adduce sufficient evidence on his ability to 

pay and financial needs, the district court had no choice but to 

impose what had been its "starting point" as the final amount of 

restitution. Such a result is entirely "consistent with . . . our 

policy-based conviction that defendants ought not be permitted to 

profit, quite literally, from uncertainty for which their illegal 

conduct is ultimately responsible." Copple II, 74 F.2d at 484. 

Put another way, 

 if the government bore the burden of proving 

 that such defendants still possess illegally 

 obtained assets, the government would be 

 unable to locate hidden assets, those assets 

 would not be taken into account in framing

 restitution orders, and the defendants would 

 continue to profit at the expense of the 

 innocent victims. This would be 

 unconscionable. 

 The solution is to place the burden of 

 proof on the defendant to show what has 

 happened to all of the illegally obtained 

 assets. All assets for which the defendant 

 cannot account may be included in the amount 

 of restitution ordered. To the extent that 

 records are unavailable, the risk of 

 inaccuracy should be borne by the defendant 

 rather than the victims. 

Id. at 486 (Alito, J., concurring) (citation omitted). 

 Finally, we do not view the district court's decision to 

accept Voigt's representations of indigency for purposes of 

appointing appellate counsel as mandating a contrary result. The 

district court explained that it did so simply to expedite Voigt's 

appeal. In United States v. Hallman, 23 F.3d 821, 827 (3d Cir.), 

cert. denied, 115 S. Ct. 216 (1994), we held that a finding of 

indigence at the time of sentencing is not a bar to imposing 

restitution as long as the award is based "on realistic prospects 

that the defendant will be able to pay it, and not on fantastic or 

overly speculative possibilities." Copple II, 74 F.3d at 485. 

Given the district court's record-supported findings that Voigt 

concealed substantial sums of crime proceeds, and given Voigt's 

failure to rebut those findings with competent evidence, the 

district court's restitution order was based on "realistic 

prospects that the defendant will be able to pay it . . ." Id. 

 IX. 

 THE MOTIONS FOR SEVERANCE 

 Finally, Voigt argues that the district court erred in 

denying his motions to sever his trial from those of his 

codefendants on the ground of mutually antagonistic defenses, and 

that his convictions must therefore be reversed. The district 

court's denial of Voigt's motion is reviewable only for abuse of 
discretion. United States v. Thornton, 1 F.3d 149, 152 (3d Cir.), 

cert. denied, 114 S. Ct. 483 (1993). 

 A. 

 In appealing his conviction on this ground, Voigt faces 

an uphill battle. As the Supreme Court has recently noted, 

"[t]here is a preference in the federal system for joint trials of 

defendants who are indicted together." Zafiro v. United States, 

506 U.S. 534, 113 S. Ct. 933, 937 (1993). See Fed. R. Crim. P. 8(b) 

("Two or more defendants may be charged in the same indictment or 

information if they are alleged to have participated in the same 

act or transaction or in the same series of acts or transactions 

constituting an offense or offenses."). Such joint trials promote 

efficiency in the courts and serve the interests of justice by 

preventing "the scandal and inequity of inconsistent verdicts." 

Zafiro, 506 U.S. at 537, 113 S. Ct. at 937 (quoting Richardson v. 

Marsh, 481 U.S. 200, 209, 107 S. Ct. 1701, 1708 (1987)). In 

addition, joint trials of defendants charged under a single 

conspiracy aid the finder of fact in determining the "full extent 

of the conspiracy," United States v. Provenzano, 688 F.2d 194, 199 

(3d Cir.), cert. denied, 459 U.S. 1071, 103 S. Ct. 492 (1982), and 

prevent "the tactical disadvantage to the government from 

disclosure of its case." United States v. Jackson, 649 F.2d 967, 

973 (3d Cir.), cert. denied, 454 U.S. 1034, 102 S. Ct. 574 (1981). 

 As a result, when defendants have been properly joined 

pursuant to Rule 8(b) of the Federal Rules of Criminal Procedure, 

"a district court should grant a severance under Rule 14 only if 

there is a serious risk that a joint trial would compromise a 

specific trial right of one of the defendants, or prevent the jury 

from making a reliable judgment about guilt or innocence." Zafiro, 

506 U.S. at 539, 113 S. Ct. at 938. See Fed. R. Crim. P. 14 ("If it 

appears that a defendant or the government is prejudiced by a 

joinder of . . . defendants . . . for trial together, the court may 

order an election or separate trials of counts, grant a severance 

of defendants or provide whatever other relief justice requires."). 

