                       Revised May 16, 2001

                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit

                    ___________________________

                            No. 00-20041
                    ___________________________


                     UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                              VERSUS


                        GEORGE L.J. WILSON,
                                                 Defendant-Appellant.

       ___________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
        ___________________________________________________

                          April 19, 2001

Before REYNALDO G. GARZA, DAVIS, JONES, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

     George Wilson was indicted on multiple charges of conspiracy

to commit money laundering, money laundering, mail fraud, and

engaging in monetary transactions involving property derived from

specified unlawful activity, in violation of 18 U.S.C. §§ 1956(h),

1956(a)(1)(A)(i), 1341, and 1957(a).    Wilson was tried by a jury

and convicted on eighteen of nineteen counts.    He now appeals these

convictions.   For the reasons that follow, we REMAND for a hearing

on Wilson’s motion to dismiss and otherwise AFFIRM, subject to the

district court’s ruling on that motion.
                                        I.

      George Wilson was a prominent businessman in Nassau, Bahamas.

In   1986,    he   became   involved    with     the    Winston     Hill    Assurance

Company, which at that time provided bonding services.                       Wilson’s

relationship       with   Winston    Hill     began     in   1986   when     American

businessman and former Texas state senator James Day approached

Wilson.      Day proposed that he procure the necessary approvals and

business for Winston Hill to expand into the casualty insurance

business      if   Wilson    would    provide     the    financial       support    to

underwrite that business.            Wilson agreed, and the company began

selling insurance through brokers.

      Wilson was the president of Winston Hill, and operated out of

Winston Hill’s home office in Nassau.             Winston Hill’s Nassau staff

also included a secretary, an office manager, a receptionist, a

typist, and the firm’s accountant, Norwood Rolle.                          The Nassau

office was an old, small, unkempt, two-story house. Winston Hill’s

other office was located in Houston, Texas.                    Steve Udell, James

Day, Dion Burkard, and John Adair were all employees of the Houston

office.      Udell (a lawyer) and Day headed up the Houston office,

Burkard      was   the    office    manager     and    later    became      a   junior

underwriter, and Adair was the accountant.

      In August 1996, Winston Hill was reportedly capitalized with

$5,000,000.        Winston Hill issued financial statements to brokers

reporting the following total assets: over $63,000,000 on December

31, 1988, over $65,000,000 on March 31, 1989, almost $67,000,000 on

September 30, 1989, and over $70,000,000 on December 31, 1989.                     The

                                         2
financial statement reporting over $63,000,000 in total assets as

of December 31, 1988 was audited by Norwood Rolle.

     Winston Hill reported that a large portion of the company’s

assets were held in Gulf Union Bank in Nassau, Bahamas.   Insurance

brokers and insurance regulators uniformly testified that Wilson

and other employees of Winston Hill denied them access to the

records to substantiate these assets.    Wilson and Udell assured

brokers that the assets were in Gulf Union Bank, but they were

unwilling to provide any proof other than the financial statements.

     By June of 1990, Winston Hill was placed on the California

Department of Insurance’s (CDOI) “watch list.”       CDOI places a

company on this list after it receives a number of complaints of a

company’s tardy payment of claims.   A letter sent by the CDOI on

March 20, 1991 triggered a regulatory bulletin directing its

insurance broker members not to do business with Winston Hill.

     By December 1991, Winston Hill had filed for bankruptcy in the

Turks and Caicos Islands - the site of incorporation.        Norwood

Rolle, Winston Hill’s accountant, was appointed as liquidator to

wind up the company.   Rolle went to Houston and filed an ancillary

proceeding in the Bankruptcy Court for the Southern District of

Texas.   That court appointed Steve Smith to serve as the co-

fiduciary of this proceeding.     Because Rolle had been actively

involved in Winston Hill’s business, Smith had Rolle removed as the

company’s liquidator, and took over that position himself.    Smith

determined that most of Winston Hill’s assets were located in the

Gulf Union Bank in Nassau.

                                 3
     Smith received records of Winston Hill’s account at Gulf Union

Bank.   These records showed the following balances:       $174 on April

30, 1988; $11,749 on December 31, 1988; $155 on March 31, 1989;

$8,637 on June 30, 1989; $26 on September 30, 1989; $11,187 on

December 31, 1989; and negative $51,390 on December 31, 1990.

Smith was unable to locate any other significant assets of Winston

Hill.

     Wilson was indicted on nineteen counts, and was convicted on

counts one through eighteen. The Government’s case revolved around

Wilson’s alleged false statements (primarily about the financial

condition of Winston Hill) designed to attract insurance premiums

to the company, along with related money laundering and other

illegal monetary transactions.     He now appeals this eighteen-count

conviction on a number of grounds which we consider below.

