     06-0638-cr
     USA v. Elfgeeh


 1                           UNITED STATES COURT OF APPEALS

 2                                 FOR THE SECOND CIRCUIT

 3                                          - - - - - -

 4                                     August Term, 2006

 5   (Argued:    April 26, 2007                                Decided: February 14, 2008

 6                                                         Errata Filed: March 25, 2008)

 7                  Docket Nos. 06-0638-cr(L), 06-0744-cr(con)

 8   _________________________________________________________

 9   UNITED STATES OF AMERICA,

10                                              Appellee,

11                                      -v.-

12   AREF ELFGEEH and ABAD ELFGEEH,

13                                              Defendants-Appellants.

14   _________________________________________________________

15   Before: KEARSE and SACK, Circuit Judges, and MILLS, District

16                Judge*.

17                Appeals from judgments of the United States District Court

18   for the Eastern District of New York, Sterling Johnson, Jr., Judge,

19   convicting defendants of operating and conspiring to operate an

20   unlicensed     money-transmitting            business,       see    18    U.S.C.      §§    371,

21   1960(a), and convicting one defendant of structuring financial

22   transactions, see 31 U.S.C. § 5324(a)(3).

23                Affirmed in part, and vacated and remanded in part.

24                Judge Sack concurs in part and dissents in part in a


     *    Honorable Richard Mills, of the United States District Court for the Central District of
          Illinois, sitting by designation.
 1   separate opinion.

 2                     PAMELA K. CHEN and JEFFREY H. KNOX, Assistant
 3                          United States Attorneys, Brooklyn, New
 4                          York (Roslynn R. Mauskopf, United States
 5                          Attorney for the Eastern District of New
 6                          York, Barbara D. Underwood, Counsel to the
 7                          United States Attorney, David C. James,
 8                          Assistant    United    States    Attorney,
 9                          Brooklyn, New York, on the brief), for
10                          Appellee.
11
12                     ARTHUR S. FRIEDMAN, New York, New York, for
13                          Defendant-Appellant Aref Elfgeeh.

14                     JAMES M. BRANDEN, New York, New York, for
15                          Defendant-Appellant Abad Elfgeeh.




16   KEARSE, Circuit Judge:

17              Defendants Aref Elfgeeh ("Aref") and Abad Elfgeeh ("Abad")

18   (collectively the "Elfgeehs" or "defendants") appeal from judgments

19   entered in the United States District Court for the Eastern District

20   of New York following a jury trial before Sterling Johnson, Jr.,

21   Judge, convicting them of operating an unlicensed money-transmitting

22   business, in violation of 18 U.S.C. § 1960(a), and conspiring to do

23   so, in violation of 18 U.S.C. § 371; and convicting Abad of

24   structuring    financial     transactions,      in   violation      of    31   U.S.C.

25   §   5324(a)(3).      Aref    was    sentenced    principally     to      51    months'

26   imprisonment, to be followed by a three-year term of supervised

27   release, and was ordered to pay a $500,000 fine and to forfeit

28   $22,435,467.       Abad     was    sentenced    principally    to     188      months'

29   imprisonment, to be followed by a three-year term of supervised

30   release, and was ordered to pay a $1,250,000 fine and to forfeit

31   $22,435,467.      On appeal, defendants contend principally that they


                                             -2-
 1   received an unfair trial due to newspaper publicity and trial

 2   testimony relating to terrorism and violence, and that the district

 3   court improperly instructed the jury on the mens rea element of the

 4   money-transmitting statute.             Aref also contends that his postarrest

 5   statements       were   improperly       admitted       at   trial.        In   addition,

 6   defendants challenge their sentences, contending, inter alia, that

 7   the     prison     terms    imposed      on      them    are    unreasonable,       both

 8   substantively and on various procedural grounds; and Abad contends

 9   that the amount of his fine is unreasonable.                   For the reasons that

10   follow, we affirm the convictions and most aspects of the sentences,

11   but we vacate and remand for reconsideration of the fine imposed on

12   Abad and one of the sentencing enhancements applied to Aref.



13                                      I.    BACKGROUND



14                  The present prosecution arose out of the operation by Abad

15   and his nephew Aref of a hawala, or money-transfer operation, at

16   Abad's Carnival French Ice Cream (or "Carnival") shop in Brooklyn,

17   New York.      Abad was arrested in January 2003; an arrest warrant was

18   issued for Aref, who was arrested in December of that year.                       In June

19   2004,    the     Elfgeehs   were    indicted       on    charges      of   operating   an

20   unlicensed money-transmitting business, in violation of 18 U.S.C.

21   § 1960(a), and conspiring to do so, in violation of 18 U.S.C. § 371.

22   As discussed in greater detail in Part II.D. below, § 1960 was

23   amended in October 2001.            Counts one and two of the indictment

24   charged Abad with conspiring to violate, and violating, § 1960 prior

25   to October 2001; counts three and four charged both Abad and Aref


                                                -3-
 1   with conspiring to violate, and violating, the post-October 2001

 2   version of that section.   A subsequent superseding indictment added

 3   a charge (count five) that Abad had engaged in structuring monetary

 4   transactions from January 1995 to January 2003, in violation of 31

 5   U.S.C. § 5324(a)(3).   Section 5324(a)(3) provides that "[n]o person

 6   shall, for the purpose of evading the reporting requirements of

 7   section 5313(a) or 5325 or any regulation prescribed under any such

 8   section, . . . structure or assist in structuring, or attempt to

 9   structure or assist in structuring, any transaction with one or more

10   domestic financial institutions." The pertinent regulation under 31

11   U.S.C. § 5313(a) generally requires financial institutions, other

12   than casinos, to file a report of any "deposit, withdrawal, exchange

13   of currency or other payment or transfer, by, through, or to such

14   financial institution which involves a transaction in currency of

15   more than $10,000."    31 C.F.R. § 103.22(b)(1).



16   A.   The Trial

17        1.    The Government's Evidence of Unlicensed Money Transfers
18              and Structuring

19              At trial, Special Agent Brian Murphy of the Federal Bureau

20   of Investigation ("FBI") explained for the jury what a hawala is:

21              A Hawala operates in a similar fashion to a Western
22              Union business.   It's a money transfer operation.
23              The word Hawala translated from Arabic into English
24              means transfer. . . . [A] Hawala business is used to
25              send money from one location to another.

26   (Trial Transcript ("Tr.") 223.)        FBI Special Agent Daniel Gill

27   described the benefits of using a hawala instead of using an

28   official money-transmitting business such as Western Union:

29              One, it's conducted outside the realm of licensed

                                      -4-
 1              banking activity. There is no regulatory oversight.
 2              Therefore, the transactions are basically conducted
 3              without any sort of legal review of how the
 4              transactions are conducted[.]

 5                   . . . .

 6                   A   (Continuing)      It   also   enables   the
 7              transactions to occur without any review by banking
 8              officials that they are conducted in accordance with
 9              procedures and laws which govern banking activity.

10                   . . . .

11                   Q Are there any other advantages to the use of
12              a hawala as opposed to licensed money transfer?

13                   A   The true originator of the funds and the
14              true beneficiary of the funds are not identifiable
15              in the banking transactions.

16   (Id. at 516-17; see also id. at 501 (one of the advantages of such

17   a system is that it "keeps the beneficiary and the originator of the

18   transactions essentially anonymous in the transaction").)

19              The government's documentary evidence at trial, including

20   several hundred exhibits, described and explained to the jury by

21   Murphy,   consisted   in   large   part   of   account    statements   from   a

22   Carnival French Ice Cream account maintained by Abad at J.P. Morgan

23   Chase Bank ("Chase"), as well as account statements from 12 "feeder"

24   accounts at Chase and other banks.         These statements showed large

25   totals of money deposited into the Carnival account in small amounts

26   as transfers from 12 feeder accounts, and large sums of money wired

27   out of the Carnival account to accounts in 25 other countries.           (See

28   Tr. 234-36, 238-39, 242.) For example, in a one-month period during

29   the fall of 2000, more than $245,000 was deposited into the Carnival

30   account and more than $268,000 was wired out.            (See id. at 234-36.)

31   Between 1996 and 2003, the total amount deposited into the Carnival

32   account was $22,190,642.21, and the total amount withdrawn was

                                         -5-
 1   $21,995,556.54.      (See id. at 239.)

 2               Murphy described the overall flow of money in this case as

 3   follows:

 4               [M]oney was deposited into these feeder accounts,
 5               these 12 different feeder accounts.    After it was
 6               deposited, it was transferred to the JP Morgan Chase
 7               account and then after it reached the JP Morgan
 8               Chase account[ it] was then wired out to one of
 9               these 20-plus countries, ultimately making its way
10               back to Yemen.

11   (Tr. 245.)    The money arrived in the feeder accounts by various

12   means, including check deposits, cash deposits, and wire transfers.

13   (See id.)    Then,

14               [m]oney got from the feeder accounts to the Carnival
15               account in generally one of two ways. Most often
16               there were checks written . . . from one of the 12
17               feeder accounts, pay[able] to the order of Carnival
18               French Ice Cream account and then it is deposited
19               into the Carnival French Ice Cream account. On some
20               occasions the feeder accounts would wire money over
21               to the Carnival French Ice Cream account.

22   (Id. at 247.)    Murphy testified that there were hundreds of checks

23   from the feeder accounts made out to the Carnival account.   (See id.

24   at 249.)

25               The government also offered as evidence the account-

26   opening documents for the feeder accounts, including another Chase

27   bank account in the name of the Prospect Deli that was opened by

28   Aref and listed the home address and telephone number of Abad.     (See

29   Tr. 258-60; see also id. at 268-69 (same account-opening information

30   used for another feeder account at Astoria Federal Bank).)          The

31   Prospect Deli was a business a few blocks away from the Carnival

32   French Ice Cream shop; the Prospect Deli was in operation only from

33   1996 to 1998, but activity in the Prospect Deli bank account

34   continued until 2002.       (See id. at 262-66.)   For example, bank

                                        -6-
 1   records showed that in 2001 approximately $850,000 was deposited

 2   into the Prospect Deli account and about $823,000 was transferred

 3   out to the Carnival account.        (See id. at 266.)

 4               A representative of the New York State Banking Department

 5   testified that neither Abad nor Aref, nor any of their various

 6   entities including Carnival French Ice Cream, had a New York State

 7   license to transmit money.           (See Tr. 673-74.)         The government

 8   offered evidence that Abad was aware of the licensing requirement.

 9   It introduced a letter from the New York State Banking Department

10   dated March 2002, found in Abad's files, stating that a New York

11   State license was required before commencement of money-transmitting

12   activities.       (See id. at 281-83.)       An application form for such a

13   license was attached to the letter but was not filled out.            (See id.

14   at 347.)   In addition, Murphy testified that he had been informed by

15   Abad's attorney that Abad was "told he needed to get a license to

16   remit money and that he had to apply for it and that he never did

17   apply for that."       (Id. at 346.)

18               Murphy testified that after Aref was arrested in December

19   2003 and given Miranda warnings (Miranda v. Arizona, 384 U.S. 436

20   (1966))    (see    Part   II.A.   below),    Murphy   asked   Aref   about   his

21   involvement in the money-transmitting business.

22                      Q   What did he say?

23                    A He stated that he worked for other people in
24               a money transfer or hawala business in the United
25               States.

26                      Q   Did he say what his responsibilities were?

27                      A   Yes.

28                      Q   What?


                                            -7-
 1                     A He had two responsibilities, the first was
 2                to open up several bank accounts to further the
 3                hawala business and the second responsibility was to
 4                make deposits of cash, generally between three and
 5                $4,000 into various bank accounts.

 6                     Q    Did he say               he   did     that    at    another
 7                individual's request?

 8                     A   Yes.

 9                     Q    Did he say whether he received any
10                compensation for his involvement in the hawala?

11                     A   Yes.

12                     Q   What?

13                     A He stated he got room and board and a salary
14                or small salary for that, for his work.

15   (Tr. 314.)

16                With respect to the structuring count against Abad, Murphy

17   testified that the bank records obtained by the FBI for the 12

18   feeder accounts showed 3,252 cash deposits; only one of them was a

19   cash   deposit    for   more       than    $10,000         triggering      a   reporting

20   requirement for the bank.          (See id. at 256.)              However, on each of

21   several   hundred     days,   an    aggregate        of    more     than   $10,000   was

22   deposited into the feeder accounts.                  (See id. at 257.)           Murphy

23   explained the significance of the $10,000 threshold:

24                What happens is, when you enter a bank, if you have
25                an amount of cash over 10,000, you are required to
26                give information to the bank and generate--the bank
27                generates   what's  called   a  CTR,   or  Currency
28                Transaction Report.   That then is filed with the
29                Internal Revenue Service, and that information is
30                tracked by the government.

31   (Tr. 256.)

32                A former customer of Abad's hawala, Abdul Hizam, testified

33   that Abad helped him purchase a house in Yemen by sending the money

34   to Yemen on his behalf.        (See id. at 297-99.)            Hizam testified that

                                               -8-
 1   Abad asked him to write several checks, each for less than $10,000,

 2   and to date the checks differently, though he gave Abad all of the

 3   checks at once.         (See id. at 299-301.)     The checks were variously

 4   made out to cash or the Carnival French Ice Cream store, and were

 5   deposited into several different feeder accounts.              (See id. at 302-

 6   04.)    Hizam testified that, in exchange for Abad's sending Hizam's

 7   money to Yemen, he paid Abad $2,900, which he understood was

 8   compensation for Abad and Abad's contact in Yemen.                   (See id. at

 9   305.)    Another customer, a cousin of Abad's, testified that Abad

10   charged a commission for each money transmittal, $30 to $40 for

11   every thousand dollars sent.        (See id. at 416, 418.)

