227 F.3d 955 (7th Cir. 2000)
United States of America, Plaintiff-Appellee,v.Everette O. Baker, d/b/a Bettye's Touch Above,  d/b/a Fantasyland Theater & Arcade, d/b/a/ Fantasyland  Night Club, d/b/a Fantasyland  Massage Parlor, d/b/a Fantasy Massages,  d/b/a Fantasy Massage Parlor, d/b/a American  Printing & Publishing Company, Defendant-Appellant.
No. 99-3840
In the  United States Court of Appeals  For the Seventh Circuit
Argued May 19, 2000Decided September 20, 2000

Appeal from the United States District Court  for the Southern District of Illinois.  No. 97 CR 30079--William D. Stiehl, Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Flaum, Chief Judge, and Manion and Williams,  Circuit Judges.
Manion, Circuit Judge.


1
Everette Baker operated  massage parlors that were fronts for his  prostitution business. In addition to cash, his  operation used credit card and automatic teller  machine (ATM) transactions. He used the proceeds  from his prostitution business to maintain and  expand that business, as well as several other  legal "adult businesses." He was convicted of  money laundering and conspiracy to commit money  laundering and in addition to being sentenced to  fifteen years in prison, was ordered to forfeit  millions of dollars. We affirm Baker's  convictions, sentence, and the forfeiture order.

I.  Background

2
From 1989 to 1997, Baker operated a complex of  interrelated sex businesses in Brooklyn,  Illinois, including striptease bars, adult  bookstores and movie theaters, and x-rated video  arcades. The cornerstone of Baker's "Fantasyland"  complex, however, was the "massage parlors" that  were fronts for prostitution. The businesses were  related in that customers who indulged in the  legal adult businesses would fulfill their  fantasy in another building in the compound where  the prostitutes disguised as masseuses held  forth. Customers would select a "masseuse" from a  line-up and then rent a room by paying a "house  charge" up front. After the customer and the  "masseuse" went into a room, the customer would  select the type of "massage" he wanted. The  prostitutes never discussed specifics with the  customers; they simply told the customers that  the more they were willing to pay, the more  "sensual" the massage would be. Customers would  pay the prostitutes with "tips." Both the room  rentals and "tips" were often paid by credit card  or ATM transactions.


3
Over the years, Baker employed hundreds of  prostitutes, so likely everyone in Brooklyn who  cared knew what was going on. Indeed, two  daughters of the chief of police, and at one time  the brother and the cousin of the mayor, were on  Baker's payroll. Around the holidays, Baker  provided a sort of "Christmas bonus"--free  "massages" to various municipal employees as a  show of gratitude for allowing him to operate in  Brooklyn without much (if any) interference. And  Baker had good reason to be appreciative. His  "adult businesses" (both legal and illegal) were  extremely lucrative. Baker had gross revenues  during this time of about nine million dollars.  It was obviously a fairly extensive operation,  with various managers helping Baker with the  business (e.g., collecting money, reconciling  accounts, stocking on-site ATMs).


4
To disguise his activities, he set up dummy  checking accounts and credit card clearinghouse  accounts at area banks under the name of American  Printing and Publishing Company. He deposited the  proceeds from his prostitution and other ventures  into these accounts and wrote checks on the  accounts to pay his operating expenses, such as  utilities and payroll. Baker not only plowed the  proceeds from his sex empire back into his  businesses to maintain their operation, he  reinvested the proceeds by building additional  "massage parlors" and other adult businesses in  the Fantasyland complex. Between January 1990 and  December 1996, the massage parlors accepted  credit cards for prostitution services. "In May  of 1995, the defendant, keeping up with modern  times and for the convenience of his customers,  installed an ATM machine in the Fantasyland  massage parlor and adjacent topless nightclub."  See United States v. Baker, 82 F. Supp.2d 936,  939 (S.D. Ill. 1999). In 1996 Baker stopped  accepting credit card payments after he learned  that other people "in the business" had faced  federal prosecution for money laundering.


5
While local officials apparently weren't  inclined to interfere with Baker's illegal  enterprise, the federal prosecutors had seen  enough. In January 1997, his operation was  raided. Baker reacted by transferring ownership  of his businesses to his son, but he continued to  maintain de facto control over the operation.  Although prostitution is not a federal offense,  money laundering is if the laundering is carried  out using the means of interstate commerce. Baker  allowed customers to pay for "massages" with  credit card and ATM transactions which went  across state lines to clearinghouses (the  proceeds of which were deposited into dummy  accounts). Baker thus used interstate wires to  further and facilitate his prostitution business.  In late 1997, the United States indicted Baker on  fifteen counts of money laundering under 18  U.S.C. sec. 1956(a)(1)(A)(i), six counts of  engaging in monetary transactions in criminally-  derived property under 18 U.S.C. sec. 1957, and  one count of conspiracy to launder money under 18  U.S.C. sec. 1956(a)(1)(A)(i) & (h). It also  requested a forfeiture of millions of dollars  under 18 U.S.C. sec. 982. See Baker, 82 F.  Supp.2d at 937.


6
A jury convicted Baker of all counts except for  the forfeiture count (which Baker agreed to have  the court resolve on the briefs). The court  sentenced Baker to 120 months on the money  laundering charges and 180 months on the  conspiracy charge (to run concurrently). In  determining Baker's sentence, the district court  increased his offense level by seven by including  as relevant conduct millions of dollars of income  from his "massage parlor" business as funds that  were involved in his conspiracy to launder money  (it did not include money from Baker's legal sex  businesses, although it concluded that this money  too was involved in Baker's money laundering  conspiracy). The district court also increased  Baker's offense level by five for leading a  criminal enterprise of five or more persons. And  it increased his offense level by two for  obstruction of justice, which was based on  transferring ownership of the businesses to his  son.


