ANDERSON, Circuit Judge.
Defendant and appellant Steven Fishman was found guilty by a jury of conspiracy to commit mail and wire fraud and conspiracy to commit money laundering. He was sentenced to 262 months' imprisonment, three years of supervised release, and $3,684,213 in restitution. Challenging his conviction and sentence on numerous grounds, Mr. Fishman brings this appeal. We affirm his conviction and sentence.
Beginning in the late 1990s, Mr. Fishman, along with co-conspirators Robert Searles, Joseph Lynn Thornburgh, Wayne Davidson, and others, participated in a fraudulent investment scheme based on the sale of interests in worthless (except as collectibles) bonds issued in 1913 by the Chinese government ("Chinese bonds"),
To support such a rosy scenario for investors, the conspirators clothed the bonds in value by paying an individual to act as an "authenticator" not only as to the authenticity of a bond (actual original) but also as to its worth according to the authenticator's own terminology, theory and method. The authenticator then determined worth not in terms of sale, investment or redemption value but in terms of a "hypothecation valuation," i.e., potential use as a pledge against credit, by calculating compound interest for 144-plus years and the weight of gold to be used for payment, valued at the current market, and then using a formula to arrive at a result. The results were astronomical. Thus, for instance, as of January 1, 2000, the authenticator, John Clancy, placed a hypothecation valuation of $1,840,763,697 on each $100 GH & H ten percent bond. R. Vol. 6 at 2337-39. By 2003 Clancy was assigning a value of almost fifteen billion dollars to each $500 Galveston bond. Id. at 2153-54. The conspirators further bolstered their story by representing that the Florida Supreme Court had secretly issued an opinion, being kept under seal in chambers, which established the validity of the
In general (the details of each sale varied from investor to investor), the mechanics of the operation called for investors to enter into a "Non-Circumvention/Non-Disclosure and Joint Venture Agreement" ("Agreement") with Caribou Capital Corporation ("Caribou"), a North Carolina corporation set up by Robert Searles and operated by him on behalf of the conspirators out of its home office in Madisonville, Tennessee. Caribou was designated on the documents as the Program Coordinator, and described in the Agreement as having "valuable knowledge of private placement programs dealing in Historical Gold Backed Railroad Bonds." R. Vol. 1 at 60. Investor funds were largely deposited in the Caribou bank account at the SunTrust Bank in Loudon, Tennessee, and disbursements to the conspirators were mostly made from that account, with Searles acting as paymaster. The GH & H bonds, in the name of either Searles or Thornburgh, were placed in a "Safekeeping Depository" which issued Safekeeping Receipts or Certificates representing the bonds. The original certificates were then sent to Patrick Henriette, the group's designated "Program Manager" in Europe, ostensibly for presentation to European banks. A certified copy of each certificate was sent to the purchasing investor. Id.
After obtaining money from an investor, the conspirators employed stalling tactics to explain away the lack of any promised return. For literally years, one or another of the conspirators advanced excuse after excuse and glowing progress reports designed to string the increasingly distressed investors along and lull them into not taking any action. Some investors were also offered a new opportunity to invest in the Chinese bonds for a "can't miss" quick deal where the alleged imminent redemption of those bonds by the current government of China would make the investor whole. When those tactics finally wore out, investors were offered yet another document (Termination and Hold Harmless Agreement) to sign, promising a full refund of their initial investment on an agreement not to sue. Predictably, no refund occurred. The end game had the conspirators blaming each other, nefarious government agents, and government seizures of bonds and files, for thwarting the investment program.
Throughout, the co-conspirators generally cooperated with one another, interdependently, to further the goals of the conspiracy to sell interests in the worthless bonds. Mr. Searles, as president and organizer of Caribou, operated at the business and banking center of the enterprise both as a salesman and a manager. Mr. Thornburgh was in sales. Mr. Davidson was in sales in New Zealand and Australia. Mr. Henriette provided the European window dressing, and Mr. Fishman provided the "neural glue," as described by the government. In aid of the efforts by Messrs. Thornburgh, Davidson and Searles, Mr. Fishman drafted and furnished documents, consulted with investors both before and after investment, traveled to Europe with Mr. Thornburgh to meet with Henriette and supposed bank contacts, hosted at least one meeting of investors at his home, drafted and furnished lulling progress reports, provided bonds, picked up bonds from escrow, supplied the names of "authenticators," and sold or attempted to sell both railroad and Chinese bonds. He and Mr. Thornburgh shared $108,000 or more, paid directly to them by one investor supposedly to defray ongoing personal expenses
That investor, Dr. Wayne Maltz, described his investment experience as follows: There was a lot of correspondence, faxes and e-mails, "mostly . . . written by Mr. Fishman" about the program. "Mr. Fishman came into the picture to tell us how these bonds were going to be placed." Id. at 808. Another witness, an investor's CPA, described the sales process this way:
Id. at 921-22.
