                                                                     FILED
                                                              United States Court of
                                 PUBLISH                          Appeals
                                                                  Tenth Circuit
                UNITED STATES COURT OF APPEALS
                                                                  February 6, 2018
                      FOR THE TENTH CIRCUIT                   Elisabeth A. Shumaker
                      _________________________________           Clerk of Court

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                  No. 16-3243

KAY TEE,

      Defendant - Appellant.
                     _________________________________

              Appeal from the United States District Court
                       for the District of Kansas
                   (D.C. No. 6:15-CR-10078-JTM-1)
                      _________________________________

Kurt P. Kerns of Ariagno, Kerns, Mank & White, LLC, Wichita, Kansas
(Melanie S. Morgan of Morgan Pilate LLC, Kansas City, Missouri, with
him on the brief), for Defendant-Appellant.

Jason W. Hart, Assistant United States Attorney (Thomas E. Beall, United
States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-
Appellee.
                       _________________________________

Before BACHARACH, McKAY, and MURPHY, Circuit Judges.
                 _________________________________

BACHARACH, Circuit Judge.
                  _________________________________


     Mr. Kay Tee appeals his conviction on three federal criminal counts:

(1) attempted coercion and enticement to travel to engage in prostitution,
(2) interstate transportation in aid of racketeering enterprises, and (3)

money laundering. These counts grew out of Mr. Tee’s discussions with a

government informant (known as “Lucy”) who had contacted Mr. Tee,

ostensibly for help in opening a massage parlor in Wichita, Kansas. The

government’s trial theory was that Mr. Tee had tried to help Lucy, thinking

that she wanted to buy a massage parlor and operate it as a prostitution

business. Mr. Tee denied guilt and pressed an affirmative defense of

entrapment. The jury rejected the entrapment defense and found guilt on

the three counts, leading Mr. Tee to appeal.

      This appeal involves four issues:

      1.    Sufficiency of the Evidence: Mr. Tee contends that he was
            entrapped and that the evidence was insufficient to convict on
            any of the counts. We disagree. A reasonable jury could have
            found that Mr. Tee had tried to help Lucy buy a prostitution
            business and had a criminal intent and predisposition to commit
            the crimes. Consequently, the government presented sufficient
            evidence to prove the crimes and overcome the defense of
            entrapment.

      2.    Racial Discrimination During Voir Dire: The expected trial
            evidence included numerous references to the Asian-American
            community in Wichita. For example, the government’s trial
            theory was that massage parlors in Wichita’s Asian-American
            community were largely fronts for prostitution. In addition, Mr.
            Tee and the government’s two informants were of Asian
            descent. These facts led the prosecutor in voir dire to focus
            certain questioning on one venireperson who appeared to be
            Asian-American. With this venireperson and the others, the
            prosecutor asked about possible prejudice against Asian-
            Americans. Mr. Tee argues that this questioning involved racial
            discrimination. Because the issue was not preserved in district
            court, we review the challenge under the plain-error standard.


                                       2
            In our view, the district court did not commit plain error in
            allowing this questioning.

      3.    Display of a Website (Rubmaps) as Demonstrative Evidence: At
            trial, the government elicited testimony that Mr. Tee had told
            Lucy to look at reviews on Rubmaps to decide which massage
            parlor to buy. The government presented testimony that
            Rubmaps’s reviews involved ratings on sexual activity, not
            massages. To explain this testimony, the prosecution displayed
            screenshots from Rubmaps as a demonstrative exhibit. Mr. Tee
            argues that the demonstrative exhibit was unfairly prejudicial.
            We disagree, for the demonstrative exhibit helped the jury
            understand the sexual nature of the website.

      4.    Introduction of Advertisements from Backpage: The government
            presented advertisements prepared by Mr. Tee for a website,
            Backpage. Mr. Tee contends that the advertisements constituted
            hearsay and were unfairly prejudicial. We reject both
            contentions. Mr. Tee waived his hearsay objection, and the
            district court could reasonably conclude that the advertisements
            had not been unfairly prejudicial.

I.    Mr. Tee was convicted based on his discussions with Lucy.

      Mr. Tee was a Wichita businessman. Being Chinese and bilingual,

Mr. Tee often worked as a middleman between Mandarin-speaking business

owners and local vendors. Some of the businesses were massage parlors

that were suspected fronts for prostitution.

      To investigate these suspicions, the Wichita police arranged a series

of telephone calls between Mr. Tee and Lucy. Lucy pretended to be a New

York businesswoman interested in buying a massage parlor in Wichita. For

over two months, Mr. Tee advised Lucy by telephone as she pretended to

look for a massage parlor to buy.



                                      3
      The police also used another informant, a prostitute known as

“Jenny,” to investigate Mr. Tee. The police directed Jenny to seek Mr.

Tee’s help in selling her business. When Mr. Tee did not try to connect

Lucy and Jenny, the police instructed Jenny to tell Mr. Tee that she had

found a buyer. Jenny complied, telling Mr. Tee that the buyer was Lucy.

      Mr. Tee tried to discourage Lucy from buying Jenny’s business. He

explained that Jenny had been busted once for prostitution and that another

bust would lead the police to close the business. Instead, Mr. Tee

encouraged Lucy to look for other available shops. But when Lucy

continued to express interest in buying Jenny’s massage parlor, Mr. Tee

assured Lucy that he would help her finalize the purchase. In their last

telephone call, Mr. Tee agreed to pick up Lucy at the airport.

      Afterward Jenny paid Mr. Tee $100, but the parties disagree on the

purpose of the payment. Mr. Tee told authorities that the fee was to pick

up Lucy at the airport; the government characterizes the payment as a fee

to broker the sale of Jenny’s prostitution business to Lucy.

      When Mr. Tee arrived at the airport to pick up Lucy, he was arrested.

He was later convicted on the three counts.

II.   The evidence of guilt was sufficient to convict on each count.

      Mr. Tee challenges the sufficiency of the evidence on each count and

contends that the government failed to overcome his entrapment defense.

In our view, a reasonable jury could find that Mr. Tee

                                      4
          had been predisposed to commit the crimes and

          had intended to help Lucy buy and maintain a massage parlor,
           knowing that it would offer prostitution services.

      A.   Standard of Review

      Sufficiency of the evidence entails a legal issue that we review de

novo. See United States v. Thomas, 849 F.3d 906, 909 (10th Cir. 2017). In

undertaking this review, we consider the evidence in the light most

favorable to the government, asking whether any rational trier of fact could

find every element of a given offense. Id. In answering this question, we

cannot weigh conflicting testimony or consider the credibility of witnesses.

United States v. Rodebaugh, 798 F.3d 1281, 1296 (10th Cir. 2015).

      B.   Entrapment

      To find Mr. Tee guilty, the jury had to find each element of the

crimes beyond a reasonable doubt. Alleyne v. United States, 570 U.S. 99,

104 (2013). Mr. Tee pleaded an entrapment defense; therefore, the

government also had to disprove entrapment beyond a reasonable doubt.