                                   II.

     Wilson makes several arguments regarding the application of

the statute of limitations in his case which we consider below.

                                   A.

     First, he contends that the district court erred in granting

the Government’s application to toll the statute of limitations in

this case, and later, in failing to dismiss the entire indictment

because the statute of limitations had expired.

     The latest offense date alleged in the indictment was June 26,

1991.   The indictment in this case was not returned until October

26, 1998.     Wilson   therefore   contends   that   the   indictment   is

untimely because it was returned outside of the five-year statute

                                    4
of limitations provided by 18 U.S.C. § 3282.1       The Government

argues that the indictment here was returned timely because the

district court granted its application for a suspension of the

statute of limitations under 18 U.S.C. § 3292 on December 21, 1994.

Section 3292 provides, in pertinent part, as follows:

        (a)(1) Upon application of the United States, filed
     before return of an indictment, indicating that evidence
     of an offense is in a foreign country, the district court
     before which a grand jury is impaneled to investigate the
     offense shall suspend the running of the statute of
     limitations for the offense if the court finds by a
     preponderance of the evidence that an official request
     has been made for such evidence....

                                  1.

     Wilson first maintains that the district court erred in

tolling the statute of limitations under 18 U.S.C. § 3292 in its

December 21, 1994 Order. We review the factual findings underlying

the district court’s decision to toll the statute of limitations

for clear error.   United States v. Meador, 138 F.3d 986, 991 (5th

Cir. 1998).   An application to toll the statute of limitations

under § 3292 is a preindictment, ex parte proceeding.    Thus, the

only evidence the district court had before it was the evidence

presented by the United States.

     In its application for tolling, the United States presented

the district court with a copy of a letter addressed to the

Attorney General of the Bahamas and signed by the Director of the


     1
      18 U.S.C. § 3282 provides that “[e]xcept as otherwise
expressly provided by law, no person shall be prosecuted, tried, or
punished for any offense, not capital, unless the indictment is
found or the information is instituted within five years next after
such offense shall have been committed.”

                                  5
Criminal    Division   of   the   Department   of   Justice’s    Office   of

International Affairs. This letter requested “authenticated copies

of the records of all accounts at the Gulf Union Bank of Nassau

under the names of Winston Hill, George Wilson, and Management

International” and “authenticated copies of all records of the

Registrar General’s Office...relating to the Winston Hill Assurance

Company.”    R. at 1-304-10.2     The United States represented to the

court that this letter was delivered to the Bahamian government on

or about November 24, 1993.       The words “VIA FEDERAL EXPRESS” were

typewritten at the top of the letter.       Based on this evidence, the

district court made the finding required by § 3292:              the United

States made an official request to the Bahamian government for

evidence located in the Bahamas.          In light of the evidence the

Government presented, the district court did not clearly err in

finding that the United States made this request for evidence and

correctly tolled the statute of limitations.

                                     2.

     Wilson next challenges the district court’s July 13, 1999

Order denying his motion to dismiss the indictment as untimely, as

well as his request for a hearing on this motion.               In his bare

bones motion to dismiss, Wilson asserted that the applicable

statute of limitations for all counts of the indictment was five


     2
      The request was made “pursuant to the Treaty between the
United States and the Commonwealth of The Bahamas on Mutual
Assistance in Criminal Matters, signed at Nassau June 12 and August
18, 1987" and thus meets 18 U.S.C. § 3292's requirement that the
“official request” be “a request under a treaty or convention.” R.
at 1-310.

                                     6
years, and that the five-year period expired before the indictment

was returned.      Wilson did not address in his motion the fact that

the district court had tolled the statute.

     The Government responded to Wilson’s motion to dismiss by

stating that a formal legal assistance request had been made of the

Bahamian government, and that the statute of limitations had been

tolled under 18 U.S.C. § 3292.              It attached the Department of

Justice’s     November   24,   1993        letter,   described      above,    its

application    for   tolling   filed   on     December   12,   1994,   and     the

district court’s December 21, 1994 Order tolling the statute of

limitations. The district court denied Wilson’s motion because the

statute of limitations had been tolled by its December 21, 1994

Order.   The court found that the “official request” required under

§ 3292 was made on November 24, 1993 and that the statute of

limitations was therefore suspended from that day until November

23, 1996.      The court then determined that the filing of the

indictment    on   October   26,   1998     was   timely,   given    the     above

suspension period.

     We review the district court’s denial of a motion to dismiss

de novo.     Yates v. Stalder, 217 F.3d 332, 334 (5th Cir. 2000).

