* The Honorable Nancy Gertner, United States District Judge for the District of Massachusetts, sitting by de signation. 06-0669-cr U.S. v. C apo ccia UNIT ED S TAT ES COU RT OF A PP EALS FOR THE SECOND CIR CUIT August Term, 2006 (Argued: March 29, 2007 Decide d: September 19, 2007) Docket No. 06-0669-cr

_____________________________________________

UNITED STATES OF AMERICA, Appellee

.

– v. – ANDREW CAPOCCIA, Defenda nt-Appel lant, THOMAS DALE, CAROL CAPOCCIA, CARLO SPANO, Defenda nts.

____________________________________________ Before SOTOMAYOR and KATZMANN, Circuit Judges ,

and GERTNER, District Judge

. *

____________________________________________ Defendant-appellant Andrew Capocc ia appeals from the February 2, 2006 Preliminary Order of Forfeiture of the United States D istrict Court for the District of Vermont (Murtha, J.), which or dered f orfeite d the cont

ents of se veral ba nk acco unts and ot

her items in connec

tion with Capocci a’s conv

iction of, among o ther cr

imes, inte rstate tr ansporta tion of stol en prope

rty in violation of 18 U.S.C. § 2314. We hold that the district court did not err under Federal Rule of Criminal Procedure 32.2(b)(1) in basing its forfeiture determination both on the trial record and on evidence adduced at the forfe iture hearing, but that the district court did err in ordering forfei ted as sets o btain ed by Capo ccia pr ior to May 24, 20 00. Th ese ass ets we re obt ained throu gh uncharged violations of § 2314 and did not bear an a dequate statutory ne

xus to the violations of1 On August 15, 2006, after Capoccia had filed a notice of appeal of the Preliminary Order of Forfeiture, the district court e ntered a Final Order of For feiture. Because no claims or petitions asserting third party interests in the forfeited property were filed in the interim between the two orders, the terms of the Final Order of F orfeiture and the Preliminary Order of Forfeiture were materially

identical. Although Capoccia did not file a separate notice of appeal from the Final Or der of F orfeitur

e, we, lik e the par ties, unde rstand th e appea

l to be from both orde

rs. 2 which Capoccia was convicted, as require d by 18 U.S.C. § 981(a)(1) a nd 28 U.S.C. § 2461(c), and by Feder al Rule of Criminal Pr

ocedure 32.2(b)( 1). We AF FIRM the forf eiture o rder in p art, VACATE it in part, and REMAND for further procee dings consistent with this decision. JAMES J. GELBER (Gregory L. Waples, David V. Kirby, on the brief

), Assistant United States Attorneys, for

Thomas D. Anderson, United States Attorney for the

District of Vermont, Burlington, Vermont, for appellee

. ELI ZABETH L . TANG, Delmar, New York (Thomas A. Zonay , Ford & Zonay , P.C., Woodstock, Vermont, on the brief ), for defen dantappellant

. SOTOMAYOR, Circuit Judge : Defendant-appellant Andrew Capocc ia appeals from the February 2, 2006 Preliminary Order of Forfeiture of the United States D istrict Court for the District of Vermont (Murtha, J.), 1 which ordered forfeited the contents of se veral bank accounts and other items and imposed a money judgme

nt. The forfeiture was based on Capoccia ’s conviction, following a jury verdict, of thirteen counts of various c rimes in c onnection with his ma nageme nt of and i

nvolveme nt in certain centers offering

debt-reduction services. We hold that the district court did not err under Federal Rule of Criminal Procedure 32.2(b)(1) in basing its forfeiture determination both on the trial re cord and

on eviden

ce addu ced at th e forfe iture he aring, but that the district c ourt did e

rr in ordering forfeited assets obtained by Capoccia prior to May

24, 2000. Count One of the Second Supersed ing I ndictmen t, which c harge d Capocc ia with inte rstate tr ansporta tion of stol en prope

rty2 Capoccia was disbarred in September 2000. 3 in violation of 18 U.S.C. § 2314, did not charge Capoccia with any criminal conduct before that date, and any

assets derived from that uncharged c onduct did not bear the requisite nexus to the violations of which Capocci a was convicted, as requi red by the forf eiture provisions

18 U.S.C. § 981( a)(1 ) and

28 U. S.C. § 2461( c) an

d by Fede ral R ule o f Crim

inal P roce dure

32.2( b)(1 ). We AFFIRM th e forfe iture order i n part , VACA TE it in par t, and REMAN D for fu rther procee dings consistent with this decision. Capoccia has also challenged seve ral other aspects of his conviction and restitution order in a companion case, United Sta tes v. Cap occia , No. 06-0670. We reject these challenges a nd af fi rm hi s c on vi ct io n i n a su mm ar y or de r a ls o f il ed to da y. BACKGROUND I. Offense Conduct The following facts are draw n from the Second Superseding I ndictment (the “Indictment” ) and evi dence a dduced a t trial. In Februar

y 1997, Andrew Ca

poccia, then a licensed lawy er, 2 formed a company

called Andrew F. Capoccia, L

LC, of which Capoccia wa s the sole owner. The comp any chang ed its name in 1998 to the Andrew F. Capoccia L aw Centers, LL C. These entities will be referred to as the “Capoccia La

w Centers” or “La

w Centers.” The Capoccia Law

Centers, which operated in New York, offe red a debt reduction progra m targe ted at consumers w

ho had pr oblems pa

yin g their unsecur ed debt, p rimarily credit card debt. The La

w Centers heavily a

dvertised its debt reduction business, claiming that by negotiating collectively

with a consumer’s creditors, the L aw Centers could reduce the4

consumer’s debt by

as much as 50 percent to 70 percent. Each c lient enrolling in the program signed a contract specify

ing his or her total amount of unsecured debt and projec ting the total savings the Law Cente

rs would obtain for the client by negotiating with the client’s creditors. The cont ract als o estimate d the ret ainer f ee (twe nty -five pe

rcent, a nd later twenty -eight percen t, of the projected total savings) the L aw Centers would earn upon settling the client’s debts. The client agreed to make monthly payments to the L aw Centers to fund the debt reduction program—i.e., the money the Centers would use to settle with creditors—and to pay the retainer fee and account maintenance f ees. If the client withdre

w, the Law Centers would re fund the unearned retainer fees a

nd the debt reduction pay ments. The Law Centers utilized two principal types of bank a