12               The    government     also    presented    the     testimony    of   a

13   handwriting expert who gave his opinion that Abad's handwriting was

14   on several documents that related to the Carnival account and the 12

15   feeder accounts.         (See Tr. 561-62.)       The expert testified that

16   although the name on some of the documents was that of Abad's

17   cousin, Nasser Elfgeeh, the documents had been signed by Abad. (See

18   id. at 563-64; see also id. at 574 (opining that on some checks,

19   Abad signed Nasser Elfgeeh's name); id. at 575-76 (opining that on

20   some    checks    and   deposit   tickets,     Abad   signed   the   name   Saleh

21   Aljahmi); id. at 576 (opining that on some checks, Abad signed the

22   name Mahmood Elfgeeh).)

23               In addition, the expert testified that on several checks

24   written on the Prospect Deli account payable to the Carnival French

25   Ice Cream account and signed in the name of Aref, Aref's name was in

26   the handwriting of Abad, indicating that Abad had signed those

27   checks using his nephew's name.          (See id. at 569-70; see also id. at


                                              -9-
 1   577 (same).)     Other checks appeared to have been filled out by Abad

 2   but actually signed by Aref.            (See id. at 571.)         The handwriting

 3   expert also identified writing on many of the deposit tickets for

 4   the Prospect Deli account as the handwriting of Aref.                  (See id. at

 5   567-69.)



 6        2.    The Defense Case

 7                Abad and Aref testified in their own defense.               As to the

 8   unlicensed-money-transfer counts, Abad's primary defense was that

 9   the hawala was a "service" to the Yemeni community in Brooklyn (Tr.

10   726) and was not intended to make a profit (see id. at 727), and

11   hence Abad did not consider it a "business" within the meaning of

12   § 1960(a).      Abad testified that the hawala service was for Yemeni-

13   Americans only (see Tr. 727), that he transmitted money only for

14   individuals, not for businesses (see id. at 729), and that he

15   charged individuals for his service only in order to cover the

16   banking fees charged by commercial banks for the transmissions and

17   to cover the costs of delivering the money on the receiving end (see

18   id. at 741; see also id. at 738 ("I wasn't in a business, it was a

19   service.")).

20                Abad     had    adverted   to       this   defense   in   his   cross-

21   examinations of Special Agents Murphy and Gill, eliciting that

22   Murphy,    in       his     investigations,       had   not   come     across   any

23   advertisements for the hawala (see, e.g., Tr. 332), and eliciting

24   from Gill that the books of the hawala did not show a profit (see

25   id. at 525-26).           The government had countered this defense with

26   testimony by the New York State Banking Department representative,


                                             - 10 -
 1   who testified that a money-transmitting business need not take in

 2   revenue, and need not be profitable, to trigger the licensing

 3   requirement.     (See id. at 675.)

 4                Abad also testified that he was unaware of the licensing

 5   requirement when he began transmitting money for Yemeni community

 6   members in 1995, and only learned in 2002 that he might need a

 7   license.     (See Tr. 728-29, 734-35.)        Abad testified that at that

 8   time he determined that the licensing requirement did not apply to

 9   his money-transmitting business because the application appeared to

10   apply to banks and because New York State "wanted $500,000 on

11   deposit."     (Id. at 737.)

12                With regard to the structuring count, Abad offered the

13   following testimony:

14                     Q   You've heard testimony here there was, I
15                think was described as 12 feeder accounts in various
16                banks throughout the area.

17                     Would you please explain, did            you   make
18                deposit[s] in various bank accounts?

19                     A   I did.

20                     Q   Why did you do that?

21                     A These accounts, most of them or half of them
22                had either my name individually or with the joint
23                account with any other member of the family or
24                partner and for the safety of this money that the
25                people bring, I have to bring different accounts in
26                order to have it safe. Additionally, to save some
27                money because Chase bank charges a lot of money
28                because it's a business account, these savings and
29                checking accounts I put the money in, it's free.
30                They don't charge you anything.

31   (Tr. 730.)    Abad also stated that he did not instruct Abdul Hizam to

32   divide his money into checks for less than $10,000.          (See id. at

33   746.)


                                          - 11 -
 1              On cross-examination, the government elicited testimony

 2   from Abad that he was aware of numerous other licensing requirements

 3   for Carnival French Ice Cream, including requirements for a fire

 4   permit, an illuminated sign permit, and a health certificate to sell

 5   frozen food.   (See id. at 755-57.)        The government also questioned

 6   Abad about the fact that he incurred more fees by depositing money

 7   in small amounts into several different accounts than he would have

 8   had he deposited a larger amount into the Carnival account; Abad

 9   acknowledged this but nonetheless maintained that he divided the

10   money among the feeder accounts to save money.       (See id. at 764-68.)

11   Abad stated that since all the accounts were his, "I put [the money]

12   in any account I choose.    It doesn't matter to me, make a difference

13   to me."   (Id. at 770.)    Abad admitted on cross-examination that he

14   signed various checks and deposit tickets in the names of five or

15   six of his relatives.     (See id. at 801-04.)

16              Abad also admitted that after his arrest, he failed to

17   disclose to the magistrate judge that he had access to the Prospect

18   Deli account, and he instructed Aref to withdraw $21,000 from that

19   account and send it to Yemen.              (See id. at 807-08.)   Cross-

20   examination of Aref revealed that the checks sent to Yemen were

21   backdated to a date prior to Abad's arrest.         (See id. at 868-73.)

22              Abad also testified that Aref "ha[d] no role" in the

23   money-transmitting "service" (Tr. 743), and never made deposits for

24   the service (see id. at 747).        On cross-examination, when shown

25   copies of deposit tickets and checks that he admitted were not in

26   his handwriting, Abad stated that he was "not sure" whether Aref

27   made deposits for the hawala into any feeder accounts.       (Id. at 796-


                                       - 12 -
 1   800.)

 2                  Aref testified, through an interpreter, that he did not

 3   deposit money or write checks for his uncle's money-transmitting

 4   business.       (See id. at 848.)      When presented with numerous deposit

 5   tickets and checks that the expert witness had opined were in his

 6   handwriting, Aref denied that he had written the checks or made the

 7   deposits.       (See id. at 888-96.)




 8          3.    Mentions of a Terrorism Investigation and Violence

 9                  Prior to trial, counsel for Abad had expressed concern

10   that Special Agent Murphy would testify that he was assigned to the

11   FBI's counterterrorism task force, and that the indictments of the

12   defendants stemmed from a "terrorism investigation, assigned to a

13   terrorism investigative unit." (Tr. 177.) The government responded

14   that it would not ask Murphy "what unit he's assigned to" and that

15   it planned to "keep that off the table unless [the defendants] open

16   the door."          (Id.)    The government stated: "We're mindful of that,

17   have taken precautions to make sure that's not injected here at

18   all."       (Id.)

19                  In Abad's opening statement, his attorney told the jury

20   that

21                       [e]very bit of this money was earned by hard-
22                  working people who paid their taxes on it and gave
23                  it to Mr. Elfgeeh in trust, not to keep, to transfer
24                  for them. He had no tax obligation to pay for any
25                  of this money. Every bit of this money came from a
26                  decent source, not criminal activity.

27   (Id. at 200-01.)            Outside the presence of the jury, the government

28   argued that that statement constituted an "argument . . . that . . .

                                              - 13 -
 1   there's no proof the money came from terrorists or terrorism or

 2   anything like that; that rather it was immigrants'[ ]money being

 3   sent home to family and friends."                  (Id. at 230.)   The government

 4   contended that that statement "open[ed] the door to getting [into

 5   evidence]   the     fact    there   was     actually     money   transmitted,    the

 6   government believes[,] to known terrorist organizations, checks that

 7   say for the Jihad from the defendant himself."               (Id.)     The district

 8   court, noting that opening statements do not constitute evidence at

 9   trial, ruled that this did not "open the door" because only a

10   witness can open the door to related testimony.                  (See id.)

11               Later    that    day,   during         cross-examination    of   Murphy,

12   counsel for Abad asked numerous questions about Murphy's visits to

13   or surveillance of Abad's Carnival French Ice Cream shop, inquired

14   whether Murphy had visited alone or with other agents, and elicited

15   that the FBI had sent a confidential informant ("CI") into Abad's

16   shop.    Counsel then asked what Murphy's purpose had been in going

17   there.   Murphy responded:

18               At some point, the first time I went there, I had a
19               cooperating witness or a person that was working on
20               behalf of the government. I wired that person up
21               and the purpose to go there was to have that person
22               gain information about Abad Elfgeeh on another
23               matter. That was the first time.

24   (Tr. 336 (emphasis added).)           Counsel for Abad then continued to

25   probe into Murphy's purpose, and received two answers that mentioned

26   the terrorism investigation:

27                    Q   Actually you wanted this person to go in
28               there, do a $100,000 transaction, didn't you?

29                    A I wanted that person to go in. At that time
30               I was investigating a case that had to do with
31               terrorism with a person in Yemen by the name of
32               Mohamed--

                                               - 14 -
 1        MR. HANCOCK [counsel for Abad]:     I move for
 2   mistrial.

 3        THE COURT: No, we'll strike that. You asked
 4   him about what the investigation was. This case is
 5   not about terrorism, ladies and gentlemen.

 6        Q   Did you ask that person to go there and
 7   attempt to have $100,000, in excess[,] wired to him?

 8        A No, I had that person go in there to try to
 9   attempt to move money from the United States to
10   Yemen for terrorist causes.

11        Q   Was he successful--

12        MR. FRIEDMAN [counsel for Aref]:   Might I have
13   a side bar, please?

14        (Side bar.)

15        MR. FRIEDMAN:   I most respectfully ask for a
16   mistrial, just for my client, who has been indelibly
17   prejudiced now. I didn't ask any questions. Your
18   Honor gave a ruling with respect to the witness'[s]
19   answer. Then the witness on the very next question,
20   without any prompting stuck it to Abad [sic] Elfgeeh
21   for no reason other than to do it.       It was not
22   called for.

23        MS. CHEN [counsel for the government]: Quite
24   the opposite.    Mr. Hancock is going down a road,
25   eliciting information that will clearly go into the
26   other investigation.    As the court is aware, the
27   reason the CI was there [was] because he was
28   investigating the Al Mo[a]yad case. That's why he
29   went there.    When Mr. Hancock keeps baiting the
30   agent, the agent will give the response that he did
31   which is entirely responsive, appropriate.      Mr.
32   Hancock could stop going down this road unless he
33   wants to open it wide.

34         THE COURT:  I'll deny this application for
35   mistrial. You will proceed on this road at your own
36   risk.

37        MR. HANCOCK: I happened to say he went into
38   that place for two reasons; he needed a license, did
39   he see any other licenses on the wall there to show
40   he complied with other requirements like the health
41   code requirement, sales tax, capitalization.      He
42   looked for this opportunity, not responsive to my
43   question.


                           - 15 -
 1                    MS. CHEN:   Entirely responsive.

 2                  THE COURT: My ruling is . . . no mistrial and
 3             be very careful how you approach this subject.
 4             You're asking him questions, he's reading it one way
 5             where you have another motive, but you've got to be
 6             very careful. He doesn't know what you're talking
 7             about. Be careful.

 8                  When this is over, you'll speak to your
 9             witness, stay away from that terrorism, please.

10   (Tr. 336-38.)     The following morning, on a renewed motion for a

11   mistrial by counsel for Abad, the court stated that it would

12   "reiterate [to the jury] that this is not a terrorism trial.      This

13   is a banking violation" trial.    (Id. at 384.)   When the jury entered

14   the courtroom, the court stated:

15             I'm going to advise you this is a case, as I said
16             when I read to you the indictment, it's a case about
17             banking and Hawalas not getting licenses.     That's
18             what the allegations are, has nothing to do with
19             terrorism.

20   (Id. at 389.)    This instruction was combined with a warning to the

21   jurors not to read the newspapers (see Part I.A.4. below).

22             The subject of violence arose again on the third day of

23   testimony, during the testimony of Abad.      On direct examination,

24   Abad stated that the fees he charged to customers covered certain

25   charges the operation incurred:

26             The bank charges, and the services that they do in
27             the other side where they deliver the money, they
28             have messengers to go to a village, to someone who
29             is in a hospital, to other parts of the city, to
30             different cities. They will have messengers to take
31             it to other parts of the country.

32   (Tr. 741.)      On cross-examination, in an attempt to counter the

33   testimony that money was sent to individuals in Yemen, some of whom

34   were hospitalized, the government asked Abad, "[H]ave you ever sent

35   money to support violence[?]" Abad answered "Absolutely not" before

                                       - 16 -
 1   his attorney objected, an objection that was sustained by the

 2   district court.    (Id. at 792.)            The government approached the

 3   subject again in reference to a list of customers who had given Abad

 4   money to send to Yemen:

 5                  Q And, in fact isn't it money they gave you to
 6             support a blood feud between your tribe and another
 7             tribe?

 8                  MR. HANCOCK:   Objection, your Honor.

 9                  THE COURT:   I will allow that.

10                  A   What was the question?

11                  Q   Isn't it money that these people on this
12             list sent to Yemen to support a blood feud between
13             your tribe and another tribe?

14                  A   We sent--they sent money not to blood,
15             you're talking about, it's to--to have lawyers go to
16             the government and fight a dispute.

17                  Q I see. It was a legal dispute that you were
18             sending money for?

19                  A   Sorry?

20                  Q   It was a legal dispute you say you were
21             sending money for?

22                  A The tribes have problems in the villages and
23             we help the tribe, our side tribe.

24                  Q This money was going to pay for lawyers, is
25             that what you're saying?

26                  A    It's part for the           government,   for   the
27             lawyers and the expenses.

28                  Q Isn't it in fact true the money went to buy
29             weapons and ammunition for this fight?

30                  MR. HANCOCK:   Objection, your Honor.

31                  THE COURT:   I will allow it, if he knows.

32                  A   I don't know.

33                  Q   You don't know?


                                        - 17 -
 1        . . . .

