                                  REVISED
                     UNITED STATES COURT OF APPEALS
                          for the Fifth Circuit
                 _____________________________________

                              No. 95-31135
                 _____________________________________



                       UNITED STATES OF AMERICA,

                                  Plaintiff-Appellee - Cross-Appellant,

                                      VERSUS


                              STEVEN B. TENCER,

                                  Defendant-Appellant - Cross-Appellee,

                                       AND


                                RONALD LAZAR,

                                  Defendant-Appellant - Cross-Appellee.

      ______________________________________________________

           Appeals from the United States District Court
               for the Eastern District of Louisiana
      ______________________________________________________
                           March 10, 1997
Before WISDOM, DAVIS, and DUHÉ, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

      Steven Tencer and Ronald Lazar challenge their convictions on

multiple counts related to their scheme to submit fraudulent claims

to   insurance    companies     and    obtain   proceeds   for   unperformed

chiropractic services.        The government cross-appeals a number of

the district court's rulings.          For reasons that follow, we affirm

in part, reverse in part, and remand this case to the district

court for sentencing.
                                      I.

     Appellants Tencer and Lazar, both licensed chiropractors,

worked at the Allied Chiropractic Clinic ("Allied") in Kenner,

Louisiana.      Tencer, who owned the clinic, turned over the bulk of

his practice to Lazar, his employee, in 1989; thereafter, Tencer

generally supervised the clinic's financial affairs while Lazar

treated patients on a day-to-day basis.         From sometime in 1988 to

early 1992, Allied submitted false insurance claims to three

insurance companies, Blue Cross/Blue Shield of Louisiana ("Blue

Cross"), Mail Handlers Benefit Plan ("Mail Handlers"), and National

Association of Letter Carriers ("NALC"), and collected proceeds for

patients who were not treated at all or who received only minimal

treatment.

     To execute the fraud, the appellants paid insurance premiums

for some patients who, in return, signed multiple sign-in sheets

indicating their presence in the office awaiting treatment.           Those

sheets   were     then   used   to   generate   false   insurance   claims.

Appellants followed a similar pattern with patients recruited from

local and federal government agencies; patients with good insurance

benefits for chiropractic services were paid to sign their names

and the names of family members on the clinic's sign-in sheets.

They were also compensated for referring coworkers to Allied.

     While Allied apparently provided some legitimate services,

many patients testified that they and their family members received

either no treatment or only cursory treatment consisting of brief

massages or the application of heat pads.           Yet, the claim forms


                                       2
Allied submitted for these same patients reported complicated

diagnoses and elaborate treatment regimens.            As a result of the

scheme,   Allied   submitted     hundreds   of    fraudulent     claims   and

collected more than $450,000 in insurance proceeds related to these

patients.

     Before trial, Tencer moved unsuccessfully to sever his trial

from Lazar.    Following the jury trial, Tencer was convicted of one

count of conspiracy to commit mail fraud and money laundering in

violation of 18 U.S.C. § 371 (count 1); seventeen counts of mail

fraud in violation of 18 U.S.C. § 1341 (counts 2-18); and eighteen

counts of money laundering in violation of 18 U.S.C. § 1956 (counts

19-29, 31-37). The jury also returned a special forfeiture verdict

of $1,598,645.18 and two vehicles allegedly involved in the money

laundering.    The district court acquitted Tencer on five money

laundering    counts   (counts   26-29,   37)    and   reduced   the   jury's

forfeiture order to $700,000.      Tencer was sentenced to 78 months'

imprisonment, fined $17,500, and ordered to pay restitution of

$451,969.60 and to forfeit $700,000.

     Lazar was convicted of conspiracy, mail fraud, and money

laundering (counts 1-18, 37), but the court acquitted him on the

money laundering count (count 37).        He was sentenced to 33 months'

imprisonment and fined $30,000. Tencer and Lazar raise a number of

issues on appeal, which we discuss below.          We also consider below

several issues the government raises in its cross-appeal.

                                   II.

     Both Tencer and Lazar argue that the evidence is insufficient


                                     3
to support their convictions for mail fraud, money laundering, and

conspiracy. Faced with such a challenge, this court must determine

"`whether, after viewing the evidence and all inferences that may

reasonably be drawn from it in the light most favorable to the

prosecution, any reasonably minded jury could have found that the

defendant was guilty beyond a reasonable doubt.'" United States v.

Krenning, 93 F.3d 1257, 1262 (5th Cir. 1996) (quoting United States

v. Leahy, 82 F.3d 624, 633 (5th Cir. 1996)).

                                 A.

     To establish a mail fraud violation under 18 U.S.C. § 1341,

the government must demonstrate (1) a scheme to defraud; (2) the

use of mails to execute that scheme; and (3) the defendant's

specific intent to commit fraud.       United States v. Fagan, 821 F.2d

1002, 1008 (5th Cir. 1987), cert. denied, 484 U.S. 1005 (1988).

Counts 2-18 charged appellants with using the mails in furtherance

of a scheme to defraud Blue Cross, Mail Handlers, and NALC.     Counts

2-10 stem from nine separate mailings of checks from Blue Cross to

Allied.   Counts 11-18 involve checks mailed from Mail Handlers and

NALC.     The individual check that government relies in for the

"mailing" on each of the mail fraud counts is identified in the

indictment and was introduced in evidence at trial.

                                 1.

     Appellants first argue that the evidence fails to establish

the mailing requirement as it relates to the Blue Cross checks

underlying counts 2-10.   To convict a defendant under § 1341, the

use of the mails must be "'incident to an essential part of the


                                   4
scheme.'"     Schmuck v. United States, 489 U.S. 705, 711 (1989)

(quoting Pereira v. United States, 347 U.S. 1, 8 (1954)).   That is,

completion of the alleged scheme must depend in some way on the

information or documents that passed through the mail.       United

States v. Pazos, 24 F.3d 660, 665 (5th Cir. 1994).   Even a routine

or innocent mailing may supply the mailing element as long as it

contributes to the execution of the scheme.    Schmuck, 489 U.S. at

714-15.