ccounts. Its operating

account was funded by

the retainer fee pay

ments, which the Law Centers treate d as income immediately upon re ceipt. The Law Centers’ escrow account held the funds to be used to settle clients’ debts. In June 2000, Capo ccia, w

ho face d disciplinary

procee dings in N ew York a nd a civil fraud su it commenc ed by

the New Y ork Attor

ney Genera l again st the L aw Cente

rs, ente red into an agreement with co-defe ndants Howard Sinnott and Thomas Daly , employee-a ttorneys of the Law Ce nt er s, to se ll th e La w C en te rs ’ a ss et s. Th e a gr ee me nt pr ov id ed th at th e D al y, M ur ph y & Sinnott Law Centers, PLC would purc hase the Law Centers’ assets for at least $12,000,000 and would pay Capocc ia 20 percent of its gross income over a pe riod of ten yea

rs. The Daly, Mur

phy & Sinnott L

aw Cente rs, which also unde

rwent na me chang es, will be

refer red to, a long with its successors, as the “La

w Centers for Consumer Protection” or “L CCP.” Following the asset purchase, LCCP continued to provide similar debt reduc tion services to those previously off ered by the Capoccia

Law Centers. I

n July 2000, LCCP moved its base of oper ations from New York3 The government’s theory of guilt on the charges rela ting to the spending of unearned retainer fees was not that the spending itself was illegal, but rather that Capoccia conve rted the monies to his use by fraud whe n he represented to clients that retainer fe es would be either earned or returned upon demand, while he knew that, due to the precarious state of the L aw Centers’ finance s, neithe

r would oc cur for

the vast ma

jority of the L aw Cente

rs’ clie nts. 5 to Vermont. Although Capoccia no longer possessed a n ownership interest in LCCP after the asset pur chase, he remained affi liated wi th LCCP i

n an advis ory

capaci ty a nd active ly participated in management decisions. As described in the Indictment, Capocc ia and his colleagues at the L aw Centers and LCCP committed several ty pes of misconduct with respect to those entities’ funds. First, they engag ed in the m

isappropriation of

unearne d retain er fee s by depositin g those f ees into the firms’ gener al opera ting ac counts an

d then spe

nding the m before settling the clien t’s debts. As a resu

lt of this misappropriation, and because the L aw Centers experienced continuous and severe financial shortfalls, it regularly failed to pay timely

and complete refunds to clients who withdrew from the debt reduction progra m. Nonetheless, in recruiting clients, the L aw Centers continue d to repr

esent tha t withdra wing cl ients woul d recei

ve refu nds of une arned r

etainer fees. 3 Followin g its pur chase of the L aw Cente

rs’ asse ts, LCC P engag ed in simila r conduct and, as a result, lacked funds to pay timely refunds to withdrawing clients. Second, starting in 2000, Capoccia and his colleag ues began embezzling client escrow money , which th e firm wa s requir ed to hold on the clie

nts’ beha lf until the

money was used to pay off the ir debts. Capoccia authorized several transfers of money from the c lient escrow account into LCCP’s pay roll and general operating accounts, both directly

and to cover overdrafts in the general ac count. All told, over two million dollars was removed from the client

escrow accoun t.4 The Second Superseding I ndictment reflected the fact that one of Capocc ia’s codefendants pleaded guilty and the charges ag ainst two others were severed.

6 Finally, throug

hout this time period, even as the Law Centers and later LCCP faced serious shortfalls and owed millions of dollars to clients, Capoccia transferred se veral million dollars f rom the fi rms’ acc ounts to ac counts controlled by hi s wife, Ca rol Capoc cia. Cap occia also used the Law Centers’ f unds to pay his income taxes, make improvements on his home, and pu rc ha se je we lr y. In March 2002, fede

ral and state authorities executed search warr ants of LCCP’s offices. Th e f ir m e ve nt ua ll y de cl ar ed ba nk ru pt cy. II. The Indic tment On March 10, 2003, a federal g rand jury in Rutland, Ver mont, returned a fifty

-count fraud and forfeiture indictment against Capoccia and six of his Law Centers and L CCP colleagues. The same grand jury

returned a Superseding I ndictment on November 3, 2003, and on September 14, 2004, a different grand jury sitting in Burlington, Vermont returned a Second Superse ding Indic tment (the

“Indictment” ) agai

nst Capoc cia and t

hree of his collea

gues. 4 Count One o f the I

ndictmen t, of principal re levance

to this app eal, cha

rged Ca poccia w ith violating 18 U.S.C. § 2314 by transporting in interstate commerce monies he knew to be stolen, converted and taken by

fraud. Summarizing the prefatory paragraphs of the I

ndictment, the count referred to Capoccia’s “sc heme, between 1997 and 2002, to convert to his own benefit and to the benefit of other s unearned reta

iner fe es paid by

clients to the Capoc cia L aw Cente rs and to LCCP.” It then a

lleged that Capoccia transferr ed in interstate commerce thirty -one payme

nts, the earliest of which was dated May 24, 2000.5 The rema ining sub stantive c ounts cha rged o nly Capocci a’s co- defenda

nts. 7 Count Two c

harge d Capocc ia and his

co-def endants w

ith conspi racy under 18 U.S.C. § 371, the object of which was to commit violations of § 2314, wire fraud in violation of 18 U.S.C. § 134 3, mail fr

aud in viol ation of 1 8 U.S.C. § 13 41, and r eceipt o f stolen property transpor ted interstate in vi olation of 18 U.S.C. § 2 315. The c ount alle ged the conspira cy to commence on or about July 1, 2000, and ter minate on or about January 27, 2003. Counts Three through Five, Seven, and Nine throug h Fifteen charged Capoc cia, and in certain instances his codefenda nts as wel l, with subs tantive violations o f those sta tutes, as well as money

launder ing in violation of 18 U.S.C. § 1956. 5 Count Nineteen sought forfeiture of “any and all proceeds of the

st at ut or y vi ol at io ns sp ec if ie d” in Co un t O ne . C ou nt s T we nt y th ro ug h T we nt y-t hr ee an d T we nt yfive through Thirty

sought forfeiture of the property traceable to the violations alleged in the other sub stantive c ounts. III. The Trial Capoccia’s three co-defenda nts pleaded guilty on the

eve of trial, so Capoccia alone proceeded to trial. The government’s direct case consisted primarily of testimony by former L

aw Centers employee s. Special Agent Daniel Rachek of the F ederal Bureau of I nvestigations testified about the financial aspects of the L aw Centers’ conduct, including the flow of money from the Law Centers’ a

nd LCCP’s accounts to accounts held by Carol Capoccia. Prior to the

testimony

of Age nt Rache k, the dist rict cou rt held tw o bench c onfere nces to discuss defense counsel’s request to prohibit the prosecution from introducing evidence of conduct before May