Wilson did not assert in his motion to dismiss or elsewhere that

the Government did not make a formal legal assistance request of

the Bahamian government, nor did he argue that the statute of

limitations was improperly tolled.           The Government produced ample

evidence to show that the statute of limitations was extended as a

result of tolling under § 3292, and that the indictment was

                                       7
therefore returned in a timely manner.        The district court did not

err in denying Wilson’s motion to dismiss.              Moreover, because

Wilson’s motion to dismiss did not raise a factual issue, the

district court did not err in denying his request for a hearing.

See n.3, infra.

                                      3.

      Wilson next argues that the district court erred in its August

4, 1999 Order denying his motion for reconsideration of his earlier

motion to dismiss.        In his motion for reconsideration, Wilson, for

the first time, challenged the Government’s assertion that it sent

the   letter   to   the    Bahamian   government   requesting   assistance.

Wilson presented evidence to support this contention.            He pointed

out that this letter differed from another letter sent by the OIA

to the Bahamas on December 3, 1993, because it did not contain a

letterhead address, case number, or identification number.            Also,

Wilson pointed out that the United States did not produce the

Federal Express air bill for the letter, nor did it produce the

Federal Express bill for letters sent during November of 1993 to

support its contention that it sent the letter via Federal Express.

      Wilson also argued that the government log of the OIA’s

Correspondence Unit indicates that the letter was not sent.            This

log has no entry reflecting that a letter was sent to the Bahamas

in November of 1993.        In addition, Wilson produced statements of

Bahamian officials, as well as records of the Supreme Court of the

Bahamas, asserting that the Bahamian government never received the

letter.

                                       8
      In opposition to Wilson’s assertion that the letter was not

sent, the district court had before it the evidence presented by

the United States in the Government’s Response to Motion to Dismiss

Indictment.     As mentioned above, this consisted of a formal legal

assistance request letter dated November 24, 1993 that contained

the   words    “VIA    FEDERAL     EXPRESS,”      and   the   United   States’

representation that it was sent to the Bahamian government.

      The district court has considerable discretion whether to

consider evidence on a motion for rehearing, particularly where

that evidence was available and could have been presented in the

initial hearing.       Here, the district court’s August 4, 1999 Order

denying Wilson’s motion for reconsideration and request for a

hearing does not explicitly state whether the court considered the

evidence presented by Wilson to support his contention that the

letter was not sent.         Because the order states that the motion for

reconsideration       and    request   for   a   hearing   were   denied   after

“[h]aving considered the motion, submissions, and applicable law,”

we read the order as though the district court did consider

Wilson’s evidence.          District Court’s Order of August 4, 1999.         R.

at 2-332.     This view is reinforced by the fact that the Government

does not argue that the district court did not consider Wilson’s

evidence or that it was appropriate for it to decline to consider

his evidence.     Because the evidence raises a factual issue as to

whether the letter was sent, the district court erred in denying




                                        9
Wilson’s request for a hearing on his motion for reconsideration.3

We therefore vacate the district court’s order denying Wilson’s

motion to dismiss without a hearing and remand for the district

court to conduct a hearing on the factual issue of whether or not

the letter was sent.

                                         B.

     Wilson next argues that the district court erred in not

submitting the issue of tolling under 18 U.S.C. § 3292 to the jury.

Relatedly,     he    contends     that   the    district   court    abused    its

discretion in rejecting his requested jury instruction.                  Wilson’s

requested jury instruction stated, in pertinent part, that “[i]n

order    to   find   that   the   statute      of   limitations    was   properly

suspended, the Government must establish beyond a reasonable doubt

all of the following:           ...[t]he central authority of the United

States properly requested the evidence from the central authority

of the Bahamas on November 24, 1993....”               Special Requested Jury

Instruction No. 25, R. at 3-605.          In other words, Wilson asked for

an instruction that would have required the jury to determine

beyond a reasonable doubt that the United States sent the formal

legal assistance request letter to the Bahamian government.

     Wilson proceeds from two generally accepted premises: 1) that

“commission of the crime within the limitations period of [18


     3
      See 3 Charles Alan Wright, FEDERAL PRACTICE AND PROCEDURE § 675 (2d
ed. 1982)(“An evidentiary hearing need not be set as a matter of
course, but only if the motion alleges facts that, if proved, would
require the grant of relief. Factual allegations that are general
and conclusory or based upon suspicion and conjecture will not
suffice.”)(citations omitted).

                                         10
U.S.C.] § 3282 is an essential element of the offense which the

government must prove beyond a reasonable doubt,” United States v.

York, 888 F.2d 1050, 1057 n.10 (5th Cir. 1989)(citations omitted);

and 2) that “[t]he Constitution gives a criminal defendant the

right to have a jury determine, beyond a reasonable doubt, his

guilt of every element of the crime with which he is charged.”