Id. at 933.
In 2002, Messrs. Thornburgh and Searles parted ways. However, Mr. Fishman maintained relationships with both, and both remained involved in the bond program.
The conspiracy ran to mid-2005. During its life no bonds were placed with a financial institution, no lines of credit were granted, no trading programs, high-yield or otherwise, were established, no profits or other returns were realized, and no payments to investors were made under the terms of their agreements with Caribou.
The conspiracy came to a halt following a lengthy investigation that started with a complaint by an investor to the United States Postal Inspection Service in the Northern District of Oklahoma in early 2003. The complainant said she had made an investment in the Caribou program but had not received what she had been promised. Several U.S. federal agencies joined in the investigation, as well as an agency in New Zealand. Postal Agent Albert Chapa and IRS Agent Katherine Beckner were the primary initial investigators in Oklahoma. This investigation led to the indictment against Mr. Fishman and his co-conspirators, first filed in November 2007.
While the investigation was being pursued in Oklahoma, a similar inquiry was being conducted in Illinois into the activities of Peter Zaccagnino, with whom Fishman
At some point after Mr. Fishman had turned over his bonds as part of the documents he provided to the investigating authorities, he sought the return of the bonds from Agent Chapa. They were returned to Mr. Fishman. Subsequently, pursuant to Agent Chapa's request, Mr. Fishman gave the bonds back after Agent Chapa told Mr. Fishman that returning the bonds would be an act of good faith.
Meanwhile, on June 7, 2004, Mr. Fishman received a subpoena to testify before a grand jury in the Northern District of Oklahoma. The subpoena did not contain an advice of rights, and Mr. Fishman was not identified as a target of the investigation being conducted at that time. When Mr. Fishman received a second subpoena, dated August 24, 2006, it was a target subpoena identifying him as a target of the investigation and it did contain an advice of rights. Among the "rights" listed was the following: "You are notified that you are a target of an investigation for possible violations of federal criminal law." Id. at 210.
That same day, Mr. Fishman sent an e-mail to Assistant United States Attorney ("AUSA") Kevin Leitch in Oklahoma, stating his concern about the advice of rights, reminding Mr. Leitch of Mr. Fishman's full cooperation and stating that he did not intend to hire counsel. He further expressed his hope that, after his grand jury testimony, the authorities would cease viewing him as a target.
When Mr. Fishman appeared before the grand jury on September 6, 2006, he declined to invoke his Fifth Amendment right against self-incrimination. He did not receive immunity for his testimony. He alleges that he testified and incriminated himself. Agent Chapa subsequently testified that, throughout the investigation, Mr. Fishman had expressed his concern about his status as a potential target, and repeatedly asked the agent if he would be charged with a crime. Agent Chapa stated that he never offered Mr. Fishman a "deal" or immunity of any kind, nor did he have the authority to do so.
When Mr. Fishman made another trip to Tulsa in February 2007 to meet with Agent Chapa and AUSAs Leitch and Charles McLoughlin, he was handed a letter notifying him that he was a target of a federal investigation. AUSA McLoughlin told Mr. Fishman that he could be charged with a crime. Mr. Fishman indicated he still wanted to cooperate. Agent Chapa drove Mr. Fishman to the Federal Public Defender's office in Tulsa, where counsel was appointed to represent Mr. Fishman.
Subsequently, Mr. Fishman, along with Mr. Thornburgh, went to trial on a second superseding indictment, filed on June 2, 2009, alleging a conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1349, and a conspiracy to commit money laundering, in violation
Mr. Fishman filed a host of pre-trial motions, all of which were denied. We address each one as it is relevant to the issues Mr. Fishman raises on appeal. Those issues are: (1) the district court erred in denying his motion to dismiss the indictment as being the fruit of effectively immunized statements; (2) there was insufficient evidence to support his convictions on both counts one and two; (3) there was a fatal variance from the indictment because the indictment alleged one conspiracy but the evidence at trial established multiple conspiracies; (4) the applicable statute of limitations had expired by the time the indictment was filed; (5) the jury instructions on money laundering were erroneous; and (6) the district court erred in its application of the sentencing guidelines and in its selection of the amount for restitution. Acting pro se, Mr. Fishman adds the issue that his conviction violates the Ex Post Facto clause of the United States Constitution.