 2        Q   Do you recognize this as another note in
 3   Arabic? . . . .

 4        Do you recognize that document?

 5        A   Yes.

 6        Q In fact, Mr. Elfgeeh, doesn't it say that--
 7   it's a letter to you actually, a note to you from
 8   your brother Yahaya, and it says basically, the
 9   weapons and ammunition are more than three million,
10   and then it goes on to explain that Abdullah and his
11   family are our guests now.     I recommend that you
12   take 5,000 from each of his children and Mahmood's
13   money is with you. I see that you also take from
14   him. As for their father, he's not giving anything,
15   neither now nor later.

16        Isn't it in fact true that the money that they
17   are referring to is money to buy weapons and
18   ammunition?

19        MR. HANCOCK:   Objection.

20        THE COURT:   I will allow it.

21        A This is a letter and he said how much money
22   they deposited to secure for the government side,
23   the government take as a bail from each tribe in
24   order to have this thing discussed.

25        Q Mr. Elfgeeh, when your brother sent you this
26   note and you read the weapons and the ammunition is
27   more than three million, did you know what he was
28   talking about?

29        A   No.

30        Q   You had no idea that there was this feud
31   going on that involved weapons and ammunition
32   between your tribe and another tribe?

33        A   I know what he said, but--

34        Q   You knew that the money you were sending
35   over was going to be used for that purpose, didn't
36   you, based on this note?

37        A When what this note came, I knew it was--
38   when this note came.

39        Q   And you sent the money, isn't that right?

                           - 18 -
 1                  A I don't know if I sent the money for this
 2             purposes. I don't know that.

 3                  Q Isn't it true that you actually got a number
 4             of correspondences from your brother on this
 5             particular issue about collecting money for this
 6             particular purpose, to fuel the feud between your
 7             tribe and another tribe?

 8                   A    There was some money, yes, sent for this.

 9   (Tr. 793-96.)

10             On redirect examination of Abad, his attorney elicited

11   further testimony about the tribal feud:

12                  Q   You were asked a question, there was a
13             tribal dispute in Yemen in which your family was
14             involved or somebody was involved?

15                   A    Yes.

16                   Q    Explain that a little bit, please.

17                  A    Tribes are fighting       each   other,   have
18             problems all the time.

19                  Q To your knowledge did the United States of
20             America, the United States Government have a
21             position in that dispute?

22                   A    No, I don't think so.

23   (Tr. 829-30.)       Finally, on recross-examination, the government

24   addressed the issue again:

25                  Q Mr. Elfgeeh, you were just asked about this
26             feud between your family and another family in
27             Yemen. Do you recall testifying about that?

28                   A    Yes.

29                  Q This is actually your family, right?           You
30             referred to them as your tribe, right?

31                   A    Not just my family, but the whole tribe.

32                  Q    When you use the word "tribe," you're
33             actually referring to people who come from the same
34             region basically and have some blood connection?

35                   A    You could say that.

                                       - 19 -
 1                      . . . .

 2                   Q In fact, did your brother fax you various
 3              correspondence about this feud that was ongoing?

 4                      A   Yes.

 5                   Q In fact did he send you a fax that basically
 6              referred to various court cases that involved
 7              violence?

 8                      A   He did.

 9                   Q   Were not there two or three cases that
10              involved grenades and other explosive devices that
11              were part of this big dispute?

12                      A   That's what happened in the village, yes.

13                   Q Isn't it in fact the money that you sent was
14              supposed to help your family defend this dispute
15              involving grenades and other ammunition?

16                      A   To help fight the case.

17                   Q     Wasn't it actually used though to buy
18              weapons or other grenades?

19                      MR. HANCOCK:    Objection.   There is no proof of
20              that.

21                   THE COURT:        I'll allow it.   He can answer yes
22              or no.

23                      A   I don't know.

24   (Tr. 833-34.)



25        4.   Publicity During Trial

26              The jurors had been sworn in on September 12, 2005; on

27   September 13, counsel's opening statements were made, apparently

28   with the press in attendance, and the presentation of testimony was

29   begun.     On the morning of September 14, three New York City

30   metropolitan area newspapers carried four articles relating to the

31   trial.    The New York Daily News carried an article on page 3 that


                                            - 20 -
 1   stated in part:

 2                  Nowhere in Assistant U.S. Attorney Pamela
 3             Chen's opening argument, though, was the word
 4             "terrorism" mentioned, even though the arrest of
 5             defendant Abad Elfgeeh, 50, was an offshoot of a
 6             government crackdown on the financing of terrorist
 7             organizations abroad.

 8                  Federal Judge Sterling Johnson has barred any
 9             mention of Elfgeeh's reputed ties to Yemeni cleric
10             Mohammed Ali Hassan Al-Moayad, who was recently
11             convicted of conspiring to provide material support
12             to Hamas and Al Qaeda and referred to himself as
13             Osama Bin Laden's "personal sheik."

14                  A government witness, FBI agent Brian Murphy,
15             was not allowed to testify he is assigned to a squad
16             that investigates terrorism.

17                   Chen argued unsuccessfully yesterday that the
18             jury should see checks seized from Elfgeeh with the
19             words "for the jihad" and "mujahidin" written on
20             them.

21   John Marzulli, "Jury Hears Charges Vs. Yemen Man," New York Daily

22   News, September 14, 2005, at 3 (emphases added).   The article also

23   included information about the Carnival French Ice Cream shop, a

24   definition of hawala, and a quote from Abad's counsel.

25             Another article, with an Associated Press byline, appeared

26   on page 15 of Newsday and was entitled "Jury Won't Hear About

27   Alleged Al-Qaida Links."   It stated, in pertinent part:

28             Prosecutors have said [Abad Elfgeeh's] business was
29             used by a Yemeni cleric convicted earlier this year
30             of a scheme to fund al-Qaida and the Palestinian
31             militant group Hamas. But prosecutors cannot raise
32             the topic of terrorism at Elfgeeh's trial unless the
33             defense does first because they did not have enough
34             evidence to charge Elfgeeh with a terrorism-related
35             crime.

36                  Assistant U.S. Attorney Pamela Chen made her
37             first attempt to bring up terrorism after an opening
38             statement by defense attorney Frank Hancock, who
39             called Elfgeeh a law-abiding citizen who sent money
40             overseas for Yemeni immigrants innocently seeking to
41             support their families and invest in their native

                                     - 21 -
 1               country.

 2                    After the jury left the courtroom, Chen asked
 3               U.S. District Judge Sterling Johnson Jr. of Brooklyn
 4               to let her refute Hancock's claims by introducing
 5               what she called suspicious checks confiscated from
 6               Elfgeeh, some bearing the words "jihad" and
 7               "mujahidin."   Others were made out to the Yemen-
 8               based Charitable Society for Social Welfare, which
 9               the FBI has described as a terrorist front.

10                    Johnson rejected her request but is expected to
11               revisit the issue as the trial moves forward.

12                    Elfgeeh first came to the attention of FBI
13               anti-terrorist agents as they investigated Sheik
14               Mohammed Ali Hassan Al-Moayad, whom they eventually
15               accused of funneling money from the United States to
16               al-Qaida and Hamas.     Al-Moayad was convicted of
17               supporting and conspiring to support terrorism and
18               sentenced to 75 years in prison in July.

19                    Witnesses at al-Moayad's trial said he kept
20               Elfgeeh's number in his phone book and called
21               Elfgeeh someone he trusted to transfer money from
22               the United States to Yemen.

23   The Associated Press, "Jury Won't Hear About Alleged Al-Qaida

24   Links," Newsday, September 14, 2005, at A15 (emphases added).

25               The New York Post contained two articles about the case.

26   A   news   article   entitled   "Ice-Cream   Terror   Charges   Melt   Away"

27   appeared on page 28.     It reiterated allegations about Abad's links

28   to Yemeni Sheik Mohammed Ali Hassan Al-Moayad and the district

29   court's ruling that prohibited mention of terrorism.               It also

30   stated: "[Abad] Elfgeeh had pleaded guilty to the charges in 2003,

31   but was allowed to withdraw [the guilty plea] after stating his

32   lawyer at the time had not made him fully aware of the 11-year

33   sentence that came with the deal." Zach Haberman, "Ice-Cream Terror

34   Charges Melt Away," New York Post, September 14, 2005, at 28

35   (emphasis added).      A column on page 9 by Andrea Peyser entitled

36   "Trial Serves Up Some Real Nutty Buddies" stated in part:

                                         - 22 -
 1                  When Elfgeeh was arrested, Attorney General
 2             John Ashcroft went so far as to say that this case
 3             proves "the FBI can better prevent terrorism and
 4             save American lives."

 5                  Was Abad Elfgeeh, upstanding American citizen,
 6             financing terror through ice cream? You may never
 7             know because federal jurors may never hear the "T"
 8             word spoken aloud.

 9                  Elfgeeh is standing trial on charges he
10             illegally transferred money to Yemen--which could
11             put him away for 15 years. But prosecutors agreed
12             that mentioning terror might "prejudice" the jury, a
13             source told me.     This surreal trial gets even
14             stranger, when you learn how it all came about.

15                  On Elfgeeh[']s legal team in Brooklyn federal
16             court is one Burton Pugach. He is a jolly paralegal
17             and former lawyer who was disbarred more than 40
18             years ago after he was convicted of hiring three men
19             to throw lye in the face of a girlfriend who tried
20             to leave him. She was blinded permanently. Then he
21             married her.

22                  Then, eight years ago, he was       accused   of
23             threatening to maim a second woman.

24                  "I only asked someone to beat her up," Pugach,
25             78, said about his wife, who for some reason remains
26             wed to him.

27                  So now he wants to fight for fellow victims of
28             the system.

29                  Elfgeeh actually pleaded guilty to the charges
30             against him two years ago. But then he met Pugach.
31             He pleaded "not guilty" and now faces up to 15 years
32             in prison if convicted.    Pugach is convinced his
33             client [sic] will walk.     These two deserve each
34             other.

35   Andrea Peyser, "Trial Serves Up Some Real Nutty Buddies," New York

36   Post, September 14, 2005, at 9.

37             On the morning that these articles appeared, Assistant

38   United States Attorney ("AUSA") Pamela Chen notified the district

39   judge, before the jury was called into the courtroom, that publicity

40   about the Elfgeehs' trial had appeared in the media.    She pointed


                                       - 23 -
 1   out   that   the   judge   had    not,    either   during   his   preliminary

 2   instructions to the jury or in the previous day's proceedings,

 3   instructed the jurors to avoid media reports about the trial.            The

 4   AUSA asked,

 5                [c]ould the court admonish the jury as the standard
 6                not to read the paper and all that? I think perhaps
 7                yesterday that didn't happen. I want to make sure
 8                since I have seen--

 9                      THE COURT:     This case was in the paper?

10                      MS. CHEN:     This morning.

11                      THE COURT:     Which paper?

12                     MS. CHEN:    The New York Post.   There were
13                reporters here yesterday. I think it also made the
14                AP wire. I think it's worth reminding [sic] them.

15                     MR. HANCOCK:      I didn't see it.    I join in the
16                application.

17                      MS. CHEN:     Just cautionary.

18   (Tr. 388 (emphases added).)            After calling the jury into the

19   courtroom, the district court offered the following warning:

20                     The other thing I have to admonish you, this
21                case is going to be decided by the evidence or lack
22                of evidence.   Evidence is sworn testimony of the
23                witnesses and the exhibits that I allow in;
24                therefore anything that anybody else says, whether
25                defense counsel or the prosecutor or it's me is not
26                evidence in the case.

27                     Also, if you read anything in the newspapers
28                about this case--I don't think there will be
29                anything in the newspapers [sic]--you're not to
30                concern yourselves. Don't read that.

31   (Id. at 389.)      This admonition was followed by a warning that the

32   trial was not related to terrorism (see Part I.A.3. above).

33                That afternoon, after the lunch break, there was further

34   discussion about the trial publicity outside the presence of the

35   jury.   Counsel for Aref stated:

                                           - 24 -
 1        Your Honor, you've been most scrupulous, have
 2   done a Herculean job in this case to instruct the
 3   jury to keep their focus on this case, that the
 4   issues are basically a banking issue, as you
 5   described it this morning.

 6        Unfortunately, there have been some articles in
 7   the major daily newspapers of New York, and I'm
 8   talking about the Post, Newsday and the News which
 9   have   contained    very   deleterious    statements
10   concerning the material that your Honor wanted to
11   keep from the jury's knowledge.

12        In particular, the article speaks about the
13   defendants' ties to "terrorists."      The articles
14   mention how your Honor prevented the government from
15   including [checks], which bear words like Jihad and
16   what the FBI describes as a "terrorist front."

17        The articles similarly refer to evidence
18   linking these defendants to the defendant Al
19   Mo[a]yad, who was tried before your Honor and
20   convicted and Mr. Al Mo[a]yad is identified as being
21   convicted and with links to Hamas and Al Qaeda.

22        The article further prejudices the defendant
23   Abad Elfgeeh by disclosing the fact he had pled
24   guilty before and withdrew his plea.

25        I would like your Honor to read the articles,
26   the two I have in front of me and afterwards, I
27   would like to move, most respectfully, for a
28   mistrial, or in the alternative, have your Honor
29   speak to the jurors individually and I don't mean 15
30   minutes each--quickly--to see, one, that they have
31   not read the articles to ensure they won't read any
32   more articles and, secondly, I make this application
33   because I'm not sure whether your Honor specifically
34   instructed the jurors before not to read articles
35   about this case.

36        THE COURT:   I did this morning.

37        MR. FRIEDMAN:   May have done it on the train.

38        THE COURT:   I'll speak to them again.

39        You wanted to say something, Ms. Chen?

40        MS. CHEN: No, I was going to say that's why we
41   raised this issue this morning, your Honor, because
42   we were aware of articles.

43        THE COURT:   I was not aware of it, but I have

                           - 25 -
 1   already seen it over the lunch break.

 2        MS. CHEN: I thought you perfectly dealt with
 3   it by admonishing them. If the court would like to
 4   inquire of them when they return, if anybody has
 5   read any articles, we have no objection to that.
 6   Individual voir dires are not necessary, your Honor.
 7   Your standard way of dealing with it would be fine.