     Ample evidence supports the existence of a scheme to defraud

Blue Cross, Mail Handlers, and NALC, and appellants' use of mails

to execute that scheme. Several patients testified that they never

received treatments for which their insurers were billed, and

insurance representatives testified that payments for all claims

were mailed to Allied.       The evidence regarding Blue Cross in

particular showed that Allied billed the insurer for 2,944 visits

with patients about whom testimony was offered; Allied received

approximately $362,000 from Blue Cross in payment for the visits.

The Blue Cross-insured patients testified that they received little

or no chiropractic care in return for the money Blue Cross paid

Allied.

     As to each of the counts at issue here (counts 2-10), the

indictment alleges that Blue Cross mailed a specific check to pay

fraudulent claims.    The government, however, failed to produce any

evidence tending to connect these individual checks with fraudulent

claims.     The record does not reveal the name of the patient, the

date of the treatment, or other relevant information demonstrating


                                  5
what   claims   the   individual    checks    paid.       As   the   government

acknowledged, Allied submitted some valid claims for legitimate

treatment. Consequently, the government's evidence is insufficient

to establish that the checks relied on in counts 2-10 were in

payment of fraudulent claims and therefore were used to execute the

scheme to defraud.

       The government argues that a review of claim forms, the

checks, and patient testimony supports the inference necessary for

convictions on these counts.        According to the government, given

the regularity with which patients signed in and claims were

submitted and paid, the checks described in counts 2-10 must

contain   fraudulent    payments.        We   disagree.        The   government

submitted no evidence to indicate how quickly Blue Cross responded

to claims or to illustrate the number or amount of legitimate

claims Allied submitted to Blue Cross.          Therefore, any conclusion

that the nine individual checks were in payment for fraudulent

claims is speculative.

       Alternatively, the government asserts that proof that each

check contained fraudulent proceeds is not necessary to sustain

mail fraud convictions.      Simply put, the government argues that

because the evidence of both a scheme to defraud and the use of

mails is overwhelming, this court should overlook its failure to

identify specific checks containing fraudulent proceeds.

       The government relies on United States v. Reid, 533 F.2d 1255

(D.C. Cir. 1976), in which the defendant, a credit director,

submitted for payment inflated bills to a collection agency.                The


                                     6
defendant argued that the evidence was insufficient to support his

mail fraud convictions because it did not demonstrate that the

invoices or checks on which the mail fraud counts were based were

inflated billings or payments.   Id. at 1263.        The court disagreed,

stating:

      As a matter of practicality, in most schemes to defraud,
      it would be very difficult for the prosecution to show
      that any particular check or invoice was in itself false
      or inflated in amount, because in a course of dealing
      over a period of months the bills sent and the payments
      made are not necessarily tied in with ascertainable and
      accurate accounting data. In fact, it may be assumed
      that persons engaged in such a scheme to defraud would
      take some pains not to tie in the invoices and checks
      with other records which would be in the hands of the
      person or company being defrauded, in order to escape
      detection.

Id.

      However, Reid's reasoning is not applicable here.            The D.C.

Circuit in Reid emphasized that because of the nature of the

fraudulent   scheme,   determining       what   invoices   or   checks   were

fraudulent would be nearly impossible. In contrast, the government

here makes no contention that the nature of the fraud made it

difficult for it to demonstrate what checks contained fraudulent

proceeds; it argues instead that such a link is unnecessary to

support a conviction.     We disagree, and we decline to endorse a

broad reading of § 1341's mailing requirement that would relieve

the government of the burden of proving that mailings underlying

mail fraud counts are related to the fraud being perpetrated.1

       1
        The government also asserts that because the continuing
payment of all Blue Cross claims--both legitimate and illegitimate-
-was integral to the success of appellants' scheme, it is
unnecessary to establish what checks contained fraudulent proceeds.

                                     7
      In sum, we can identify no record evidence demonstrating that

the checks underlying counts 2-10 contained fraudulent proceeds.

Without such evidence, a rational trier of fact could not have

found Tencer and Lazar guilty beyond a reasonable doubt of the

offenses    charged    in    those   counts.     Because   the   government's

evidence as to counts 2-10 was legally insufficient to establish

guilt beyond a reasonable doubt, the convictions of Tencer and

Lazar on those counts must be reversed.

                                       2.

      Counts 11-18 charge mail fraud based on checks mailed to

Allied from Mail Handlers and NALC.2           Tencer argues that because

the Allied patients insured by NALC or Mail Handlers testified that

they had no direct dealings with him, the evidence is insufficient

to establish the specific intent to defraud required by 18 U.S.C.

§   1341   as   to   these   counts.    Tencer    misconstrues    the   intent

requirement.     The government need not demonstrate that Tencer was

aware that these particular patients were scheme participants;

rather, the intent element is satisfied as long as the government

showed that Tencer willfully participated in a scheme to defraud

"with the intent that the scheme's illicit objectives be achieved."

United States v. Rochester, 898 F.2d 971, 977 (5th Cir. 1990); see



We acknowledge that "innocent" mailings can sometimes support mail
fraud convictions. Schmuck, 489 U.S. at 714-15. However, the
government has failed to offer any explanation as to how the
payment of legitimate claims furthered the scheme to defraud.
       2
       Because each of these checks identified the claims being
paid, we are not faced with the gap in the evidence just discussed
in connection with the Blue Cross checks.

                                        8
also United States v. Jimenez, 77 F.3d 95, 97 (5th Cir. 1996).

That is, the government must show Tencer participated in the scheme

to defraud, not that he took part in every aspect of that scheme.

Indeed, given Tencer's admittedly supervisory role in the clinic,

evidence of direct patient contact on his part would be unlikely.

       The government presented overwhelming evidence of Tencer's

participation in a scheme to defraud insurance companies.              Allied

employees testified that Tencer reviewed claim forms and, at times,

tacked on charges to inflate billings, regardless of whether

additional services had been provided.               Patients testified that

Tencer regularly paid for their insurance in return for their

signature on sign-in sheets and that he instructed them to lie

about their health to insurance representatives to enable them to

obtain insurance more easily.           This evidence is sufficient for a

rational trier of fact to find that Tencer had the requisite intent

to defraud.