United States v. Gaudin, 515 U.S. 506, 522-23, 115 S.Ct. 2310, 2320

(1995). From this, Wilson argues that in this case the question of

whether the statute of limitations was properly tolled must be

found by a jury beyond a reasonable doubt.   “We review the refusal

to give a requested jury instruction for abuse of discretion....”

United States v. Barnett, 197 F.3d 138, 142 (5th Cir. 1999).

     Section 3292 governs tolling of the statute of limitations

based on a request for evidence made by the United States to a

foreign country.   This section provides, in pertinent part, that

“the district court before which a grand jury is impaneled to

investigate the offense shall suspend the running of the statute of

limitations for the offense if the court finds by a preponderance

of the evidence that an official request has been made for such

evidence....”   18 U.S.C. § 3292(a)(1)(emphasis added).

     Thus, contrary to Wilson’s argument, the plain language of the

statute requires the district court to decide by a preponderance of

the evidence whether the statute of limitations shall be tolled.

And we have no doubt that Congress has the authority to extend or

retract the statute of limitations.    “[T]he history of pleas of

limitation shows them to be good only by legislative grace and to

                                11
be subject to a relatively large degree of legislative control.”

Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct.

1137, 1142 (1945).    The “shelter of statutes of limitations ‘has

never been regarded as what is now called a ‘fundamental’ right,’

but is instead ‘good only by legislative grace and...subject to a

relatively large degree of legislative control.’” Gray v. First

Winthrop Corp., 989 F.2d 1564, 1573 (5th Cir. 1993)(quoting Chase,

325 U.S. at 314).     Because Congress assigned to the court the

authority to decide whether the limitations period should be

extended, the district court did not err in deciding this issue and

in declining to submit it to the jury.

     Once the district court tolls the statute of limitations, this

becomes the applicable limitations period.       The United States must

then prove beyond a reasonable doubt that the indictment was

brought   within   this   extended   period,   which   begins   when   the

defendant commits his last criminal act. The applicable statute of

limitations period in this case is therefore eight years.4        Wilson

concedes that the indictment was returned within this eight-year

period.   Therefore, his constitutional right to have all elements

of his crime proved beyond a reasonable doubt was not violated.



     4
      The five-year statute of limitations provided by 18 U.S.C. §
3282 can be tolled up to three years by 18 U.S.C. § 3292. The
statute of limitations is tolled from the date the official request
is made until “final action” is taken upon this request by the
foreign government. 18 U.S.C. § 3292(b). See also United States
v. Meador, 138 F.3d 986, 987 (5th Cir. 1998). This tolling cannot
exceed three years. 18 U.S.C. § 3292(c)(1). Because final action
was never taken by the Bahamian government, the statute of
limitations was tolled for three years.

                                     12
                                              C.

     Wilson argues, finally, that in no event was the Government’s

request to Bahamian authorities for evidence sufficiently specific

to toll the limitations period for the offense charged under 18

U.S.C.   §   1957    -    engaging       in   monetary   transactions        involving

property     derived          from   specified       unlawful    activity.          The

Government’s official request, attached to its November 24, 1993

letter to the Bahamian government, stated that the U.S. government

was investigating offenses of “mail fraud, embezzlement, and money-

laundering.”    The letter further noted possible violations of 18

U.S.C. §§ 1341, 1952, 664, 1956(a)(1), and 1956(a)(2).                           Wilson

argues that this request was not sufficient to toll the statute of

limitations with regard to 18 U.S.C. § 1957, because that statute

was not specifically enumerated in the letter.

     We agree with the Government that “it would be unreasonably

formalistic as well as unnecessary to impose a requirement that the

Government    list       by    citation   the      statutes   that    may    have   been

violated....”       United States v. Neill, 952 F.Supp. 831, 833 (D.

D.C. 1996).     The request for evidence must only be “reasonably

specific in order to elicit evidence of the alleged violations

under investigation by the grand jury.”                   Id.    This circuit has

referred to a violation of 18 U.S.C. § 1957 as “money laundering.”

It is clear to us that the Government’s use of the phrase “money

laundering”    in    its       request    for      assistance        was    “reasonably

specific,” and adequate to toll limitations for this offense.                       See

e.g., United States v. Davis, 226 F.3d 346, 355 (5th Cir. 2000).

                                              13
                                III.

     Wilson next argues that the district court improperly admitted

Bahamian bank records under Fed. R. Evid. 807, the residual hearsay

exception.5   We review evidentiary rulings of the district court

for abuse of discretion.   United States v. Phillips, 219 F.3d 404,

409 (5th Cir. 2000).