 8        MR. HANCOCK:  I don't know what the standard
 9   way is.     I join in cocounsel's application.
10   Sometimes when you have a situation like this, you
11   make it worse.

12        THE COURT:   I agree with you.

13        MR. HANCOCK:   I don't know what the remedy is.

14        THE COURT: Generally in a situation like this,
15   rather than call attention to it, because those who
16   have not read it, maybe now they want to read it.
17   I'll reiterate anything in the papers you're not to
18   read. If you come across it, put it down. Again,
19   I'll reiterate it, this case will be decided solely
20   on the evidence.

21        MR. FRIEDMAN: Would your Honor as a group then
22   ask the jury if they read any article dealing with
23   this case? If you get a positive, we'll take care
24   of it.

25        THE COURT: There might be some who have not
26   read it, you'll call their attention to it. I did
27   not know anything about articles when I came here
28   this morning. Ms. Chen happened to mention it. I
29   still didn't see it.

30        When I went back during the lunch hour, I was
31   reading the newspaper and I came across it.      In
32   fact, my paper didn't have it.    I got the Queens
33   news that somebody else gave me, which is the
34   Brooklyn news. That's the way I'm going to handle[]
35   it.

36        MS. CHEN: May I note for the record when you
37   spoke to the jury this morning about this issue,
38   none of the jurors indicated verbally or in my
39   observation in any other way that they actually had
40   read anything when you mentioned the press issue.

41        THE COURT: It's going to be kind of delicate
42   for me to mention this again. I think what I should
43   do at the end of the day, when we get ready to go
44   home, to mention it again as opposed to right after

                           - 26 -
 1             lunch.

 2                  MR. FRIEDMAN: Again, I have made my request.
 3             My request is on the record.

 4                   THE COURT:   I understand.   I'm sensitive to it.

 5   (Tr. 518-21 (emphasis added).)   Accordingly, at the end of the day,

 6   the district court again instructed the jurors that they should

 7   avoid media reports about the trial:

 8             Have a nice weekend. Don't discuss the case. Keep
 9             an open mind.   If you read anything in the paper
10             about this case, put it down, do not read it.

11                  I will admonish you again that this case is
12             going to be determined based solely upon the
13             evidence, sworn testimony of witnesses and the
14             exhibits that I have allowed in evidence.

15   (Id. at 600.)

16             Further discussion about the trial publicity occurred on

17   the next day of trial, September 19, after a weekend break.         This

18   time, it was counsel for Abad who raised the issue:

19             One other issue, Mr. Elfgeeh came to my office
20             Saturday. For the first time I saw this article, an
21             article in the Post, apparently went out in the
22             morning edition.     From what I've been able to
23             discern, the editor came in, pulled it, but the
24             first issue went out. This is, of course, the issue
25             that jurors would get on their way to court in the
26             morning. Part of it deals with Abad Elfgeeh, shows
27             Mr. Elfgeeh next to Al Mo[a]yad, the two, making a
28             link. Apparently Ms. Andrea Pizer (ph), a columnist
29             for the Post talked to Mr. Puga[c]h, went into his
30             history, indicated he was a nut and basically my
31             client is a nut and--the article is as it is.

32                  I'm concerned the jury is going to see this. I
33             have to put Mr. Elfgeeh on the stand after this.
34             There are two allegations under direct testimony
35             with the government [stating] my client is a
36             terrorist,   an  allegation   there's   overwhelming
37             evidence against Mr. Aref Elfgeeh because of the
38             conspiracy, I suppose, would and could [come] back
39             and touch on Abad Elfgeeh. I would like to put him
40             on the stand to testify.     I'm so afraid they're
41             going to come up with information about terrorist

                                      - 27 -
 1             activity, Islamic charities, things of that nature.

 2                  For instance, there was a charity that Mr.
 3             Elfgeeh has given money to in the past, called
 4             "Islamic Relief," pledged $2 million to the Gulf
 5             region victims. He's given maybe $100, $200, [to]
 6             various agencies such as this, charitable agencies.
 7             He gets on the witness stand, starts talking about
 8             this charity versus that charity, whether this is a
 9             terrorist front or not, I can't put him on. On the
10             other hand, I'm forced to put him on because of
11             articles like this.    I would ask for a motion in
12             limine if he testifies, he does not go near any of
13             these issues about charities; that the government
14             not be allowed under some guise, character, some
15             other reason to bring it up under cross-examination.

16                  THE COURT: When you put a person on the stand,
17             he can be cross examined as far as his story is
18             concerned, issues of credibility. I'm not going to
19             do that. I don't know what he's going to testify
20             to, what his cross-examination is going to be.

21                    I haven't seen that article.    Let me see it
22             now.    I am again going to caution the jurors.

23   (Tr. 639-41.)    When the jury entered the courtroom, the district

24   judge stated:

25                  I want to admonish you, again, keep an open
26             mind; that you are not to read anything in the
27             newspapers and that this case will be decided solely
28             on the evidence, as I told you before, sworn
29             testimony of the witness[es] and it's the answers,
30             not the questions, and whatever exhibits I choose to
31             admit.

32   (Id. at 645.)

33             The final discussion about the trial publicity occurred

34   during a mid-morning break on the same day, September 19.        It

35   consisted principally of the following exchange:

36                  THE COURT: Did you say you spoke to the editor
37             of the New York Post?

38                    MR. HANCOCK:   No, sir.

39                  I first received that Saturday morning, about
40             noon, from Mr. Elfgeeh. It is my understanding that
41             they pulled that article when the editor came in

                                       - 28 -
 1              that morning and replaced it with another article
 2              without Ms. Piser's [sic] column.

 3                   MS. CHEN: To clarify the record, when he says
 4              that article, I think he is referring only to the
 5              one about Mr. Pugach.

 6                   MR. HANCOCK:   Yes.

 7                   THE COURT: It is an article from the New York
 8              Post dated September 14th.   It refers to--the top
 9              article is Terror Case Melts and beneath it says
10              Trial Serves Up Some Real Nutty Buddies.

11                   This portion of the article, nutty buddies.

12                   MR. HANCOCK:   That bothers me.

13                   THE COURT:   That was pulled?

14                   MR. HANCOCK:   Yes, sir.

15                   THE COURT:   Okay.    All right.

16                   (Recess taken.)

17                   . . . .

18                   MR. HANCOCK: You asked before we broke about
19              my taking umbrage to the article in the Post.   I
20              also take umbrage to the two photographs--

21                    THE COURT:     I'm assuming that you took
22              exception to the whole article, but I wanted to
23              clarify which one the editor withdrew. I understand
24              that.

25                   MR. HANCOCK:   Thank you.

26   (Tr. 689-91.)

27              The record does not indicate that any articles other than

28   the above-described September 14 articles were published about the

29   defendants during the course of the trial.



30        5.   The Jury's Verdicts and Forfeiture Findings

31              The jury found Aref and Abad guilty on all of the counts

32   with which they were charged. After the jury returned its verdicts,

                                       - 29 -
 1   the trial proceedings turned to the issue of forfeiture to determine

 2   what, if any, assets the defendants would be required to turn over

 3   to the government.        The government sought forfeiture of $22,435,467

 4   on the ground that that was the total involved in defendants'

 5   operation of the hawala in violation of § 1960(a), citing 18 U.S.C.

 6   § 982(a)(1), which provides that

 7                [t]he court, in imposing sentence on a person
 8                convicted of an offense in violation of section
 9                . . . 1960 of this title, shall order that the
10                person forfeit to the United States any property,
11                real or personal, involved in such offense, or any
12                property traceable to such property.

13   The government also sought forfeiture of that sum on the ground that

14   that was the amount involved in Abad's structuring offense in

15   violation     of     31    U.S.C.   §      5324(a)(3),   citing   31    U.S.C.

16   § 5317(c)(1)(A), which provides that

17                [t]he court in imposing sentence for any violation
18                of section . . . 5324 of this title, or any
19                conspiracy to commit such violation, shall order the
20                defendant to forfeit all property, real or personal,
21                involved in the offense and any property traceable
22                thereto.

23                No evidence was presented at the forfeiture hearing; the

24   jury simply heard argument from counsel as to what assets should be

25   forfeited.     The government argued that the amount to be forfeited

26   should include all assets that passed through the Carnival French

27   Ice Cream account.        (See Tr. 1095-97, 1098-99.)       Counsel for Abad

28   briefly urged the jury to require the government to return to Abad

29   the personal property that it had already seized from him.             (See id.

30   at 1097-98.)       Counsel for Aref presented no argument.        (See id. at

31   1098.)

32                After deliberating briefly, the jury returned a verdict


                                             - 30 -
 1   finding   that     $22,435,467     was   involved     in   or   traceable    to    the

 2   unlicensed money-transmission business or the structuring activity.

 3   (See Tr. 1115-17.)         The verdict did not distinguish between the two

 4   defendants    or    between    the    various     charges.      Counsel    for    Abad

 5   promptly asked the district court to set aside the verdict, stating,

 6   "I think the jury was confused.            How could the total amount of the

 7   money be subject to forfeiture when there was a mixture of checks

 8   and cash?"     (Id. at 1119.)         The district court denied the motion.

 9   (See id.)     No other challenge was made.




10   B.    Sentencing

11                Abad and Aref were sentenced in separate proceedings in

12   February 2006. According to the presentence report ("PSR") prepared

13   by the probation department on Abad, the advisory Guidelines range

14   for   imprisonment     was     188-235     months,     based     on    offense-level

15   increases for an aggravating role in the offense, obstruction of

16   justice, and the amount of money involved in the criminal activity.

17   In sentencing Abad, the district court imposed a prison term of 188

18   months (see Abad Elfgeeh Sentencing Transcript, February 3, 2006

19   ("Abad    S.Tr."),    at    13),     stating,     "[a]ccording    to    Booker    the[

20   sentencing guidelines] are advisory.                And I have considered the

21   guidelines, along with the other factors in 3553, and I have come to

22   this particular sentence" (id. at 15).

23                The PSR on Abad also noted that the Guidelines-recommended

24   range for the fine to be assessed against him was $20,000 to


                                              - 31 -
 1   $500,000,    which   encompassed   all      five   counts   on   which   he    was

 2   convicted.     The district court imposed a fine of $250,000 on each

 3   count (see id. at 13), for a total of $1.25 million.                 The court

 4   stated, "I impose this sentence because I think it is sufficient for

 5   the crime that was committed."       (Id.)         The court ordered Abad to

 6   forfeit $22,435,467.

 7                The PSR prepared on Aref concluded that the Guidelines-

 8   recommended prison range was 51-63 months.           That range was based on

 9   a base offense level of 6, plus a 16-step enhancement for the value

10   of the currency--$1,615,893.25--that had been transferred during the

11   time for which Aref was convicted of having participated in the

12   offenses, and a two-step upward adjustment for obstruction of

13   justice for having given perjurious testimony at trial and at the

14   suppression hearing.      Aref challenged the obstruction-of-justice

15   adjustment, arguing that his trial testimony, given his difficulty

16   with English, was the product of "'confusion, mistake or faulty

17   memory.'"    (Letter from Arthur S. Friedman to Shayna Bryant, United

18   States Probation Officer, dated December 13, 2005 ("Aref Letter"),

19   at 5 (quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)).)

20                At the sentencing hearing, the government suggested that

21   Aref be credited with a two-step downward adjustment on the ground

22   that he played a minor role in the offense, which would reduce his

23   Guidelines-recommended incarceration range to 41-51 months.                   (See

24   Aref Elfgeeh Sentencing Transcript, February 7, 2006 ("Aref S.Tr."),

25   at 21.)      The district court imposed a sentence of 51 months'

26   imprisonment--the intersection between the government's suggested

27   range and the PSR-recommended range (see id. at 25)--stating that


                                        - 32 -
 1   "there   are    more   questions    that      loom   than   answers   that   were

 2   disclosed" (id. at 22).      The district court stated, "I impose this

 3   [sentence] because I think it's sufficient for the crime that was

 4   committed," and "I took into consideration the guidelines and also

 5   3553(a)."      (Id. at 26; see also id. ("[T]his is something that I

 6   think is the right thing.").)         The district court ordered Aref to

 7   pay a fine of $250,000 on each count, for a total of $500,000, and

 8   to forfeit $22,435,467.



 9                                 II.   DISCUSSION



10               On appeal, both defendants contend principally that they

11   were denied a fair trial by Special Agent Murphy's mentions of

12   terrorism and by the news articles that linked Abad to persons who

13   were known or believed to be terrorists, and that the district court

14   gave the jury an erroneous instruction on the mens rea element of

15   § 1960(a) as amended.       Aref also contends that the district court

16   erred in not excluding his postarrest statements and in not giving

17   the jury a proper instruction as to its consideration of those

18   statements.     In addition, both defendants challenge their sentences

19   on various grounds.      For the reasons that follow, we find no basis

20   for reversing their convictions or for disturbing most facets of

21   their sentences.       We vacate so much of Abad's sentence as imposed

22   the $1,250,000 fine, and we remand for reconsideration of the

23   obstruction-of-justice adjustment applied to Aref.




                                          - 33 -
 1   A.   Aref's Postarrest Statements

 2                 Aref contends that his postarrest statements about his

 3   involvement in the money-transmitting business were involuntary and

 4   that the district court erred in admitting them in evidence and in

 5   not instructing the jury that it could determine what weight to give

 6   them.      We see no error.



 7         1.    Admissibility

 8                 Prior to trial, Aref moved to suppress his postarrest

 9   statements on the grounds that they were not voluntary, that when

10   arrested he was in pain from a March 2003 operation on his back,

11   that he had not been advised of his Miranda rights prior to making

12   those statements, and that he did not waive those rights.            A

13   pretrial suppression hearing was held at which Aref testified in

14   support of these contentions (see Suppression Hearing Transcript

15   dated September 12, 2005 ("Supp. Tr."), at 149-64), and Special

16   Agent Murphy testified as follows.

17                 Murphy testified that Aref was arrested in December 2003

18   at John F. Kennedy International Airport.       Murphy advised Aref of

19   his Miranda rights at the airport, reading them from an advice-of-

20   rights card he kept in his wallet.          (See Supp. Tr. 94.)   Aref

21   indicated that he understood his rights. (See id. at 95.)     Aref was

22   then driven to the FBI's office in lower Manhattan for processing.