7
As to forfeiture, the government sought to  recover the "Fantasyland" complex and $7.5  million as proceeds from Baker's conspiracy to  launder the monies from his prostitution  business. Baker countered that only $2,590 should  be subject to forfeiture as the amount of the  specific credit card transactions that the  indictment had set forth. The district court  ordered Baker to forfeit all the monies that had  been involved in the federal activities, not just  the credit card transactions the government had  proved. See Baker, 82 F. Supp.2d at 941-42. The  court found that Baker's bank accounts were used  to facilitate his federal crimes and therefore  the millions of dollars that had passed into and  out of these accounts were subject to forfeiture.  Id. at 942-43. After deleting some entries to  avoid double-counting, it ordered Baker to  forfeit about $4.4 million as well as the real  estate where the "Fantasyland" compound was  located. See id. at 944.

II.  Discussion

8
Baker appeals his conviction, arguing that the  indictment was constructively amended by the  district court's jury instructions and the  government's comments during closing argument. He  also appeals his sentence enhancements, arguing  that it was improper for the court to include  millions of dollars from his prostitution  business, to find that he led five or more people  in a criminal enterprise, and to find that he  obstructed justice. Finally, he appeals the  forfeiture order.

A. The Indictment

9
Baker contends that his conviction must be  overturned because the indictment in this case  was constructively amended in violation of the  Fifth Amendment. The Fifth Amendment to the  Constitution provides in relevant part that "No  person shall be held to answer for a capital, or  otherwise infamous crime, unless on a presentment  or indictment of a Grand Jury." U.S. Const.  Amend. V. A constructive amendment of an  indictment violates the Fifth Amendment, United  States v. Willoughby, 27 F.3d 263, 266 (7th Cir.  1994), and "occurs when either the government  (usually during its presentation of evidence  and/or its argument), the court (usually through  its instructions to the jury), or both, broadens  the possible bases for conviction beyond those  presented to the grand jury." United States v.  Cusimano, 148 F.3d 824, 829 (7th Cir. 1998).  Thus, a "constructive amendment occurs where the  offense proven at trial was not included within  the parameters of the indictment." United States  v. Remsza, 77 F.3d 1039, 1043 (1996). But not  every variation from the verbiage of the  indictment, either in terms of proof or jury  instructions, constitutes a constructive  amendment. See Willoughby, 27 F.3d at 266 (It "is  important to note that not all variations in  proof that contradict or supplement verbiage in  the indictment rise to the level of constructive  amendments."); United States v. Pigee, 197 F.3d  879, 886 (7th Cir. 1999) ("We believe that the  variances in the court's instruction on Count 6  were so minor that they would not generate any  risk that Lipscomb would be convicted of a crime  not charged."). The proof at trial or jury  instructions must go "beyond the parameters of  the indictment in that it establishes offenses  different from or in addition to those charged by  the grand jury." Pigee, 197 F.3d at 886.


10
In this case, one of the bases for Baker's  convictions, the federal money laundering  statute, provides that


11
Whoever, knowing that the property involved in a  financial transaction represents the proceeds of  some form of unlawful activity, conducts or  attempts to conduct such a financial transaction  which in fact involves the proceeds of specified  unlawful activity--


12
(A)(i) with the intent to promote the carrying on  of specified unlawful activity . . . shall be  sentenced to a fine . . . or imprisonment for not  more than twenty years or both.


13
18 U.S.C. sec. 1956(a)(1)(A)(i) (emphasis added).  "Specified unlawful activity" is defined in sec.  1956(c)(7) as "any act or activity constituting  an offense listed in [18 U.S.C. sec.] 1961(1)"  (which defines the predicate acts for a RICO  violation). Section 1961(1)(B), in turn, lists 18  U.S.C. sec. 1952 (the "Travel Act") as an  offense. And the Travel Act provides that:


14
(a) Whoever travels in interstate commerce or  uses the mail or any facility in interstate . . .  commerce, with intent to--


15
(3)  otherwise promote, manage, establish, carry  on, or facilitate the promotion, management,  establishment, or carrying on, of any unlawful  activity,


16
and thereafter performs or attempts to perform--


17
(A)  any act described in paragraph (1) or (3)  shall be fined under this title, imprisoned for  not more than five years, or both; . . . .


18
18 U.S.C. sec. 1952(a). The Travel Act defines as  an "unlawful activity" any crime of prostitution  under state law. Id. at sec. 1952(b). Thus, a  person launders money if he makes deposits and  withdrawals at banks (conducts "financial  transactions"), knowing that they contain  proceeds from prostitution ("some form of  unlawful activity"), in order to promote using  credit cards in a prostitution business (a  "specified unlawful activity") if the proceeds  from prostitution in fact involve monies from  credit card transactions in a prostitution  business ("specified unlawful activities"). See  18 U.S.C. sec. 1956(a)(1)(A)(i); United States v.  Griffith, 85 F.3d 284, 287 (7th Cir. 1996);  United States v. Montague, 29 F.3d 317, 321-22  (7th Cir. 1994).


19
To establish a Travel Act violation it is not  necessary for the government to prove that an act  of prostitution under Illinois law followed each  credit card transaction. See United States v.  Campione, 942 F.2d 429, 434 (7th Cir. 1991).  Section "1952 refers to state law only to  identify the defendant's unlawful activity[;] the  federal crime to be proved in sec. 1952 is use of  the interstate facilities in furtherance of the  unlawful activity, not the violation of the law;  therefore sec. 1952 does not require that the  state crime ever be completed." Id. In short,  "[s]ince sec. 1952 does not incorporate state law  as part of the federal offense, violation of the  Act does not require proof of a violation of  state law." Id.