Mr. Fishman argues that he believed that his substantial cooperation with the investigating authorities, including his taking certain actions which he was assured were viewed as "good faith" conduct, would implicitly provide him with immunity from prosecution. He accordingly filed a pre-trial motion to dismiss the indictment because it was based on statements he had made before the grand jury and/or to authorities in other contexts, which he claims were effectively immunized because of that substantial cooperation. Following an evidentiary hearing, the court denied the motion, stating:
"Congress has authorized the grant of use immunity to those persons ordered to testify before a grand jury." United States v. Lacey, 86 F.3d 956, 972 (10th Cir.1996). However, "[T]he United States attorney and his superiors have the sole power to apply for immunity." United States v. Serrano, 406 F.3d 1208, 1217 (10th Cir.2005).
If "a defendant shows that he or she has been compelled to testify under a grant of use immunity about a matter relevant to his or her prosecution, the burden then shifts to the government to demonstrate that `all of the evidence it proposes to use was derived from legitimate independent sources.'" Id. (quoting Kastigar v. United States, 406 U.S. 441, 461-62, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)). Mr. Fishman claims he did, in effect, testify under a grant of use immunity, so he argues the government must prove that all of the evidence it used to convict him was derived from legitimate independent sources. We disagree.
In this case, it is clear that Mr. Fishman did not invoke his Fifth Amendment privilege to refuse to testify before the grand jury. And, despite his many allusions to immunity, it is also clear that no one with the authority to grant him use immunity did so. While he claims he thought asserting his Fifth Amendment right against self-incrimination was merely a formality, the reality is that his silence regarding that right indicates he waived it and testified without the benefit of an immunity agreement.
Mr. Fishman also emphasizes Agent Chapa's statement that he would be demonstrating "good faith" by returning the bonds to the authorities; but that falls far short of an expression of immunity. Agent Chapa made it clear, in any event, that he lacked authority to grant immunity. The district court accordingly did not err in refusing to dismiss the indictment, or in permitting Mr. Fishman's grand jury testimony to be admitted at trial.
Mr. Fishman made an oral motion pursuant to Fed.R.Crim.P. 29 at the close of the government's case, and after all parties rested, for acquittal based on the insufficiency of the evidence. He renewed the motion after the verdicts were announced. The district court denied the motions on each occasion.
"We review a challenge to the sufficiency of the evidence de novo, but in doing so we owe considerable deference to the jury's verdict." United States v. King, 632 F.3d 646, 650 (10th Cir.2011) (further quotation omitted). We ask only "whether taking the evidence—both direct and circumstantial, together with the reasonable inferences to be drawn therefrom—in the light most favorable to the government, a reasonable jury would find the defendant guilty beyond a reasonable doubt." Id. (further quotation omitted). In conducting
We begin with the question of whether there was sufficient evidence to support the jury's guilty verdict as to count one, conspiracy to commit wire and mail fraud. First, a conspiracy to commit wire and/or mail fraud does not require proof of an overt act. See Whitfield v. United States, 543 U.S. 209, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005) (holding that criminal conspiracies modeled after the Sherman Act, 15 U.S.C. § 1, rather than 18 U.S.C. § 371, do not require proof of an overt act to obtain conviction).
Accordingly, to prove such a conspiracy, the government must demonstrate that "(1) two or more persons agreed to violate the law, (2) the defendant knew the essential objectives of the conspiracy, (3) the defendant knowingly and voluntarily participated in the conspiracy, and (4) the alleged coconspirators were interdependent." United States v. Baldridge, 559 F.3d 1126, 1136 (10th Cir.) (further quotation omitted), cert. denied, ___ U.S. ___, 129 S.Ct. 2170, 173 L.Ed.2d 1165 (2009).
Turning to the substantive crime, "[t]o convict a defendant of wire fraud, the government must prove three elements: (1) the defendant participated in a scheme to defraud; (2) the defendant intended to defraud; and (3) a use of an interstate wire in furtherance of the fraudulent scheme." United States v. Caldwell, 560 F.3d 1214, 1218 (10th Cir.2009) (further quotation omitted).