United States v. Nguyen, 413 F.3d 1170, 1178 (10th Cir. 2005).

      Entrapment occurs when

          the government induces the defendant to commit the offense
           and

          the defendant is not predisposed to commit the offense.

Id.



                                     5
     Mr. Tee does not dispute inducement; instead, he contests the

government’s evidence on predisposition. 1 Predisposition may be shown by

     evidence of similar prior illegal acts or it may be inferred from
     defendant’s desire for profit, his eagerness to participate in the
     transaction, his ready response to the government’s inducement
     offer, or his demonstrated knowledge or experience in the
     criminal activity.

Id. (quoting United States v. Duran, 133 F.3d 1324, 1335 (10th Cir. 1998))

(quotation marks omitted).

     C.    Persuasion of Interstate Travel To Engage in Prostitution

     A crime is committed by knowingly attempting to persuade, induce,

entice, or coerce a person to travel in interstate commerce to engage in

prostitution. 18 U.S.C. § 2422(a). To prove this crime, the government

needed to present sufficient evidence that Mr. Tee

          had knowingly attempted to persuade, induce, entice, or coerce
           Lucy to travel in interstate commerce, and

          had made this attempt with the intent for Lucy to engage in
           prostitution.

See id.; United States v. Rashkovski, 301 F.3d 1133, 1136 (9th Cir. 2002).

And to overcome Mr. Tee’s entrapment defense, the government needed to



1
      Mr. Tee’s failure to address the element of inducement could
arguably doom his entrapment defense. See United States v. Ford, 550 F.3d
975, 982 (10th Cir. 2008) (“both ‘elements [are] required to find
entrapment’” (quoting United States v. Young, 954 F.2d 614, 616 (10th Cir.
1992)) (alteration in original)). But we will assume, for the sake of
argument, that the failure to address the element of inducement is not fatal
to the defense.
                                     6
prove beyond a reasonable doubt that Mr. Tee had been predisposed to

commit the crime. See Part II(B), above.

     Mr. Tee contends that the government failed to prove that

          he had tried to persuade Lucy to come to Wichita and

          he had been predisposed to commit the crime.

We reject Mr. Tee’s contentions.

     First, the government presented sufficient evidence that Mr. Tee had

tried to persuade Lucy to travel from New York to Wichita. Mr. Tee argues

that it was Lucy’s idea to come to Wichita. Because the idea to travel

originated with Lucy, he claims that a reasonable jury could not have

found guilt. Mr. Tee is mistaken. Regardless of who originated the idea,

Mr. Tee consistently encouraged Lucy to come to Wichita, boasting about

how quickly and cheaply he could get her massage parlor ready:

          “I am very serious when it comes to doing work for other
           people, do you understand. . . . I don’t mess around when it
           comes to doing work for other people.” Appellant’s App’x at
           119.

          “There won’t be any problems with the shop. I’ll do everything
           and I’ll take care of everything else. I have been taking care of
           things from beginning to end every time.” Id. at 125.

          “Right now . . . the one you have will also be very quick. If
           you let us handle it, your expenses will not even be 16,000. I
           can get everything ready for you for 12,000.” Id. at 144
           (omission in original).




                                     7
          “To be honest with you, for a new shop, all it needs is to post
           some ads and you’ll get business right away. . . . If you want it,
           I can get it done for you in a week.” Id. at 145.

          “Let me tell you. It’s very easy to get business if you open a
           shop over here. All I have to do is to post an ad and it’s easy to
           get business. And you’ll get it very quickly . . . .” Id. at 153.

          “[W]e don’t need a month or two because we do all the work
           ourselves, okay? We can get it ready for you in one week.” Id.
           at 155.

          “The contacts would be another $500. I usually charge people
           2,000.” Id. at 160.

     From these boasts, a reasonable jury could have found an intent to

lure Lucy to Wichita to buy a prostitution business. But Mr. Tee did more

than boast; he also expressly encouraged Lucy to come:

          “When are you coming down here to see [the massage parlor]?”
           Id. at 143.

          “If you get a chance, just come down here.” Id. at 153.

          “The location that you are looking for, there are a lot of them
           available. Just come down to Wichita and we’ll make
           arrangements for you to see them. And then you’ll make a
           decision. There are lots of nice places.” Id. at 154.

     Mr. Tee knew that he could obtain a fee only if Lucy came to

Wichita. So Mr. Tee repeatedly offered deals to Lucy, emphasizing how

much he would help her, boasting about the Wichita massage-parlor

market, and encouraging her to come to Wichita. Based on these statements

to Lucy, a reasonable jury could have found an attempt to persuade Lucy to

travel from New York to Wichita.

                                     8
      Second, a reasonable jury could have found that Mr. Tee had been

predisposed to commit the crime. Mr. Tee makes three arguments for why

he was not predisposed to commit the crime:

      1.    There was no evidence that he had committed similar crimes in
            the past.

      2.    The trial evidence proved only that he had conducted a lawful
            business for legitimate massage parlors.

      3.    He demonstrated a lack of interest in helping Lucy buy a
            business.

These arguments fail.

      The government did not need to provide evidence of similar crimes.

Even without this evidence, predisposition can be inferred from a

“‘defendant’s desire for profit, his eagerness to participate in the

transaction, his ready response to the government’s inducement offer, or

his demonstrated knowledge or experience in the criminal activity.’”

United States v. Nguyen, 413 F.3d 1170, 1178 (10th Cir. 2005) (quoting

United States v. Duran, 133 F.3d 1324, 1335 (10th Cir. 1998)).

      Though evidence of earlier criminality was unnecessary, it was

present here. For example, the trial testimony reflected Mr. Tee’s past

associations with massage parlors known to engage in prostitution. And

Mr. Tee’s statements to Lucy showed his experience in brokering the sale

of massage parlors. The evidence of past associations and Mr. Tee’s




                                      9
statements to Lucy allowed the jury to reasonably infer that Mr. Tee had

brokered similar deals in the past.

      In addition, the jury could reasonably infer that Mr. Tee had known

that the massage parlors were fronts for prostitution. For example, Mr. Tee

used slang that was commonplace in the prostitution business, such as

“small acts,” “big acts,” “full body,” and “half set.” Appellant’s App’x at

130, 147. The testimony explained that these slang terms referred to

various sexual acts. And when Lucy revealed that her employees would

give hand jobs, Mr. Tee remained interested in brokering a sale.

      He further displayed an understanding of how massage parlors

operate as prostitution fronts. For example, Mr. Tee told Lucy that “after

[some people] have made money, . . . they don’t want to do this type of

business anymore . . . .” Id. at 122. The implication was that once some

individuals made enough illegal money, they leave the prostitution

business. And when Lucy asked where she could read reviews about the

shops being recommended, he advised her to consult Rubmaps, which was

an internet forum about the sexual services obtained at massage parlors.