24, 2000. In those confere nces, defense counsel took the position that the Indictment did not charge Capoccia with any

criminal conduct prior to that date, and that the jury8

therefore should be instructed to consider evidence of such conduct as background only . The government, by

contrast, maintained that the pre-May 2000 conduct was charged by the Indictment and admissible as evidence of a continuing scheme to defraud. None theless, during the second conference, the g overnment offered to agre e to the limiting instruction requested by defense counsel during the g uilt phase of the trial, so long as the government could see k forfeiture of monies associated with the pre-May 2000 conduct during the forfeiture phase

. Defense counsel consented. I n light of the parties’ agree ment, the district court issued the limiting in struction

and made

no furthe r ruling with resp ect to the

pre-Ma y 20 00 conduct. On April 5 , 2005, the

jury convicte d Capocc ia on all c ounts. Cap occia w aived his statutory right to a jury determination of the forfe iture amo unt. IV. For feiture P roceed ing Following the jury

verdict, the government moved for issuance of a preliminary

order of forfeiture based on Counts Nineteen through Twe nty-Three and Twenty- Five through Thirty of the Indictment, seeking f

orfeiture of the assets listed in those counts as well as an additional money judgme

nt to cover untraceable amounts. Capoccia conte sted the forfeiture, and the district court conducted a forfeiture hear ing on December 7, 2005. See Fed. R. Cr im. P. 32.2(b)( 1) (prov

iding for heari

ng if forfeitur

e is conte sted). Ag ent Rach ek, using exhibits prepared for trial, testified to the movement of monies out of the ac counts of the Law Centers and LCCP and into various accounts controlled by Capoccia. Agent Rachek ultimately traced those fun ds into the

accoun ts seized by

the gov ernment

. On February

2, 2006, the district court granted the gover nment’s motion for issuance of a preliminary orde

r of forfeiture. Capocci a had obje cted, bot h at the he aring a

nd in his6 Specifically, the district cour t found that for money take n before May

24, 2000, the sums of $212,871 and $564,982 could be traced to the seized account it labeled “Ac count 1,” and $336,917 could be traced to “Account 2.” 9 submissions to the court both prior to and after the hearing, that proce eds from pre-May 2000 transfers were not forfeitable be cause they were not charged in the I ndictment and he had not been convicted of them. In the district court’s ruling on the government’s motion for forfeiture, the court found, without explicitly addressing Ca poccia’s objection, that proceeds from transfe rs both before and after May 24, 2000 were forfeitable under Count One. The district c ourt determined that Ca

poccia c aused at

least $4, 422,966 in

total to be

wrongf ully transfe rred in connection with his conviction on Count One, of which at least $1,114,770 was transferre d prior to May 24, 2000. 6 Becau se the dis trict cou rt found t hat the se ized assets were i nsuffic ient to cover the $4,422,966 wrongfully transferred in connection with Count One, the court awa rded the government a money

judgment for the remaining amount, $1,463,799. The court performed the same analy sis for the other counts of conviction, ultimately f inding that all of the seized assets were forfeitable and that the g overnment was entitled to a money judgment in the total amount of $6,247,581 in connection with all of the counts. The Preliminary Or der of Forfeiture, issued February

2, 2006, reflected these findings. On August 15, 2006, the district court issued a Final Order of Forfeiture ma terially identical to the Preliminary Order of Forfeiture. DISCUSSION I. Standard of Review We review a district court’s legal conclusions regarding forfeiture de novo

. United States v. Gaski n , 364 F.3d 438, 461-62 (2d Cir. 2004).10

II. Evidenc e at the F orfeitur e Hearing When the government seeks to impose criminal forfeiture, F ederal Rule of Criminal Procedu re 32.2( b)(1) ( the “Rule ”) requ

ires the s entenci

ng cour t to “dete rmine wha

t proper ty is subject to forfeiture under the applicable statute.” U nder the Rule, the court’s forfeiture determination “may be

based on evidence already in the record, including any written plea agreement or, if the forfe iture is contested, on evidence or information presented by the parties at a hearing after the ver

dict or finding of guilt.” Id. Capoccia argues on appea l that the district court fa iled to co mply

with the Ru

le when it established the forfeitab ility of the se ized assets based not only on evidenc e adduced at Capoccia’s forfe iture hearing, but also on evidence adduced during his trial. Specifically, he contends that the word “or” in the Rule indicates that the district court may base its forfeiture order either on eviden

ce in the record , if the forfeitur

e is uncontested, or

on “evidence or information presented by the parties at a hearing,” if the forfeiture is contested. We disagree. First, the language of the Rule doe s not compel the cramped reading Capocc ia advocates. The Rule p lainly

states tha t district c ourts “ may ” base their determinations on evidence in the record or on evidence from a he aring. This permissive languag e suggests that the sentencing court has some latitude with respect to the information on which it bases its forfeiture orde r. Moreover, Capoccia’s interpretation of the Rule would lea d to the absurd result that, whenever a defenda nt contes ts the amou

nt of for feiture , the go vernmen

t would be

require d to reintr

oduce a t a post-trial hearing potentially large portions of its case from the g uilt phase of the defendant’s trial to a judge or jury

that has already

seen and considered the relevant evide nce. The Rule’s drafters could not have intended such an unnecessary and burdensome outcome. See United States v.7 This conclusion is subject to the qualification discussed below, concerning for feiture of monies transferred prior to May 24, 2000. 11 X-Citement Video, Inc. , 513 U.S. 6 4, 69 (199 4) (holdi ng that s tatutes should be construed t o avoid absurd results). The Advisory Committee Notes to Rule 32.2 further confirm our interpretation of the Rule: “The court may make the determination [as to the requisite nexus between assets and criminal violations] based on evidence in the rec ord, or on additional evidence submitted by the de fendant or evidence submitted by the government in support of the motion for the entry of a

judgment of forfeiture.” See Fed. R. Crim. P. 32.2 advisory committee’s note (emphasis added). Second, this Court has already approved of sentencing courts’ c onsideration of trial evidence in determining forfeiture. See Gask in , 364 F.3d at 462-63 (affirming district court’s forfeiture order which relied on evide nce adduced at trial, as well as additional evidence introduc ed post-t