Mr. Fishman argues "[t]he evidence failed to show that Mr. Fishman shared a common goal with the alleged co-conspirators, since the proof did not establish that Mr. Fishman was aware of the objects of the alleged mail and wire fraud conspiracy." Opening Br. of Appellant at 53. He claims he made no false statements to any of the Caribou investors, that he believed the bonds were valuable, that he was merely a messenger between the investors and the other members of the conspiracy, and that he made no money from the sale of bonds to the Caribou investors. In short, he claims he acted in good faith, merely trying to help people get rich quickly.
We have carefully reviewed the lengthy record in this case. There is an abundance of evidence establishing that Mr. Fishman was deeply involved in the entire fraudulent conspiracy to commit mail and wire fraud, and that he was, as the government characterized it, "the neural glue of the conspiracy." Answer Br. of the United States at 41. Interdependence was clearly proven, as was Mr. Fishman's awareness of all aspects of the fraudulent plan. It simply defies belief that a reasonable juror would conclude that Mr. Fishman could be so integrally involved in every aspect of the Caribou program and watch as months went by with no investors receiving their promised extravagant returns, and yet have no idea that the entire program was a fraudulent scheme.
Most telling, however, is Mr. Fishman's admission in his testimony before the grand jury that, by early 2000, he knew
Mr. Fishman also claims there was insufficient evidence supporting the jury's guilty verdict on count two, conspiracy to commit money laundering. Conspiracy to launder money requires proof "(1) that there was an agreement between two or more persons to commit money laundering and (2) that the defendant joined the agreement knowing its purpose and with the intent to further the illegal purpose." United States v. Wittig, 575 F.3d 1085, 1103 (10th Cir.2009) (quoting United States v. Fuchs, 467 F.3d 889, 906 (5th Cir.2006)). To establish the crime of money laundering:
Caldwell, 560 F.3d at 1221. In this case, the "specified unlawful activity" was the mail and/or wire fraud.
Mr. Fishman devotes a single paragraph using one-half of a page in his opening brief to his argument that there was insufficient evidence supporting the jury's guilty verdict on the money laundering count. He simply reminds us to remember the distinction between "money laundering" and "money spending" (and inferentially the distinction between profits and receipts) in light of the recent Supreme Court case United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008). He thus alleges, without development or support, that "[t]he focus must be on the criminal profits, not receipts." Opening Br. of Appellant at 57. Finally, he notes, again without elaboration, that our decision in Caldwell is "helpful." Id. He fails to explain which element of the conspiracy charge or the money laundering charge the government failed to prove. Fed. R.App. P. 28(a) states that the "appellant's brief must contain . . . the argument, which must contain: . . . appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies." Fed. R.App. P. 28(a)(9)(A) (emphasis added). Mr. Fishman's opening brief on this point is woefully inadequate.
The record reveals ample evidence of the interdependence and constant communication between Mr. Fishman and his co-conspirators. These communications reveal Mr. Fishman's awareness of every aspect of the Caribou program, from the true value of the bonds, to the reality of where the investors' money was going, to the fact that there were no high-yield trading programs operated by major European banks for the benefit of the Caribou investors, and to the fact that the promised returns to investors were non-existent. Furthermore, Mr. Fishman was fully aware that some investor deposits were used by the conspirators to lull restless and suspicious investors into believing that the conspirators were busily trying to keep the program afloat and capable of generating sums of money. Other investor deposits were being distributed through the SunTrust account and Caribou to the co-conspirators, including to Mr. Fishman himself.
Once again, it defies belief that a reasonable juror would find that, given Mr. Fishman's involvement in every aspect of the Caribou program, he was nonetheless somehow unaware of the true nature of the program, and that it was, in fact, a fraudulent scheme involving mail and wire fraud and money laundering. In sum, as we stated above with respect to count one, "[A]ny rational trier of fact could have found [Mr. Fishman] guilty of the crime beyond a reasonable doubt." Wood, 207 F.3d at 1228.
Mr. Fishman's brief also cites to Santos. In that regard, he focuses in a conclusory fashion on profits versus receipts. Because he did not raise this issue below, we review the question under a plain error standard. See United States v. Goode, 483 F.3d 676, 681 n. 1 (10th Cir. 2007).
For the reasons stated in greater detail, infra, when we discuss the propriety of the jury instructions on money laundering, we conclude that even assuming, arguendo, that some error occurred on this subject with respect to the sufficiency of the evidence, that error did not constitute plain error.