      Mr. Tee also appeared to understand the risks of buying a

prostitution business that had already been busted. For example, Mr. Tee

tried to stop Lucy from buying Jenny’s shop because it had already been

busted once. Mr. Tee explained to Lucy that a second bust would lead the

police to close the business. This explanation reflected Mr. Tee’s

                                      10
familiarity with the risks of running a massage parlor as a prostitution

front. See United States v. Dyke, 718 F.3d 1282, 1292 (10th Cir. 2013)

(recognizing as evidence of predisposition that the defendant was “all too

aware of the risk and reward calculus”).

     Notwithstanding these risks, Mr. Tee displayed a willingness to help

Lucy buy a massage parlor to traffic in prostitution. Though Lucy initiated

the contact, Mr. Tee was willing to assist. Lucy sometimes had to leave

voicemails for Mr. Tee and ask him to move more quickly. But Mr. Tee

also left voicemails for Lucy and encouraged her to act, telling her that

          buying a shop “will also be very quick” and

          “you’ll get it very quickly.”

Appellant’s App’x at 144, 153.

     Mr. Tee points to instances in which he discouraged Lucy from

buying Jenny’s shop. But Mr. Tee cautioned Lucy about Jenny’s massage

parlor only because he knew that it was under police surveillance and had

been busted before. If the massage parlor were shut down, Mr. Tee might

stop profiting from his relationship with Lucy. And even as Mr. Tee

discouraged the purchase of Jenny’s massage parlor, he encouraged Lucy

to continue looking for another massage parlor to buy.

     In our view, the evidence was sufficient to convict Mr. Tee of

attempting to induce Lucy to travel across state lines to engage in

prostitution. And the government presented sufficient evidence to
                                     11
overcome Mr. Tee’s entrapment defense. Therefore, we reject Mr. Tee’s

challenge to the sufficiency of the evidence on this count.

     D.    Use of a Telephone to Promote Prostitution

     Mr. Tee also contends that the government presented insufficient

evidence to prove the use of a telephone to promote prostitution. 18 U.S.C.

§ 1952(a)(3). To establish the commission of this crime, the government

needed to show that

          Mr. Tee had used a facility in interstate commerce,

          he had used the facility in interstate commerce with the intent
           to facilitate the promotion, management, establishment, or
           carrying out of an unlawful activity, and

          he had attempted to promote, manage, establish, or carry out an
           unlawful activity.

See United States v. Welch, 327 F.3d 1081, 1090 (10th Cir. 2003). And to

overcome the entrapment defense, the government needed to prove beyond

a reasonable doubt that Mr. Tee had been predisposed to commit the crime.

See Part II(B), above.

     Mr. Tee does not contest

          the use of a telephone, which is a facility in interstate
           commerce, or

          the illegality of prostitution under Kansas law.

But he does contest the sufficiency of the evidence on three grounds:

     1.    There was insufficient evidence to prove that he had used a
           telephone with the intent to facilitate the promotion,
           management, establishment, or carrying out of prostitution.
                                     12
     2.    There was insufficient evidence to prove that he had attempted
           to perform an act promoting, managing, establishing, or
           carrying out prostitution.

     3.    There was insufficient evidence to prove predisposition.

These challenges are invalid.

     First, a reasonable jury could find that Mr. Tee had intended to

promote prostitution during the telephone calls with Lucy. In these calls,

Mr. Tee showed awareness that Lucy had planned to offer sexual services

at her massage parlor. Yet he continued to help her look for a massage

parlor to buy. And Mr. Tee repeatedly assured Lucy that he would

renovate, register, and advertise for her massage parlor, knowing that it

would be a front for prostitution. This willingness to help Lucy buy a shop

offering sexual services could lead a reasonable jury to find that Mr. Tee

had intended to promote prostitution.

     Second, the government presented sufficient evidence that Mr. Tee

had acted on this intent when he attempted to pick up Lucy at the airport.

Mr. Tee alleges that he attempted to pick up Lucy in order to dissuade her

from buying a massage parlor linked to prostitution, but the jury could

reasonably reject this explanation. After trying to discourage the purchase

of Jenny’s massage parlor, Mr. Tee continued to encourage Lucy to come

to Wichita, explaining that there were other good massage parlors that she




                                     13
could buy. A reasonable jury could find that Mr. Tee had intended to

continue helping Lucy find a prostitution business to buy.

     Finally, a reasonable jury could find that Mr. Tee had been

predisposed to commit the crime. Mr. Tee responded to Lucy’s initial call

with an offer to help and demonstrated his experience with massage parlors

operating as prostitution fronts. For example, Mr. Tee used slang terms to

refer to sexual acts performed in massage parlors. And he understood the

process used by police when investigating and closing down a massage

parlor linked to prostitution. In addition, Mr. Tee displayed an eagerness to

profit from the transaction, offering deals to Lucy so that she would

continue working with him.

     Because the jury could reasonably find each element of this crime,

the evidence was sufficient to convict.

     E.    Money Laundering

     Finally, Mr. Tee contends that the government presented insufficient

evidence to convict on money laundering. See 18 U.S.C.

§ 1956(a)(1)(B)(i).

     For this offense, the government needed to prove that

          Mr. Tee had conducted a financial transaction,

          the transaction had involved the proceeds of an unlawful
           activity,

          Mr. Tee had known that the proceeds derived from an unlawful
           activity, and
                                     14
           Mr. Tee had conducted the financial transaction with
            knowledge that it was designed at least in part to conceal the
            nature of the proceeds of an unlawful activity.

United States v. Caldwell, 560 F.3d 1214, 1221 (10th Cir. 2009).

      Mr. Tee argues that the government failed to prove that the

transaction involved the proceeds of an unlawful activity. For this

argument, Mr. Tee denies that Jenny continued to engage in prostitution

and insists that Jenny’s payment was only to pick up Lucy at the airport.

This argument is invalid.

      First, Mr. Tee denies the existence of evidence that Jenny continued

to engage in prostitution after she was arrested. Without evidence of

continued prostitution, according to Mr. Tee, the government failed to

prove that Jenny’s payment had involved the proceeds of prostitution. But

the jury could reasonably view the evidence differently. For example, the

jury could have regarded the $100 as a fee for brokering the sale of a

prostitution business to Lucy. Because this transaction would have been for

an unlawful act, the proceeds themselves would have derived from an

unlawful activity. Thus, a reasonable jury could have found money

laundering regardless of whether Jenny had continued to engage in

prostitution.




                                     15
      Second, Mr. Tee argues that the $100 was paid just to pick up Lucy

at the airport. 2 But contrary evidence existed. For example, an officer

testified that Mr. Tee had admitted that the $100 was paid to connect Lucy

and Jenny. With this testimony, the jury could reasonably reject Mr. Tee’s

explanation for the $100 payment.

      Because the jury could reasonably reject Mr. Tee’s arguments, we

conclude that the evidence sufficed to convict on the count of money

laundering.

      The dissent disagrees, contending that § 1956(a)(1)(B)(i) was

violated only if Mr. Tee conducted a transaction with the $100 after




2
      As noted above, one element of this offense includes an intent to
conceal the nature of the proceeds of an unlawful activity. Mr. Tee does
not question satisfaction of this element; he instead defends his
explanation for the $100 payment, insisting that it was to pick up Lucy at
the airport rather than to broker the sale of a prostitution business.