       Both Tencer and Lazar argue that the government failed to

submit evidence of fraud as to three of the counts (counts 13, 15-

16).    Count 13 involved a payment from Mail Handlers for a claim by

Darryl Smith, and counts 15 and 16 involved claims for Smith's then

three-year-old daughter, Madeline.             Neither of these patients

testified at trial.        However, Jerry Kelley, a coworker of Darryl

Smith, testified that Smith referred Kelley to Allied and that

Smith    told   him   he   would   be   paid   for    his   visits.   Shortly

thereafter, Smith and Kelley visited Allied together, and Smith

gave Kelley money for the visit.            In light of Kelley's testimony


                                        9
that he was recruited into the scheme by Smith and later paid by

Smith for his participation in insurance fraud, the jury could

infer that Smith was intimately involved in the fraud himself and

that the claims submitted on behalf of Smith were fraudulent.

     Counts 15 and 16 were based on checks paying claims for

treatment to Madeline Smith.    During a five-month period, Allied

billed Madeline's insurer for 49 visits for a total of $6,735.50.

Appellants offered no explanation for the excessive number of

visits by a three-year-old child.     In addition, Kelley and other

patients testified that the appellants encouraged them to bring

their children into the clinic and to sign their names, regardless

of whether they needed or received treatment.

     This   circumstantial   evidence,   viewed   in   the   light   most

favorable to the government, is sufficient to support appellants'

convictions on counts 13, 15, and 16.

     Finally, Lazar argues that the government failed to establish

that mailings underlying five counts (counts 11-12, 14, 17-18) were

used to execute the fraud.      Specifically, he contends that no

evidence shows that the checks from NALC and Mail Handlers were for

fraudulent claims.   We disagree.

     The checks at issue were in payment for claims by Rashad

Sanders, Jerry Kelley, Kelley's four-year-old son, Jerry Kelley

Jr., Barbara Blanchard, and Blanchard's son, Matthew Blanchard.

The government presented testimony by Sander's mother, Ernestine

Gray, Kelley Sr., and Barbara Blanchard.    Each testified that they

were paid to visit the clinic, to refer coworkers and family


                                 10
members, and to pre-sign Allied's sign-in sheets. For example, the

elder Kelley testified that, beginning in March 1992, he visited

the clinic two to three times a week and signed in his own name and

the names of his wife and son.           Although Kelley brought his son to

the clinic only twice, Allied billed Mail Handlers for 44 visits

for the younger Kelley over a three-month period.

     Similarly, although Gray visited the clinic only four times in

all, Allied submitted 38 claims for her and 35 claims for her son,

Rashad.      On two occasions, Lazar even brought sign-in sheets to

Gray's home for her to sign.        Lastly, Barbara Blanchard testified

that she and her two children visited Allied about five times

during spring 1992.        Allied billed NALC for 22 visits for Barbara

Blanchard and for 24 visits for her son, Matthew.

     Viewing the evidence in the light most favorable to the

government, a reasonable jury could conclude beyond a reasonable

doubt that the checks underlying counts 11, 12, 14, 17, and 18 were

mailed as a result of Allied's fraudulent billing and, therefore,

that mails were used to execute the appellants' fraud.

                                         B.

     Tencer     next   challenges    the      sufficiency   of   the   evidence

supporting his conviction for money laundering on six counts

(counts 31-36), and the government, on its cross-appeal, challenges

the district court's acquittal of both Tencer and Lazar on one of

the money laundering counts (count 37).             To support a conviction

under   18    U.S.C.   §   1956,   the    money   laundering     statute,   the

government must prove that the defendant 1) conducted or attempted


                                         11
to conduct a financial transaction, 2) which the defendant knew

involved the proceeds of a specified unlawful activity, 3) with the

intent   to   conceal   or   disguise    the   nature,   location,   source,

ownership, or control of the proceeds of unlawful activity. United

States v. West, 22 F.3d 586, 590-91 (5th Cir. 1994), cert. denied,

115 S. Ct. 584 (1994); 18 U.S.C. § 1956(a)(1)(B)(i).

                                    1.

     Tencer contends first that the government failed to produce

sufficient evidence to establish the concealment element of six of

the money laundering counts (counts 31-36).          Those counts stemmed

from six transfers of funds by wire and check from various money

market accounts throughout the country into one account in Tencer's

name at California Federal Bank in Las Vegas, Nevada.                A brief

description of the facts is necessary to understand Tencer's

argument.

     Between May 1989 and April 1992, Tencer opened bank accounts

in various banks across the country and deposited checks drawn on

his personal account at Fidelity Homestead and on the Allied Clinic

account at Whitney National Bank.         On July 9, 1992, a little more

than a week after federal agents had executed a search warrant at

Allied Clinic, Tencer faxed instructions to several of the regional

banks where he had accounts.       He directed those banks to transmit

his funds on deposit by mailing cashiers checks by Federal Express

to an Algiers, Louisiana, address at which Tencer neither worked

nor resided.      On July 13, 1992, Tencer opened an account at

California Federal Bank in Las Vegas, Nevada, using some of the


                                    12
cashiers checks; his initial deposit totaled $662,637.06.     He told

employees at the Las Vegas bank that he was moving into the area

and needed cash to buy a business.    He also directed banks that had

not yet mailed cashiers checks to the Algiers address to wire funds

totaling $312,297.89 to the account at California Federal Bank.

The next day, Tencer deposited an $89,832.10 cashiers check into

the account and withdrew $9,900.3     Later that day, Tencer arranged

to have the entire balance in the account--roughly $1,055,000--

delivered to him in cash at a local airport.        Before the funds

could be picked up by a security company and delivered to Tencer,

a seizure warrant was executed on the California Federal account.

     Tencer argues that the government has presented no evidence

that he sought to conceal the nature, source, ownership, or control

of the funds.       He contends that when he opened the regional

accounts initially and later transferred those balances to the

California Federal account, he used his own name and handled his

own transactions.    No third parties were used, and a paper trail

clearly connected Tencer to both the regional and California

Federal accounts.

     The government counters that the use of a false identity is

not essential to a money laundering conviction.     It contends that

Tencer's request that funds be sent to an address at which he

neither worked nor resided, his use of a Las Vegas bank hundreds of


        3
         Withdrawals of more than $10,000 in cash require the
completion of a Currency Transaction Report; according to a bank
official, withdrawals slightly below the regulated amount are not
unusual.