     The Government obtained the bank records from Steve Smith, the

trustee of the ancillary Winston Hill bankruptcy action.   In 1994,

Smith began his efforts to identify and liquidate all of the assets

of Winston Hill.   Through his Bahamian counsel, Smith asked Gulf


     5
      Fed. R. Evid. 807 provides as follows:

     A statement not specifically covered by Rule 803 or 804
     but having equivalent circumstantial guarantees of
     trustworthiness, is not excluded by the hearsay rule, if
     the court determines that (A) the statement is offered as
     evidence of a material fact; (B) the statement is more
     probative on the point for which it is offered than any
     other evidence which the proponent can procure through
     reasonable efforts; and (C) the general purposes of these
     rules and the interests of justice will be best served by
     admission of the statement into evidence. However, a
     statement may not be admitted under this exception unless
     the proponent of it makes known to the adverse party
     sufficiently in advance of the trial or hearing to
     provide the adverse party with a fair opportunity to
     prepare to meet it, the proponent’s intention to offer
     the statement and the particulars of it, including the
     name and address of the declarant.

     The Government conceded that the bank records here were not
admissible under Fed. R. Evid. 803(6) (the business records
exception) because there was no custodian available to testify.

     Despite the “statement not specifically covered by rule 803"
language in Fed. R. Evid. 807, 807 “is not limited in availability
as to types of evidence not addressed in other exceptions...[807]
is also available when the proponent fails to meet the standards
set forth in the other exceptions.” United States v. Furst, 886
F.2d 558, 573 (3rd Cir. 1989).

                                 14
Union Bank to produce the records of “any and all accounts” of

Winston Hill from 1988 forward.            Smith then received the records

from his Bahamian counsel, who obtained the records from Gulf

Union’s lawyers.   Smith testified that he relied on the Gulf Union

records to identify and liquidate Winston Hill’s assets.

     Wilson   argues     that   the        documents   do   not   meet   the

“particularized guarantees of trustworthiness” required by the

Confrontation Clause.6    First, he argues that the records were for

one account only (#010201000051), and Wilson raised questions at

trial as to whether additional accounts existed.            Although Wilson

questioned whether additional accounts may have existed during

cross-examination of witnesses, the record is otherwise silent on

any other Winston Hill accounts with Gulf Union Bank.

     Second, Wilson argued that Gulf Union bank records were not

produced for some time periods.            For example, the records Steve

Smith received do not cover December 31, 1989 to December 30, 1990.

The fact that no records were found for certain months, however,

does not detract from the reliability of those that were produced.

     Third, Smith testified that he suspected that some of the

posting dates on the records were inaccurate, i.e., he surmised

that some of the dates were a result of either typographical errors

or post-dating. To illustrate this point, Smith referenced several

transactions occurring in the months of January and March of 1991

showing posting dates of 1995, while most transactions occurring in


     6
      United States v. Ismoila, 100 F.3d 380, 393 (5th Cir. 1996).


                                      15
February of 1991 show 1991 posting dates.         Wilson argues that these

date inconsistencies undermine the reliability of the records.

However, the running balance given after each transaction supports

the inference that the 1995 posting dates were merely the result of

clerical error.

     Fourth, Smith did not receive the records from the bank

directly, but rather, from his lawyers in the Bahamas, who received

the records from the bank’s lawyers.              This indirect chain of

custody from the bank to the court is an issue that may detract

from the reliability of the records and is a factor for the

district court to consider in assessing reliability, but is not

fatal to the records’ admissibility.

     Although Wilson’s arguments that these Bahamian bank records

are unreliable are not insubstantial, we are not persuaded that the

district     court   abused   its   discretion    in   reaching   a    contrary

conclusion and admitting the records.            The Government identified

several wire transfers into Winston Hill’s Gulf Union bank account

#000051 which it was able to trace from known transmittals from

International Reinsurance Consultants, Inc. (IRCI), Winston Hill’s

reinsurance company.      IRCI made each of these wire transfers             to

Winston Hill’s Chase Manhattan bank account in New York, and from

there   to     Winston    Hill’s     Gulf   Union      account    in     Nassau

(#010201000051).      This is the same Winston Hill account in Gulf

Union Bank that Steve Smith located and relied upon.

     Other circuits have held that “bank documents, like other

business      records,    provide      circumstantial       guarantees       of

                                      16
trustworthiness because the banks and their customers rely on their

accuracy in the course of business.”   United States v. Pelullo, 964

F.2d 193, 202 (3rd Cir. 1992).        This same rationale has been

extended to foreign bank records. See, e.g., Karme v. Commissioner

of Internal Revenue, 673 F.2d 1062, 1064 (9th Cir. 1982) (discussing

records of a Netherlands Antilles bank).     The district court did

not abuse its discretion in concluding that the Bahamian records

here possess the necessary guarantees of trustworthiness.

     We agree with the Government that Wilson’s concerns, noted

above, go to the weight of the evidence, not its admissibility.