      We have little reason to question the sufficiency of the evidence on
the element of concealment. Mr. Tee directed Jenny to wire transfer the
$100 to an account for Alert America, a separate, legitimate computer-
security company that Mr. Tee owned. Mr. Tee’s invoices for Alert
America described the company as “Security Camera & POS Systems
Alarm Monitoring Service, Repair Computer & Networking, Business
Sign.” Appellant’s App’x at 225-27. But Mr. Tee has never suggested that
the $100 related to a business that monitored alarms, repaired computers,
or dealt with business signage. Thus, the jury could reasonably infer that
Mr. Tee had directed payment to his Alert America account to conceal the
purpose of the payment. See United States v. Shepard, 396 F.3d 1116, 1121
(10th Cir. 2005) (“This circuit has noted that depositing illegal proceeds
into the bank account of a legitimate business may support the inference of
an intent to conceal.”).
                                     16
receiving it. But Mr. Tee did not make this argument either in district court

or in our court.

      On the money-laundering count, Mr. Tee states that he challenged the

sufficiency of the evidence in district court, relying on pages 677 to 683 of

the appendix. There he argued only that the government had not presented

evidence of an attempt to conceal or disguise the proceeds because they

had been “openly deposited in a business account.” Appellant’s App’x at

680. Mr. Tee did not say anything to suggest that guilt required a separate

transaction after receiving the $100 from Jenny. Consequently, this

potential argument was forfeited. See United States v. Goode, 483 F.3d

676, 681 (10th Cir. 2007).

      Though forfeited, this argument could be reviewable under the plain-

error standard. Id. at 681 n.1 (en banc footnote); see p. 24, below. But Mr.

Tee has not argued for plain-error review, so we would ordinarily decline

to consider the potential argument even if it had been raised here. See

United States v. Lamirand, 669 F.3d 1091, 1098 n.7 (10th Cir. 2012).

      But Mr. Tee didn’t just fail to present this argument in district court;

he also failed to raise this argument in our court. After identifying the

elements and summarizing the government’s theory, Mr. Tee presented his

argument in a single paragraph in his opening brief:

            By the time Lucy decided to “travel” to Wichita, she and
      Tee had been engaged in discussions for about two months. For
      this stranger who contacted him out of the blue, he had taken

                                      17
     and placed numerous phone calls, looked for locations for her
     to purchase, and had agreed to take time out of his work day to
     pick her up at the airport. The only evidence offered by the
     government to explain the $100 transaction is Tee’s statement –
     that the money was to pay for a taxi ride to pick Lucy up at the
     airport. Notably Jenny didn’t testify. And there is no evidence
     that Jenny’s business continued to engage in prostitution
     activities or only engaged in prostitution activities such that
     Tee would know that the money came from prostitution. The
     “finder’s fee” that Tee had discussed with Lucy was $500. And
     the government offered no evidence to suggest that amount had
     changed hands. The notion that the $100 was partial payment is
     purely speculative. Thus, the evidence is insufficient as to
     money laundering and Tee’s conviction must be set aside.

Appellant’s Opening Br. at 43-44. This paragraph bears no suggestion of

an argument involving the absence of a transaction after Jenny’s payment

of the $100.

     We ordinarily consider only the grounds presented by the appellant,

wary of searching out our own reasons to reverse when the ground is not

presented by the appellant:

      In our adversary system, in both civil and criminal cases, in
      the first instance and on appeal, we follow the principle of
      party presentation. That is, we rely on the parties to frame the
      issues for decision and assign to courts the role of neutral
      arbiter of matters the parties present. To the extent courts have
      approved departures from the party presentation principle in
      criminal cases, the justification has usually been to protect a
      pro se litigant’s rights.

Greenlaw v. United States, 554 U.S. 237, 243-44 (2008); see also United

States v. Burkholder, 816 F.3d 607, 620 n.11 (10th Cir. 2016) (“In our

adversary, common-law system, courts properly answer only the questions



                                    18
that the parties present to them and that are necessary for the resolution of

the case at hand.”).

      The dissent points out that in certain circumstances, a federal

appellate court can decide an issue that was not decided in district court.

Dissent at 5-6. For this proposition, the dissent relies on a passage in

Singleton v. Wulff: “Certainly there are circumstances in which a federal

appellate court is justified in resolving an issue not passed on below, as

where the proper resolution is beyond any doubt or where ‘injustice might

otherwise result.’” 428 U.S. 106, 121 (1976) (quoting Hormel v. Helvering,

312 U.S. 552, 557 (1941)).

      This passage does not support sua sponte consideration of the

dissent’s argument. In a few civil appeals, we have raised grounds sua

sponte to reverse. See Margheim v. Buljko, 855 F.3d 1077, 1088-89 (10th

Cir. 2017); Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d

814, 836-38 (10th Cir. 2014). But we exercise that power “sparingly,”

reversing sua sponte only when the circumstances are exceptional and the

parties are given an opportunity to address the issues raised by our court.

Margheim, 855 F.3d at 1088-89; Planned Parenthood of Kan. & Mid-Mo.,

747 F.3d at 836-38.

      Here the circumstances are not exceptional and the government has

not had an opportunity to address the argument raised by the dissent.

Indeed, in the single opinion relied on by the dissent (Singleton), the

                                      19
Supreme Court reversed the Court of Appeals for deciding the issue in the

first instance. After announcing the Court of Appeals’ discretion to avoid

an injustice by deciding an issue in the first instance, the Supreme Court

added:

      Suffice it to say that this is not such a case. The issue resolved
      by the Court of Appeals has never been passed upon in any
      decision of this Court. This being so, injustice was more likely
      to be caused than avoided by deciding the issue without
      petitioner’s having had an opportunity to be heard.

Singleton, 428 U.S. at 121.

      The dissent sees little downside to addressing the issue, viewing its

conclusion as undebatable. Dissent at 6. We are not so sure. For its view,

the dissent relies solely on opinions interpreting 18 U.S.C. § 1957. Id. at 2-

5 (citing United States v. Seward, 272 F.3d 831, 836-37 (7th Cir. 2001);

United States v. Butler, 211 F.3d 826, 830 (4th Cir. 2000); United States v.

Johnson, 971 F.2d 562, 569-70 (10th Cir. 1992)). But Mr. Tee was

convicted under § 1956, not § 1957, and the two statutes bear different

elements. See United States v. Bush, 626 F.3d 527, 536 (9th Cir. 2010)

(“Sections 1956 and 1957 contain different elements . . . .”); see also

United States v. Hill, 167 F.3d 1055, 1069-70 (6th Cir. 1999) (stating that

§§ 1956(a)(1)(B) and 1957 “each requires proof of an element the other

does not”). Section 1956 punishes individuals for conducting financial

transactions with the proceeds of specified unlawful activities, knowing

that the transactions are designed to conceal or disguise the nature,

                                     20
location, source, ownership, or control of the proceeds. 18 U.S.C.