                                 13
miles away from his home and business to consolidate funds, and his

false statements to bank employees about his plans to move to the

area demonstrated his intent to conceal.

     We   reject   as   overly   narrow   Tencer's   view   that   §   1956's

concealment element is satisfied only by an attempt to disguise the

defendant's identity.     Several circuits, including this one, have

recognized that the government need not "prove with regard to any

single transaction that the defendant removed all trace of his

involvement with the money or that the particular transaction

charged is itself highly unusual."         United States v. Willey, 57

F.3d 1374, 1386 (5th Cir.), cert. denied, 116 S. Ct. 675 (1995);

see, e.g., United States v. Kinzler, 55 F.3d 70, 73 (2d Cir. 1995)

("§ 1956(a)(1)(B)(i) does not require an attempt to conceal the

identity of the defendant; a scheme that conceals only the source

of the funds falls within the purview of the statute."); United

States v. Manarite, 44 F.3d 1407, 1416 (9th Cir.) (holding that

defendants, by cashing gambling chips in small quantities and at

different times and places, showed intent to conceal even though

they made no intent to disguise their identities), cert. denied,

115 S. Ct. 2610 (1995); United States v. Campbell, 977 F.2d 854,

857-58 (4th Cir. 1992) (upholding conviction where evidence of

concealment   consisted    of    real   estate   agent's    suspicion   that

client's funds were derived from illegal activity coupled with

under-the-table cash transfer of $60,000 cash down payment on

home), cert. denied, 507 U.S. 938 (1993); United States v. Lovett,

964 F.2d 1029, 1034 n.3 (10th Cir.) ("To find that the money


                                    14
laundering statute is aimed solely at those transactions designed

to conceal the identity of the participants to the transaction is

to ignore the broad language of the statute."), cert. denied, 506

U.S. 857 (1992).     Thus, the fact that Tencer did not seek to

conceal his identity while depositing funds in the California

Federal account does not require us to reverse his conviction on

these counts.

     Tencer argues that this court's decision in United States v.

Dobbs, 63 F.3d 391 (5th Cir. 1995), supports reversal.         In Dobbs,

the defendant deposited proceeds of bank fraud into his wife's bank

account, converted other proceeds into cashiers checks, and then

used the account and checks for family and business expenses. This

Court found insufficient evidence to sustain the defendant's money

laundering convictions because the transactions were "open and

notorious" and no third parties were used to make purchases or hide

his activity.     Id. at 397; see also Willey, 57 F.3d at 1388

(reversing   conviction   where   only   evidence   of   concealment   was

transfer of money from one account to another).

     In Dobbs, unlike today's case, the government produced no

evidence that the transactions were conducted to disguise the

relationship between the defendant and the fraudulent proceeds.

Dobbs, 63 F.3d at 398.      Whereas Dobbs openly used fraudulently

obtained funds to pay for business and family expenses, Tencer

endeavored to consolidate illicit funds in a city that was hundreds

of miles from his home and where large cash transactions are

commonplace.    He asked regional banks to wire funds to an address


                                   15
to which he had no connection.                       His false statements to bank

officials      showed     an        intent     to     minimize     attention     to     the

transactions.       Based on the evidence in the record, a jury could

infer that Tencer was attempting to conceal the nature of the funds

and    facilitate    laundering          of    the    proceeds     of    his   fraudulent

activities.

       Tencer argues next that if his conviction on mail fraud counts

2-10    are   reversed,    the        money    laundering        convictions     must   be

reversed as well because the government failed to prove "specified

unlawful activity."        A review of the money laundering statute and

relevant case law persuades us that Tencer's conviction under §

1956 will stand; the government has demonstrated that the funds

involved      are   proceeds        of   a    "specified     unlawful      activity"    as

statutorily defined.

       Section 1956 requires that the financial transaction "in fact

involve[d] the proceeds of specified unlawful activity." 18 U.S.C.

§ 1956(a)(1) (emphasis added).                 "Specified unlawful activity," by

statute, includes any racketeering offense listed in 18 U.S.C. §

1961(1).      18 U.S.C. § 1956(c)(7)(A).               In turn, mail fraud, as set

forth in § 1341, is one of the offenses listed in § 1961(1).

       Tencer argues that the government did not establish that any

Blue Cross mailings occurred in furtherance of the scheme to

defraud. We disagree. In reversing the appellants' convictions on

counts 2-10, we concluded that the government established at trial

both    the    existence       of    a   scheme       to   defraud      Blue   Cross    and

appellants' use of mails to execute that scheme.                        Patients insured


                                              16
by Blue Cross testified that they never received treatments for

which Blue Cross was billed, and a Blue Cross representative

testified that payments for all claims were mailed to Allied. More

particularly,   the    government     produced     evidence     that    Allied

submitted roughly $362,000 in claims to Blue Cross that were

related to patients about whom testimony was given. Those patients

testified that they received no treatment in connection with a

majority of the claims submitted on their behalf.             Blue Cross then

transmitted checks in payment of those claims through the mail to

Allied.   We are unable to affirm the mail fraud convictions as to

counts 2-10 because the evidence is insufficient to show that the

specific Blue Cross checks alleged in the indictment--the mailings

on which those counts are based--were in payment of fraudulent

claims and therefore used to execute the insurance fraud. However,

our reversal as to those counts does not disturb our conclusion

that the evidence demonstrated that Allied received more than

$300,000 through the mail from Blue Cross in payment of fraudulent

claims. This adequately established mail fraud for purposes of the

money laundering counts.

     Tencer contends that this court and others have reversed money

laundering   convictions     where   convictions    as   to    the   predicate

unlawful activity     have   been    reversed.     See   United      States   v.

O'Hagan, 92 F.3d 612, 628 (8th Cir. 1996), cert. granted on other

grounds, 117 S. Ct. 759 (1997); United States v. Brumley, 79 F.3d

1430, 1442 (5th Cir.), reh'g en banc granted, 91 F.3d 676 (5th Cir.