20
Baker acknowledges that, in theory, the  government need not prove an underlying act of  prostitution to make out a violation of the  Travel Act. He argues, however, that the  government was required to do so here because the  indictment charged him with violating the Travel  Act by causing his employees to use credit cards  in order to "provide prostitution services," with  the implication being that an act of prostitution  must result from each credit card transaction. As  a result, he argues that the indictment was  constructively amended when the district court  instructed the jury that it was sufficient if the  government proved that a credit card transaction  entitled a customer to spend time with a  masseuse, thereby affording him the opportunity  to engage in sex, and that the government need  not prove that each credit card transaction  actually resulted in an act of prostitution.  Similarly, he complains about the government  arguing to the jury that it need only prove that  "the use of the interstate facilities was in  furtherance of the illegal activity," and that  while the government did prove transactions "in  which customers actually did receive sex for the  use of credit cards," it was not required to do  so. In short, according to Baker, because the  jury instructions relieved the government of the  responsibility of proving that an act of  prostitution resulted from each credit card  transaction, the instructions and the  government's statements during closing argument  constructively amended the indictment by allowing  him to be convicted of an offense that is broader  than or different from that set out in the  indictment.


21
It is true that if an indictment makes a fact or  a manner of committing an offense material to  that offense, that fact or manner must be proven,  not a substantially different one. See United  States v. Johnson, 152 F.3d 618, 630 (7th Cir.  1998) (where indictment specifically described  destructive devices, government was required to  provide proof substantially consistent with that  description); United States v. Leichtnam, 948  F.2d 370, 374-75, 379-81 (7th Cir. 1991). But  Baker misreads the indictment. The government did  not make committing an act of prostitution  material to the Travel Act violation (and hence  the money laundering and conspiracy crimes). As a  result, the jury instructions--which were taken  from Campione, see 942 F.2d at 434--did not  constructively amend the indictment (nor did the  government's statements in accordance with them).


22
The indictment in this case listed the Travel  Act as the predicate offense for the "specified  unlawful activity" component for the money  laundering counts, and it set forth the Illinois  statute criminalizing the keeping of a house of  prostitution as the predicate offense for the  Travel Act. For all counts, the indictment also  stated that the instrument of interstate commerce  that Baker used to promote the unlawful activity  of prostitution (as required by the Travel Act)  was the processing of credit card charges for  "prostitution services." Examples of relevant  paragraphs of the indictment are as follows:


23
20. Each [financial transaction affecting  interstate commerce] in fact involved the  proceeds of unlawful activity specified in Title  18, United States Code, Section 1956(c)(7)--that  is, activity constituting an offense listed in  Title 18, United States Code, Section 1961(1),  namely


24
activity in which defendant EVERETTE O. BAKER  caused use of facilities in interstate commerce  with intent to carry on the unlawful activity of  a business enterprise involved in Conspiracy to  Keep a Place of Prostitution, in violation of  Chapter 720, Act 5, Illinois Compiled Statutes  (formerly Chapter 38, Illinois Revised Statutes),  Sections 11-17 and 8-2, and in which defendant  EVERETTE O. BAKER thereafter caused to be  performed acts to carry on said unlawful  activity, in violation of Title 18, United States  Code, Section 1952(a)(3).


25
21. It was part of the manner and means of  accomplishing this specified unlawful activity  that defendant EVERETTE O. BAKER caused his  employees to use the wires in interstate commerce  to obtain credit approval from a credit card  clearing house in St. Louis, Missouri, for each  customer who presented his credit card to obtain  prostitution services at said defendant's place  of business within the Southern District of  Illinois. After such approval was obtained, said  defendant's employees engaged in prostitution  services with such customers.


26
The provisions of Illinois law to which paragraph  20 of the indictment refers is not the offense of  engaging in prostitution but of "Keeping a Place  of Prostitution" and "Conspiracy" or, as the  indictment states, a "Conspiracy to Keep a Place  of Prostitution." See 720 ILCS 5/8-2  ("Conspiracy") and 720 ILCS 5/11-17 ("Keeping a  Place of Prostitution"). Thus, under paragraph  20, Baker only need use interstate facilities  with the "intent to carry on" his conspiracy to  keep a place of prostitution. See Campione, 942  F.2d at 434 ("But the indictments in this case  are not limited, as defendants would have us  believe, to oral sex or sexual intercourse. . . .  Those paragraphs of the Illinois Revised Statutes  [in the indictment] refer respectively to  Conspiracy [sec. 8-2], Prostitution, Soliciting  for a Prostitute, Pandering, Keeping a Place of  Prostitution [sec. 11-17], and Pimping.").


27
With respect to paragraph 21, it first states  that as part of Baker's conspiracy to keep a  place of prostitution he "caused his employees to  use the wires in interstate commerce to obtain  credit card approval . . . for each customer who  presented his credit card to obtain prostitution  services at said defendant's place of business .  . . ." This is the Travel Act violation. See id.  at 435 (using "the interstate telephone system to  secure authorization for the credit card  transactions set out in the indictment  facilitated the carrying on of keeping a place of  prostitution, one of the state offenses listed"  in the indictment). And this violation is not  tied to the actual commission of an act of  prostitution. It is clearly predicated on a  customer presenting his credit card to obtain  prostitution services, not on the customer having  actually obtained such services.


28
The next sentence is a closer question. This  part of paragraph 21 states that "[a]fter such  approval was obtained, [Baker's] employees  engaged in prostitution services with such  customers." We think that this sentence merely  identifies the underlying state offense, as the  Travel Act requires. See Campione, 942 F.2d at  434. Unlike in Leichtnam, supra, this part of the  indictment does not make the actual completion or  commission of prostitution services material to  the offense; there is no "to wit" or similar  language. See also Willoughby, 27 F.3d at 266  ("'To wit' is an expression of limitation which,  as our cases indicate, makes what follows an  essential part of the charged offense."). At any  rate, Baker concedes that he did not claim below  that the indictment was constructively amended,  so we review this forfeited issue for plain  error. See Fed. R. Crim. P. 52(b); United States  v. Hughes, 213 F.3d 323, 328 (7th Cir. 2000).