§ 1956(a)(1)(B)(i). In contrast, § 1957 addresses “monetary transactions in

criminally derived property.” 18 U.S.C. § 1957(a).

      The term “criminally derived property” refers to funds obtained from

a criminal offense. 18 U.S.C. § 1957(f)(2); see Johnson, 971 F.2d at 568

(“Under § 1957, ‘criminally derived property’ means any property

constituting or derived from proceeds obtained from a criminal offense.”).

Thus, § 1957 is violated only if the transaction generating the criminally

derived proceeds is distinct from the money-laundering transaction. United

States v. Seward, 272 F.3d 831, 836 (7th Cir. 2001). Section 1956 is

different:

      All that is required to violate § 1956 is a transaction meeting
      the statutory criteria that takes place after the underlying crime
      has been completed. Thus, the central inquiry in a money
      laundering charge is determining when the predicate crime
      became a “completed” offense . . . .

United States v. Kennedy, 64 F.3d 1465, 1477-78 (10th Cir. 1995).

      This difference is illustrated by the sole Tenth Circuit opinion

invoked by the dissent: United States v. Johnson, 971 F.2d 562 (10th Cir.

1992). There the underlying crime, wire fraud, consisted of inducement to

send wire transfers to the defendant’s account. Johnson, 971 F.2d at 567.

The receipt of those wire transfers did not involve proceeds obtained from

a criminal offense. Id. at 568. Section 1957 would have been violated only

if the recipient of the wire transfers had later conducted some transaction

                                     21
with the funds. Id. at 568-70. There were no subsequent transactions, so

the defendant did not violate § 1957. Id. at 569-70.

      We distinguished Johnson in United States v. Kennedy, 64 F.3d 1465

(10th Cir. 1995). There the defendant obtained funds from mail fraud and

was convicted of money laundering under § 1956(a)(1)(A)(i). Kennedy, 64

F.3d at 1477. The defendant challenged the money-laundering conviction

based on Johnson, arguing that guilt under § 1956(a)(1) required a

transaction after completion of the underlying crime. Id. We rejected this

challenge, concluding that the required transaction had taken place. Id. at

1477-78.

      In Johnson, the underlying crime had been wire fraud, which was not

completed until the funds were wired into the defendant’s account. Id. at

1478. Thus, “the wirings could not also be used to support convictions for

§ 1957 money laundering crimes.” Id. In contrast, the Kennedy defendant

obtained funds from the previously completed crime of mail fraud. Id. “It

was the subsequent and distinct transfers of funds that were alleged as the

separate transactions involving ‘proceeds of specified unlawful activity’

which constituted the alleged money laundering under § 1956.” Id. This

difference proved critical in Kennedy because §§ 1956 and 1957 had been

designed to criminalize “new conduct that occurs after the completion of

certain criminal activity, rather than simply to create an additional

punishment for that criminal activity.” Id.

                                     22
       Under Kennedy, Jenny’s wire transfer of $100 to Mr. Tee may have

constituted a new financial transaction with the proceeds from a previously

committed offense (the brokering of a sale of a prostitution business). We

need not decide this question, however, because it was not raised either in

district court or on appeal. Had this question been presented, it would have

entailed a thorny issue of first impression in our circuit. Unlike the

dissent, we decline to decide this issue sua sponte after Mr. Tee bypassed

opportunities to raise the issue in district court and on appeal.

III.   The prosecutor’s questioning in voir dire did not create an
       obvious constitutional violation.

       Mr. Tee also challenges the prosecutor’s questioning during voir

dire. The prosecutor’s evidence suggested that many local massage parlors

owned by Asian-Americans were actually houses of prostitution. In

addition, Mr. Tee, Lucy, and Jenny are of Asian descent. Ostensibly for

these reasons, the prosecutor focused on the single venireperson who

appeared to be Asian-American, questioning

           him about the impact of his ethnicity and

           others about whether this venireperson’s involvement would be
            troublesome.

Mr. Tee challenges these lines of questioning as a denial of due process

and equal protection. We reject these challenges.




                                      23
      A.     Standard of Review

      Mr. Tee did not object to the prosecutor’s questioning of the venire.

Thus, we consider the due-process and equal-protection challenges under

the plain-error standard. See United States v. Taylor, 514 F.3d 1092, 1095-

96 (10th Cir. 2008) (stating that when there is no objection, “our precedent

limits us to plain error review”). “‘Plain error occurs when there is (1)

error, (2) that is plain, which (3) affects substantial rights, and which (4)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.’” United States v. Portillo-Vega, 478 F.3d 1194, 1202 (10th

Cir. 2007) (quoting United States v. Gonzalez-Huerta, 403 F.3d 727, 732

(10th Cir. 2005)). An error is plain when it is “clear” or “obvious.” United

States v. Olano, 507 U.S. 725, 734 (1993). And an error is clear or obvious

only when “contrary to well-settled law.” Taylor, 514 F.3d at 1100.

      B.     No Clear or Obvious Error

      The government defends the questioning as an effort to check for

possible prejudice against Asian-Americans. This explanation was

plausible because of the nature of the evidence and the ethnicity of Mr.

Tee, Lucy, and Jenny.

      As Mr. Tee points out, the Constitution forbids the government from

striking a venireperson based on race. See Batson v. Kentucky, 476 U.S. 79,

89 (1986) (“[T]he Equal Protection Clause forbids the prosecutor to

challenge potential jurors solely on account of their race . . . .”). But the

                                      24
prosecutor did not strike the Asian-American venireperson. Instead, the

prosecutor simply asked about racial bias, and the Supreme Court has

permitted questioning of venirepersons about racial bias. See, e.g., Turner

v. Murray, 476 U.S. 28, 36-37 (1986) (plurality) (holding that a defendant

charged with an interracial capital crime is entitled to question

venirepersons about racial bias); Ristaino v. Ross, 424 U.S. 589, 594-98

(1976) (stating that inquiry into racial bias can be required in certain

circumstances); Ham v. South Carolina, 409 U.S. 524, 526-27 (1973)

(concluding that the defendant’s right to due process was violated by the

state court’s refusal to permit questioning about racial bias).

      Against this backdrop, Mr. Tee fails to identify a single opinion

condemning the sort of questioning that took place here. In the absence of

any cited authority, we cannot regard the district court’s failure to step in

as an obvious constitutional error. See United States v. Muñoz, 812 F.3d

809, 815 (10th Cir. 2016) (rejecting an appeal point under the plain-error

standard based on the appellant’s failure to cite any supporting opinions).

Thus, we reject this appeal point under the plain-error standard.

IV.   The district court did not err in allowing the prosecution to use
      the Rubmaps website as a demonstrative exhibit.

      While talking with Lucy, Mr. Tee suggested that she use a website

(Rubmaps) to research potential massage parlors. The district court allowed

the prosecution to use screenshots from Rubmaps to help jurors understand


                                      25
the nature of the reviews on this website. These screenshots were limited

to

           the opening page,

           sample portions of the glossary, and

           two sample reviews.