1996). In O'Hagan, the court first vacated securities fraud counts


                                     17
and then vacated mail fraud counts premised in the indictment on

acts that allegedly constituted securities fraud. O'Hagan, 92 F.3d

at 627.    Because the court vacated all of the securities fraud and

mail fraud counts, it found no unlawful activity on which to base

money laundering convictions.        Id. at 928.       Similarly, in Brumley,

this court vacated a defendant's money laundering convictions where

the counts in the indictment identified the "specified unlawful

activity" by cross-referencing wire fraud counts that had been

vacated.     Brumley, 79 F.3d at 1442.

      In Tencer's case, the relevant money laundering counts in the

indictment    (counts   31-36)      identified     the   funds    at   issue   as

"proceeds of specified unlawful activity, that is, the knowing and

intentional commission of mail fraud" under 18 U.S.C. § 1341.

These counts then incorporated by reference paragraphs in the

indictment    describing   the      nature    of   the   scheme   to    defraud.

However, neither the paragraphs incorporated by reference nor the

language in counts 31-36 define the predicate unlawful activity as

the   mail   fraud   charged   in    counts    2-18.      Because      the   money

laundering counts do not define "specified unlawful activity" in

terms of the mail fraud activities described in counts 2-18, this

court is not limited to considering only those activities.                     Cf.

United States v. Smith, 44 F.3d 1259, 1264-65 (4th Cir.) (holding

that indictment describing funds involved in transaction generally

as wire fraud proceeds was sufficient to define specified unlawful

activity at issue), cert. denied, 115 S. Ct. 1970 (1995).

      Thus, Tencer's convictions on counts 31-36 will stand as long


                                      18
as the jury, viewing the evidence in the light most favorable to

the government, could infer that the six deposits by wire and cash

into the California Federal account "involved" mail fraud proceeds

for purposes of § 1956(a)(1).   To do so, the government need not

prove that all of the money involved in the transfers were proceeds

of mail fraud; it is sufficient if the government proves at least

part of the money represented such proceeds.     See, e.g., United

States v. English, 92 F.3d 909, 916 (9th Cir. 1996); United States

v. Cancelliere, 69 F.3d 1116, 1120 (11th Cir. 1995); United States

v. Jackson, 935 F.2d 832, 840 (7th Cir. 1991); cf. United States v.

Moore, 27 F.3d 969, 976 (4th Cir.), cert. denied, 115 S. Ct. 459

(1994).

     As noted above, the government presented evidence that from

May 1989 to April 1992, Tencer opened accounts in various banks

across the country and deposited checks drawn on his personal

account at Fidelity and on Allied's account at Whitney National

Bank.   Marcus Veazey, an FBI agent, testified that the majority of

deposits into the Whitney account were from insurance companies and

that the specific checks in evidence were deposited into that

account as well.   From July 1989 through July 1992, $2,681,205.60

in insurance proceeds were deposited into the account.       Agent

Veazey testified that nearly $452,000 was related to patients who,

according to patient testimony, participated in the insurance

fraud; of that amount, roughly $362,000 came from Blue Cross

checks.

     Veazey then testified as to the movement of funds from the


                                 19
Whitney account.     Checks written on that account went to Allied's

operating account at Fidelity Homestead, Tencer's personal account

at Fidelity, and to several regional accounts.            From July 1989 to

summer 1992, $756,066.20 from the Whitney account was deposited

into Tencer's personal account at Fidelity.           Veazey testified that

during this time period, Tencer deposited checks drawn on his

personal account into regional accounts as well.             According to a

chart introduced by the FBI agent, Tencer deposited nearly $1.4

million in regional accounts during the three-year period. On July

13, 1992, he opened an account at California Federal and deposited

$662,637.06 in checks drawn on five of those accounts.                 He also

directed four banks to wire funds totaling $312,297.89 to the

account.    On July 14, Tencer deposited $89,832.10 in a check drawn

on one regional account.        By establishing that fraudulent proceeds

were initially deposited into the Whitney account and that Tencer

later transferred funds from that account into regional accounts

and, then, into the California Federal account, the government has

adequately established that the six transfers at issue "involved"

unlawful proceeds.

      In   sum,   while   the    government   has   not   demonstrated    what

specific Blue Cross checks included fraudulent proceeds, it did

establish that Blue Cross paid Allied approximately $362,000 that

was   directly    related   to    patients    who   testified   that    Allied

submitted claims to Blue Cross on their behalf even though they

received little or no treatment.           The government then established

that the checks making up the $362,000 were deposited in the


                                      20
Whitney account.      Funds   from   the   Whitney   account   were   later

deposited in Tencer's personal account, his regional accounts, and,

finally, in the California Federal account.

       Given this evidence and the volume and scope of the insurance

fraud, the jury was entitled to infer that most of the $362,000 was

in payment for fraudulent claims.          Furthermore, the jury could

infer that the six transactions underlying counts 31-36 involved

proceeds from this unlawful activity--specifically, mail fraud.

                                     2.

       The government cross-appeals the district court's acquittal of

both Tencer and Lazar on one of the money laundering counts (count

37).     That count charged a violation of 18 U.S.C. § 1956 in

connection with Lazar's August 10, 1992 deposit of approximately

$60,000 in insurance checks into an Allied Clinic account with Dean

Witter Reynolds.     Lazar made the deposit at Dean Witter's New

Orleans office on the same day Tencer opened the account in a Dean

Witter office in southern California.          Lazar directed the New

Orleans branch to credit his deposit to the Allied account Tencer

opened with Dean Witter in California.          Some of the more than

$60,000 in insurance checks Lazar deposited were in payment for

claims for patients who had not received the reported treatment.

       As discussed above, to support a money laundering conviction,

the government must show that the defendant acted with an intent to

conceal. In support of the concealment element, the government has

shown only that a deposit was made with a national brokerage firm

in New Orleans to be credited to an existing account with the same


                                     21
firm in California. We agree with the district court that although

a geographically distant financial transaction is a factor that can

be considered in support of the concealment element, it does not

alone establish intent to conceal.

     We   recognize   that   the   timing   of   this   transaction   is

suspicious: the deposit was made shortly after the government

seized Tencer's funds in the Las Vegas account.     But the government

provided no evidence that the transfer of the funds from New

Orleans to the existing California Dean Witter account made the

account harder to find or that a depositor would believe such a

transfer would tend to conceal the funds.          The district court

correctly acquitted both Tencer and Lazar on this count.

                                   C.