rial, and conclud

ing aft er consi dering

all the ev idence presente d that “a

mple direct and circumstantial evidence supported” the or der), aff’g No. 00-61 48, 2002 U .S. Dist. LEXI S 28022, at *24, *26 (W.D.N.Y. Jan. 8, 2002) (stating that “[p]ursuant to Rule 32.2(b)(1), where forfeiture is contested, the Court in rea ching its decisions may c onsider not only evidence already in the record, but any

additional evidence presented by the parties at a hearing,” and

co nc lu di ng “b as ed up on th e t ot al it y of pr oo f t ha t t he Go ve rn me nt ha s e st ab li sh ed by a preponderance of evidence the requisite nexus” between the offense and the asse ts to be forfeited). Finally , in this ca se, Age

nt Rache k provide d suffic ient testi mony at the he aring i

tself to establish the nexus th e Rule de

mands. 7 To the extent Capoccia also objects to Agent Rachek’s12

re li an ce on tr ia l e xh ib it s, ei th er ge ne ra ll y or be ca us e h e b el ie ve s t he y ar e b ar re d a s h ea rs ay, neither the Federal Rules of Evidence nor any other r

ule prohibits the admission of such materials. See Fed. R. E

vid. 1101( d)(3) (

providing that the Ru

les of Evi dence a

re inapp licable i

n sentenc ing proc eeding s); Libretti v. United States , 516 U.S. 29, 38-41 (1995) (holding that forfeit ure is pa rt of the s entenci

ng proc ess); see also Fed. R. Crim. P. 32.2(b)(1) (stating that additional “information,” in addition to evidence, may be taken at hear ing); cf. United States v. Messino , 382 F.3d 704, 714 (7th Cir. 2004) (rejecting defenda nt’s challenge to forfeiture hea ring procedures, which permitted governme nt counsel to “read[] portions of the trial transcript to the jurors”). II. Forfeiture of Pre-May 2000 Monies Capoccia’s second and principal challeng e is to the forfeiture of monies which the district court determined to constitute proceeds of violations of 18 U.S.C. § 2314 occurring prior to May 24, 2000 (the “pre-May

2000 monies”). Capoccia argues that (1) Count One of the Indictment did not allege violations occurring prior to May 2000; (2) if it did allege such violations, he was not convic

ted of suc h violation s becaus e of the l imiting in struction given to the jury ; and (3)in light of his failure to be charged w ith or convicted of the violations, it was improper to order forfeiture of the pre-May

2000 monies. We agree with Capoccia’s first arg ument, and hold that Count One o f the I

ndictmen t did not ch arge h

im with viola

tions prior

to May 24, 2000. A s a result, w e do not consider th e effe ct, if an y, o f the limiti

ng instr uction. F inally , we hold t hat in the circ umstance s of this ca se, wher e the governmen

t has alle ged disc

rete vio lations of

a statute that does not criminalize a sc

heme, conspiracy, or enter prise, th e gove

rnment is n

ot entitle d to forfeiture of proceeds from uncha rged violations regardless of whe ther they and the

charged8 Section 2314 contains five (unnumbered) parag raphs defining different violations of the statute. 18 U.S.C. § 2314. The first proscribes the interstate transportation of stolen goods and moneys; the gove

rnment and Capoccia agree that it was under this paragraph that Capoccia was charged. Id. The second paragraph, discusse d below, prohibits inducing another to travel interstate in furtherance of a fra ud. Id. The third , fourth a nd fifth proscrib e the inte rstate transportation of, respectively , counterfeit securities, forged tra veler’s checks, and the tools of forgery and counterfeiting. Id. 13 violations are part of a common scheme. A. Indictment Count One of the Indictment charg es Capoccia with violating the first parag raph of 18 U.S.C. § 2314, 8 which pr ovides tha

t: Whoever transpor ts, transm its, or tra nsfers in inte rstate or foreign commerce any goods, wares, merchandise, securities or money , o f the val ue of $5,000 or more, knowing the same to have been stolen, converted or take n by fraud .

. . [s]hall be fined under this title or imprisoned not more than ten years, or both. Count One, consisting

of para graph s thirty

-nine an d forty of the I ndictmen t, reads as follow s: 39. The grand jury

repeat s and rea

lleges parag raphs 1- 38 of thisindictmen t. Among other things, those paragraphs de scribe ANDREW CAPOCCIA’S scheme, between 1997 and 2 002, to co nvert tohis own b enefit and to the benefit of others unearne d retain er fee s paid by clients to the Capoc cia L aw Cente rs and to L

CCP. 40. On or abo

ut the dat

es listed b elow, in the District of Verm ont and elsewhere, the defendant

AND RE W C AP OCC IA transmitted

and transferred in interstate commerce , from PNC Ba nk in Ne w J er se y, fromChittenden Bank in Vermont and from First Ma ssachuse

tts Bank i

n Ma ssachuse tts to var ious banks in Flo rida, the fo llow ing su ms of m oney havi ng a value of $5000 or more that derived from said unea rned re tainer f ees, knowing

said moneys to have bee

n stolen, converted and taken by fraud . . . . The Indictment then lists thirty -one payme

nts ranging in date from May 24, 2000 to February

6, 2002. Capoccia argues that beca use the earliest pay

ment enumerated is May

24, 2000, the Indictment cannot be construed to ha ve alleged misconduct before that date

. The government, by

contrast, maintains that Count One does allege misconduct occurr ing14

before May

24, 2000, pointing to Count One’s reference to Capoccia ’s “scheme, between 1997 and 2002,” and to the Count’s statement that it “repeats and realleg es” the prefatory paragraphs in the Indictment, some of which addre ss pre-May 2000 c onduct. This language, the g overnment claims, effectively

charges an over-a

rching scheme, commencing a round 1997 and continuing until 2002, to transfer unearned retainer fe es in interstate commerce. According to the government, this scheme should be understood to include the pre-Ma y 2000 transfer

s described in paragraphs twelve and thirteen of the Indictment. These paragraphs, which a ppear in a section of the Indictment entitled “The Misappropr iation of Client Retainer Fees,” allege ( among other things) that despite the Capoccia L aw Centers’ inability to pay timely and complete re funds of unearned retainer fees to withdra wing clients, the Law Cente rs transferred, between July 1998 and June 2000, approximately $1.7 million from its operating acc ounts to the accounts of Carol Capocci a for the

benefit of Andre w Capocc ia. The I

ndictmen t then lists

fifty -nine dis crete payments rang

ing in date from July 29, 1998 to June 23, 2000. Only the last two of these—one on May 24, 2000, and one on July 23, 2000—are repeated in Count One. The g overnment contends that it was proper for the district court to order forf eiture of the proceeds of the pre-Ma y 2000 payments beca

use Count One should be understood to charge those pay ments, and Capocci a was convicted o f that co unt. The Indictment does not charg e any misconduct pr ior to May 2000, howeve r, either as part of an ongoing scheme or as discrete acts. As an initial matter, the language of Count One does not support the government’s reading; while it re fers to the existence of a scheme, it does

not charge a scheme . Parag raph for ty, the char

ging p ortion of

the count , is eminen

tly c lear: it allege s that Capo ccia “t

ransmitte d and tra

nsferr ed” sums o f money, and lists n umerous s

pecific9 This second parag raph of 1 8 U.S.C. § 23 14 provide s: Whoever, having devised or intending to devise any sch eme or artifice to defraud,