Mr. Tee argues that the government’s demonstration was improper for

three reasons:

      1.    The jury perceived the Rubmaps screenshots as substantive
            evidence.

      2.    The Rubmaps screenshots were irrelevant.

      3.   The danger of unfair prejudice substantially outweighed any
           probative value.

These arguments fail, for the district court had the discretion to allow use

of the screenshots to help the jury understand the sexual nature of the

website.

     A.     Standard of Review

     We consider this evidentiary ruling under the abuse-of-discretion

standard. See United States v. Blechman, 657 F.3d 1052, 1063 (10th Cir.

2011) (“‘We review a district court’s evidentiary rulings for an abuse of

discretion, considering the record as a whole.’” (quoting United States v.

Ledford, 443 F.3d 702, 707 (10th Cir. 2005))). Under this standard, we will

reverse if the district court rules in a manner that is beyond “‘the bounds

of permissible choice’” or is “‘arbitrary, capricious or whimsical.’” United
                                     26
States v. Willis, 826 F.3d 1265, 1270 (10th Cir. 2016) (quoting United

States v. Sturm, 673 F.3d 1274, 1286 (10th Cir. 2012)).

     B.    The Jury’s Understanding of the Screenshots as Substantive
           Evidence

     Mr. Tee contends that the jury asked “whether there were any

legitimate reviews on Rubmaps.” Appellant’s Opening Br. at 55. Mr. Tee

argues that this question shows that the jury perceived the demonstration

as substantive evidence. But Mr. Tee is mistaken about the question; it

referred to testimony about Rubmaps: “What was the testimony in relation

to legitimate massage businesses in Wichita being reviewed on

Rubmaps.com?” Appellant’s App’x at 74. We have no reason to think that

the jury treated the Rubmaps exhibit as substantive evidence rather than as

an aid to understand the testimony about the website.

     C.    The Relevance of the Screenshots

     Mr. Tee also challenges the use of the screenshots on the ground of

relevance. We reject the challenge because the district court could

reasonably view the screenshots as relevant to defeat Mr. Tee’s entrapment

defense. To counter this defense, the government needed to show Mr. Tee’s

predisposition to commit the offense. See Part II(B), above. This showing

could come from Mr. Tee’s experience in brokering the sale of massage

parlors that sold sex as well as massages. To show this experience, the

government presented evidence that Mr. Tee had suggested to Lucy that


                                     27
she look for potential businesses through Rubmaps. But what was

Rubmaps?

      The government presented testimony about the sexual nature of

Rubmaps, which served to counter Mr. Tee’s theory of entrapment. For this

theory, Mr. Tee had denied knowledge of sexual activity at the massage

parlors. The government presented contrary testimony, but the district

court could reasonably conclude that testimony alone would not fully

explain the implausibility of Mr. Tee’s alleged naiveté. The opening page

of the Rubmaps website stated that here is where “fantasy meets reality.”

Appellant’s App’x at 170. Then, a random sampling of four pages from the

website’s glossary contained explicit sexual terms that left little to the

imagination. The two customer reviews were littered with explicit sexual

terminology. And the website’s standard review form allowed reviewers to

specify whether the masseuse had offered certain services, including

fellatio, intercourse, and other sexual acts.

      With the insight gleaned from the screenshots, the jury could

understand that Mr. Tee had prior experience working with massage parlors

that sell sex. Consequently, the district court reasonably considered the

screenshots as relevant.

      D.    The Danger of Unfair Prejudice

      Mr. Tee also contends that the district court should have excluded the

screenshots based on the danger of unfair prejudice.

                                      28
      This issue involves the application of Federal Rule of Evidence 403.

This rule allows the district court to exclude evidence if the probative

value is substantially outweighed by the danger of unfair prejudice. Fed. R.

Evid. 403. We review the district court’s ruling for an abuse of discretion.

United States v. Cerno, 529 F.3d 926, 935-36 (10th Cir. 2008). And in

reviewing the district court’s exercise of discretion, we give the evidence

its maximum reasonable degree of relevance and its minimum reasonable

danger of unfair prejudice. Id. at 935.

      The jury might have been shocked by the screenshots. But the

screenshots allowed jurors to understand that Rubmaps is not a legitimate

website with a few reviewers making inappropriate comments; Rubmaps is

a website that targets individuals interested in hiring a prostitute.

Therefore, when we assign the evidence its maximum reasonable degree of

relevance and its minimum reasonable danger of unfair prejudice, we

conclude that the district court acted within its discretion in allowing the

use of the website as a demonstrative exhibit.

V.    The district court did not err in allowing introduction of Mr.
      Tee’s Backpage advertisements.

      Mr. Tee also challenges the introduction of prior advertisements

posted on a website known as Backpage. The government presented

evidence that (1) Mr. Tee had prepared these advertisements and (2) they

had highlighted the sexual qualities of the massage therapists rather than


                                      29
their ability to give legitimate massages. According to Mr. Tee, the

exhibits constituted hearsay and were unfairly prejudicial. We reject both

arguments.

      A.     The Advertisements

      The exhibits comprised eight advertisements on Backpage; all were

posted by Mr. Tee on behalf of Asian massage parlors. Each advertisement

contained pictures of young, scantily clad Asian women in provocative

poses, focusing on their physical attributes rather than their ability to give

legitimate massages. The captions highlighted the masseuses’ physical

attributes and sexual qualities: “Beautiful and sweet Chinese therapists,”

“Cute & Hot Asian Girls Waiting For You,” “Every Man’s Fantasy,”

“Asian Hotties For U,” and “Sexy Lady Must Come.” Appellant’s App’x at

199, 203, 209, 213, 215.

      B.     Hearsay

      Mr. Tee contends that these advertisements constituted inadmissible

hearsay. But Mr. Tee waived this contention.

      Out-of-court statements can constitute hearsay if they are used to

prove the truth of the matter asserted. Fed. R. Evid. 801(c). But at trial,

Mr. Tee specifically disavowed any challenge to “the content” of the

advertisements or “the substance” of whether Mr. Tee had placed the

advertisements. Appellant’s App’x at 391. Thus, Mr. Tee voluntarily

relinquished any objection to the government’s use of the advertisements

                                      30
on hearsay grounds. In these circumstances, we consider the hearsay

contention to be waived. See United States v. Aptt, 354 F.3d 1269, 1280-81

(10th Cir. 2004). 3

      C.    Unfair Prejudice

      Mr. Tee also contends that the probative value of the advertisements

was substantially outweighed by the danger of unfair prejudice. According

to Mr. Tee, the unfair prejudice came from the stereotype that Asian

massage parlors engage in prostitution. But the government’s evidence was

based on experience rather than a stereotype. At trial, a police officer

testified that “[t]he vast majority of parlors we investigate involve people

who are of Chinese origin and speak Mandarin Chinese.” Appellant’s

App’x at 422. This testimony lent significance to the nature of Mr. Tee’s

advertisements on Backpage, focusing on Asian massage parlors and the

physical attributes of the masseuses.