     Finally, Tencer contends that the evidence is insufficient to

support his conviction for conspiracy.       To establish conspiracy

under 18 U.S.C. § 371, the government must establish "(1) an

agreement between two or more persons, (2) to commit a crime

against the United States, and (3) an overt act in furtherance of

the agreement committed by one of the conspirators."       Krenning, 93

F.3d at 1262.    Conspiracy may be proved through circumstantial

evidence, and the agreement need not be formal or spoken.        Id. at

1264. Here, abundant evidence presented at trial in support of the

mail fraud and money laundering counts set forth above demonstrated

the active participation of both appellants in the scheme to

defraud and their cooperative efforts in ensuring its success.

This circumstantial evidence of agreement, together with evidence


                                   22
of   the   appellants'   active     participation   in   the   scheme,     is

sufficient to support appellants' convictions for conspiracy.

                                    III.      Tencer argues next that the

district court's denial of his severance motion prevented him from

introducing exculpatory testimony by Lazar, who would testify only

in a separate trial.       To support his motion, Tencer submitted

Lazar's affidavits, which stated that, to his knowledge, Tencer did

not commit any of the acts underlying the charged offenses.

      This court has recognized that, as a general rule, persons

indicted   together   should   be   tried   together,    especially   in   a

conspiracy case, United States v. Neal, 27 F.3d 1035, 1045 (5th

Cir.), cert. denied, 115 S. Ct. 530 (1994), and that "'a district

court should grant a severance only if there is a serious risk that

a joint trial would compromise a specific trial right of one of the

defendants, or prevent the jury from making a reliable judgment

about guilt.'" Id. (quoting Zafiro v. United States, 506 U.S. 534,

537 (1993)).      To obtain a severance based on a codefendant's

exculpatory testimony, a defendant must initially demonstrate (1)

a bona fide need for the testimony; (2) the testimony's substance;

(3) its exculpatory nature and effect; and (4) the willingness of

the codefendant to testify.         United States v. Ramirez, 979 F.2d

1024, 1035 (5th Cir. 1992), cert. denied, 508 U.S. 913 (1993).

Upon such a showing, a court must consider, among other things, the

significance of the testimony in relation to the defendant's theory

of defense and the extent of prejudice caused by the absence of

such testimony.    Id.   This court reviews the denial of a motion to


                                     23
sever for abuse of discretion.    United States v. Dillman, 15 F.3d

384, 393 (5th Cir.), cert. denied, 115 S. Ct. 183 (1994).

     The government contends that Tencer failed to meet his initial

burden because he did not establish the exculpatory nature of

Lazar's proposed testimony.     Lazar's affidavits assert generally

that Tencer did not conspire with Lazar to defraud insurance

carriers and, more specifically, that he was not aware that Tencer

approved billing for unnecessary treatments, paid patients to sign

names of friends and family on sign-in sheets, or offered to pay

patients'   health-insurance   premiums    in   order    to   submit   false

claims.     Lazar further stated that he, not Tencer, initiated the

clinic practice of paying new patients a "referral fee" and paying

for patients' transportation costs.       We agree with the government

that Lazar's proposed testimony as to Tencer's lack of knowledge of

the scheme to defraud consists of conclusory allegations and

contains no specific facts that would exonerate him. United States

v. Broussard, 80 F.3d 1025, 1037-38 (5th Cir.), cert. denied, 117

S. Ct. 264 (1996); see also United States v. DeSimone, 660 F.2d

532, 540 (5th Cir. 1981) (upholding denial of severance where

affidavit "amount[ed] to little more than a bare, conclusory

assertion that he did not conspire with his co-defendants, nor they

with him"), cert. denied, 456 U.S. 928 (1982).          Tencer argues that

he did not know of fraudulent billing practices underlying the

offenses charged and that Lazar's testimony would have cleared him

of any involvement.     However, even if the jury had heard and

accepted Lazar's testimony that, to Lazar's knowledge, Tencer knew


                                  24
nothing of billing errors and falsified sign-in sheets, such

testimony would have had little evidentiary value in light of the

abundant evidence of Tencer's role in generating fraudulent claim

forms and paying for patients' insurance.               See United States v.

Jobe, 101 F.3d 1046, 1060 (5th Cir. 1996).                  Moreover, Lazar's

affidavits admit to no mail fraud or money laundering activities.

A codefendant's proposed testimony lacks credibility when it does

not contravene his own penal interests.            See DeSimone, 660 F.2d at

540; Dillman, 15 F.3d at 394.           While Lazar acknowledged that he

paid referral fees and transportation costs to patients, he denies

knowledge of the fraudulent billing from which the mail fraud

counts arose.

     In sum, Lazar's affidavits failed to set forth specific

exonerative    facts   from    which    the     district    court   could   have

concluded that his testimony would have had an exculpatory effect,

and Tencer has not demonstrated that he suffered specific and

compelling    prejudice   by   the     denial    of   his   severance   motion.

Accordingly, the district court did not abuse its discretion in

denying Tencer's motion to sever.

                                       IV.

     Both Tencer and the government challenge the district court's

forfeiture order.      The jury returned a special forfeiture verdict

of $1,598,645.18 and two vehicles allegedly involved in all of the

money laundering counts.       Because the court vacated counts 26-29

and count 37, it similarly vacated the forfeiture verdict related




                                       25
to those counts.4   Of the remaining money laundering counts (counts

31-36), a verdict of $1,055,395.71--representing the balance on

deposit in the California Federal account--was returned.               The

district court reduced the forfeiture to $700,000.         Tencer argues

that the forfeiture order must be reversed in its entirety because

it   includes   proceeds   from   legitimate   insurance   claims.     The

government   responds   that   reversal   is   inappropriate   and   that,

instead, the jury verdict ordering forfeiture of the California

bank account should be reinstated.

      Forfeiture in this case was imposed pursuant to 18 U.S.C. §

982(a)(1), a mandatory criminal forfeiture provision stating:

      The court, in imposing sentence on a person convicted of
      an offense in violation of . . . Section 1956 . . . of
      this title, shall order that the person forfeit to the
      United States any property, real or personal, involved in
      such offense, or any property traceable to such property.