 Many courts have recognized that such a risk arises when 

codefendants assert "mutually antagonistic" defenses. See Zafiro, 

506 U.S. at 538, 113 S. Ct. at 937 (collecting cases). Even where 

a defendant establishes that his defense and those of his 

codefendants are mutually antagonistic, however, severance is not 

mandatory. Id., 113 S. Ct. at 938. Mutually antagonistic defenses 

are not prejudicial per se; and even if they were, Rule 14 "leaves 

the tailoring of the relief to be granted, if any, to the district 

court's sound discretion." Id. at 539, 113 S. Ct. at 938. 

Therefore, to obtain a reversal of conviction for failure to sever 

where codefendants assert mutually antagonistic defenses, a 

defendant "must demonstrate clear and substantial prejudice 

resulting in a manifestly unfair trial." United States v. 

Reicherter, 647 F.2d 397, 400 (3d Cir. 1981). 

 Although precise articulations may differ, courts agree 

that "[m]utually exclusive defenses . . . exist when acquittal of 

one codefendant would necessarily call for the conviction of the 

other." United States v. Tootick, 952 F.2d 1078, 1081 (9th Cir. 

1991). This type of situation arises "when one person's claim of 

innocence is predicated solely on the guilt of a co-defendant." 
United States v. Harris, 9 F.3d 493, 501 (6th Cir. 1993). In 

determining whether mutually antagonistic defenses exist such that 

severance may be required, the court must ascertain whether "the 

jury could reasonably construct a sequence of events that 

accommodates the essence of all appellants' defenses." United 

States v. Perez-Garcia, 904 F.2d 1534, 1548 (11th Cir. 1990). 

 While mutually antagonistic defenses have been much 

discussed in theory, only rarely have courts found that they exist 

in practice. See Zafiro, 506 U.S. at 538, 113 S. Ct. at 937; see 

also Tootick, 952 F.2d at 1078 (finding mutually antagonistic 

defenses warranting reversal where two defendants charged with 

assault both defended themselves by arguing that the other 

committed the assault alone). Far more frequently, courts have 

concluded that the asserted defenses, while in conflict with one 

another, are not so irreconcilable that "[t]he jury could not have 

been able to assess the guilt or innocence of the defendants on an 

individual and independent basis." Tootick, 952 F.2d at 1083. 

See, e.g., United States v. Flanagan, 34 F.3d 949, 952 (10th Cir. 

1994) (affirming denial of motion to sever because a jury "could 

logically" accept one defendant's defense without concluding that 

the codefendant was guilty, and vice versa); Harris, 9 F.3d at 501 

(affirming denial of motion to sever trials of coconspirators, one 

of whom claimed innocence and the other of whom claimed entrapment, 

on the ground that these defenses are not inconsistent because the 

jury could logically have accepted both); Perez-Garcia, 904 F.2d at 

1548 (affirming denial of motion to sever because "the jury could 

reasonably construct a sequence of events that accommodates the 

essence of all appellants' defenses"). 

 Moreover, courts have consistently held that fingerpointing and blame-shifting among coconspirators do not support a 

finding of mutually antagonistic defenses. See Provenzano, 688 

F.2d at 198 (affirming denial of motion to sever where all 

defendants blamed one coconspirator on the ground that these 

defenses were not antagonistic, because if jury had believed that 

only one defendant was to blame there would have been a failure of 

proof on the conspiracy charges); see also United States v. Smith, 

44 F.3d 1259, 1266-67 (4th Cir.) (affirming denial of motion to 

sever where defendant's codefendants claimed that he ran the whole 

scheme and they were just victims of his criminal influence), cert. 