29
Under this standard, there must be: 1) an error;  2) that is clear or obvious; and 3) that affects  substantial rights. United States v. Olano, 507  U.S. 725, 732-35 (1993); Cusimano, 148 F.3d at  828. "In an effort to clarify when an error  affects substantial rights, the [Supreme] Court  said 'in most cases it means that the error must  have been prejudicial: It must have affected the  outcome of the District Court proceedings.'"  Remsza, 77 F.3d at 1044 (quoting Olano, 507 U.S.  at 734). In this circuit it is clear that "the  constructive amendment 'must constitute a mistake  so serious that but for it the defendant probably  would have been acquitted in order for us to reverse.'"  Hughes, 213 F.3d at 329 (quoting Cusimano, 148  F.3d at 828); see also Remsza, 77 F.3d at 1044.  Even then, "we have the power to correct the  error but are not required to do so." Cusimano,  148 F.3d at 828 (citing Olano, 507 U.S. at 735).  "We will not reverse unless we find the error  seriously affects the fairness, integrity, or  public reputation of judicial proceedings." Id.;  see also, Remsza, 77 F.3d at 1044. Here, it is  not plain or obvious the "engaged in prostitution  services" sentence means that an actual act of  prostitution is part of the Travel Act violation  in this case--particularly in the context of the  preceding sentence and paragraph. Because it is  not obvious that the indictment narrowed the  charge as Baker contends, the jury instructions  and statements in closing argument did not  impermissibly broaden the indictment.


30
But even if it were plain that the indictment  narrowed the predicate state offense for the  Travel Act violation as Baker urges, we still  would not reverse his conviction. Baker does not  contend that the government did not prove that  acts of prostitution followed the credit card  transactions. As a result, we cannot say that  "but for [the constructive amendment] the  defendant probably would have been acquitted."  Hughes, 213 F. 3d at 329. Contrast Willoughby, 27  F.3d at 267 ("since no evidence linked the gun to  Willoughby's actual distribution of cocaine . . .  the weapons conviction could only have been based  upon a" theory not charged in the indictment).  Moreover, given that Baker does not show that he  was prejudiced in his defense, we also cannot say  that this assumed error seriously affected "the  fairness, integrity, or public reputation of  judicial proceedings." Hughes, 213 F.3d at 329.


31
Finally, Baker argues that the indictment was  constructively amended when the district court  allowed the government to argue another theory  during closing argument: money laundering was  spending or withdrawing funds from the illegal  prostitution business, regardless of any  connection to interstate commerce. The government  points out that the statement Baker zeros in on  was from its introductory remarks at closing  argument when it was distinguishing the money  laundering in this case from "concealment" money  laundering (set out in 18 U.S.C. sec.  1956(a)(1)(B)(i)). Jury instructions are viewed  as a whole. United States v. Thornton, 197 F.3d  241, 254 (7th Cir. 1999). We have reviewed the  court's instructions, and they accurately state  the law; indeed, as noted, most of the  instructions Baker complains about are from our  opinion in Campione. See also Montague, 29 F.3d  at 322. On the whole, then, the government's remark distinguishing the money laundering in  this case from "concealment" money laundering did  not constructively amend the indictment. See  Pigee, 197 F.3d at 886 ("We believe that the  variances in the court's instruction on Count 6  were so minor that they would not generate any  risk that Lipscomb would be convicted of a crime  not charged.").

B.  The Sentence Enhancements

32
In determining Baker's sentence, the district  court's factual findings are reviewed for clear  error and its interpretation of the Sentencing  Guidelines is reviewed de novo. United States v.  Emerson, 128 F.3d 557, 562 (7th Cir. 1997). A  district court's "characterization of a  defendant's role in an offense and its  determination of the . . . money attributable to  a defendant are factual determinations" that are  reviewed only for clear error. United States v.  House, 110 F.3d 1281, 1283 (7th Cir. 1997).  "Under this standard, we will vacate appellants'  sentences only if the district court's findings  are without foundation in the evidence, such that  we are left with the definite and firm conviction  that a mistake has been committed." Id.


33
1.  Including the proceeds involved in  the conspiracy.


34
The Sentencing Guidelines provide that 23 is the  base offense level for someone convicted under 18  U.S.C. sec. 1956(h) of conspiracy to launder  money in violation of 18 U.S.C. sec.  1956(a)(1)(A)(i). See U.S.S.G. sec. 2S1.1(a);  House, 110 F.3d at 1287-88. If the "volume of  funds" involved in the money laundering exceeds  $100,000, then the base level is enhanced,  depending upon the amount. See U.S.S.G. sec.  2S1.1(b)(2). And since the "value of funds"  involved in a money laundering offense is a  specific offense characteristic, we must look to  a defendant's relevant conduct to determine that  value. See United States v. Sokolow, 91 F.3d 396,  410 (3d Cir. 1996) (citing U.S.S.G. sec.sec.  1B1.3(1) and 2S1.2(b)). The Relevant Conduct  section of the Sentencing Guidelines requires  courts to consider:


35
(A)  all acts and omissions committed, aided,  abetted, counseled, commanded, induced procured,  or willfully caused by the defendant; and


36
(B)  in the case of a jointly undertaken criminal  activity (a criminal plan, scheme, endeavor, or  enterprise undertaken by the defendant in concert  with others, whether or not charged as a  conspiracy), all reasonably foreseeable acts and  omissions of others in furtherance of the jointly  undertaken criminal activity, that occurred  during the commission of the offense of  conviction, in preparation for that offense, or  in the course of attempting to avoid detection or  responsibility for that offense;


37
U.S.S.G. sec. 1B1.3(a)(1) (emphasis added). The  Commentary to sec. 2S1.1 states that the "amount  of money involved is included as a factor because  it is an indicator of the magnitude of the  criminal enterprise, and the extent to which the  defendant aided the enterprise." (Emphasis  added.)