The possibility that the records were incomplete or inaccurate was

argued to the jury, and the jury was entitled to determine the

appropriate weight to be given to the records in light of those

concerns.

                                IV.

     Wilson next challenges the sufficiency of the evidence on all

eighteen counts of his conviction. In reviewing the sufficiency of

the evidence, we “view the evidence in the light most favorable to

the verdict and uphold the verdict if, but only if, a rational

juror could have found each element of the offense beyond a

reasonable doubt.”   United States v. Brown, 186 F.3d 661, 664 (5th

Cir. 1999).

                               A.

     In counts two through nine, Wilson was convicted of committing

mail fraud in violation of 18 U.S.C. § 1341.       These counts are

based on eight premium checks that Frank Raab, an insurance broker,

                                17
mailed to Winston Hill between November of 1990 and March of 1991.

The Government proceeded on a theory that Wilson induced Frank Raab

to   send   these   checks   by    authorizing    the   preparation      and

dissemination of the December 31, 1989 financial statement that

Wilson knew grossly overreported the amount of assets controlled by

Winston Hill.     This statement reported that Winston Hill had over

$70,000,000 in assets, including over $67,000,000 in cash or cash

equivalents.

     The    two   basic   elements   of   18   U.S.C.   §   1341   are    1)

participation in a scheme to defraud, and 2) causing a mailing for

the purpose of executing the scheme.7          United States v. Fox, 69

F.3d 15, 17 (5th Cir. 1995).      Wilson challenges the sufficiency of

the evidence as to both elements.         Wilson first argues that the

Government’s evidence is insufficient as to element one because it

failed to offer sufficient evidence to prove that the financial

statement was false.

     In his January 1993 interview with Marcy Kurtz (lead counsel

for Winston Hill during part of its liquidation), Wilson admitted

that Winston Hill “never really had this money [that was reported

on Winston Hill’s financial statements as an asset] in Winston

Hill’s accounts.”    R. at 20-177.    The records from Gulf Union Bank

in Nassau indicate that the balance in Winston Hill’s account was


     7
      Section 1341 provides, in pertinent part, that “[w]hoever,
having devised or intending to devise any scheme...for obtaining
money or property by means of false or fraudulent pretenses,
representations, or promises...for the purpose of executing such
scheme...causes to be delivered by mail or such [private or
commercial interstate] carrier....”

                                     18
only $11,187 on December 29, 1989.   Witnesses uniformly testified

that the spartan house and staff that constituted Winston Hill’s

home office in Nassau was inconsistent with a company boasting over

$50,000,000 in assets.   This evidence is sufficient to prove that

the financial statement was false.

     Wilson next argues that proof of the first element is lacking

because the Government offered insufficient evidence to prove that

Wilson knew that the financial statement was false when it was

made.   The Government presented testimony from Dion Burkard, who

started working for Winston Hill’s Houston office in 1988.      In

October 1989, Burkard told Wilson that the Houston office did not

have enough money to pay claims being made by policyholders and

asked Wilson to deposit money into these accounts. Wilson declined

this request and informed Burkard that all claims were to be

processed through the Nassau office.

     The fact that Winston Hill’s Gulf Union Bank account had a

balance of only $11,187 just two days before the statement was

issued also supports the jury’s conclusion.   The jury was entitled

to infer that Wilson, Winston Hill’s president, might misapprehend

within a few thousand dollars the amount of money his company had

in the bank; but that it was inconceivable that he would think his

company had millions of dollars in the bank when it had just

$11,187.   Also, Wilson knew that Rolle, who provided the audited

statement of Winston Hill’s financial condition, was on Winston

Hill’s payroll and not an independent auditor.    This evidence is

sufficient for the jury to infer that Wilson knew the financial

                                19
statement was false when it was made.

     Wilson also argues that the Government offered insufficient

evidence to prove the second element of 18 U.S.C. § 1341 - that

Wilson caused a mailing for the purpose of executing the fraudulent

scheme.      As discussed above, however, the Government offered

sufficient      evidence   for   the    jury    to   find   that   the   financial

statements Wilson authorized for release were false and that this

induced brokers and policyholders to mail premium checks.                     Thus,

the evidence was sufficient for the jury to convict Wilson on

counts two through nine.

                                         B.

     In counts ten through twelve, Wilson was convicted of money

laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i), based on

three checks totaling $38,005 that Wilson mailed to Udell from

October of 1990 to March of 1991.               To establish this offense, §

1956(a)(1)(A)(i)      requires    that    the     Government   prove     beyond   a

reasonable doubt that:       1) the financial transaction involved the

proceeds of unlawful activity (mail fraud or wire fraud in this

case); 2) the defendant knew that the property involved in the

financial transaction represented proceeds of an unlawful activity;

and 3) the financial transaction was conducted with the intent to

promote the carrying on of specified unlawful activity.