denied, 115 S. Ct. 1970 (1995); United States v. Linn, 31 F.3d 987, 

992 (10th Cir. 1994) (affirming denial of motion to sever where 

each coconspirator defended himself by blaming the others on the 

ground that the jury could have believed all defendants' theories 

and acquitted them all); United States v. Rivera, 6 F.3d 431, 438 

(7th Cir. 1993) (affirming denial of motion to sever where 

codefendants in a drug conspiracy all claimed ignorance and blamed 

each other on ground that "plain and simple blame-shifting" does 

not necessarily prevent jury from making reliable judgment about 

guilt or innocence), cert. denied, 114 S. Ct. 1098 (1994); United 

States v. Barber, 442 F.2d 517, 530 (3d Cir.) (holding that "the 

mere presence of hostility among defendants or the desire of one to 

exculpate himself by inculpating another" are insufficient grounds 

to require severance), cert. denied, 404 U.S. 958, 92 S. Ct. 327 

1971). These cases illustrate the well-settled principle that 
"defendants are not entitled to severance merely because they may 

have a better chance of acquittal in separate trials." Zafiro, 504 

U.S. at 540, 113 S. Ct. at 938. 

 B. 

 Voigt's argument is essentially indistinguishable from 

those that were rejected in the conspiracy cases cited above. The 

basis of his claim is that his codefendants "directed blame at 

[him] as the architect of the scheme . . . ." Smith, 44 F.3d at 

1267. Travis argued throughout the trial that Voigt had deceived 

her, and that "[s]he was one of the victims of John Voigt." App. 

at 985 (Travis' counsel's closing argument). Similarly, Anderskow 

and Anchors argued that they were pawns in a scheme created and 

perpetrated by John Voigt. 

 Voigt contends that "the defenses presented [by his 

codefendants] would, in order to have succeeded, have required 

defendant Voigt's conviction, and certainly enhanced that 

possibility." Voigt's Br. at 30. In light of the case law and on 

logical grounds, we disagree. The basic theory behind the defenses 

of Travis, Anderskow, and Anchors was that they lacked criminal 

intent. Although it is fairly clear that these defenses, by 

pointing the finger of blame at Voigt, increased the likelihood 

that Voigt would be convicted, the Supreme Court has stated that 

this type of injury alone does not mandate severance. Zafiro, 506 

U.S. at 540, 113 S. Ct. at 938. As the government correctly argued 

in its brief, "it was not logically impossible for the jury to have 

either (i) disbelieved all of the defenses, given the government's 

affirmative proof or (ii) believed all of them, on the basis that 

the government had not adduced sufficient evidence of intent." 

Government's Br. at 39. Under these circumstances, we cannot 

conclude that the defenses in this case were mutually antagonistic. 

 The limiting instructions that the district court gave to 

the jury reinforce our conclusion. See Smith, 44 F.3d at 1267; 

Rivera, 6 F.3d at 438. The court instructed the jury (1) to 

"consider each count of the indictment and each defendant's 

involvement in that count separately," (2) that "the burden is 

always on the prosecution to prove guilt beyond a reasonable 

doubt," (3) that its "verdict as to any defendant on any count 

should not control [its] verdict as to any other defendant or any 

other count," and (4) that opening statements and closing arguments 

are not evidence. Anderskow's App. at 4251, 4257 & 4278. We are 

convinced that these instructions "were sufficient to cure any 

potential prejudice from antagonistic defenses." Rivera, 6 F.3d at 

438 (relying on similar instructions). We therefore conclude that 

the district court did not abuse its discretion in denying Voigt's 

motions for a severance. 

 X. 

 CONCLUSION 

 We will affirm Voigt's conspiracy, money laundering and 

tax evasion convictions, as well as the district court's order of 

restitution. We will vacate the forfeiture order, which is 

incorporated into the judgment of conviction and sentence, and 

remand for further proceedings consistent with this opinion. 

 
TO THE CLERK: 

 Please file the foregoing opinion. 

 

 United States Circuit Judge 

 M E M O R A N D U M 

TO: P. Douglas Sisk, Clerk 

FROM: Judge Cowen 

DATE: July 8, 1996 

RE: U.S.A. v. Voigt, No. 95-5092, argued 1/25/96 

Dear Doug: 

 Please file the enclosed opinion which has cleared in 

accordance with our procedure. A signed original will be mailed 

today. Also, please note that Voigt's appeal was consolidated for 

argument with the appeals of U.S.A. v. Anderskow, No. 95-5093, and 

U.S.A. v. Anchors, No. 95-5094. The opinion disposing of 

Anderskow's/Anchors' appeals is being filed simultaneously 

herewith. 

 Sincerely, 

 Robert E. Cowen 

REC/ds 

enclosure 

cc: Judge Sarokin (memo only) 

 Judge Pollak (memo only) 

 Pat McCafferty (memo only)