      The advertisements also tend to show Mr. Tee’s predisposition

through his prior work for prostitution fronts before he was contacted by


3
      Even if Mr. Tee had not waived the hearsay contention, we would
decline to consider it. Mr. Tee objected at trial based on relevance, not
hearsay. Thus, even if he did not waive the hearsay objection, he failed to
preserve it. See United States v. Cornelius, 696 F.3d 1307, 1319 (10th Cir.
2012). We would ordinarily consider an unpreserved challenge under the
plain-error standard. United States v. Battles, 745 F.3d 436, 445 n.9 (10th
Cir. 2014); see p. 17, above. But Mr. Tee has not urged plain error. As a
result, we would decline to consider the hearsay contention even if it had
not been voluntarily relinquished. United States v. Lamirand, 669 F.3d
1091, 1100 n.7 (10th Cir. 2012); see p. 17, above.
                                        31
Lucy. The advertisements focus on the masseuses’ physical attributes and

sexual qualities rather than an ability to give legitimate massages. These

advertisements could lead a reasonable jury to regard Mr. Tee as an

entrepreneur experienced in selling houses of prostitution masquerading as

massage parlors. Consequently, the district court could reasonably

conclude that the danger of unfair prejudice had not substantially

outweighed the advertisements’ probative value. See United States v. Al-

Maliki, 787 F.3d 784, 795 (6th Cir. 2015) (rejecting a challenge to

evidence on the ground that it involved a Middle Eastern stereotype

because the evidence, in context, was relevant and not unduly prejudicial).

VI.   Conclusion

      We reject each of Mr. Tee’s four appeal points. First, the government

presented sufficient evidence for a reasonable jury to find guilt on each

count and to reject Mr. Tee’s defense of entrapment. Second, the

prosecutor’s questioning of the venire about potential bias against Asian-

American individuals did not constitute plain error. Third, the district

court did not abuse its discretion in allowing the government to present a

demonstrative exhibit explaining the Rubmaps website. Finally, the district

court did not abuse its discretion in admitting the Backpage

advertisements. Having rejected each appeal point, we affirm the

conviction.



                                     32
16-3243, United States v. Tee

McKAY, concurring in part and dissenting in part.

      I join the majority’s opinion as to all issues except Mr. Tee’s conviction for

money laundering. On that count, I would reverse because Mr. Tee’s charged

conduct cannot constitute money laundering as a matter of law.

      As an initial matter, it is important to reiterate what evidence the

government presented at trial, and what evidence it did not present. According to

the government’s evidence, the police department provided Jenny with $100 in

police department funds as part of its sting operation. Using the account

information provided by Mr. Tee, Jenny took this $100 to a bank and deposited

the funds into Mr. Tee’s business bank account. That is the extent of the

government’s evidence about financial transactions involving the $100. The

government presented no evidence that Mr. Tee conducted any further

transactions with the $100 once Jenny deposited it into his account. Rather, the

government contends that Mr. Tee laundered the $100 simply by instructing Jenny

to deposit it into his bank account.

      It is also important to clarify the government’s theory on how the $100

constituted criminal proceeds, since the statutory language plainly states that an

individual cannot be convicted of money laundering unless he conducts a

financial transaction “which in fact involves the proceeds of specified unlawful

activity.” 18 U.S.C. § 1956(a)(1). The indictment specified that the unlawful

activity which generated the $100 in criminal proceeds was Mr. Tee’s use of a
telephone to promote prostitution; in other words, the $100 was criminal proceeds

because—and only because—it was paid to Mr. Tee for the help he had provided

to Jenny and Lucy in arranging the sale of a known prostitution front. Thus, it

did not become criminal proceeds until the moment of payment; up until the point

when Jenny paid the money to Mr. Tee, the $100 was police department money

that (presumably) had not been illegally derived from criminal activity.

      Given these facts, Mr. Tee’s conduct cannot, as a matter of law, constitute

money laundering. Several different circuits have all taken the position that

“[t]he transaction or transactions that created the criminally-derived proceeds

must be distinct from the money-laundering transaction, because the money

laundering statutes criminalize transactions in proceeds, not the transactions that

create the proceeds.” United States v. Seward, 272 F.3d 831, 836 (7th Cir. 2001)

(internal quotation marks omitted); see also, e.g., United States v. Butler, 211

F.3d 826, 830 (4th Cir. 2000) (“Put plainly, the laundering of funds cannot occur

in the same transaction through which those funds first became tainted by

crime.”). Here, Mr. Tee was unquestionably convicted of money laundering

based on the same financial transaction that allegedly generated the criminal

proceeds.

      Although this circuit has not applied this legal principle to a conviction

under § 1956 before, in United States v. Johnson, 971 F.2d 562 (10th Cir. 1992),

we considered an analogous issue involving similar statutory language for the

                                         -2-
related crime of engaging in monetary transactions with criminally derived

property in violation of 18 U.S.C. § 1957. The defendant in that case was

convicted of sixty counts of violating § 1957 through a scheme in which he

received funds from investors and periodically sent them smaller payments of

purported profits, while withdrawing the rest of the funds for his own purposes.

On appeal, we reversed all of the convictions that were based on the defendant’s

receipt of the investors’ funds, while affirming the convictions that were based on

his wiring of funds back to investors.

      In so doing, we first noted that one could conceivably construe the statutory

phrase “proceeds obtained from a criminal offense” more broadly than other

courts had construed it. Id. at 569. As we explained:

      One might logically infer that Congress could have intended § 1957
      to apply when the underlying criminal activity occurs simultaneously
      with a monetary transaction with the proceeds of the activity. In this
      case, the result achieved by causing the investors to wire the funds
      directly into the defendant’s account was no different than if the
      defendant had first obtained the funds and then deposited them
      himself. This latter transaction would clearly have violated § 1957.
      It would be logical, then, to assume that the former transaction would
      also be proscribed by the statute. Yet, both the plain language of §
      1957 and the legislative history behind it suggest that Congress
      targeted only those transactions occurring after proceeds have been
      obtained from the underlying unlawful activity. At the very least, the
      statute is ambiguous on this point because, after examining all the
      relevant material which might aid us in construing its provisions, a
      reasonable doubt persists as to the statute’s intended scope.
      Accordingly, the “rule of lenity” requires that we adopt the more
      lenient interpretation.

Id. (citations omitted). We then held:

                                         -3-
      Whether or not the funds that were wired to the defendant were
      “criminally derived property” depends upon whether they were
      proceeds obtained from a criminal offense at the time the defendant
      engaged in the monetary transaction. We find they were not. Section
      1957 appears to be drafted to proscribe certain transactions in
      proceeds that have already been obtained by an individual from an
      underlying criminal offense. The defendant did not have possession
      of the funds nor were they at his disposal until the investors
      transferred them to him. The defendant therefore cannot be said to
      have obtained the proceeds of the wire fraud until the funds were
      credited to his account. Thus, the transfers alleged in counts four
      through thirty-one of the indictment were not transactions in
      criminally derived property and the defendant’s convictions on those
      counts are reversed.