38
The district court determined that about $4.4  million was involved in Baker's conspiracy to  launder money from his prostitution business, so  it increased his base level by seven. See id. at  sec. 2S1.1(b)(2)(H). The court arrived at this  figure by focusing on the amount of income Baker  received from his "massage parlor" business from  1990 to 1997; it declined to include monies that  Baker received from his related legal businesses,  although it concluded that the money from these  ventures was also involved in Baker's money  laundering conspiracy. Baker argues that it was  excessive to include the income from his  prostitution business over eight years because: 1) the government charged in the indictment that  the "specified unlawful activity" of his  laundering of his prostitution proceeds was  $2,590 in specific credit card transactions; and  2) the conspiracy only lasted for the six months  he shared control with his son.


39
As to Baker's first contention, Baker was not  just convicted of money laundering; he was also  convicted of conspiring to launder money. For  purposes of the conspiracy, the indictment  charged fifteen specific instances of credit card  usage (the $2,590) to establish some of the overt  acts of the conspiracy and to show that  interstate wires were in fact used to obtain  prostitution services (indeed, the primary  purpose of the credit card and ATM system was to  facilitate the prostitution business). These  specific credit card transactions do not serve to  limit the amount of money "involved" in Baker's  conspiracy. Baker was in fact convicted of  laundering amounts much larger than $2,590 (about  $206,000), and he was convicted of conspiring  over the years to launder a lot more than that.


40
Indeed, the amount of funds that are included as  part of Baker's "relevant conduct" is not even  limited by the funds charged in the money  laundering counts themselves. See Sokolow, 91  F.3d at 411 ("Funds associated with uncharged  instances of money laundering can be added in to  determine the offense level under sec. 2S1.1 if  those acts are within the scope of relevant  conduct under sec. 1B1.3(a)(2). Thus, in  determining the 'value of funds' under sec.  2S1.1, the district court is not necessarily  limited only to the funds identified with the  counts of conviction."). In a conspiracy spanning  several years, the value of funds is determined  by the amount of money that is "reasonably  foreseeable" to Baker, including monies that were  generated (and then laundered) to further or  facilitate the conspiracy. See House, 110 F.3d at  1284-85 ("Because a sentencing court is required  to take into account not only the acts of a  defendant charged with conspiracy, but also 'all  reasonably foreseeable acts and omissions of  others in furtherance of the jointly undertaken  criminal activity,' these total amounts would be  attributable to a defendant found to have  reasonably foreseen the scope of the  conspiracy.") (quoting U.S.S.G. sec.  1B1.3(a)(1)(B)). Here, the district court did not  clearly err in concluding that the millions of  dollars from Baker's "massage parlor" business,  which over the years he conspired to launder by  depositing into and withdrawing from dummy  accounts, were reasonably foreseeable to him as  furthering and facilitating his conspiracy. These  funds "bankrolled" his prostitution business and  thereby his money laundering conspiracy,  including the conspiracy's receipt and use of  credit card and ATM transactions. Cf. United  States v. $448,342.85, 969 F.2d 474, 477 (7th  Cir. 1992) ("Money need not be derived from a  crime to be 'involved'; perhaps a particular sum  is used as the bankroll facilitating the  fraud."). As the head and "mastermind" of the  operation, Baker was obviously privy to the funds  that were generated and used in the conspiracy.  See U.S.S.G. sec. 1B1.3(a)(B).


41
Furthermore, it is not necessary, as Baker  contends, for the government to separate out  income from bona fide massages (whatever those  were) from income from sexual services. The  "clean" money was also "involved in" the  conspiracy in that, as noted, it helped further  and facilitate the operation. Cf. $448,342.85,  supra; United States v. Tencer, 107 F.3d 1120,  1134 (5th Cir. 1997) (because "clean" money that  is commingled with "unclean" money facilitates  the money laundering operation, the "clean" money  is "involved" in the offense and is therefore  forfeitable); United States v. Jackson, 935 F.2d  832, 840 (7th Cir. 1991) (Section  1956(a)(1)(A)(i) allows "for convictions where  the funds involved in the transaction are derived  only in part from 'specified unlawful activities.'"  We "cannot believe that Congress intended that  participants in unlawful activity could prevent  their own convictions under the money laundering  statute simply by commingling funds derived from  both 'specified unlawful activities' and other  activities. Indeed, the commingling in this case  is itself suggestive of a design to hide the  source of ill-gotten gains . . . ."). Nor is it  necessary for the government to attempt to  separate proceeds from ATM and credit card  transactions in the prostitution business from  other proceeds. The "other" proceeds from  prostitution also helped further and facilitate  the operation and thus were part of the money  laundering conspiracy. To determine the value of  funds, the government need not trace each dollar  of income by the means of payment, and it need  not trace each dollar to a specific instance of  laundering. Cf. id. (To prove money laundering  under 18 U.S.C. sec. 1956(a), "[w]e do not read  Congress's use of the word 'involve' as imposing  the requirement that the government trace the  origin of all funds deposited in a bank account  to determine exactly which funds were used for  what transaction.").


42
As to Baker's second contention, the money  laundering conspiracy was much longer than the  six months that Baker's son had nominal control.  It lasted for several years. Baker complains that  the government stipulated that his son was a part  of the conspiracy only for several months and  that during this time the only proven amount of  financial transactions was $235,000. But Baker  was not part of the stipulation, and the  stipulation did not purport to deal with all of  Baker's activities. The government's stipulation  as to the involvement of Baker's son in the  conspiracy does not preclude it from showing that  Baker conspired with others for much longer. And  the district court did not clearly err in finding  that from 1990 to 1997 Baker conspired with at  least seven others-- upper-level and mid-level  managers, supervisors, and lower-level employees-  -to launder money from his prostitution business  (the involvement of whom we shall discuss next).