The second superseding indictment alleged a single conspiracy to commit mail and wire fraud and launder the proceeds. Mr. Fishman "contends that there were a minimum of three . . . or more conspiracies demonstrated at trial. Some of the players were Sloan DuPont, Terry Nelson, David Watson, Peter Zaccagnino, Deno Nerozzi, Sam Kram, Mr. Davidson, Mr. Searles, Mr. Thornburgh, among others." Opening Br. of Appellant at 58. In his reply brief, Mr. Fishman makes a more specific argument, alleging that there were at least three separate conspiracies—one involving Mr. Zaccagnino, the Caribou program, and the Chinese bond conspiracy involving Norah Cali, the claimed niece of Alan Greenspan. He suggests there was perhaps a fourth "activity," which he claims was not a conspiracy at all, involving the purchase of bonds from Mr. Fishman by a woman named Barbara Johnson. Mr. Fishman concedes that perhaps the Zaccagnino conspiracy was "peripheral" to the Caribou scheme, but steadfastly maintains the others were entirely separate. Mr. Fishman failed to raise this issue in his Rule 29 motion below.
"Where `an indictment charges a single conspiracy, but the evidence presented at trial proves only the existence of
Because it is difficult to distinguish between a single large conspiracy and several smaller conspiracies, "we will generally defer to the jury's determination of the matter." Id. at 1329. In reviewing a jury finding that a single, rather than multiple, conspiracy existed, "a focal point of the analysis is whether the alleged coconspirators' conduct exhibited interdependence." United States v. Edwards, 69 F.3d 419, 432 (10th Cir.1995). Co-conspirators are interdependent when they "inten[d] to act together for their shared mutual benefit within the scope of the conspiracy charged." United States v. Evans, 970 F.2d 663, 671 (10th Cir. 1992). "Circumstantial evidence alone is often sufficient to demonstrate interdependence; indeed, it is often the only evidence available to the government." Caldwell, 589 F.3d at 1329. Moreover, "a single act can be sufficient to demonstrate interdependence." Id.
In this case, there was substantial evidence of interdependence. Indeed, each member of the conspiracy had his own particular role—Mr. Thornburgh and Mr. Davidson were the salesmen of the bonds, Mr. Thornburgh in the United States and Mr. Davidson abroad, primarily in New Zealand and Australia; Mr. Searles was the banker and organizer, having established Caribou as the shell corporation and serving as its president; a man named John Clancy was the "authenticator," charged with ensuring the purported authenticity of the bonds; Mr. Fishman was a central figure, interacting with all of the other conspirators and performing many essential functions. There were occasional modifications of personnel and product. Mr. Zaccagnino dropped out of the conspiracy when he closed Two-Thirds International.
As we have stated before:
United States v. Harrison, 942 F.2d 751, 756 (10th Cir.1991) (quoting United States v. Maldonado-Rivera, 922 F.2d 934, 963 (2d Cir.1990)). The common denominators in all these "programs" were Mr. Fishman, Mr. Thornburgh and Mr. Searles. They may have had greater or lesser involvement with particular investors, but they all used similar paperwork and tactics—"safekeeping depositories," bonds (first railroad, then Chinese), bond "authenticators," and foreign "program managers." A single conspiracy does not splinter into multiple conspiracies because members come and go. See United States v. Coleman, 7 F.3d 1500, 1503 (10th Cir.1993) (finding sufficient evidence of defendant's participation in conspiracy even though she began her participation in the conspiracy two years after venture had begun, participated for only two months, and the conspiracy continued for six months after she was arrested); United States v. Brewer, 630 F.2d 795, 800 (10th Cir.1980) ("A conspiracy is not terminated simply by a turnover in personnel.").
Mr. Fishman also claims the government used evidence of conduct for which he was never criminally charged, and suggests this somehow indicates there were multiple conspiracies or a prohibited variance. He also appears to argue that, because Mr. Zaccagnino and Norah Cali were not charged as members of the Caribou conspiracy, any activity he had with them was pursuant to a separate conspiracy or conspiracies. We disagree. The second superseding indictment specifically stated that there were more conspirators, "known and unknown," and the fact that not all were charged does not necessarily mean they operated in a separate conspiracy. As we have stated before:
Accordingly, we find no evidence of a variance; rather, the record amply supports the jury's determination that there was only a single conspiracy.
Mr. Fishman argues that the five-year statute of limitations applicable to the charges here had expired by the time the initial indictment was filed on November 30, 2007. He thus argues that the court should have granted his motion to dismiss the indictment.