Id. at 569–70. We noted that this interpretation of § 1957 was consistent with our

discussion of § 1956 in an earlier case, in which we “concluded that ‘Congress

aimed the crime of money laundering at conduct that follows in time the

underlying crime rather than to afford an alternative means of punishing the prior

specified unlawful activity.’” Id. at 569 (quoting United States v. Edgmon, 952

F.2d 1206, 1214 (10th Cir. 1991)).

      The same reasoning is applicable in this case. Mr. Tee’s money-laundering

conviction cannot be sustained because, until the financial transaction had been

completed and the funds came into his control and possession, the $100 did not

constitute “proceeds” of criminal activity, and there is no evidence that he

engaged in any financial transactions with the $100 once it was deposited into his

account and thus became criminal proceeds. See id. at 569–70; see also, e.g.,

Seward, 272 F.3d at 837 (“[T]he defendant must have control of the proceeds of a


                                         -4-
fraudulent transaction before he can engage in money laundering with those

proceeds.”). While Congress could perhaps have drafted the statute “to apply

when the underlying criminal activity occurs simultaneously with a monetary

transaction with the proceeds of the activity,” 971 F.2d at 569, it did not

unambiguously do so, and the statute accordingly must be construed to proscribe

only financial transactions that occur after the transaction that generates the

criminal proceeds has been completed. See id.; see also, e.g., Seward, 272 F.3d at

836. Mr. Tee’s conviction clearly violates this well-settled principle of law.

      The majority is of the view that we need not address this issue because,

both before the district court and on appeal, Mr. Tee has failed to raise this

nuance of the law in his challenge to the government’s evidence of money

laundering. I respectfully dissent. The question of whether the government’s

evidence was sufficient to sustain his money-laundering conviction is clearly at

issue in this appeal: Mr. Tee has raised two different arguments to challenge the

government’s theory of the case, and the government has contended in response

that the $100 constituted proceeds of Mr. Tee’s illegal activities and that Mr. Tee

laundered his criminal proceeds by “provid[ing] Jenny his Alert America business

account in order to disguise the nature and source of the proceeds.” (Appellee’s

App. at 22.) I believe it is the duty of this court to resolve the issues before us

correctly, even if they have not been briefed well by the parties. Moreover, even

if Mr. Tee’s arguments on appeal were insufficient to raise this specific legal

                                          -5-
challenge to his conviction, I believe the circumstances of this case warrant an

exercise of our discretion to consider this issue and resolve it correctly.

      The Supreme Court has held that there are certainly “circumstances in

which a federal appellate court is justified in resolving an issue not passed on

below, as where the proper resolution is beyond any doubt or where injustice

might otherwise result.” Singleton v. Wulff, 428 U.S. 106, 121 (internal quotation

marks and citations omitted). It is difficult for me to conceive of a situation in

which injustice is more likely to result than when this court will let stand a

conviction for conduct which is not criminal as a matter of law, on the slim

ground that the defendant did not argue a particular nuance of the law in

contesting his criminal conviction.

      Nor do I see any doubt as to the proper resolution of this case. The

majority’s attempts to distinguish this case from Johnson are unpersuasive. For

instance, the majority argues that United States v. Kennedy, 64 F.3d 1465 (10th

Cir. 1995), stands for the proposition that money-laundering convictions under

§ 1956, unlike money-laundering convictions under § 1957, may be sustained

even where the supposed money laundering occurred in the same financial

transaction that caused the money to become criminal proceeds. However,

nothing in Kennedy is inconsistent with the reasoning or result of Johnson. In

Kennedy, the § 1956 counts were each based on the defendant’s action of

depositing funds he had previously received from defrauded investors into his

                                          -6-
account; thus, his receipt of the profits of his criminal activities occurred prior to

the financial transactions that gave rise to his money-laundering convictions. See

id. at 1477. As we noted in Johnson, “the result achieved by causing the

investors to wire the funds directly into the defendant’s account [as occurred in

Johnson] was no different than if the defendant had first obtained the funds and

then deposited them himself [as occurred in Kennedy].” 971 F.2d at 569. And

yet, while the latter transaction “would clearly have violated § 1957” or § 1956,

the former transaction does not. Id. “[T]he money laundering statutes”—both §

1956 and § 1957—“criminalize transactions in proceeds, not the transactions that

create the proceeds.” United States v. Seward, 272 F.3d 831, 836 (7th Cir. 2001).

Our holding in Kennedy is in accordance with this settled legal principle.

      Perhaps the majority is of the view that affirming Mr. Tee’s money-

laundering conviction despite its lack of a permissible legal foundation is

unimportant because it is just one of three counts Mr. Tee was convicted for and

because he has already completed his concurrent 18-month sentence on these

counts. I cannot agree with such reasoning.

      First, such an argument would “incorrectly assume[] that the total sentence

imposed is all that matters, and that the number of convictions that can be

obtained is of no relevance.” Missouri v. Hunter, 459 U.S. 359, 371–72 (1983).

This argument “overlooks the fact that, quite apart from any sentence that is

imposed, each separate criminal conviction typically has collateral consequences,

                                          -7-
. . . [and t]he number of convictions is often critical to the collateral

consequences that an individual faces.” Id. at 372–73. Moreover, “[b]ecause a

criminal conviction constitutes a formal judgment of condemnation by the

community, each additional conviction imposes an additional stigma and causes

additional damage to the defendant’s reputation.” Id. at 373.

      Second, by affirming a criminal conviction for conduct that as a matter of

law is not criminal, the majority muddies an already complicated area of law and

substantially increases the risk of further instances of prosecutorial overreach.

The majority expressly holds that the $100 constitutes proceeds of an unlawful

activity because a jury could find that it was paid to Mr. Tee for brokering the

sale of the prostitution business, and the majority further holds that the money-

laundering conviction may be upheld on the basis that Mr. Tee directed Jenny to

deposit the $100 into his bank account. Although the majority then notes that it is

declining to address the issue of whether money-laundering convictions may be

based on the same financial transaction that created the criminal proceeds, the

majority’s opinion may be misread in the future as allowing convictions to be so

based, deviating from this court’s precedent in Johnson and creating a split from

the well-settled law in our sister circuits.

      Third, affirming a criminal conviction for conduct that is not criminal

under the charged statute “seriously affects the fairness, integrity[, and] public

reputation of judicial proceedings,” regardless of whether the conviction affected

                                           -8-
the total sentence or not. United States v. Olano, 507 U.S. 725, 732 (1993)

(internal quotation marks and brackets omitted). In my view, affirming a criminal

conviction for non-criminal conduct based on defense counsel’s procedural

forfeiture of a nuanced legal argument is unfair, unjust, and will erode public

trust in the judiciary.

       I would exercise this court’s discretion to consider the legal foundations of

Mr. Tee’s money-laundering conviction and hold as a matter of well-settled law

that his conviction must be reversed because the purported money laundering

occurred in the same transaction in which the funds became criminal proceeds. I

therefore dissent from this portion of the majority’s opinion.




                                         -9-