23   During that drive, Aref "began to say he knew what [the arrest] was

24   about and that Abad Elfgeeh, his uncle, was the person to blame."

25   (Id. at 96.)     Murphy told Aref to wait until they arrived at the FBI

26   office before speaking about the case.      (See id.)


                                        - 34 -
 1                Once they arrived at the FBI office, Murphy again advised

 2   Aref of his Miranda rights, and he gave Aref an advice-of-rights

 3   form written in both English and Arabic.                   (See id. at 96-97.)

 4   Murphy instructed Aref to read the form, asked Aref if he understood

 5   it, and then went over the form line-by-line to ensure that Aref

 6   understood each sentence.         (See id. at 98.)         Aref refused to sign

 7   the advice-of-rights form but indicated that he was willing to speak

 8   to the agents.       (See id.)      Questioning of Aref ensued, first in

 9   English, and then in Arabic with the aid of an interpreter, until

10   Aref indicated that he was tired and wanted a lawyer, when the

11   questioning ceased.        (See id. at 101.)

12                The district court denied Aref's suppression motion.                It

13   found that "the testimony given by Agent Murphy [wa]s credible and

14   that   the    testimony     of   the       defendant,    [Aref]   Elfgeeh,   [wa]s

15   incredible."    (Supp. Tr. 167.)           The court found that Aref was given

16   Miranda warnings at the airport; that on the drive from the airport

17   to Manhattan, Murphy stopped Aref from initiating a conversation

18   about the facts leading to his arrest; that "there was no violation

19   of the defendant's Sixth Amendment right" to counsel (id. at 167-

20   68); and that "the government ha[d] sustained its burden" to show a

21   voluntary, knowing, and intelligent waiver of Aref's Miranda rights

22   (id. at 168).

23                Aref contends that this ruling should be overturned on the

24   ground   that   he   was   denied      a    fair    opportunity   to   support   his

25   suppression motion because the district court violated his Sixth

26   Amendment right of confrontation by limiting his attorney's cross-

27   examination of Murphy. The record does not support this contention.


                                                - 35 -
 1   The district court has

 2              wide latitude insofar as the Confrontation Clause is
 3              concerned to impose reasonable limits on such
 4              cross-examination based on concerns about, among
 5              other things, harassment, prejudice, confusion of
 6              the issues, the witness'[s] safety, or interrogation
 7              that is repetitive or only marginally relevant.

 8   Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see, e.g., Davis

 9   v. Alaska, 415 U.S. 308, 316 (1974); United States v. Salameh, 152

10   F.3d 88, 132 (2d Cir. 1998), cert. denied, 525 U.S. 1112 (1999).

11              Here, following Murphy's direct testimony, which lasted

12   approximately 20 minutes, Aref's attorney cross-examined Murphy for

13   nearly an hour and a half.        The cross-examination covered various

14   topics, including Aref's luggage (see Supp. Tr. 107, 112-13), the

15   Vienna Convention on Consular Relations (see id. at 114-17), Arabic

16   dialects   (see   id.    at   124-25),        notes   taken   by   Murphy   while

17   interrogating Aref (see id. at 126-31, 136-40, 142-44), an FBI legal

18   handbook (see id. at 131-32, 134-36, 139, 141-42), Aref's indication

19   that he would like something to eat (see id. at 141-42), and

20   Murphy's decision to ask a translator to help with the interrogation

21   (see id. at 143-44).

22              Periodically during the cross-examination, the district

23   court cautioned Aref's counsel that certain questions had been

24   "[a]sked and answered."       (Id. at 118; see also id. at 119, 120, 144,

25   145.)   After some 45 minutes of questioning, the court reminded

26   Aref's counsel, "[t]he issue before me . . . is the voluntariness of

27   any statement made by the defendant," and stated, "I haven't heard

28   you address that."      (Id. at 132.)    Aref's counsel indicated that his

29   questioning was designed to show that Murphy was biased or that his

30   testimony was otherwise inaccurate in describing his encounter with

                                          - 36 -
 1   Aref.    (See id. at 133 (stating that "[a]s a matter of impeachment,

 2   if a witness is biased, his testimony may be rejected no matter what

 3   he says").) The court cautioned that it would permit Aref's counsel

 4   to "explore this a little more and then [the court would] cut it

 5   off" (id. at 133-34), because Aref's counsel was "wasting time" (id.

 6   at 134).

 7                 Aref's counsel continued to question Murphy in the same

 8   vein, and the court repeatedly cautioned that the cross-examination

 9   time was running out.        The court eventually warned counsel that it

10   would allow him 10 more minutes, and subsequently eight minutes, and

11   then two minutes.       (See id. at 137, 138, 139, 144.)                Finally, the

12   court told Aref's counsel that his "time [wa]s up."                  (Id. at 145.)

13   When counsel objected that the court was "truncating [his] cross-

14   examination of th[e] witness," the district court stated: "Let the

15   record     reflect    this   witness    testified        on    direct     examination

16   approximately 20 minutes.       You've been almost an hour and a half."

17   (Id.)    Aref has not suggested that this description was inaccurate.

18                 This record does not indicate any abuse of discretion in

19   the court's termination of Aref's counsel's cross-examination of

20   Murphy.    Rather, it reflects that the court exhibited considerable

21   patience during a cross-examination that was repetitive and wide-

22   ranging into matters that were at best tangential, without exploring

23   the   issue    of    voluntariness.      We     see    no     violation    of   Aref's

24   confrontation rights.

25                 Nor do we see any error in the court's ruling that Aref's

26   postarrest statements were voluntary.                 Credibility-based findings

27   that a defendant has waived his right to remain silent and his right


                                            - 37 -
 1   not to be interrogated in the absence of counsel, see generally

 2   Edwards v. Arizona, 451 U.S. 477, 482 (1981), are reviewed only for

 3   clear error, see, e.g., United States v. Isom, 588 F.2d 858, 862 (2d

 4   Cir. 1978).     There was no such error here.



 5        2.   Jury Instructions as to Voluntariness

 6                With respect to his postarrest statements, Aref also

 7   contends, citing United States v. Barry, 518 F.2d 342, 346-47 (2d

 8   Cir. 1975), that the court should have given the jury an instruction

 9   "pursuant to 18 U.S.C. § 3501."                 (Aref Elfgeeh brief on appeal

10   at 41.) That section provides that the trial court, after admitting

11   in evidence a defendant's self-inculpatory statements that it found

12   were made voluntarily, "shall permit the jury to hear relevant

13   evidence on the issue of voluntariness and shall instruct the jury

14   to give such weight to the confession as the jury feels it deserves

15   under all the circumstances."           18 U.S.C. § 3501(a); see also id.

16   § 3501(e) ("As used in this section, the term 'confession' means any

17   confession     of   guilt   of   any     criminal     offense   or   any   self-

18   incriminating statement made or given orally or in writing.").               We

19   find no basis for reversal in the court's instructions.

20                While Aref's counsel noted during the charging conference

21   that the district court's charge to the jury did not include

22   instructions about the voluntariness of Aref's statements to Murphy

23   (see Tr. 616), at no point was a jury instruction pursuant to § 3501

24   requested by Aref.          His initial proposed instructions did not

25   include such an instruction; and his subsequent letter to the

26   district court, sent in response to an inquiry by the court as to


                                            - 38 -
 1   any remaining questions about the charge, did not request such an

 2   instruction.     Accordingly, the court's failure to instruct the jury

 3   pursuant to § 3501(a) is reviewable only for plain error.                     See,

 4   e.g., United States v. Fuentes, 563 F.2d 527, 535 (2d Cir.), cert.

 5   denied, 434 U.S. 959 (1977).       A plain error is one that, inter alia,

 6   prejudicially affected the defendant's "substantial rights" and

 7   "seriously affect[ed] the fairness, integrity or public reputation

 8   of judicial proceedings." United States v. Olano, 507 U.S. 725, 732

 9   (1993) (internal quotation marks omitted). Aref's § 3501 claim does

10   not meet this test.

11                 Although we stated in United States v. Barry that "[a]

12   defendant     may   properly    claim     that    he    made   no   incriminating

13   statements and that any statements which the jury might find that he

14   made were coerced," 518 F.2d at 347, we have since clarified that

15   "an instruction of the kind required by 18 U.S.C. § 3501 is mandated

16   only where an issue of voluntariness has in fact been raised at

17   trial," United States v. Fuentes, 563 F.2d at 535.                    An assertion

18   that the defendant did not understand his Miranda rights is not

19   sufficient to require the voluntariness instruction, see id. n.6;

20   nor is it sufficient that there is testimony that the defendant had

21   initially stated that he did not wish to talk to the officers, see

22   id. at 535.     Where "[t]here was little, if any, evidence from which

23   a jury could infer that the statement was involuntary," § 3501(a)

24   "does   not    require   that   the     jury     be    specifically    charged   on

25   voluntariness."      United States v. Lewis, 565 F.2d 1248, 1253 (2d

26   Cir. 1977), cert. denied, 435 U.S. 973 (1978).

27                 Here, there is no suggestion that the court excluded any


                                             - 39 -
 1   relevant evidence as to voluntariness, but little such evidence was

 2   presented. Although Aref testified that when he was arrested he was

 3   in pain due to a back operation he had had nine months earlier, and

 4   Aref's counsel argued in summation that Aref did not understand the

 5   waiver form he read in Arabic and English (see Tr. 996), there was

 6   virtually no evidence from which the jury could infer that Aref's

 7   statements to Murphy were involuntary.            And while the trial court

 8   did not instruct the jurors to determine for themselves what weight

 9   to accord to Aref's postarrest statements in particular, the court

10   gave the usual general instruction that the jurors are "the sole

11   judges" of "the weight and effect of all evidence."              (Id. at 1024.)

12   Given the record, we are not persuaded that there was error here,

13   much   less    plain   error,   and   we   see   no   indication    that   Aref's

14   substantial rights were affected.



15   B.   Testimony Mentioning Terrorism or Violence

16                 Defendants contend that they are entitled to a new trial

17   on account of Special Agent Murphy's mentions of terrorism during

18   his testimony, and the government's questioning of Abad about a

19   "blood feud" in Yemen.       We disagree.

20                 Where an inadmissible statement is followed by a curative

21   instruction, the court must assume "that a jury will follow an

22   instruction      to    disregard   inadmissible       evidence     inadvertently

23   presented to it, unless there is an overwhelming probability that

24   the jury will be unable to follow the court's instructions, . . .

25   and a strong likelihood that the effect of the evidence would be

26   devastating to the defendant."         Greer v. Miller, 483 U.S. 756, 766


                                           - 40 -
 1   n.8 (1987) (internal quotation marks omitted).

 2                 There can be little doubt that in the wake of the events

 3   of September 11, 2001, evidence linking a defendant to terrorism in

 4   a trial in which he is not charged with terrorism is likely to cause

 5   undue prejudice.       The district court endorsed that view.                   When

 6   Murphy stated that he had been "investigating a case that had to do

 7   with terrorism"--in response to questioning by Abad's attorney that

 8   may have been confusingly repetitive but that did not actually

 9   require him to mention terrorism--the court promptly gave a curative

10   instruction to the jury, stating that the case was not about

11   terrorism.     (Tr. 336.)

12                 After Murphy, in answer to Abad's attorney's ensuing

13   question probing Murphy's instructions as to what the CI was to do

14   in Abad's shop, stated that he had asked the CI to attempt to "move

15   money from the United States to Yemen for terrorist causes" (id.),

16   the   court    promptly,    in    a   sidebar        conference,   admonished     the

17   government     to   instruct     Murphy    to      avoid   gratuitous   mention    of

18   terrorism and warned Abad's counsel to be more careful with his

19   questions (see id. at 338).           Although it might have been preferable

20   for   the   court    also   to    give    a       second   cautionary   instruction

21   immediately rather than later, it was well within the court's

22   discretion to conclude that another such warning so soon after the

23   first was unnecessary, especially in light of the fact that Abad's

24   attorney, who elicited the second mention of terrorism--to which

25   Aref, not Abad, objected--had, before Aref's objection, already

26   begun to ask his next question.            The court gave another cautionary

27   instruction the following morning (see id. at 389); and at various


                                              - 41 -
 1   points during the trial, as well as in its final instructions, the

 2   court gave additional general admonitions to consider only the

 3   testimony and documents that the court had allowed in evidence (see,

 4   e.g., id. at 445, 600, 645, 1021-22, 1024-27, 1029).

 5              Although the two inappropriate answers by Murphy indicated

 6   that Abad was suspected of funding terrorism, the trial produced no

 7   further mentions of terrorism.        We see no indication that the jury

 8   was unable or unwilling to heed the court's repeated instructions

 9   that terrorism was not an element in the case, that the case was

10   about   alleged   banking-law   violations,      and   that    the    jury   must

11   consider   only   the   evidence    admitted    at   trial.     The    properly

12   presented evidence that defendants had operated an unlicensed money-

13   transmitting business, and that Abad had structured the deposits

14   into the Carnival and feeder accounts, was overwhelming.              We cannot

15   conclude that Murphy's two mentions of terrorism denied defendants

16   a fair trial.

17              Defendants also argue that the government reintroduced the

18   subject of terrorism into the trial by asking Abad whether he had

19   sent money to Yemen in connection with tribal wars, blood feuds, or

20   other violence, and that those questions should have been excluded.

21   We disagree with their characterization of this questioning and with

22   their challenge to its admissibility.

23              The trial court has broad discretion to exclude even

24   relevant   evidence     "if   its   probative    value    is    substantially

25   outweighed by the danger of unfair prejudice."           Fed. R. Evid. 403;

26   see, e.g., Old Chief v. United States, 519 U.S. 172, 174 n.1 (1997).