18 U.S.C. § 982(a)(1) (emphasis added). The government argues that

all of the funds in the California Federal account were forfeitable

because any legitimate funds involved and "facilitated" the offense

by providing a cover for the tainted funds.          This "facilitation

theory" rests largely on a passage in the legislative history of §

981,5 § 982's civil counterpart: "[T]he term 'property involved' is

intended to include the money or other property being laundered

      4
       The government does not challenge this action.
      5
      Section 981, like § 982, uses the phrases "involved in" and
"traceable to." Relatively few cases have interpreted § 982; those
that have often rely on § 981 case law. See, e.g., United States v.
Voigt, 89 F.3d 1050, 1087 (3d Cir.), cert. denied, 117 S. Ct. 623
(1996); United States v. Swank Corp., 797 F. Supp. 497, 500 (E.D.
Va. 1992) (both relying on § 981 cases to interpret § 982
language).

                                    26
(the corpus), any commissions or fees paid to the launderer, and

any property used to facilitate the laundering offense."     United

States v. All Monies ($477,048.62) In Account 90-3617-3, 754 F.

Supp. 1467, 1473 (D. Hawaii 1991) (citing 134 Cong. Rec. S17365

(daily ed. Nov. 10, 1988) (emphasis added)). Facilitation occurs

when the property makes the prohibited conduct "less difficult or

more or less free from obstruction or hindrance."   United States v.

Schifferli, 895 F.2d 987, 990 (4th Cir. 1990) (defining term in

context of a drug forfeiture statute that expressly used the

"facilitating" language (internal citations omitted)).

     Several district courts have upheld the forfeiture of the

entire balance of accounts containing both tainted and untainted

funds.   There, courts have concluded that the commingling of crime

proceeds and "clean" money makes money laundering less difficult

and may even be necessary to successful completion of the offense.

Such untainted funds have therefore been found to be "involved" for

purposes of the forfeiture statute.   See United States v. Contents

of Account Numbers 208-06070 and 208-06068-1-2, 847 F. Supp. 329,

335 (S.D.N.Y. 1994); United States v. Certain Accounts, Together

with All Monies on Deposit Therein, 795 F. Supp. 391, 396-97 (S.D.

Fla. 1992); United States v. Certain Funds on Deposit in Account

No. 01-0-71417, 769 F. Supp. 80, 84-85 (E.D.N.Y. 1991).         The

district court here adopted the facilitation theory and instructed

the jury that "property involved" in the money laundering offense

included "any property used to facilitate the laundering offense."

     Appellants argue that this instruction was incorrect and rely


                                 27
on a Seventh Circuit decision.      In United States v. $448,342.85,

969 F.2d 474 (7th Cir. 1992), the court refused to extend § 981's

reach beyond "property used in or traceable to" the criminal

offense. There, the government sought forfeiture of funds involved

in a fraudulent sales scheme that were pooled with allegedly

untainted funds and argued that the balances of seized accounts

were forfeitable regardless of whether all of the funds were

traceable to "specified unlawful activity." Id. at 476.       The court

rejected this argument and reasoned that simply commingling tainted

funds with legitimate funds did not make an entire account subject

to forfeiture.   Id. at 476.    The Seventh Circuit then affirmed the

forfeiture of all the funds in the seized accounts because the

summary judgment evidence revealed that the criminal proceeds

"vastly exceed[ed] the sums on deposit at the time of the seizure."

Id. at 477.

     We agree with the Seventh Circuit that merely pooling tainted

and untainted funds in an account does not, without more, render

that account subject to forfeiture.        Nevertheless, we do not read

$448,382.85 as inconsistent with the facilitation theory as applied

by many district courts.6      We find the reasoning of the Southern

District of New York persuasive.        That court noted:

     [L]imiting   the  forfeiture   of  funds   under  these
     circumstances to the proceeds of the initial fraudulent
     activity would effectively undermine the purpose of the
     forfeiture statute.   Criminal activity such as money

      6
       As the Seventh Circuit acknowledged, "money need not be
derived from crime to be 'involved' in it; perhaps a particular sum
is used as the bankroll facilitating the fraud." $448,382.85, 969
F.2d at 476 (emphasis added).

                                   28
     laundering   largely depends upon the use of legitimate
     monies to    advance or facilitate the scheme.    It is
     precisely    the commingling of tainted funds with
     legitimate    money that facilitates the laundering and
     enables it   to continue.

Contents of Account Numbers 208-06070 and 208-06068-1-2, 847 F.

Supp. at 334-35 (quoting Certain Funds on Deposit in Account No.

01-0-71417, 769 F. Supp. at 84-85).       The court held that forfeiture

of legitimate and illegitimate funds commingled in accounts was

proper as long as the government demonstrated that the defendant

had pooled the funds to disguise the nature and source of his

scheme.   Contents of Account Numbers 208-06070 and 208-06068-1-2,

847 F. Supp. at 335.       Other courts have similarly required the

government to demonstrate a substantial nexus between the money

laundering offense and the legitimate funds.         See Marine Midland

Bank v. United States, No. 93 Civ. 0207, 1993 WL 158542 at * 7-8

(S.D.N.Y. May 11, 1993) (refusing to apply facilitation theory

where legitimate funds in account had merely an "incidental or

fortuitous"   connection   to   illegal    activity),   aff'd   in   part,

remanded in part, 11 F.3d 1119 (2d Cir. 1993); Certain Accounts

with All Monies on Deposit Therein, 795 F. Supp. at 394 (holding

that funds derived from legitimate sources are forfeitable if used

to effectuate money laundering but refusing to allow forfeiture of

funds in indirect accounts where evidence showed only that checks

were written against suspect account); cf. United States v. Voigt,

89 F.3d 1050, 1087 (3d Cir.) (noting that government must prove

that property seized under § 982(a)(1) has "some nexus to the

property 'involved in' the money laundering offense" (emphasis in


                                   29
original), cert. denied, 117 S. Ct. 623 (1996).

     In this case, the money laundering counts arose from six

transfers    of   funds   by    wire      and    check    from   various    accounts

throughout   the   country      into      one   account    in    Tencer's   name    at

California    Federal.         All   of    the    funds--both      legitimate      and

illegitimate--were quickly moved into the account within a few days

in order to conceal the nature and source of the mail fraud

proceeds. Faced with such evidence, the jury was entitled to infer

that all of the funds in the account were "involved in" the money

laundering and subject to forfeiture pursuant to § 982.                      Because

sufficient evidence supports the jury verdict, the district court

was bound by the mandatory provisions of § 982 and erred in

reducing the forfeiture.7

                                          V.