"A conspirator . . . is only liable for the acts of co-conspirators until the conspiracy accomplished its goals or that conspirator withdraws." United States v. Cherry, 217 F.3d 811, 817 (10th Cir.2000) (further quotation omitted). Mr. Fishman argues that the conspiracy here was "complete when the main criminal objectives were achieved, the receipt of the funds from the investors in 2002 and before." Opening Br. of Appellant at 62.
As indicated above, "a conviction for conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), does not require proof of an overt act in furtherance of the conspiracy." Whitfield, 543 U.S. at 219, 125 S.Ct. 687; United States v. Green, 599 F.3d 360, 372 (4th Cir.2010) ("We are mindful that, . . . a money laundering conspiracy does not require proof of an overt act."). Nonetheless, while not required,
Green, 599 F.3d at 372. And, as we stated above, conspiracy to commit wire and/or mail fraud also does not require proof of an overt act.
Furthermore, for "`conspiracy statutes that do not require proof of an overt act, the indictment satisfies the requirements of the statute of limitations if the conspiracy is alleged to have continued into the limitations period.'" United States v. McNair, 605 F.3d 1152, 1213 (11th Cir.2010) (quoting United States v. Gonzalez, 921 F.2d 1530, 1548 (11th Cir. 1991) (citation and quotation marks omitted)). Whether we look just at the indictment or also consider proof of the conduct of Mr. Fishman, it is clear that the indictment against him was not barred by the statute of limitations.
The second superseding indictment specifically states with respect to count one, "Beginning at least as early as 1998 and continuing at least through August 2005, the exact dates being unknown to the Grand Jury, . . . Defendants JOSEPH LYNN THORNBURGH, WAYNE LESLIE DAVIDSON, STEVEN FISHMAN and others . . . knowingly and willfully conspired to [commit mail and wire fraud]." Second Superseding Indictment at 3. It further specifically lists incidents in 2003 and 2005 in which members of the conspiracy did particular acts in furtherance of the conspiracy. See id. at 11. Count two contains the identical language
Furthermore, the actions of the co-conspirators listed in the indictment are amply supported in the record. Other evidence also demonstrates activity by the co-conspirators until 2005, as evidenced by the following recitations of testimony from several investors. For example, investors Henry Pham and David Franco testified to contacts with Mr. Thornburgh and Mr. Fishman in 2003 and 2004. Investor Tracey Grist testified about an e-mail she received in January 2004 from Mr. Fishman. Yet another investor, Barbara Johnson, testified that she wired $13,000 to Mr. Fishman in April 2004, sent him a check for $50,000 in August 2004, sent him another check for $20,000 in October 2004, and then made a wire transfer for $22,000 in January 2005. Ms. Johnson also described many telephone conversations she had with Mr. Fishman in March, April and May of 2005. Investor Marsha Longaberger described interactions with Mr. Thornburgh in March and April 2003, relating to her investment, including Mr. Thornburgh's request in April that she lie to the postal inspector investigating the Caribou program. Investor Jeff Hayslett also described an "end of 2002, maybe beginning of 2003" telephone conversation with Mr. Fishman, one of many such conversations he had with Mr. Fishman. Tr. of Trial Proceedings, Fishman Record, Vol. 3, Part 7 at 964.
Mr. Fishman also argues that the disagreement between Mr. Thornburgh and Mr. Searles in July 2002 somehow indicates that the conspiracy had ended. That is contradicted by the wealth of evidence that Mr. Fishman and Mr. Thornburgh and others were continuing to pacify and solicit current and new investors all the way through early 2005. Furthermore, that evidence demonstrates that Mr. Fishman simply became the middleman between Mr. Thornburgh and Mr. Searles, not that the conspiracy ended.
Finally, a reasonable jury could have concluded that a number of communications between Mr. Fishman and investors were lulling letters, "designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place." United States v. Maze, 414 U.S. 395, 403, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974); see also S.E.C.
Mr. Fishman next argues that the district court gave an erroneous jury instruction when it failed to define the term "proceeds" in the money-laundering jury instruction as "profits." See 18 U.S.C. § 1956(a)(1)(A)(i).
Mr. Fishman failed to object to the jury instruction, so we review it only for plain error. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); see also Searles, 412 Fed.Appx. at 166-67 (Mr. Fishman's co-defendant making the identical Santos argument). "Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.2005) (en banc) (internal quotation marks omitted). An error is "plain" if it is "clear or obvious under current law" and "contrary to well-settled law." United States v. Whitney, 229 F.3d 1296, 1308-09 (10th Cir.2000). "In general, for an error to be contrary to well-settled law, either the Supreme Court or this court must have addressed the issue." United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir.2003).