43
2.Leading five or more people in a  criminal enterprise.


44
Pursuant to sec. 3B1.1 of the Guidelines, the  district court enhanced Baker's offense level by  four for leading or organizing criminal activity  involving five or more people. As noted, Baker  argues that to the extent there was a conspiracy  to launder money, it only involved him and his  son; therefore, he contends that he should not  have his sentence increased under sec. 3B1.1. But  the "determination of a defendant's role in the  offense is to be made on the basis of all conduct  within the scope of sec. 1B1.3 (Relevant  Conduct), i.e., all conduct included under sec.  1B1.3(a)(1)-(4), and not solely on the basis of  elements and acts cited in the count of  conviction." U.S.S.G., Chapter 3, Part B,  Introductory Comment; see also Montague, 29 F.3d  at 324 (The "effect of this commentary change is  to foreclose . . . any interpretation of the word  'offense' that restricts it to the count of  conviction."). As with determining the specific  offense characteristics for Baker's conspiracy  conviction, then, the district court was required  to consider the Relevant Conduct provision in  determining Baker's role in the offense. This  meant it had to consider "all reasonably  foreseeable acts and omissions of others in  furtherance of the jointly undertaken criminal  activity, that occurred during the commission of  the offense of conviction, in preparation for  that offense, or in the course of attempting to  avoid detection or responsibility for that  offense." U.S.S.G. sec. 1B1.3(a)(1)(B) (emphasis  added).


45
The evidence clearly shows that Baker led and  organized at least seven employees. These people  processed credit card transactions, kept the  books, issued checks, accounted for shift  receipts, delivered the receipts to Baker and his  son, hired and fired masseuses, made schedules,  held meetings, and set policies; all knew that  Baker was laundering the proceeds of the  prostitution business which ultimately furthered  that business, including its receipt and usage of  credit card and ATM transactions. The activities  of these people were thus integral to the  conspiracy. The district court did not clearly  err in considering them in evaluating Baker's  role in the offense. See House, 110 F.3d at 1284  (although wires in a money laundering conspiracy  were sent and received by several people, the  defendant ultimately received the proceeds and  was the common connection between the co-  conspirators; therefore, he properly received a  four-level enhancement as an organizer or  leader).


46
3.  Obstruction of justice.


47
The district court also enhanced Baker's offense  level by two for attempting to obstruct justice  based on his transfer of the business to his son  after it was raided. See U.S.S.G. sec. 3C1.1.  Baker argues that his enhancement was improper  because the government did not prove that he  intended to obstruct justice, nor did it prove  that this transfer, in fact, caused it to spend  more resources to investigate or prosecute this  matter. With respect to Baker's first argument,  the district court found that Baker transferred  the property to "divert" the authorities from his  enterprise. While Baker argues that "divert" is  not the same thing as "obstruct" or "impede,"  this parsing of the district court's finding is  disingenuous: the district court found that Baker  transferred this property to "divert" the  authorities in the hope that it would cause them  to stop their efforts. Specifically, it found  that Baker "was going to put the business in his  son's name, so it will all fall back on him." His  intent was "to divert at least the investigative  officers and agents and the prosecutors from  pursuing this matter any further . . . ." Thus,  the court found that he intended to obstruct  justice, and this finding is not clearly  erroneous.


48
As to Baker's second argument, he notes that  real estate cannot be hidden (unlike chattel),  and that he transferred this property by way of a  deed which was on the public record. Because the  chain of title is clear, he argues, there is no  mystery as to ownership of the business. But an  attempt to conceal evidence that is material to  an investigation, such as by transferring assets  to another, warrants an enhancement for  obstruction of justice. See U.S.S.G. sec. 3C1.1,  App. Note 4(d). Evidence is "material" if, when  believed, it tends "to influence or affect the  issue under determination." U.S.S.G. sec. 3C1.1,  App. Note 6. Here, who owned the business was  material both to the offenses of conviction  (money laundering and conspiracy to launder  money), as well as the consequences of the  offense as it related to relevant conduct and  forfeiture. Thus, even if Baker did not succeed  in obstructing justice, the district court  properly enhanced his sentence for attempting to  do so. See United States v. Yusufu, 63 F.3d 505,  515 (7th Cir. 1995) ("A defendant's mere attempt  to obstruct the government's case is sufficient .  . . . Moreover, we believe that a finding of  attempt is tantamount to a finding of  willfulness. Implicit in the meaning of attempt  is the will of the actor to accomplish the act  attempted."); see also United States v. Gibbs, 61  F.3d 536, 539-40 (7th Cir. 1995) (attempting to  shield assets from forfeiture in a bogus  transaction constitutes obstruction and warrants  an increase under sec. 3C1.1.).

C.  Forfeiture

49
As with the sentencing enhancements, the  district court's factual findings regarding  forfeiture are reviewed for clear error and its  "determination whether the facts adduced at a  forfeiture hearing constitute proper forfeiture"  is reviewed de novo. See United States v. 1977  Porsche Carrera, 946 F.2d 30, 33 (5th Cir. 1991).  The criminal forfeiture statute, 18 U.S.C. sec.  982(a), provides in relevant part that:


50
The court, in imposing sentence on a person  convicted of an offense in violation of section .  . . 1956, 1957, or 1960 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.


51
(Emphasis added.)1 The district court ordered  Baker to forfeit about $ 4.4 million as proceeds  that had been involved in his offenses. It  arrived at this figure by focusing on the  "specified unlawful activity" under the money  laundering statutes. It held that the "specified  unlawful activity" was Baker's prostitution  business, and then added up the proceeds over the  years from that business. The court also ordered  Baker to forfeit the Fantasyland compound on the  ground that it was financed with proceeds from  the prostitution business. See Baker, 82 F.  Supp.2d at 941-44. The court ordered the $4.4  million to be "FORFEITED as a personal monetary  judgment" and stated "that this judgment may be  enforced as a regular monetary judgment against"  Baker. Id. at 944.