. . . transports or causes to be transported, or induces any person or persons to travel in, or to be transported i n inter state or foreign commerce in the e xecution or concealment

of a sche me or ar tifice todefraud that person or those persons . . . [shall be fi ned o r impr

isone d, or both]. 15 instances of such transmissions and transfers. Nothing about the lang uage in that paragra

ph suggests that these pay

ments are illustrative of a scheme or that the list is otherwise nonexhaustive. This is in sharp contrast to Count Two, which identifies several pay ments as overt acts in furtherance of an ong oing conspiracy , and specifically limits the conspiracy to dates af ter July 1, 2000. Moreover, the paragra

ph of § 2314 under which Capoccia was charg ed in Count One explicitly criminalizes only the “transport[ation], transmi[ssion], or transfer[]” of stolen property. 18 U.S.C. § 2 314. I

t does not r

efer to , nor doe s it set for th as an e lement, a

scheme to transp ort, transmit, or trans fer such proper ty. The abse

nce of a ny r efere nce to a s cheme is

particu larly significant in light of its presence elsewher e in § 2314. See Rabin v. Wilson-Coker, 362 F.3d 190, 196 ( 2d Cir. 200 4) (“I f drafte rs choose to use one

word in pa

rt of a sta tute and o mit it in another , it is ge

nerally presume d that Cong

ress ac ts intentionally

and purp osely

in the disp arate inclusion or exclusion.” (internal quotation marks omitted)). The second parag raph of § 2314, which prohibits inducing another to travel in furtherance of a fraud, requires for conviction a findi ng th at the

defe ndan t “de vised or int end[e d] to de

vise” and t hen “ execut[ed

] or concea

l[ed]” a “scheme or artifice to defra ud.” 9 Id. Other criminal statutes similarly def ine offenses either as actions taken pursuant to a scheme to defraud or a s such schemes themselves. For example, the mail fraud and wire fraud statutes provide for the criminal punishment of those who, “having10 Capoccia was also charge d, in Counts Five, Seven and Ten, and ultimately convicted, of violations of 18 U.S.C. §§ 1341 and 1343. The conduct described in those counts, however, occurs only in 2001 and la ter, and the government has not arg ued that they comprise

any conduct occurring before that time.

11 Title 18, s ection 13 44 provide s in full: W h oever knowing ly e

xecutes, or attempt s to execut e, a sche me or ar tifice ( 1) to defraud a f in an ci al in st it ut io n; or (2 ) t o o bt ai n a ny of the m oney s, funds, c redits, assets, securi ties, o r other property owned by, or unde

r the custody or c ontrol of, a financial institution, by means of false or fr a udule nt pretenses, representations, or promises; shallbe fined not more than $1,000,000 or imprisoned not more than 30 years, or both. 16 devised or intending to devise any scheme or artifice to defraud, . . . for the purpose of executing such scheme or artifice,” deposit matter for de livery by the Postal Service, 18 U.S.C. § 1341, and transmit information by means of wire , radio, or television communication, 18 U.S.C. § 1343. 10 The criminal conduct proscribed by the bank fraud statute, 18 U.S.C. § 1344, is itself the “execut[ion], or attempt[] to execute, a scheme or artifice . . . to defraud a financial institution.” 11 The variation in language be tween the first paragraph of § 2314 and these otherwise similar statutes is significant. Namely , the first paragraph of § 2314—unlike those other

statutes— criminal izes only individual acts of transportation or transmission, not schemes or actions taken pursuant to schemes. Cf. United Sta tes v. Jo hnpoll , 739 F.2d 702, 714 (2d Cir. 1984) (rejecting defendant’s c hallenge that his indictment, which charge d various acts of transpor ting stole n securi ties as se parate counts, w as multiplic itous, bec ause “[u]nder 18 U. S.C. § 2314 ea ch inter state or f

oreign transpor tation of s tolen sec

urities c onstitutes

a separ ate violation o f § 2314, e

ven if the various a cts of tra nsportat ion are p art of a

single s cheme” ). Thus, Count One’ s refer

ence to a “scheme ” begin

ning in 19 97 provide s backg round for the spec ific allegations contained in the count, but does not allege a substantive violation of § 231412 Paragraphs twelve and thirteen a llege that the Capoccia L aw Centers transferred the monies listed “from its operating accounts” to “bank ac counts controlled by Carol Capoc cia.” Paragraph seven states that the Capocc ia Law Centers maintained ba nk accounts first in New York and later in New Jersey , and paragraph eig ht states that Carol Capoccia maintained accounts in New York and Florida. The government contends that these two piece s of informat ion estab lish “the i

nterstat e chara cter of the money

transfe rs”—alb eit “less specific [ally]” than Coun t One did f

or the pos t-May

2000 pay ments—in a

manner s ufficie nt to “me[e]t constitutional and statutory requirements.” We disagree. Because the Capoccia Law Centers and Carol Capoccia each maintained a bank account in New York, monies moved between those accounts would not have traveled interstate. Without the specific allegation that the transfers were in interstate commerc e, as appears in paragr aph forty, ther

e is no way of knowing, from the information contained in the I ndictment, which payments (if a ny) wer e intersta te and wh ich were not.

