United States v. Aref Elfgeeh , 515 F.3d 100 ( 2008 )


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  •      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.
    
    
    
    
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     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.
    
    
    
    
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