The district court's jury instruction used the term "proceeds" and then stated that "`proceeds' can be any kind of property, not just money." Jury Instructions at 80. Now, relying on Santos, Mr. Fishman argues that the government was obligated to prove that profits from the mail and wire fraud, not just receipts or gross receipts, were laundered. He further alleges that proof of profits was neither pled nor proven, and that the district court's jury instructions were erroneous because they did not require proof of profits.
We are releasing simultaneously with this decision our decision regarding Mr. Thornburgh, one of Mr. Fishman's co-conspirators and his co-defendant at trial. United States v. Thornburgh, No. 09-5156 (10th Cir. May 27, 2011). As we explained in Thornburgh, the Santos decision has been interpreted by lower courts in many different ways. We have therefore confined it to its factual setting, and
Mr. Fishman makes a very abbreviated argument that the district court erred in its application of the sentencing guidelines as well as the imposition of the amount of restitution ordered. He appears to argue that the amount of loss attributed to him resulted in an unreasonable sentence and an unfair amount of restitution. But he provides no explanation of why, and/or how much loss he thinks is properly attributable to him. "We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim, particularly when, as here, a host of other issues are presented for review." Craven v. University of Colorado Hosp. Auth., 260 F.3d 1218, 1226 (10th Cir.2001) (further quotation omitted). Because he fails to develop this argument or provide any citations to authorities or the record, we do not address it.
Proceeding pro se, Mr. Fishman argues that his conviction for count one (conspiracy to commit mail and wire fraud), in violation of 18 U.S.C. § 1349, must be vacated because it contravenes the Ex Post Facto clause of the United States Constitution. More specifically, he argues that, because one of the statutes of conviction, 18 U.S.C. § 1349, did not go into effect until July 30, 2002, it is a violation of the Ex Post Facto clause to convict him on the basis of conduct which occurred before that date. He did not raise this issue below, so we review for plain error.
We begin by noting that the Supreme Court has recently clarified the nature of this claimed constitutional violation. In United States v. Marcus, ___ U.S. ___, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010), there was a situation similar to our case, in that the defendant had been convicted of conduct (violation of the sex trafficking and forced labor statutes) occurring both before and after the effective date of the statutes making that conduct illegal. The defendant had not objected to the district court's failure to address this issue, by means of a jury instruction or some other means, so appellate review before the Second Circuit and the Supreme Court was for plain error. The Second Circuit and the defendant had characterized this as an Ex Post Facto Clause violation. The Supreme Court disagreed with that characterization, stating that it is actually a due process question. "[I]f the jury, which was not instructed about the [statute's] enactment date, erroneously convicted [defendant] based exclusively on noncriminal, preenactment conduct, [defendant] would have a valid due process claim." Id. at 2165.
On remand, the Second Circuit applied the plain error test and, at the third step of the test (whether the error affected the appellant's substantial rights) the court required the defendant to "demonstrate that the error was prejudicial," noting that ordinarily, an error is prejudicial "where there is a reasonable probability that the error affected the outcome of the trial." United States v. Marcus, 628 F.3d 36, 42 (2nd Cir.2010) (further quotation omitted). The court found, with respect to the forced labor statute, that there was "no reasonable probability that the jury would have acquitted [the defendant] absent the error." Id. There were two reasons for that conclusion. First, "the Government presented post-enactment evidence sufficient to satisfy the elements of the forced labor statute." Id. Second, the court found "no reasoned basis to differentiate between [the defendant's] pre- and post-enactment conduct, and [it] f[ou]nd no reason to presume that the jury did so." Id. at 43. Additionally, the defendant himself offered no explanation of how his pre- and post-enactment conduct differed in such a way as to create a reasonable probability that the jury would not have convicted him without the due process error.
The court vacated the sex trafficking conviction, however, stating:
Id. at 44. We apply that analysis to Mr. Fishman's due process claim.
Mr. Fishman makes two arguments in support of this claim. First, he argues that, inasmuch as conspiracies for violations of the wire and mail fraud laws, as well as the money laundering laws, do not require proof of an overt act, "the conspiracy is complete upon the agreement itself." Reply Br. of Appellant at 3. As he also puts it, "18 U.S.C. § 1349 is violated upon agreement alone." Id. at 4. Thus, the entire conspiracy was completed before § 1349 went into effect. Furthermore, he claims that since the second superseding indictment did not specifically list an overt act occurring post-enactment, his due process rights were also violated because he was convicted of something for which he was never charged.