52
Similar to his argument with respect to  "relevant conduct," Baker argues that the only  money that is forfeitable is the $2,590 that the  government proved at trial was used to obtain  prostitution services. He contends that the  district court erred by defining the "specified  unlawful activity" as his prostitution business.  According to Baker, the "specified unlawful  activity" is the federal crime, not the state  crime which is the predicate for the federal  crime. We agree with Baker that the district  court misanalyzed the "specified unlawful  activity," but not to the extent Baker would  hope.


53
As noted, under the federal money laundering  statute, 18 U.S.C. sec. 1956(a)(1)(A)(i), it is a  crime to conduct a financial transaction with the  proceeds of some form of "unlawful activity" with  the intent to promote the carrying on of a  "specified unlawful activity" if the proceeds of  the transaction in fact involved the proceeds of  a "specified unlawful activity." As also noted, a  "specified unlawful activity" under sec.  1956(c)(7)--via 18 U.S.C. sec. 1961--can be a  Travel Act violation (18 U.S.C. sec. 1952). But  to violate the Travel Act, a person must use the  facilities of interstate commerce to facilitate,  etc. "an unlawful activity" (a state prostitution  offense, for example). Here, Baker used  interstate wires to facilitate a state  prostitution offense which is the Travel Act  violation. It is the Travel Act violation which  is a "specified unlawful activity" under the  money laundering statutes, not the state offense  which helps identify the Travel Act violation.  See Campione, 942 F.2d at 434 (discussed, supra).


54
To be guilty of money laundering, then, a  financial transaction must not only be made up of  proceeds of any "unlawful activity" (e.g.,  prostitution); it must also contain the proceeds  of "specified unlawful activity" (e.g., credit  card transactions from prostitution) with the  intent to promote the carrying on of the  "specified unlawful activity." See sec.  1956(a)(1)(A)(i). The district court thus erred  in holding that the "specified unlawful activity"  under sec. 1956 is the "unlawful activity" under  the Travel Act--a state crime of prostitution.  The chain of analysis that we set out in Campione  confirms this, as does the fact that sec. 1956  uses both the terms "unlawful activity" and  "specified unlawful activity," indicating that  each has a separate meaning.2


55
But while Baker correctly argues that the focus  of the forfeiture statute is on property involved  in or traceable to the federal crime of which he  was convicted (not an underlying state offense),  he incorrectly asserts that this crime is the  Travel Act violation and that the property is  limited to the $2,590 in credit card  transactions. As noted, the fifteen credit card  transactions to which Baker points established  that interstate wires were used to obtain  prostitution services (the predicate act for the  Travel Act violation); that monies from the  prostitution business (the "unlawful activity")  that were laundered by being deposited and  withdrawn from dummy accounts did in fact contain  proceeds from credit card transactions for  prostitution services (the "specified unlawful  activity"); and that there were overt acts to the  conspiracy. Just as the amounts of these specific  credit card transactions do not limit Baker's  "relevant conduct," they do not limit the amount  of his property that is forfeitable.


56
By analogy, in United States v. Trost, 152 F.3d  715 (7th Cir. 1998), a defendant was charged with  mail fraud and with eight specific acts of money  laundering, totaling $23,000. The district court  ordered him to forfeit $57,000-- the amount of  the money laundering and the mail fraud counts.  On appeal, Trost, similar to Baker, argued that  he only had to forfeit the specific sums set  forth in the money laundering counts. Id. at 720.  We rejected this argument, noting that the  district court had found that Trost's "account  was used to facilitate the crimes of which Trost  was convicted and that significantly more than  $23,000 was funneled through the account to  conceal or disguise the true nature of his  activities." Id. at 721 (emphasis added). "Given  those findings," we held that the amount of the  forfeiture order was "well within acceptable  parameters. Money does not need to be derived  from the crime to be forfeited. It can be  forfeited if it is involved in the crime." Id.


57
To arrive at the forfeitable amount here, the  district court excluded any income over the years  from Baker's legal sex businesses. It then  concluded that Baker's income over the years from  his "massage parlor" business was forfeitable  because all of these funds were involved in  Baker's prostitution business. As noted, the  district court should not have based its analysis  on the prostitution business per se. Rather, it  should have based its analysis on the fact that  these funds were involved in Baker's conspiracy  to launder the proceeds of his prostitution  business--one of the federal offenses of which he  was convicted. See 18 U.S.C. sec. 982(a). In this  case, however, this is a distinction without a  difference.


58
Specifically, as with the forfeited funds in  Trost, all of the funds from Baker's prostitution  business over the years--both the proceeds from  credit card and ATM transactions and other  proceeds--were illegal, and as a result Baker  laundered all of them. All of these funds were  thus "involved in" the money laundering  conspiracy, not just the specific credit card  transactions the government proved were for  prostitution services and not just the specific  monies the government proved were laundered. See  Trost, 152 F.3d at 721. Furthermore, the funds  that were not from credit card and ATM  transactions facilitated the conspiracy by  helping to further the prostitution business,  and, more specifically, the use of credit card  and ATM transactions in that business. In short,  these funds helped "bankroll" the conspiracy. See  $448,342.85, 969 F.2d at 477 ("Money need not be  derived from a crime to be 'involved'; perhaps a  particular sum is used as the bankroll  facilitating the fraud.").3 It would be  incorrect, then, to limit the forfeiture to  $2,590, as Baker contends


59
Limiting the forfeiture of funds under these  circumstances to the proceeds of the initial  [illegal] activity would effectively undermine  the purpose of the forfeiture statute. Criminal  activity such as money laundering largely depends  upon the use of [other] monies to advance or  facilitate the scheme.