13 Paragraphs twelve and thirteen a llege only that the Capoccia Law Cente rs experienced financial difficulties, that it failed to pay refunds to withdrawing clients or pay ments to creditors in a timely matter or at a

ll, and that it nonetheless transferred the monies at the dates and in the amounts listed. Such information, even if true, does not establish that Capoccia (the defenda nt identified in Count One) knew the monies were “stolen, converted or taken by fr

aud.” 17 encompa ssing the

pre-Ma y 20 00 conduct. Nor can Count One’ s incorporation of the ear lier par agrap hs of the I ndictmen t be rea d to charge the pre-May

2000 payments as discre te acts. Parag

raph thir teen doe s list those

pay ments with specificity, and one

could argue (as the gove

rnment does) that an expansive reading of paragraph thirty

-nine’s “repeat[] and reallege[]” langua ge would bring them into the ambit of conduct alleged by

Count One. The assertions in paragraphs twelve a nd thirteen, however, are insuffic ient to charge the pay ments as violations of § 2314 because they fail to allege two elements of the offense: (1) that the monies were tr ansmitted in interstate commerce; 12 and (2) that the defendant knew the monies were stolen, conve rted or taken by

fraud. 13 See United States v. Wallach , 935 F.2d 445, 466 (2d Cir. 1991) (listing elements required to prove violation of § 2314); see also United States v. Resendiz-Ponce , — U.S. —, 127 S. Ct. 782, 788 (2007) (stating that one of two “constitutional requirements for an indictment” is “tha t it contains the14 To the extent the government claims that the bank records provided to de fense counsel

during d iscover y c an cure

the I ndictmen t’s failu re to alle ge the i

nterstat e eleme nt of § 2314

with respec t to these p ay

ments, we

reject t he arg ument. At a

n absolute

minimum, an

indictmen

t must specify the e lements of the offense charge d, see Resendiz-Ponce , 127 S. Ct. a t 788, eve n if additional facts necessary to give a defendant complete notice of the crime he is alleged to have co mm it te d m ay i n c er ta in ci rc um st an ce s b e s up pl ie d t hr ou gh di sc ov er y, see United States v. Stavroulakis , 952 F.2d 686, 693 (2d Cir. 1992) (“When an indictment delineates the elements of a charged offense , however concisely , the underlying concerns of proper pleading . . . ma y be further promoted by

a bill of particulars or pre-trial discovery .”).

15 Paragraph forty

repeats almost exactly the list of post -May 2000 pay ments set f

orth earlier in paragraph sixteen, which is similar in structure to par agraph thirteen. Parag

raph sixteen, like paragraph thirteen, does not allege the appropriate elements for the post-May 2000 pay ments. Pre sumably

that is why

the gov ernment

repeat ed these pay ments in Cou

nt One, th is time alle ging the neces sary elements

. 18 elements of the offense charg ed” (internal quotation marks and alterations omitted)). 14 These paragraphs stand in sharp contrast to par agraph forty , the charging para graph of Count One, which specifically

alleges that Capoccia transmitted and transfe rred the listed monies—all after May 2000—“in interstate c ommerce” and “knowing said money to have been stolen, converted and taken by f

raud.” 15 Thus, even assuming that the facts recited in the I ndictment are true and reading the I

ndictment “to include facts which are necessa rily implied by

the specific allegations made,” United Sta tes v. Sta vroulaki s , 952 F.2d 686, 693 (2d Cir. 1992) (internal quotation marks omitted), as the government urges us to do, the I ndictment is insufficient to allege pre-May 2000 violations of § 2314. Further, that Count One explicitly sets forth the post-Ma y 2000 pay

ments along with the appropr iate alle gations

to make ou

t a violati on of § 231 4, while r emaining complete ly s ilent with respect to the pre-May

2000 payments, g ives rise to the unavoidable inference that the government deliberately

chose not to charge any

pre-May 2000 violations of § 2314. As noted, the Indictment limited Count Two to a conspiracy beginning only

on July 1, 2000. Moreover, a16 Responding to defense counsel’s arg ument during the trial proceedings that the district court should instruct the jury to consider e vidence of pre-May

2000 conduct only as bac kground, one of the government’s attorney s admitted that Count One did not allege such con duct bec ause of venue concer ns, thoug h he arg ued that e vidence of the unc

harge d conduc t was none theless admissible to prove the post-May 2000 c harged conduct. See Trial Tr., Mar. 24, 2005, at 170 (“Count 1 of the indictment alleges transfers that took place after the move to Vermont in 2000 because we only

have venue as to those particular transactions but our argument alway s was and has been that earlier transactions which may not provide venue in Vermont as a unitary basis for prosecution are still, still part of a common scheme or plan and are a dmissible as proof of that particu lar coun t.”) (sta tement of gover nment attorney

Waples); see also id. at 175 (r esponding

to judge’s comment that “the actual amounts that we’re talking about [in Count One] are only afte r 2000” by stating: “Right. That’s for venue purposes alone, Judge, not bec ause we didn’t perceive that there was criminal activity that preceded it”)

. 19 colloquy during t he trial proceed

ings suggests th at the g overnme nt delibe rately chose no t to charge conduct before

May 2000 beca

use it did not believe it could establish venue in Vermont for that conduct, which occurred in Albany , New York. 16 The gov ernment ’s concl usion that it would be d

ifficult to establi sh venue

was likel y c orrect , as venue lies for a § 2314 of

fense on ly in those districts “from, through, or into which” the stolen property moves—i.e., for the pre-May 2000 transfers, from banks in New Jersey and New York to banks in New York and Florida , but not Vermont. 18 U.S.C . § 3237(a ) (provi ding tha

t any “offen se involvi

ng . . . tr ansporta tion in intersta te or for eign commerce”

is a “con tinuing o ffense ” for wh

ich venue lies in thos e jurisdict ions “fr om, throug

h, or into w

hich such commerc e . . . move s”); see United States v. Maldonado -Rivera , 922 F.2d 934, 968 (2d Cir. 1990) (rely ing on § 3237(a) to hold that for § 2314 offenses, venue lies in state where original theft occurred). The gove rnment could have established venue in Vermont if, as it did in Count Two, it had alleged an ongoing conspiracy under 18 U.S.C. § 371 to violate § 2314. See United States v. Ramirez-Amaya , 812 F.2d 813, 816 (2d Cir. 1987) (holding that for a conspiracy charge, “venue may

properly be

laid in the district in which the conspiratorial agreement wa s formed or in any district in which an overt act20

in fu rt he ra nc e o f t he co ns pi ra cy w as co mm it te d b y an y of th e c oc on sp ir at or s” ). Ap pa re nt ly, though, the government chose not to do so. See Trial Tr., Mar. 24, 2005, at 175-76 (“Well, we didn’t alle

ge a cons piracy wit

h respec t to that con duct [in Count One]. We were charging Mr. Capoccia alone acting by

himself.” (emphasis added)) (statement of g overnment attorney Waples). For the foregoing r

easons, we hold that the Indictment does not cha rge that the pre-May 2000 transfers violated § 2314. Because the c harged parag

raph of that statute prohibits the act of transmitting stolen property in interstate commerce, not schemes to effect such tr ansmissions, the government’s failure to allege specifically the

elements of a § 2314 offense with respect to the pre-May 2000 transfers is dispositive. We emphasize that our holding is compelled by the language of the cha

rged paragra

ph of § 2314: if Count One charged an offe nse under a statute—such as, for example, the conspiracy statute, 18 U.S.C. § 371, as did Count Two—that did proscribe or even refer to a sc heme to defraud, a conspiracy or an enterprise, our conclusion could be different. Cf