27   "The term 'unfair prejudice,' as to a criminal defendant, speaks to


                                          - 42 -
 1   the capacity of some concededly relevant evidence to lure the

 2   factfinder into declaring guilt on a ground different from proof

 3   specific to the offense charged."           Id. at 180.     "The rule of

 4   'opening the door,' or 'curative admissibility,' gives the trial

 5   court   discretion   to   permit   a    party   to   introduce   otherwise

 6   inadmissible evidence on an issue (a) when the opposing party has

 7   introduced inadmissible evidence on the same issue, and (b) when it

 8   is needed to rebut a false impression that may have resulted from

 9   the opposing party's evidence." United States v. Rosa, 11 F.3d 315,

10   335 (2d Cir. 1993), cert. denied, 511 U.S. 1042 (1994).           "When a

11   defendant offers an innocent explanation he 'opens the door' to

12   questioning into the truth of his testimony, and the government is

13   entitled to attack his credibility on cross-examination."          United

14   States v. Payton, 159 F.3d 49, 58 (2d Cir. 1998).         "A defendant has

15   no right to avoid cross-examination into the truth of his direct

16   examination, even as to matters not related to the merits of the

17   charges against him."     Id.

18             Here, the district court ruled that if the Elfgeehs

19   testified that they merely helped Yemeni immigrants to send money

20   home to their family and friends, it would open the door to allow

21   the government to attempt to show that the Elfgeehs sent money

22   instead for bellicose purposes.        (See Tr. 230.)   Abad offered such

23   testimony three times during his direct examination.          (See id. at

24   728 ("Yemeni community member would come, give me the money and

25   deposit the money in the bank, ask the bank to wire transfer the

26   money to the other side, to his family, a member of his family.");

27   id. at 739 ("[My brother in Yemen] give that money to the people--to


                                        - 43 -
 1   the beneficiaries that these people here send to the family to

 2   receive."); id. at 741 (describing sending money "to someone who is

 3   in a hospital").)     Accordingly, the government was allowed to ask

 4   Abad whether he knew that the money he sent was being used to buy

 5   arms and ammunition and was allowed to submit documentary evidence

 6   obliquely referring to such use (see id. at 794), in order to attack

 7   Abad's credibility.    In connection with this line of questioning,

 8   the government did not mention terrorism; Abad denied any knowledge

 9   that the money he sent was used for violent purposes (see id. at

10   795, 834); and defense counsel thereafter elicited testimony from

11   Abad that, so far as he knew, the United States Government had no

12   position in the dispute between Yemeni tribes (see id. at 829-30).

13   We see no abuse of discretion in the district court's evidentiary

14   rulings and no unfair prejudice to defendants.



15   C.   Publicity and Juror Impartiality

16              Defendants also argue that the district court erred in

17   failing to canvass the jury to determine whether any juror had been

18   exposed to prejudicial media coverage during the course of the

19   trial. They argue that the district court's repeated admonitions to

20   the jury to avoid news coverage of the trial were insufficient to

21   ensure that the jurors had not been exposed to such coverage and

22   that defendants are entitled to a new trial based on this error.   We

23   conclude that the proceedings in this regard, though they seem to

24   have been a bit haphazard, provide no basis for reversal.

25              "A district court's decision regarding juror impartiality

26   is reviewed for abuse of discretion and deserves deference." United


                                      - 44 -
 1   States v. McDonough, 56 F.3d 381, 386 (2d Cir. 1995); see also

 2   United States v. Gaggi, 811 F.2d 47, 51 (2d Cir.) ("Gaggi") ("Absent

 3   a clear abuse of the trial court's discretion, its finding that the

 4   jury was impartial should be upheld."), cert. denied, 482 U.S. 929

 5   (1987).

 6              In Gaggi, we set out a three-step process for the trial

 7   court to follow when it is brought to the court's attention that

 8   there has been publicity about the case during trial.

 9              The simple three-step process is, first, to
10              determine whether the coverage has a potential for
11              unfair prejudice, second, to canvass the jury to
12              find out if they have learned of the potentially
13              prejudicial publicity and, third, to examine
14              individually exposed jurors--outside the presence of
15              the other jurors--to ascertain how much they know of
16              the distracting publicity and what effect, if any,
17              it has had on that juror's ability to decide the
18              case fairly.

19   811 F.2d at 51; see also United States v. Lord, 565 F.2d 831, 838-39

20   (2d Cir. 1977).      This process is simple and is efficient to

21   determine whether the publicity has the potential to deprive the

22   defendant of a fair trial.     The court should of course give an

23   instruction (even if one has been given earlier, for example,

24   immediately after the jury has been sworn in) that the jurors should

25   not read any news article about the trial or watch or listen to any

26   item on television or radio about the trial.     If this process is

27   followed, we may presume, in the absence of any indication to the

28   contrary, that the jurors have followed the court's instructions and

29   have rendered their verdict solely on the basis of the evidence at

30   trial.    See, e.g., United States v. Zichettello, 208 F.3d 72, 106

31   (2d Cir. 2000), cert. denied, 531 U.S. 1143 (2001); United States v.

32   McDonough, 56 F.3d at 386-87; United States v. Casamento, 887 F.2d

                                     - 45 -
 1   1141, 1154-55 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990);

 2   Gaggi, 811 F.2d at 51-53.

 3               We have also held, however, that where the defendants

 4   prefer not to have the jurors interviewed individually, the trial

 5   court has discretion to forgo such interviews and instead give a

 6   general admonition to the jurors as a group to avoid exposure to

 7   publicity about the case.       See United States v. Eisen, 974 F.2d 246,

 8   267 (2d Cir. 1992) (individual interviews with the jurors were not

 9   necessary because "the defendants . . . specifically requested that

10   no such individual voir dire be conducted for fear of magnifying the

11   problem"), cert. denied, 507 U.S. 1029 (1993).                In the absence of

12   any   indication   that   the    jurors       failed   to   follow     the   court's

13   instructions, we found that "[t]he steps taken to protect the

14   integrity   of    the   jury    deliberations      were     adequate    under    the

15   circumstances."     Id.

16               In the present case, so far as appears from the record,

17   none of the parties called the court's attention to the prescribed

18   three-step procedure or to any of the above authorities, although

19   Aref's attorney eventually made a proper request.               As described in

20   Part I.A.4. above, on the morning of September 14, the second day of

21   testimony, four news articles appeared in three New York City area

22   newspapers.      Before trial began that day, the AUSA brought that

23   fact, that articles had been published, to the attention of the

24   district court.     (See Tr. 388.)     The judge had not seen any of the

25   news items (see id. at 520-21); Abad's counsel stated that he had

26   not seen them (see id. at 388); and apparently neither the attorneys

27   nor the judge had copies of any of the pertinent newspapers in


                                          - 46 -
 1   court.      The AUSA asked the court to give the jury an admonition not

 2   to   read    the   newspapers,    and    Abad's    counsel      "join[ed]   in   the

 3   application."         (Id.)   The court accordingly instructed the jurors

 4   that the case was to be decided strictly on the basis of the

 5   evidence at trial and that they were not to read anything in the

 6   newspapers about the case.         (See id. at 389.)

 7                 We see no error in the way the district court handled the

 8   matter up to that point.          Although the first step to be followed

 9   under Gaggi and its progeny is to determine whether the news

10   coverage has the potential for unfair prejudice, that step could not

11   be taken on the morning of September 14 because the judge had not

12   seen, and was not presented with, any of the articles.                      At that

13   time, the court could not sensibly do more than it did, which was,

14   with Abad's attorney's concurrence, simply to instruct the jury to

15   avoid news items about the case.

16                 After the court had read one of the articles during the

17   lunch break, however, the answer to Gaggi's first-step question was

18   clear: The articles plainly had the potential for unfair prejudice.

19   Each referred to the Elfgeehs' trial and made pointed references to,

20   inter alia, terrorism and/or al Qaeda; in addition, they described

21   evidence that the jury would not be allowed to see or hear at trial;

22   and two of the articles stated that Abad had previously pleaded

23   guilty to the charges on which he was now being tried.                  (See Part

24   I.A.4.      above.)      Accordingly,    had     there   been   no   objection   or

25   reservation expressed by defense counsel, the court should have

26   proceeded to Gaggi's second step and canvassed the jury to determine

27   whether any juror had been exposed to any of the news items.


                                             - 47 -
 1               However,   Aref's     attorney,      who   stated,    "I'm   not    sure

 2   whether your Honor specifically instructed the jurors before not to

 3   read articles about this case" (Tr. 519), asked the judge to "speak

 4   to the jurors individually . . . to see . . . that they have not

 5   read the articles [and] to ensure they won't read any more articles"

 6   (id.).     Abad's attorney joined in Aref's motion; but it would not

 7   have been appropriate for the court to grant that motion, thereby

 8   going directly to Gaggi's third step, because it had not yet

 9   determined, in accordance with step two, that there was a need for

10   such individual interviews.           Indeed, there may have been no such

11   need, for the colloquys indicate that the articles on the trial did

12   not appear in all editions of their respective newspapers.

13               The government, in opposition to Aref's initial motion for

14   individual juror interviews, had suggested that the court instead

15   make   a   general   inquiry     as   to   whether     "anybody    has   read   any

16   articles." (Id. at 520.) Abad's attorney, although stating that he

17   joined in Aref's motion (which sought a mistrial or individual juror

18   interviews), also stated that "[s]ometimes when you have a situation

19   like   this,   you   make   it   worse"--a      statement   that   was   somewhat

20   ambiguous as to whether he was expressing concern about conducting

21   individual juror interviews or about posing a group question asking

22   whether any juror had been exposed to the articles, or about both;

23   but whatever his concern, it was shared by the court, which was

24   hesitant to call the articles to the jurors' attention.                         The

25   colloquy was:

26                    MR. HANCOCK: . . . . Sometimes when you have
27               a situation like this, you make it worse.

28                    THE COURT:      I agree with you.

                                            - 48 -
 1                   MR. HANCOCK:         I don't know what the remedy is.

 2                   THE COURT: Generally in a situation like this,
 3              rather than call attention to it, because those who
 4              have not read it, maybe now they want to read it[,]
 5              I'll reiterate anything in the papers you're not to
 6              read. If you come across it, put it down. Again,
 7              I'll reiterate it, this case will be decided solely
 8              on the evidence.

 9   (Id.)

10              Nonetheless, Aref's attorney proceeded to ask the court to

11   inquire of the jury "as a group" if anyone had "read any article

12   dealing with this case," with further steps to be taken if there was

13   an affirmative answer.       (Id.)   Although this was a proper request by

14   Aref for the court to follow step two of the Gaggi procedure, Abad's

15   counsel,   whose     above-quoted       expression         of   concern    followed

16   essentially the same suggestion by the government, did not state

17   that he joined in this new motion by Aref.                 The court denied this

18   motion, reiterating that such a question might pique undue curiosity

19   on the part of jurors who had not seen the articles, and decided

20   simply to issue another warning at the end of the day.                   (See id. at

21   520-21.)

22              Had there been no expression of concern by Abad's attorney

23   following the government's suggestion that the court pose a general

24   question to the jury, or had Abad joined in Aref's eventually

25   appropriate motion for such questioning, the court should have

26   followed the Gaggi procedure and asked the jurors, as a group,

27   whether any of them had been exposed to the articles.                        In the

28   circumstances   as    they    appeared,         however,    with   one    defendant

29   requesting, properly, that the jury be asked whether any jurors had

30   seen a news article and the other defendant, as was his right, not


                                            - 49 -
 1   joining in that motion and expressing concern that asking such a

 2   question might pose a greater danger of prejudice than not asking

 3   the question, we conclude that the trial judge had discretion to

 4   decide whether or not to put the question to the jury.

 5             We cannot conclude here that the trial judge abused that

 6   discretion. The articles were clearly prejudicial, but it is hardly

 7   clear that the jurors would have seen them.   The judge had not seen

 8   them; Abad's attorney had not seen them; and we assume that Aref's

 9   attorney had not seen them since he said nothing during the first

10   discussion of the articles (and at lunchtime did not even recall

11   that the court had instructed the jury that morning to avoid such

12   articles).   The articles did not appear in all of that morning's

13   editions of their respective newspapers.   Indeed, the judge himself

14   could not find the article in the edition of the newspaper he first

15   searched during the lunch break, finding it only in another edition

16   of the paper.   And Abad's attorney did not see one of the New York

17   Post articles until the weekend.    That article had appeared in the

18   earliest edition but had been withdrawn from other editions.    The

19   court repeatedly cautioned the jurors not to view any news items on

20   the trial, and we presume that the jurors followed the court's

21   instructions.

22             In all the circumstances, with one defendant not joining

23   the motion to have the court ask the jury whether anyone had seen

24   any of the articles and expressing concern that asking that question

25   might make matters worse, we conclude that the court did not abuse

26   its discretion in declining to put the question to the jury.




                                     - 50 -
 1   D.   Instructions on the Knowledge Requirement of Amended § 1960(a)

 2                Defendants contend that in instructing the jury with

 3   respect   to   count   four,    which     charged    them    with   operating   an

 4   unlicensed     money-transmitting       business    after    October   2001,    the

 5   district court erred by not informing the jury that the government

 6   was required to prove that they knew the money-transmitting business

 7   was unlicensed.    Although we agree that the jury should have been so

 8   instructed, we find no basis for reversal, for the court's failure

 9   to give that instruction explicitly was, in the circumstances of

10   this case, harmless.

11                The post-October 2001 version of § 1960(a) provides, in

12   pertinent part, as follows:

13                     (a) Whoever knowingly conducts, controls,
14                manages, supervises, directs, or owns all or part of
15                an unlicensed money transmitting business, shall be
16                fined in accordance with this title or imprisoned
17                not more than 5 years, or both.