60
Tencer, 107 F.3d at 1135; cf. id. at 1134  ("[C]ourts have concluded that the commingling of  crime proceeds with 'clean' money makes money  laundering less difficult and may even be  necessary to the successful completion of the  offense. Such untainted funds have been found to  be 'involved' for purposes of the forfeiture  statute."). While the district court may have  misperceived the precise focus of the proper  analysis, it made the relevant findings, and its  ultimate conclusion was correct. See, e.g.,  Baker, 82 F. Supp.2d at 942 ("Much like the  accounts in Trost, here the evidence clearly  established that the accounts were used to  facilitate the crimes of which the defendant was  convicted. By virtue of the defendant's use of  these accounts, the total amount traceable to or  involved in the conspiracy to commit money  laundering is subject to forfeiture.").  Therefore, we need not reverse or remand the  issue for further findings.4


61
Finally, we note that the district court ordered  Baker to "forfeit" $4.4 million. He does not now  have anywhere near that amount. This figure  includes the income Baker generated over the  years, not what he now has. Significantly, Baker  does not assert on appeal that the court erred in  its order to forfeit a large amount of money that  he does not now have. Perhaps that is because the  district court did not err by including such non-  existent proceeds, cf. United States v. Ginsburg,  773 F.2d 798, 799, 801 (7th Cir. 1985) (en banc)  ("The government's right to forfeit the profits  or proceeds of racketeering activity under  section 1963(a)(1) is therefore not limited to  whatever is left over or unspent at the time of  the conviction, but instead includes the entire  amount that was acquired by the defendant in  violation of RICO."). Perhaps also the government  can satisfy part of the forfeiture award with  assets "traceable to" proceeds of Baker's  conspiracy, or with substitute assets. See 21  U.S.C. sec. 853p; United States v. Hendrickson,  22 F.3d 170, 175 (7th Cir. 1994). At the  forfeiture hearing, though, the government noted  that whatever assets were recovered would be far  short of the forfeiture award.


62
The district court also stated that the  government could enforce its forfeiture award  against Baker as a regular in personam judgment.  This was proper, too. See United States v.  Candelaria-Silva, 166 F.3d 19, 42 (1st Cir. 1999)  ("A criminal forfeiture order may take several  forms. First, the government is entitled to an in  personam judgment against the defendant for the  amount of money the defendant obtained as  proceeds of the offense."); accord United States  v. Voigt, 89 F.3d 1050, 1084 (3d Cir. 1996);  United States v. Lester, 85 F.3d 1409, 1413 (9th  Cir. 1996). In effect this places a judgment lien  against Baker for the balance of his prison term  and beyond. See Voigt, 89 F.3d at 1086 n. 21; cf.  United States v. $814,254.76, 51 F.3d 207, 211  (9th Cir. 1995) ("[T]he substitute assets  provision of the criminal forfeiture statute is  merely another mechanism for collecting a  judgment against the defendant criminal . . .  ."). Because Baker does not assign this as an  error, we do not reach the question of whether  this constitutes an excessive fine or causes some  other injury.

III.  Conclusion

63
Because the indictment did not make the  commission of acts of prostitution material to  the money laundering and conspiracy counts, it is  not "plainly obvious" that the indictment was  constructively amended when the district court  charged the jury that it need not find that an  act of prostitution accompanied each credit card  transaction that was presented to obtain  prostitution services, or when the government  made similar statements during closing argument.  Furthermore, the district court did not clearly  err in including as relevant conduct the proceeds  from Baker's prostitution business over the years  as monies "involved in" the conspiracy because  they furthered and facilitated the money  laundering conspiracy. The district court also  did not clearly err in enhancing Baker's offense  level for leading five or more people in the  conspiracy and for attempting to obstruct justice  by transferring ownership of his businesses to  his son. Finally, because the millions of dollars  that Baker generated from his prostitution  business over the years facilitated his money  laundering conspiracy, the district court did not  clearly err in including these proceeds in its  forfeiture order as monies "involved in" Baker's  offense.


64
For the foregoing reasons, the judgment of the  district court is AFFIRMED.



Notes:


1
 By incorporating 21 U.S.C. sec. 853, see 18  U.S.C. sec. 982(b)(1), the criminal forfeiture  statute allows the government to obtain  "substitute assets" if it cannot find property  "involved in" or "traceable to" the offense for  which a defendant was convicted. See 21 U.S.C.  sec. 853p.


2
 The district court based its conclusion on the  following passage from Montague: "[T]he Missouri  prostitution statute forms the basis for a  violation of sec. 1952, which is a type of  racketeering activity listed in sec. 1961, and is  a specified unlawful activity designated in the  money laundering statute--sec.1956." Baker, 82 F.  Supp.2d at 941 (quoting 29 F.3d at 322). Baker  notes that this passage from Montague is at the  end of a long quotation from Campione, which  discusses the fact that the Travel Act violation  is using the means of interstate commerce to  facilitate a state crime, not the underlying  state crime. Like Baker, then, we read this  passage from Montague to mean that while a state  prostitution statute "forms the basis for a  violation" of the Travel Act, it is the  "racketeering activity listed in sec. 1961"--the  Travel Act violation itself--that is the  "specified unlawful activity designated in the  money laundering statute."


3
 In this regard, the Fantasyland compound is  clearly forfeitable. Not only did the ATM and  credit card transactions occur on the premises;  the conspiracy was obviously run from this  compound. As the key to Baker's operation, it was  obviously "involved in" the conspiracy.


4
 Because the district court excluded the proceeds  from Baker's other businesses from its forfeiture  calculation, and the government does not cross-  appeal this exclusion, we need not address  whether the district court was required to make  this exclusion (at the forfeiture hearing, the  court indicated that it did not think it was). We  note, however, that even legitimate funds that  are commingled with illegitimate funds can be  forfeited if the legitimate funds were somehow  involved in the offense, such as by helping to  conceal the illegal funds. See Tencer, 107 F.3d  at 1134.