"`A conspiracy, once instituted, continues to exist until it is abandoned, succeeds, or is otherwise terminated by some affirmative act.'" United States v. Williamson, 53 F.3d 1500, 1513 (10th Cir. 1995) (quoting United States v. Russell, 963 F.2d 1320, 1322 (10th Cir.1992)). Accordingly, the conspiracy here began with the agreement, but it continued until abandoned, or until it accomplished its mission, or was somehow affirmatively terminated. So we reject Mr. Fishman's argument that the Caribou conspiracy was completed when the initial agreement was made. Additionally, since the conspiracies at issue here do not require proof of overt acts, it is not fatal to the government's case that it
The government concedes that it was error for the district court to fail to instruct the jury on the fact that § 1349 did not come into effect until July 30, 2002. We agree that is an error, which is plain. We must next determine, as did the court in Marcus, whether that error was prejudicial because there is a reasonable probability that the error affected the outcome of the trial. As in Marcus, so too in this case, the government presented "post-enactment evidence sufficient to satisfy the elements of" the conspiracy-to-commit-wire/mail-fraud statute. Marcus, 628 F.3d at 42. As we have previously indicated, there was, indeed, substantial post-enactment evidence of Mr. Fishman's conduct in furtherance of the worthless bond investment conspiracy.
Additionally, we consider whether there is a "reasoned basis to differentiate between [Mr. Fishman's] pre- and post-enactment conduct." Id. at 43. There is no such basis. The evidence outlined above provides no support for separating the conduct, nor does Mr. Fishman provide us with any persuasive analysis to the contrary. We therefore have no reason to presume that the jury differentiated between the two and convicted him on the basis of pre-enactment conduct only.
In short, while it may have been an error for the district court to have failed to specifically instruct the jury that § 1349 was not effective until part way through the conspiracy, perhaps even a plain error, that error did not affect Mr. Fishman's substantial rights, nor did it affect the fairness of the proceedings. There was substantial evidence that the conspiracy continued long after § 1349 went into effect.
Mr. Fishman alternatively argues that he withdrew from the conspiracy when he began cooperating with authorities. Withdrawal is generally not an available defense to a conspiracy that does not require an overt act. See United States v. Williams, 374 F.3d 941, 950 (10th Cir. 2004) ("Because there is no overt act requirement under the drug conspiracy statute, withdrawal cannot relieve a defendant of criminal responsibility for a conspiracy charged under § 846, though withdrawal may limit a defendant's liability in situations not relevant here."). But, even in these non-overt act conspiracies, we have agreed that "withdrawal" "may normally start the running of the statute of limitations." Id. n. 11. Thus, it can have some relevance even in a non-overt act conspiracy.
So, assuming we are simply considering "withdrawal" in the context of whether it shows Mr. Fishman had abandoned the conspiracy before § 1349 came into effect, we conclude that his cooperation with authorities alone does not necessarily demonstrate that he withdrew. The burden of establishing the abandonment or withdrawal from the conspiracy is firmly on the defendant, Mr. Fishman. See United States v. Fox, 902 F.2d 1508, 1516 (10th Cir.1990); United States v. Parnell, 581 F.2d 1374, 1384 (10th Cir.1978) ("In order to withdraw from a conspiracy an individual must take affirmative action, either making a clean breast to the authorities or communicating his withdrawal in a manner reasonably calculated to reach his co-conspirators.").
"Neither arrest nor incarceration automatically triggers withdrawal from a conspiracy." United States v. Gonzalez, 940 F.2d 1413, 1427 (11th Cir.1991). Given that there is ample evidence of Mr. Fishman's activities furthering the conspiracy during the time he claims he was cooperating with authorities, he has failed to carry
Finally, and very significantly, the district court specifically instructed the jury that Mr. Fishman had raised as a defense the claim that he had withdrawn from the conspiracy prior to November 30, 2002. He argued that point to the jury and, by its guilty verdict, the jury found that he had not withdrawn. That jury verdict is amply supported by the record.
For the forgoing reasons, we AFFIRM the conviction and sentence in this case.
Tr. of Trial Proceedings at 1266, 1269, R. Vol. 3, Part 8.
The statute has since been amended (in 2009) so that "proceeds" is now defined as "any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity." 18 U.S.C. § 1956(c)(9). But because all the relevant activities in this case occurred before 2009, we apply the old version of the money laundering statute.