18                     (b) As used in this section--

19                           (1)   the    term   "unlicensed    money
20                     transmitting    business"   means    a   money
21                     transmitting business which affects interstate
22                     or foreign commerce in any manner or degree
23                     and--

24                               (A)    is    operated   without    an
25                          appropriate money transmitting license in
26                          a State where such operation is punishable
27                          as a misdemeanor or a felony under State
28                          law, whether or not the defendant knew
29                          that the operation was required to be
30                          licensed or that the operation was so
31                          punishable;

32                               (B) fails to comply with the money
33                          transmitting    business     registration
34                          requirements under section 5330 of title
35                          31, United States Code, or regulations
36                          prescribed under such section; or

37                                  (C)       otherwise          involves    the

                                             - 51 -
 1                            transportation or transmission of funds
 2                            that are known to the defendant to have
 3                            been derived from a criminal offense or
 4                            are intended to be used to promote or
 5                            support unlawful activity[.]

 6   18 U.S.C. § 1960 (as amended October 26, 2001).                Prior to October

 7   26, 2001, the statute provided, in pertinent part:

 8                   (a)   Whoever  conducts,   controls,   manages,
 9              supervises, directs, or owns all or part of a
10              business, knowing the business is an illegal money
11              transmitting business, shall be fined in accordance
12              with this title or imprisoned not more than 5 years,
13              or both.

14                      (b) As used in this section--

15                           (1) the term "illegal money transmitting
16                      business" means a money transmitting business
17                      which affects interstate or foreign commerce in
18                      any manner or degree and--

19                                 (A) is intentionally operated without
20                            an appropriate money transmitting license
21                            in a State where such operation is
22                            punishable as a misdemeanor or a felony
23                            under State law; or

24                                 (B) fails to comply with the money
25                            transmitting    business     registration
26                            requirements under section 5330 of title
27                            31, United States Code, or regulations
28                            prescribed under such section[.]

29   18 U.S.C. § 1960 (2000) (emphases added).

30              Thus,    in   order   to   convict    a   defendant   of    owning   or

31   conducting, etc., a business in violation of § 1960(a) prior to

32   October   2001,    the   government    was     required   to   prove   that     the

33   defendant had "know[ledge that] the business [wa]s an illegal money

34   transmitting business," id. (emphases added), i.e., one that was

35   "intentionally operated without an appropriate money transmitting

36   license," id. § 1960(b)(1)(A) (emphasis added).            Under § 1960(a) as

37   amended, however, the government need prove only that the defendant


                                           - 52 -
 1   had    "know[ledge]"        that         the      business      was    "an     unlicensed       money

 2   transmitting business," 18 U.S.C. § 1960(a) (as amended) (emphasis

 3   added).    Accordingly, the government is no longer required to prove

 4   that he knew the money-transmitting business was "illegal."

 5                 In    amending         §       1960(a)    in     this    way    in     October    2001,

 6   Congress made § 1960(a) stricter by eliminating the requirement of

 7   proof that the defendant knew that a license was required.                                      See,

 8   e.g., United States v. Hopkins, 53 F.3d 533, 539 (2d Cir. 1995)

 9   ("One way of heightening criminal sanctions is to reduce the mens

10   rea element of the prohibited acts . . . ."), cert. denied, 516 U.S.

11   1072   (1996).         However,          the      language       of    the    amended    section--

12   "knowingly         conducts      .       .    .    an       unlicensed       money    transmitting

13   business"--appears still to require proof that the defendant knew

14   that the business was engaged in money-transmitting and also knew

15   that    the    business       had        no       money-transfer         license.        And     that

16   implication is supported by subsection (b)(1)(A) of the amended

17   § 1960, which defines an "unlicensed money transmitting business,"

18   in relevant part, as one that "is operated without an appropriate

19   money transmitting license in a State where such operation is

20   punishable as a misdemeanor or a felony under State law, whether or

21   not the defendant knew that the operation was required to be

22   licensed      or    that    the      operation          was     so    punishable,"      18     U.S.C.

23   §   1960(b)(1)(A)          (as    amended)           (emphases        added).         The    amended

24   subsection (b)(1)(A) thus explicitly makes it irrelevant whether or

25   not a defendant knew that a license was required; but it does not

26   state that it is irrelevant whether he knew it was unlicensed.                                    Cf.

27   United States v. Talebnejad, 460 F.3d 563, 568 (4th Cir. 2006)


                                                        - 53 -
 1   (noting that "[t]he parties agree that the Government must allege

 2   and prove the defendant's knowledge" (1) that he "operate[d] a money

 3   transmitting business, (2) that [it] affect[ed] interstate commerce,

 4   and (3) that [it wa]s unlicensed under state law"), cert. denied,

 5   127 S. Ct. 1313 (2007).   We infer from the language of subsection

 6   (a) itself and from the absence from subsection (b)(1)(A) of a

 7   "whether or not" clause mentioning knowledge of the possession of a

 8   license, that in order to convict under the amended § 1960(a), the

 9   government is required to prove that the defendant knew the money-

10   transmitting business was unlicensed.

11             In the present case, Aref asked the court to instruct the

12   jury, inter alia, that "[t]he government must also prove beyond a

13   reasonable doubt that the defendant knew that the business was

14   unlicensed."    The   trial   court   should   have   included   such   an

15   instruction in its charge to the jury.

16             Nonetheless, where "the defendant had counsel and was

17   tried by an impartial adjudicator, there is a strong presumption

18   that any . . . [constitutional] errors that may have occurred"--

19   including jury instructions that omit an essential element of the

20   offense--"are subject to harmless-error analysis."       Neder v. United

21   States, 527 U.S. 1, 8-10 (1999) (internal quotation marks omitted).

22   If we can "conclude[] beyond a reasonable doubt that the omitted

23   element was uncontested and supported by overwhelming evidence, such

24   that the jury verdict would have been the same absent the error,"

25   i.e., that "the error 'did not contribute to the verdict obtained,'"

26   then "the erroneous instruction is properly found to be harmless."

27   Id. at 17 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).


                                      - 54 -
 1               In assessing the likely effect of imperfect instructions

 2   on the jury, we must view them in light of the jury charge as a

 3   whole.     See, e.g., Cupp v. Naughten, 414 U.S. 141, 146-47 (1973);

 4   Gaggi, 811 F.2d at 61-62; United States v. Clark, 765 F.2d 297, 303

 5   (2d Cir. 1985) (the charge "must be viewed in its entirety and not

 6   on   the   basis   of   excerpts   taken      out   of   context,   which   might

 7   separately be open to serious question"). In reviewing an ambiguous

 8   instruction, we inquire whether there is a reasonable likelihood

 9   that the jury has applied the challenged instruction in a way that

10   is fundamentally unfair.       See, e.g., Estelle v. McGuire, 502 U.S.

11   62, 72-73 (1991); Boyde v. California, 494 U.S. 370, 380 (1990).

12               In the present case, the court's instructions did not

13   state that the government must prove that defendants knew they were

14   operating the money-transmitting business after October 2001 without

15   a license, and stated that as to the "fourth count," i.e., the

16   charge that the Elfgeehs operated an unlicensed money-transmitting

17   business after October 2001, "the government need only prove that

18   the defendant knew that he was engaged in transmission of money on

19   behalf of others."       (Tr. 1049.)     Nonetheless, the instructions in

20   this regard were ambiguous, for both before and after that sentence,

21   the court told the jury that the only difference between the pre-

22   and post-October 2001 versions of § 1960(a) was that, under the

23   latter, the government need not prove that the defendant knew that

24   a license was required or that the operation was illegal.

25               Thus, as to count two, which, as the court read it to the

26   jury, charged Abad with conducting a money-transmitting business

27   between January 1995 and October 2001 "knowing that the business was


                                          - 55 -
 1   an illegal money transmitting business," the court stated that the

 2   government was required to prove that Abad "knew that the business

 3   was an illegal money transmitting business, which means that it was

 4   intentionally operated without an appropriate money transmitting

 5   license and that the defendant was aware that the business was

 6   required to be licensed."    (Tr. 1043, 1045 (emphases added).)

 7               After explaining the terms "knowingly," "willfully," and

 8   "intentionally," and the ways in which those mental states may be

 9   evidenced, the court turned to count four, which charged both Abad

10   and Aref with conducting a money transmitting business between

11   November 2001 and January 2003.     The court stated that the amended

12   § 1960(a)

13               provide[s] in relevant part:

14                    Whoever knowingly conducts, controls, manages,
15               supervises, directs or owns all or part of an
16               unlicensed money transmitting business shall be
17               guilty of a crime.

18                    The elements required to prove the defendant
19               guilty of Count Four are the same as those required
20               for Count Two, with one exception. That exception
21               is that for Count Four, the government does not have
22               to prove that the defendant knew of the licensing
23               requirement or that it was unlawful to operate such
24               a business without a license. That is because the
25               statute changed in November 2001, such that it was
26               no longer necessary that the defendant [k]new of the
27               licensing requirement in order to be guilty of the
28               crime.

29   (Tr. 1049 (emphases added).)   Up to that point, the instruction was

30   correct. The ensuing sentence, that "the government need only prove

31   that the defendant knew that he was engaged in transmission of money

32   on behalf of others" (id.), was unduly limited and thus introduced

33   an ambiguity.    The court then continued:

34               In other words, in Count Two, which charges the

                                       - 56 -
 1                defendant Abad Elfgeeh with conducting an unlicensed
 2                money transmitting business between January 1995 and
 3                October 2001, the government must prove that the
 4                defendant knew of the licensing requirement or that
 5                the business was illegal. However, for Count Four,
 6                which charges both defendants with conducting an
 7                unlicensed money transmitting business between
 8                November 2001 and January 2003, the government need
 9                not prove that the defendants knew of the licensing
10                requirement or that it was unlawful to operate such
11                a business without a license.

12   (Tr. 1049-50.)

13                Thus, viewing the instructions as a whole, there was a

14   single sentence that was erroneous, and it was preceded and followed

15   by correct instructions that the only difference between counts two

16   and four was that on count four the government did not need to prove

17   that the defendant knew that a license was a legal requirement.                 We

18   think   it   highly   unlikely   that     the    jury   focused   on   that   lone

19   erroneous sentence and disregarded the correct instructions that

20   surrounded it.

21                In any event, the evidence at trial was such that the jury

22   verdict would have been the same absent the error.                As to Abad, a

23   March 2002 letter from the New York State Banking Department, found

24   in his files, stated that a license was required for a money-

25   transmitting business; Abad's attorney had told Abad that he needed

26   a license; and a State Banking Department witness testified that

27   Abad had no license.        There could be no doubt that Abad knew his

28   money-transmitting business was unlicensed.

29                As to Aref, although the evidence was more circumstantial,

30   we   likewise    conclude     beyond      a     reasonable   doubt     that    the

31   instructional error did not contribute to the verdict against him.

32   First, we note that the matter of Aref's knowledge as to whether the


                                            - 57 -
 1   money-transmitting business was unlicensed was not expressly put in

 2   issue. His attorney's opening statement to the jury did not suggest

 3   that   Aref    was   unaware   that   the      business   was   unlicensed;   his

 4   summation did not suggest that the government had failed to prove

 5   that Aref knew the business was unlicensed.               And Aref's testimony

 6   was that he did not participate, not that he was unaware that the

 7   business was unlicensed.

 8                 The    government's     evidence,      on    the     other   hand,

 9   overwhelmingly revealed the furtiveness of the actions of Aref, as

10   well as Abad, in the money-transmitting operations.                  It showed,

11   inter alia, that the hawala used numerous different bank accounts

12   and small denominations of money; that Aref, like Abad, opened

13   accounts using the names and/or addresses of other persons or

14   entities; that even within the Carnival store (which was listed as

15   Aref's employer on bank documentation relating to one or more of

16   Aref's accounts), the money-transmitting business was not promoted

17   openly; that customers were limited to known members of the Brooklyn

18   Yemeni community; that neither Abad nor Aref ever reported any

19   income from the business in their respective tax filings; and that

20   Aref continued to use the Prospect Deli account for hawala business

21   after that deli closed in 1998.          And when Aref (at Abad's behest)

22   sent the last $20,000 in the Prospect Deli account to Abad's

23   brother, he did not write a $20,000 check on that account to Abad's

24   brother.      Rather, Aref signed two Prospect Deli checks to himself

25   and deposited them in his own account; and from his own account he

26   wrote several checks intended for Abad's brother but made them

27   payable to Aref's own son and to others he could not remember at


                                           - 58 -
 1   trial.   (See, e.g., Tr. 868-76.)

 2                The surreptitious manner in which Aref helped to operate

 3   the hawala was overwhelming evidence that he knew that its operation

 4   was not authorized.       As possession of a license would indicate

 5   authorization, the jury was entitled to find that Aref knew the

 6   hawala was not licensed.

 7                In sum, viewing the instructions as a whole and the nature

 8   of the evidence presented at trial, we are persuaded beyond a

 9   reasonable doubt that the error in the instructions was harmless

10   because the jury would have reached the same verdicts had it been

11   instructed not to convict these defendants unless it found they knew

12   the business was unlicensed.



13   E.   Sentencing

14                Each defendant makes several challenges to his sentence.

15   Abad contends that the amount of his fine is unreasonable, and he

16   requests a remand to a different district judge for resentencing.

17   Aref contends that the calculation of his sentence should not have

18   included consideration of acts committed by Abad and should not have

19   included an adjustment for obstruction of justice.          In addition,

20   defendants challenge the accuracy of the forfeiture verdict and

21   contend that the forfeiture amount violates the Excessive Fines

22   Clause of the Constitution, U.S. Const. amend. VIII; and they

23   contend that the prison terms imposed on them are unreasonable and

24   create unwarranted disparities between them and others convicted of

25   similar crimes.     Considering the sentencing factors listed in 18

26   U.S.C.   §    3553(a),   and   reviewing    defendants'   sentences   for


                                        - 59 -
 1   reasonableness, see United States v. Booker, 543 U.S. 220, 261

 2   (2005)--both         substantive      reasonableness       and     procedural

 3   reasonableness, see, e.g., United States v. Canova, 485 F.3d 674,

 4   679 (2d Cir. 2007); United States v. Fernandez, 443 F.3d 19, 26-27

 5   (2d Cir.), cert. denied, 127 S. Ct. 192 (2006); United States v.