     As    discussed   above,     the    Government     established      that   the

evidence was sufficient to support the mail fraud counts, and that

establishes the first element of this offense.               Also, as discussed

above,    the   Government   presented         sufficient   evidence     to   prove

                                         20
element two - that Wilson knew that the money in the bank account

on which the check was drawn represented proceeds of mail or wire

fraud.

      The third element of § 1956(a)(1)(A)(i) requires that the

Government prove that Wilson wrote the checks to Udell with the

intent to promote specified unlawful activity.               Wilson argues that

the Government’s evidence is insufficient on this element because

it allegedly failed to show the purpose of the checks.                      Wilson

asserts that the Government has offered no evidence to show that

these    payments   to   Udell    were      anything     other   than   legitimate

business expenditures.

      In support of this assertion, Wilson cites a case in which

this court reversed money laundering convictions based on a car

dealership’s expenditures on various items used to conduct its

legitimate     business,     such      as      office    supplies,      cars,   and

advertising.    United States v. Brown, 186 F.3d 661 (5th Cir. 1999).

Brown, however, is readily distinguishable.

      In Brown, the payments were to legitimate businesses for

legitimate business expenditures.               In our case, the Government

produced sufficient evidence for the jury to conclude that Udell,

the recipient of these payments, was an unindicted coconspirator.

The Government introduced testimony that Udell stalled claimants

and   also   channeled     them   to     the    Nassau    office   per    Wilson’s

instructions.       In fact, much of Wilson’s defense consists of

blaming Udell and Day for perpetrating the scheme, and asserting

that he was naive and ignorant of the scheme.                        Also, Wilson

                                         21
concedes that the payments at issue did not represent Udell’s

salary    of    $5000    a   month.     Thus,    the   Government   introduced

sufficient evidence to allow the jury to infer that Wilson’s

payments       to   Udell    were   designed    to   compensate   one   of   his

coconspirators so he would continue to assist in carrying out the

conspiracy of bilking policy holders and claimants.

     The payments at issue in our case are more analogous to those

made in United States v. Coscarelli, 105 F.3d 984 (5th Cir. 1997),

vacated, 111 F.3d 376 (5th Cir. 1997), reinstated, 149 F.3d 342 (5th

Cir. 1998), and         United States v. Leonard, 61 F.3d 1181 (5th Cir.

1995).     Both of these cases involved a fraudulent telemarketing

scheme.    In Coscarelli, we stated that:

     Coscarelli then collected the proceeds of this fraudulent
     scheme and paid the coconspirators, the telemarketers,
     and general operating expenses of the scheme.... [Thus]
     Coscarelli knowingly conducted financial transactions
     using the proceeds of this unlawful telemarketing scheme
     with intent to promote or carry on the unlawful activity
     of the scheme in direct violation of 18 U.S.C. §
     1956(a)(1)(A)(i).

105 F.3d at 990.

     Similarly, in Leonard, we stated that:

     Greene’s money laundering activity, regardless of its
     limited extent, advanced the mail and wire fraud scheme
     that victimized nearly 500 people....     By conducting
     financial transactions–paying [coconspirator] callers,
     purchasing leads, paying phone bills–with the victims’
     money for the purpose of bilking more people out of
     $395.50 each, the group of targeted victims became the
     victim of the money laundering activity as well as the
     fraud scheme.

61 F.3d at 1186.

     The jury was entitled to conclude that Wilson made these


                                        22
payments to a coconspirator to continue the fraudulent scheme. The

jury’s conclusion that Wilson paid Udell with the intent to promote

the   fraudulent   scheme   involving   mail    and   wire   fraud   was

sufficiently supported by the evidence.

                                 C.

      In counts thirteen through eighteen, Wilson was convicted of

engaging in monetary transactions with criminally derived property

in violation of 18 U.S.C. § 1957(a).           Counts thirteen through

eighteen were based on $875,000 that Wilson withdrew, using six

checks, from Winston Hill’s account at First City Bank of Houston.

Section 1957(a) requires the Government to prove that: 1) property

valued at more than $10,000 was derived from specified unlawful

activity (here, mail or wire fraud); 2) Wilson engaged in a

monetary transaction with this    property; and 3) Wilson knew that

this property was derived from unlawful activity.        Wilson argues

that the Government has offered insufficient evidence on the first

and third elements.

      Specifically, Wilson argues that the Government has offered

insufficient evidence to show that there was a fraudulent scheme.

In the alternative, he argues that if there was sufficient evidence

to demonstrate the existence of a fraudulent scheme, he was not

aware of the scheme. We rejected these arguments in the discussion

above.   Thus, there was sufficient evidence to support the jury’s

verdict on counts thirteen through eighteen.