. United Sta tes v. Du

pre , 462 F.3d 131, 140-41 (2d Cir. 2006) (finding no constructive amendment of indictment (only a variance) where count c harged wire fraud a

nd identified a particular transfer, but gove rnment proved only other transfers at trial, because “the evidenc e at tria

l concer ned the sa me elaborate scheme to de fraud in vestors a s was des cribed i n the indictment”). B. Forfeiture of Pre-May 2000 Monies Given Coun

t One’s f ailure to charg e pre-M ay

2000 cond

uct, the governme

nt is entitle d to criminal forfeiture of funds moved in pre-May 2000 transfers only if

it has established the requisite nexus between those monies and the post-May 2000 conduct of which Capoccia was17 In 2006, Congress amende d 28 U.S.C. § 2461(c) so that it read:

If a person is charged in a criminal ca s e with a violation of an Act of Congress for whichthe civil

or criminal forfeiture of property is authorized, the Government may include notice of the forfeiture in the indictment or inform ation purs uant to the FederalRules of

C riminal Pr

ocedure . If t

he defe ndant is c onvicted

of the of fense 21 charged and convicted. We find that it has not done so. The Federal Rules of Criminal Procedure re quire that “[i]f the government seeks forfeiture of specific property , the court must determine whether the governme nt has established the requisite nexus between the property and the offense.” Fed. R. Crim. P. 32.2(b)(1). The “requisite nexus” for a violation of 18 U.S.C. § 2314 is set forth in 18 U.S.C. § 981(a)(1)(C), which subjects to civil forfeiture “[a]ny property, re al or personal, which constitutes or is derived from proceeds traceable to a violation of [various sections of Title 18] or any offense c onstituting ‘specif ied unlaw ful activ

ity’ (as def

ined in se ction 1956 (c)(7)of this title ), or a c onspirac y to commit such offense.” Section 1956(c)(7)(A) de fines “specified unlawful activity ” as, inter alia , “any a ct or activity constituting a n offense listed in section 1961(1) of this title,” with an exception not relevant here. Section 1961(1), within the definitional section of the Rackete er Influenced and Corr

upt Organizations Act (“RICO” ), defines “racketeering activity” as, inter alia , “any act whic h is indicta

ble under . . . secti ons 2314 a

nd 2315 [of T itle 18] (r

elating to interstate transportation of stolen property ).” 18 U.S.C. § 1961(1)(B). While § 981 authorizes only civil forfeiture s, the forfeitable property it describes is made subject to criminal forfeiture by the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”) , Pub. L. No. 106-185, § 16, codified at 28 U.S.C. § 2461(c) (providing for the criminal forfe iture of any pr operty for w

hich forfeiture “is authorized in connection with a violation of an Act of Congress . . . but no specific statutory provision is made for criminal forfeiture upon conviction” (emphasis added)). 17 Sentencinggivingrise to the forfeiture, the court shall order the for feiture of the propert

y as part of the sentence in the criminal case . . . . USA PATRIOT I

mprovement and Reauthorization Act of 2005, Mar. 9, 2006, Pub. L. No. 109- 177, Title IV, § 410, 120 Stat. 246. The version cited in the text is the one in place at the time of Capoccia’s conviction, and unless otherwise noted, citations in this opinion to 28 U.S.C. § 2461 refer to the unamended version.

18 The Supreme Court has held that criminal forfeiture is “an aspe ct of punishment imposed f ollowing convicti on of a sub stantive c riminal of

fense,” and that t here is n o Sixth Amendment jury trial rig

ht to a forfeiture determination. Libretti , 516 U.S. at 39, 49. This Court has applied Libretti

since the Supreme Court’s decisions in Apprendi v. New Jersey , 530 U.S. 466 (2000), and United States v. Booker , 543 U.S. 220 (2005), and has held that preponderance of the evidence remains the appropriate sta ndard by which to de

termine forfeiture. See Fruchter , 411 F.3d at 383. 22 courts determine forfeiture amounts by a preponderance of the evidenc e. See United States v. Fruchter , 411 F.3d 377, 383 (2d Cir. 2005). 18 Under 18 U.S.C. § 981(a)(1)(C), the gover nment is entitled to forfeiture of funds that “constitute[] or [are] derived from proceeds traceable to a violation” of § 2314. The violation on which the forfeiture is based must be the specific violations of which Capoc cia was convicted, not some other, separate § 2314 violations. See 18 U.S.C. § 9 81(a)( 2)(A) ( defining “proce eds” as “property

of any kind obtained dire ctly or indirectly , as the result of the commission of the offense giving rise to forfe iture, and any pr operty trac eable thereto”); 28 U.S.C. § 2461(c) (providing for forfeiture in connec tion with a “violation” with which a person “is charged in a n indictmen t or infor mation,” upon “conviction”

for that v iolation) . Requirin

g the g overnme

nt to link assets to specific crimes of conviction is not only c onsistent with the punitive purposes of criminal forfeiture, s ee Libret ti , 516 U.S. a

t 39-40, bu

t also imple

ments Cong

ress’s in tent in enactin g CAFRA . The legislative h istory of that Ac

t sugg ests that § 2641(c)was desig ned to prevent abuse of the civil forfeiture proc ess in part by enc ouraging the gover nment to seek23

forfeiture through criminal procee dings, where it would have to link targeted pr operty to a specific criminal conviction. See H.R. Rep. 106-192, at 8 (1999) (describing perce ived abuses of civil for feiture process , which we

re possib le in par

t becaus e gove

rnment c ould seize

propert y without linking it to a criminal conviction); 146 Cong. Rec. S1753-02 (explaining purpose of section e ventuall y c odified a