 6   Crosby, 397 F.3d 103, 114 (2d Cir. 2005)--we conclude that except

 7   for Abad's challenge to his fine and Aref's challenge to the

 8   obstruction adjustment, these challenges lack merit.



 9        1.    The Amount of the Fine Imposed on Abad

10               In calculating a defendant's fine, the sentencing court

11   must follow a procedure similar to the post-Booker procedure that it

12   is to follow in calculating a defendant's term of imprisonment:             It

13   must consider the Guidelines recommendation for the imposition of a

14   fine, consider the § 3553(a) factors, and consider the fine-specific

15   factors listed in 18 U.S.C. §§ 3571 and 3572.            See United States v.

16   Rattoballi,    452    F.3d   127,   139   (2d   Cir.   2006)   ("Rattoballi").

17   Section 3572 requires the court to consider, inter alia, "the

18   defendant's income, earning capacity, and financial resources."             18

19   U.S.C. § 3572(a)(1). The Guidelines provide that "[t]he court shall

20   impose a fine in all cases, except where the defendant establishes

21   that he is unable to pay and is not likely to become able to pay any

22   fine."    Guidelines § 5E1.2(a).     The defendant must be given at least

23   a minimal opportunity to show that he lacks the ability to pay the

24   fine proposed by the court.         See, e.g., United States v. Marquez,

25   941 F.2d 60, 65-66 (2d Cir. 1991).

26               "A non-Guidelines sentence that a district court imposes


                                           - 60 -
 1   in reliance on factors incompatible with the Commission's policy

 2   statements may be deemed substantively unreasonable in the absence

 3   of persuasive explanation as to why the sentence actually comports

 4   with the § 3553(a) factors."          Rattoballi, 452 F.3d at 134.

 5                 [I]f   a  district   court  elects   to  impose   a
 6                 non-Guidelines sentence outside the applicable
 7                 Guidelines range, it has a statutory obligation to
 8                 include a statement in the written judgment setting
 9                 forth "the specific reason for the imposition of a
10                 sentence different from" the recommended Guidelines
11                 sentence.

12   Id. at 128-29 (quoting 18 U.S.C. § 3553(c)(2)).

13                 The   PSR   on   Abad   calculated     that,   under   Guidelines

14   §§ 5E1.2(c)(3) and (4), the recommended range of the total fine for

15   the five offenses of which he was convicted was $20,000 to $500,000.

16   The district court instead imposed a fine of $1.25 million, more

17   than twice the sum prescribed by the advisory Guidelines.              This was

18   somewhat less than the statutory maximum, given Abad's conviction

19   under § 5324 for structuring.          See 18 U.S.C. § 3571(b)(3) (setting

20   $250,000 as the maximum fine for each count of conviction for

21   violating 18 U.S.C.        § 1960(a) or 31 U.S.C. § 5324); but see

22   31   U.S.C.    §    5324(d)(2)    ("Whoever     violates   this   section   while

23   violating another law of the United States or as part of a pattern

24   of any illegal activity involving more than $100,000 in a 12-month

25   period shall be fined twice the amount provided in subsection (b)(3)

26   . . . of section 3571 of title 18 . . . .").                 The court did not

27   state whether its fine of $1.25 million was a Guidelines-departure

28   fine or a non-Guidelines fine, stating only, "I am also going to

29   fine the defendant $250,000 on each count for a total of--what is

30   it--$1.5 million [sic].          I impose this sentence because I think it


                                            - 61 -
 1   is sufficient for the crime that was committed."                   (Abad S.Tr. 13.)

 2   The PSR had concluded that, given the amount Abad would be required

 3   to forfeit, he would not be able to pay a fine in any amount.

 4               Although Abad's present challenge to his fine triggers

 5   only plain-error analysis because he did not contest the amount of

 6   the fine in the district court, we conclude that there was plain

 7   error in the proceedings in connection with the imposition of the

 8   fine, for the record does not indicate that Abad was given either

 9   notice    that   a   fine    of   such   magnitude      was   contemplated    or   an

10   opportunity to be heard on his ability to pay such a fine.                     We do

11   not see in the government's presentencing submission to the district

12   court any request for imposition of an above-the-Guidelines-range

13   fine. Nor has the government called to our attention any indication

14   in the record that Abad was given notice by the court that it was

15   considering      imposing    a    fine   above    the   top   of   the   Guidelines-

16   recommended range.          We conclude that the imposition of a fine of

17   more than double the maximum recommended by the Guidelines, without

18   advance    notice     to    the    defendant,      without     affording     him   an

19   opportunity to present evidence as to his ability to pay a fine,

20   without any findings as to his ability to pay a fine, and without

21   any acknowledgement by the district court at sentencing of its

22   deviation from the Guidelines, constituted a plain error that

23   substantially impacted the fairness, or at least the appearance of

24   fairness, of the sentencing proceeding. See, e.g., United States v.

25   Mordini, 366 F.3d 93, 95 (2d Cir. 2004); United States v. Gordon,

26   291 F.3d 181, 191 (2d Cir. 2002), cert. denied, 537 U.S. 1114

27   (2003).     Accordingly, we vacate so much of Abad's sentence as


                                              - 62 -
 1   imposed a fine of $1.25 million, and we remand for reconsideration

 2   of the amount of the fine.

 3               We deny Abad's request, however, that we remand to a

 4   different      district     judge.            "As       a   general    rule,        even    when    a

 5   sentencing judge has been shown to have held erroneous views or made

 6   incorrect findings . . . resentencing before a different judge is

 7   required only in the rare instance in which the judge's fairness or

 8   the appearance of the judge's fairness is seriously in doubt."

 9   United States v. Bradley, 812 F.2d 774, 782 n.9 (2d Cir.), cert.

10   denied, 484 U.S. 832 (1987).                  This is not such an instance.

11               On    remand,         the    district           court     must     give        Abad    an

12   opportunity to present evidence with respect to his ability to pay

13   a fine and make specific findings as to Abad's ability to pay the

14   fine imposed.         If the court decides to impose a fine that is

15   different   from      the   Guidelines-recommended                    range,    it    must        also

16   provide an explanation as to the specific reason for its decision.



17        2.     Aref's Challenges to the Obstruction-of-Justice and Loss-
18               Amount Components of his Guidelines Offense Level

19               "[I]f a defendant objects to a[n obstruction of justice]

20   sentence enhancement resulting from her trial testimony, a district

21   court   must     review     the    evidence         and      make     independent          findings

22   necessary to establish a willful impediment to, or obstruction of,

23   justice, or an attempt to do the same . . . ."                               United States v.

24   Dunnigan, 507 U.S. 87, 95 (1993).                   A district court may satisfy this

25   requirement      by   adopting          the    recommendation           of     an    obstruction

26   enhancement found in the PSR, provided "the findings of the PSR

27   [a]re sufficiently detailed and explicit."                       United States v. Johns,

                                                    - 63 -
 1   324 F.3d 94, 98 (2d Cir.), cert. denied, 540 U.S. 889 (2003).

 2                The PSR recommended that Aref's offense level be increased

 3   by two steps pursuant to Guidelines § 3C1.1 for obstruction of

 4   justice on the basis that his testimony at trial and at the

 5   suppression hearing was perjurious. Aref objected, arguing that any

 6   falsity in his testimony was attributable to his difficulty with

 7   English, or to "'confusion, mistake or faulty memory.'"                          (Aref

 8   Letter at 5 (quoting Dunnigan, 507 U.S. at 94).)               The district court

 9   did not address Aref's objection to this adjustment.                       It neither

10   made specific findings as required by Dunnigan nor expressly adopted

11   the findings made in Aref's PSR.                     Accordingly, we remand for

12   resentencing of Aref in order for the district court to consider the

13   obstruction-of-justice adjustment and to make whatever specific

14   findings are warranted.

15                We see no merit, however, in Aref's contention that his

16   offense level, enhanced by 16 steps because the amounts transferred

17   during the period of his participation in the conspiracy totaled

18   $1,615,893.25, see Guidelines § 2B1.1(b)(1)(I), should have been

19   calculated without reference to any acts committed by Abad.                     Given

20   the     evidence    discussed     in   Part      I.A.1.    above     as    to   Aref's

21   participation in the hawala, this enhancement was proper because,

22   inter    alia,     Aref   was   convicted       of   conspiring     to    operate   the

23   unlicensed       money-transmitting     business        and   the    entire     amount

24   transferred during that period was reasonably foreseeable to him,

25   see Guidelines § 1B1.3(a)(1)(B).




                                            - 64 -
 1          3.    Forfeiture

 2                 Defendants challenge the $22,435,467 forfeiture orders,

 3   contending (a) that the jury, in determining the forfeiture amount,

 4   should have excluded checks of third persons not made out to cash,

 5   and (b) that the forfeiture amount is unconstitutionally excessive.

 6   We note that the constitutional challenge was not made in the

 7   district court and hence triggers plain-error analysis.               We also

 8   note that although Aref in his brief on appeal has adopted Abad's

 9   arguments to the extent that they may apply to Aref, Aref has not

10   made any challenges of his own to the forfeiture amount.                     We

11   conclude that the challenges made by defendants lack merit and do

12   not require extended discussion.

13                 The contention that checks of third parties should have

14   been excluded is meritless for two reasons.            First, the statutes

15   require forfeiture of all "property . . . involved in" the offenses

16   of   which    defendants    were   convicted,   31   U.S.C.   §   5317(c)(1);

17   18 U.S.C. § 982(a)(1).       There is no question here that the moneys

18   deposited by means of structured transactions in violation of

19   31 U.S.C. § 5324(a)(3) and transferred in the unlicensed operation

20   in violation of § 1960(a) included the checks of third parties.

21   Hence those checks plainly were "involved in" those offenses and

22   were   not    excludable.     Second,    even   if   such   checks   had   been

23   excludable, defendants presented no evidence of the dollar amount

24   represented by those checks and hence gave the jury no basis for

25   returning a verdict in an amount less than that sought by the

26   government.

27                 The constitutional challenge advanced by defendants fares


                                          - 65 -
 1   no better.     "[F]orfeiture is unconstitutionally excessive if it is

 2   'grossly disproportional to the gravity of a defendant's offense.'"

 3   United States v. Collado, 348 F.3d 323, 328 (2d Cir. 2003) (quoting

 4   United States v. Bajakajian, 524 U.S. 321, 334 (1998)), cert.

 5   denied, 541 U.S. 904 (2004). In determining whether a forfeiture is

 6   grossly disproportional, we are to evaluate

 7                (a) the essence of the crime of the [defendants] and
 8                its relation to other criminal activity, (b) whether
 9                the [defendants] fit into the class of persons for
10                whom the statute was principally designed, (c) the
11                maximum sentence and fine that could have been
12                imposed, and (d) the nature of the harm caused by
13                the [defendants'] conduct.

14   United States v. Collado, 348 F.3d at 328 (citing Bajakajian)

15   (internal quotation marks omitted).

16                Although the record is silent as to the fourth factor, the

17   other three reveal that the order for a forfeiture of $22,435,467 is

18   not disproportional.     The essence of defendants' offenses was the

19   unlicensed transmission of money, and neither defendant received the

20   statutory maximum prison term allowed.      The trial evidence showed

21   that the total amount deposited into the Carnival account was

22   $22,190,642.21, and the total amount withdrawn was $21,995,556.54;

23   these sums, which were integral to the offenses, are quite close to

24   the amount ordered forfeited.     And although Abad testified that his

25   "service" was limited to members of the Yemeni-American community

26   and that the money was being sent home to "family" (Tr. 726, 728),

27   the evidence showed that defendants in fact transmitted the moneys

28   to 25 different countries. Plainly, defendants were persons at whom

29   § 1960(a) was aimed.




                                       - 66 -
 1         4.   The Alleged Unreasonableness or Disparity in Prison Terms

 2                Finally, we see no merit in the Elfgeehs' contention that

 3   the prison terms imposed on them--51 months for Aref, 188 months for

 4   Abad--are    substantively           unreasonable      or   unwarrantedly    high   in

 5   comparison    to       the   terms    of     imprisonment    meted   out   to   others

 6   convicted of similar crimes.                 While "we may remand cases where a

 7   defendant credibly argues that the disparity in sentences has no

 8   stated or apparent explanation," United States v. Ebbers, 458 F.3d

 9   110, 129 (2d Cir. 2006), cert. denied, 127 S. Ct. 1483 (2007), we

10   see no disparity here.               The Guidelines ranges are designed to

11   eradicate unwarranted disparities between defendants convicted of

12   similar conduct and with similar criminal backgrounds.                      Except to

13   the extent that a modification of Aref's offense level may be

14   required    with   respect      to     the    obstruction-of-justice       adjustment

15   discussed in Part II.E.2. above, both sentences were within the

16   applicable Guidelines ranges.              And except to that extent, we see no

17   basis for concluding that the prison terms imposed are unreasonable,

18   given that the district court's articulation of the reasons for the

19   prison terms imposed, although not extensive (see Part I.B. above),

20   was sufficient to show that the court considered the Guidelines and

21   the   required     §    3553   factors,        see    generally   United   States   v.

22   Fernandez, 443 F.3d at 30.




                                                  - 67 -
 1                                   CONCLUSION



 2               We have considered all of defendants' contentions on these

 3   appeals, and except as indicated above, have found them to be

 4   without merit.    Defendants' convictions, and all aspects of their

 5   sentences   except   the   following,   are   affirmed.   We   vacate   the

 6   sentence of Abad Elfgeeh and remand for reconsideration of the

 7   amount of his fine; we remand with respect to Aref Elfgeeh for

 8   reconsideration of his term of imprisonment in light of the findings

 9   to be made as to the adjustment of his Guidelines offense level for

10   obstruction of justice.




                                        - 68 -