                                 D.

      In count one, Wilson was convicted under 18 U.S.C. § 1956(h)

                                 23
of conspiring to launder money with Rolle and two others.                     The

Government is required to prove beyond a reasonable doubt that: 1)

there was an agreement between two or more persons to launder

money; 2) the defendant voluntarily agreed to join the conspiracy;

and 3) one of the persons committed an overt act in furtherance of

the conspiracy. United States v. Pettigrew, 77 F.3d 1500, 1519 (5th

Cir. 1996).   Wilson challenges the sufficiency of the evidence on

the first and second elements.          As discussed above, the evidence

supported the jury’s verdict that Wilson laundered money by sending

three checks to Udell, which Udell accepted.             Thus, the jury was

entitled to infer that there was an agreement between Wilson and

Udell to launder money.        Therefore, the evidence is sufficient to

support the jury’s verdict as to count one.

                                       V.

     Wilson next argues several points of error with regard to his

sentencing.        First,    Wilson    argues    that   the    district      court

misapplied the sentencing guidelines in applying the more severe

money laundering guidelines rather than the fraud guidelines.

Wilson contends that the sentencing guidelines on money laundering

(United   States    Sentencing      Guidelines    §   2S1.1,   et    seq.)   were

intended by the Sentencing Commission to be applied to individuals

involved in drug offenses and organized crime.            Because Wilson was

not engaged in either of these activities, he argues that the

district court should have applied the fraud guidelines.                      This

contention is clearly without merit.             This court has upheld the

application   of    the     money   laundering   guidelines     in   cases    not

                                       24
involving drugs or organized crime.                    See, e.g., United States v.

Powers, 168 F.3d 741, 753 (5th Cir. 1999).

          Second,    Wilson    argues       that    the   district       court   erred    in

refusing to grant a downward departure on the basis that Wilson’s

offenses fell outside of the “heartland of the [money laundering]

guidelines”         since    they    involved       neither   drug       trafficking      nor

organized crime.         Similarly, Wilson argues that the district court

erred in refusing to grant a downward departure based on his status

as a deportable alien.              In essence, Wilson argues that his status

as    a    deportable       alien    will    lengthen     his      ultimate      period   of

confinement because he is ineligible for community based programs

administered        by   the   Bureau       of     Prisons,   he    is    ineligible      for

assignment to a minimum security federal correctional camp, and he

is subject to an additional period of confinement after completing

his sentence while awaiting actual deportation.

          The failure of the district court to grant such discretionary

departures, however, is not subject to appellate review.                           Powers,

168 F.3d at 753.         Indeed, this court has explained that “a court’s

refusal to grant a downward departure from the Guidelines may only

be reviewed if the refusal was based on a violation of the law.”

Id.        Such a violation occurs only when the district court’s

“refusal to depart downward is premised upon the court’s mistaken

conclusion that the Guidelines do not permit such a departure.”

Id.       See also, United States v. Palmer, 122 F.3d 215, 222 (5th Cir.

1997).       Because we have no basis to conclude that Judge Hittner

erroneously believed he lacked the authority under the Guidelines

                                              25
to downwardly depart in this case, his refusal to do so is not

reviewable on appeal.

     Third, Wilson argues that his sentence is in violation of the

United States Supreme Court’s recent decision in Apprendi v. New

Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000) (holding that

“any fact that increases the penalty for a crime beyond the

statutory maximum must be submitted to a jury and proved beyond a

reasonable doubt”). Relying on the PSR, the district court applied

a ten-level enhancement to Wilson’s base level of twenty-three on

the money laundering charge.      This enhancement was based on a

finding by the district court that Wilson’s money laundering scheme

involved $34,000,000.     Wilson now argues that Apprendi requires

that the jury find that figure beyond a reasonable doubt.      This

contention lacks merit.   It is clear in this circuit that where an

enhancement does not increase the defendant’s sentence above the

statutory maximum, there is no Apprendi violation.      See, e.g.,

United States v. Meshack, 225 F.3d 556, 576 (5th Cir. 2000); United

States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000).        Wilson

received a sentence of 240 months, the statutory maximum.8   Because

the statutory maximum has not been exceeded, Apprendi is not

implicated.

                                 VI.

     For the reasons stated above, the judgment and sentence of the

district court is AFFIRMED in all respects, unless the district


     8
      Wilson concedes as much in his Brief for the Defendant-
Appellant at 61.

                                 26
court grants Wilson’s motion to dismiss following a hearing.   In

that event, the district court should vacate the conviction on all

counts.   If either party is aggrieved by the district court’s

ruling on the motion to dismiss and files a notice of appeal to

this court, this panel will consider any appeals from that ruling.




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