      In its judgment, the district court ordered Tencer to pay a

combined total of $451,969.60 in restitution to Blue Cross, Mail

Handlers, and NALC. Tencer's final contention is that the district

court lacked sufficient factual basis for its restitution order.

Specifically, Tencer challenges the restitution order's inclusion

of claims paid on behalf of Darryl Smith, his wife, and his

daughter as to which, he says, there was no evidence of fraud.                      He

further challenges the court's use of the entire amount of claims

       7
        Tencer also argues that forfeiture of all of the funds
violated the Eighth Amendment's Excessive Fines Clause, but he
provides no persuasive analysis to support his argument. Given the
extensive nature of the criminal activity in this case over a
three-year time span and the large sum of money derived from that
activity, we conclude that the forfeiture does not represent an
excessive fine under the Eighth Amendment.

                                          30
filed on behalf of patients about whom evidence of fraud was

presented; he contends this is excessive because some of these

patients testified that they had received minimal treatment.

     Restitution, a criminal penalty, is reviewed de novo.          United

States v. Hayes, 32 F.3d 171, 172 (5th Cir. 1994).          An order of

restitution must be limited to losses caused by the specific

conduct underlying the offense of conviction.          United States v.

Chaney, 964 F.2d 437, 452 (5th Cir. 1992).       As established above,

we found that the testimony of Jerry Kelley, a coworker of Darryl

Smith, sufficiently supported a jury finding that the claim forms

submitted in connection with Smith were fraudulent.              Moreover,

while some patients did testify that they received treatment, no

patient testified that the cursory treatment they received was

beneficial or designed to improve their health. Given the evidence

of rampant fraud and patient testimony that most of the claims

submitted on their behalf were completely baseless, we conclude

that the district court's restitution award is proper.        Cf. United

States v. Seligsohn, 981 F.2d 1418, 1421 (3d Cir. 1992) (upholding

insurance fraud award for fraudulent claims even though some of

defendant's claims were legitimate where defendant's own fraudulent

conduct prevented victim from distinguishing between legitimate and

fraudulent payments).

                                   VI.

     The   government     cross-appeals   on   two   sentencing    issues;

specifically, it contends that the district court erred (1) in

refusing   to   enhance    appellants'    sentence    pursuant    to   the


                                   31
obstruction    of    justice      provision    of   the   federal   sentencing

guidelines and (2) in determining the "value of funds" laundered in

order to set Tencer's base offense level.            We review the district

court's findings of facts for clear error and its application of

the Sentencing Guidelines de novo.            United States v. Dean, 59 F.3d

1479, 1494 (5th Cir. 1995), cert. denied, 116 S. Ct. 794 (1996).

                                         A.

       At the appellants' sentencing hearings, the government argued

that   evidence     in   the    record   supported    a   two-level   sentence

enhancement under § 3C1.1 of the federal sentencing guidelines.8

In addition, such an enhancement was recommended by the presentence

investigation report.          With one exception, the district court, in

refusing to allow the obstruction of justice enhancement for both

Tencer and Lazar, satisfactorily explained her reasoning. However,

the government pointed specifically to trial testimony that after

a federal search warrant was executed on the clinic and Tencer's

home and a grand jury subpoena was served on Lazar for clinic

records, Lazar and another man9 visited a Carencro storage facility

that Lazar had rented earlier under a false name and removed clinic

records stored there.          According to the storage facility manager,

        8
       Section 3C1.1, the Sentencing Guidelines' obstruction of
justice provision, states:
     If the defendant willfully obstructed or impeded, or
     attempted to obstruct or impede, the administration of
     justice during the investigation, prosecution, or
     sentencing of the instant offense, increase the offense
     level by 2 levels.
U.S. Sentencing Guidelines Manual § 3C1.1 (1995).
         9
        There was some dispute at trial as to whether the man
accompanying Lazar was Tencer.

                                         32
some of those records were discarded in a dumpster.            If the court

credited    this   testimony,   we    see   no   apparent   reason   why   the

appellants' conduct should not warrant enhancement. We remand this

issue for reconsideration by the district court.

                                      B.

     We reject the government's contention that the district court

improperly calculated the "value of funds" laundered for sentencing

purposes.    This court reviews the district court's valuation of

funds under the money laundering provision of the Sentencing

Guidelines for clear error.          United States v. Tansley, 986 F.2d

880, 884 (5th Cir. 1993).

     Under § 2S1.1 of the guidelines, a defendant's offense level

is increased for sentencing purposes according to the value of

funds involved. Here, the district court reversed for insufficient

evidence counts amounting to roughly $500,000--one-third--of the

approximately $1,500,000 commingled funds involved in the original

money laundering counts.        It then concluded that, for sentencing

purposes, it should reduce the value of ill-gotten gains laundered-

-roughly $452,000--by one-third as well.          Based on this reasoning,

the court placed a value of $285,000 on the funds laundered.           Under

this calculation, Tencer was subjected to a two-level increase to

his offense level under § 2S1.1(b)(2)(C), rather than the three-

level increase warranted under § 2S1.1(b)(2)(D) when the value of

funds is more than $350,000.         Given the broad discretion accorded

to sentencing judges on determining value, we cannot say that the

court clearly erred in its determination.


                                      33
                                VII.

     In sum, we affirm the conviction of both Tencer and Lazar on

all counts except counts 2-10; we reverse those counts because the

evidence is insufficient to support the conviction. We also affirm

the district court's restitution order.    However, we vacate the

court's forfeiture award, and for reasons stated above, direct the

district court to reinstate the jury's forfeiture award related to

counts 31-36.

     Because of our reversal of counts 2-10 for both defendants,

the case must be remanded for resentencing.   At resentencing, the

district court should also reconsider its refusal to enhance

appellants' sentences for obstruction of justice consistent with

our discussion of this issue.

     Accordingly, the judgment of the district court is AFFIRMED in

part; REVERSED in part; and REMANDED for further proceedings

consistent with this opinion.




                                 34