t § 2641(c )) (stat

ement of Sen. Hatc

h); see also CAFRA § 16, 114 Stat. at 221 (“Encouraging Use of Criminal Forfeiture as an Alternative to Civil Forfeiture” ). In the instant case, the g overnment has not established (nor logically could it) that the funds involved in the pre-May 2000 transfers were “obtained . . . as the r esult” of the later, particular transfers of which Capoccia was convicted. 18 U.S.C. § 981(a)(2)(A). Thus, the district court should not have ordered forfeiture of those pr e-May 2000 monies. Cf. United States v. Juluke , 426 F.3d 323, 328 (5th Cir. 2005) (per curiam) (holding that g overnment was not entitled to forfeiture of seized jewelry under 18 U.S.C. § 853(a), which provides for forfeiture of property c onstituting or derived from proceeds of controlled substance s violation, because the government had not proved that the jewelry “was proceeds of the drug a ctivity that formed the basis for Juluke’s convictions”). The gov ernment

counter s that this a

nd other c ourts hav e order ed forf eiture o f proper

ty derived from uncharged a nd acquitted conduct that is part of the same scheme or ente rprise as convicted conduct, and that here, it has established that the uncha rged pre-May

2000 conduct and the charged post-May

2000 conduct are part of a common scheme. The cases the government has cited, however, turned on the fact that, unlike in this case, the bases for the forfeiture orders were convictions for schemes, conspiracie s, or enterprises. Thus, the government in those case s was able to prove t

hat the f unds involv ed in the u

ncharg ed or ac quitted e

xecution ne

verthel ess24

constituted the proceeds of, or was tracea ble to, or was involved in, the crime of conviction. For example, United States v. Hasson , 333 F.3d 1264 (11th Cir. 2003), held that a jury could consider evidence of mail and wire fr auds “adduced by

the government in support of the money laundering

count, though not charged as sepa rate substantive counts of mail or wire fraud,” in determining the amount of forfe iture to impose on the defendant. Id. at 1279. But the relevant count of conviction in that case was for c onspiracy to launde r the proceeds of mail and wire fr aud, and the mail a

nd wire f raud sta tutes them selves r

equire t he existence of a s cheme to defraud. Id. at 1269. I

ndeed, the court s

pecific ally

cautione d that “[w]e

do not mea

n to imply that a court could impose a forfeiture order ba sed on a money launde ring offense with which the defendant was not charged or for which he was acquitted.” Id. at 1279 n.19. Similarly, in United States v. Boesen , 473 F. Supp. 2d 932 (S.D. Iowa 2007), the cour t ordered the defendant, who had bee n convicted of health care fraud, to for feit the proceeds of “additional executions of the scheme not specifically charged as substantive counts, but which fall within the boundaries of the overall scheme.” Id. at 952. But health care fraud is define d as the knowi ng and w illful exec

ution of “ a scheme

or artif ice . . . to defrau d any health c are benefit program,” 18 U.S.C. § 1347, and the court made clea r that its decision rested on that fact: “The statute criminalizes executions of the scheme; the overall scheme is thus inherently part of the offenses of which Defendant has bee n convicted.” Id. at 953. In the RI CO context, we have held that a defendant may be required to forfeit all proceeds of the racketeering ente

rprise forming the basis of his conviction, including proce eds of particular racketeering activities of which the defendant was not convicted. See Unite d States v . Gotti , 459 F.3d 296, 346-47 (2 d Cir. 2006 ); Fruchter , 411 F.3d at 384; see also U

nited State

s v. Hive ly , 43719 Capoccia was also convicted on several other counts, but the government has not advanced the position that the pre-May 2000 assets are forfeitable in connection with any of them, app arently

recog nizing tha t no other count pla usibly supplies a

basis for forfeit ing thes e monies. Cou

nt Three , like Coun

t One, all eges a

violation o f 18 U.S.C. § 2314, but the ear liest payment alleg ed is December 5, 2000. Count Four charg es receipt of stolen property that has crossed state boundaries on February 5, 2001, in violation of 18 U.S.C. § 2315, which, like § 2314, makes no mention of a scheme to defraud. Counts Five, Seven and T en charge wire and mail fraud under 18 U.S.C. §§ 1341 and 1343, both of which, as described above , require the existence of a sche me to def raud as a n elemen t; howeve r, those c ounts alle ge that Capocci a 25 F.3d 752, 763 (8th Cir. 2006) (holding that defendants convicted of r acketeering in violation of RICO may

be made to forfeit proceeds arising from specific predicate acts of which the y were acquitted). But as we explained in Fruchter , in such a case “the defendant ‘is not being punished . . . for committing the substantive acts found to be “not proven.” He is being punished for conducting the affairs of an ente rprise through a pattern of rac keteering activity .’” 411 F.3d at 384 (q uoti ng United States v. Edwards , 303 F.3d 606, 643 (5th Cir. 2002)). Thus, it is somewhat misleading to characterize these cases a s authorizing forfeiture of proceeds traceable to “ac quitted” or “uncharged” c onduct; they rely instead on the breadth of the conduct forming the basis of the offense of c onviction. Where the conviction itself is for executing a scheme, engag ing in a conspiracy , or conducting a racketee ring enterprise, the gover nment nee d only

establish that the f orfeite d assets h

ave the “ requisite nexus,” F ed. R. Crim

. P. 32.2(b)(1), to that scheme, conspiracy, or enterprise. As we have explained, however , Capocci a’s conv

iction und

er Count O ne is not f

or a sche me, consp iracy, or ente

rprise, because 18 U.S.C. § 2314 prohibits only individual instances of transferring stolen money. Funds received from the pre-May 2000 uncharged transfers a re not proceeds of, and thus do not have the “requisite nexus” to, the post-May 2000 pa yments forming the

basis of Capoccia’s conviction. 19 We therefore hold that the district court erred in order ing forfeiture of the pre-Ma ydiverte d funds fr om clients ’ escrow accou nts—condu

ct which a

ppears t o have be gun only

in 2001. The government has not alleged tha t the escrow account schemes were of a piece with the unearned retainer fee sc

heme. Finally, a s noted previously, Count Two alleg es a conspiracy , but expressly limits its dates as “[c]ommencing on or about July 1, 2000.” 26 2000 monie s. CONCLUSION Because the district court did not err in consulting the tria l record, but erred in ordering Capocci a to forf

eit the pr e-May 2000 monie s, we AF FIRM the Fina l Order o f Forfe iture in pa rt, VACATE it in part, and REMAND for further procee dings consistent with this decision.