United States v. Roger Day, Jr. , 700 F.3d 713 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-5218
ROGER CHARLES DAY, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
John A. Gibney, Jr., District Judge.
(3:07-cr-00154-JAG-3)
Argued: October 26, 2012
Decided: November 29, 2012
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge King and Judge Shedd joined.
COUNSEL
ARGUED: Richard Hans Maurer, MAURER/SONG PC,
Philadelphia, Pennsylvania, for Appellant. Ryan Scott Faul-
coner, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Neil H. Mac-
Bride, United States Attorney, Alexandria, Virginia, Elizabeth
2 UNITED STATES v. DAY
C. Wu, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.
OPINION
WILKINSON, Circuit Judge:
Roger Day Jr. was convicted of wire fraud, conspiracy to
commit wire fraud, conspiracy to commit money laundering,
and conspiracy to commit smuggling for his role as the mas-
termind of a multi-million dollar scheme to defraud the
Department of Defense ("DOD"). The crux of Day’s scheme
involved the knowing supply of defective and nonconforming
spare parts for use in U.S. military aircraft, vehicles, and
weapons systems. Many of these were "critical application
items"—that is, parts whose failure could jeopardize the lives
of military personnel and the success of military operations.
The district court imposed a sentence of 105 years in prison
along with substantial fines, forfeitures, and restitution. Day
now appeals his convictions and sentence on a variety of
grounds. Finding his arguments without merit, we affirm the
judgment of the district court.
I.
A.
In late 2004 and early 2005, Day began running a business
scheme involving his then-girlfriend, Susan Crotty Neufeld,
and his friends, Nathan Carroll and Greg Stewart. Acting at
Day’s direction, Neufeld, Carroll, and Stewart would set up
companies that could bid on parts-supply contracts for the
Defense Logistics Agency ("DLA"), the agency within the
DOD responsible for acquiring parts for the military services.
Using Day’s custom-designed software program, the compa-
UNITED STATES v. DAY 3
nies would then bid en masse on low-dollar value DLA con-
tracts. When one of the newly formed companies won a
contract, Day would purchase the necessary parts and have
them shipped to Neufeld or Carroll, who would in turn deliver
the parts to a packaging company for shipping to the DLA to
complete the contract. Day would then share a portion of the
profit with the others.
The arrangement between Day and his co-conspirators
lasted three years, during which the various companies
secured some 987 contracts worth approximately
$8,670,380.78. Like all too many get-rich-quick ideas, how-
ever, this scheme was too good to be true. The trick was in
the parts: rather than delivering parts that complied with the
exacting military specifications called for in the various con-
tracts, Day would purchase similar sounding—yet cheaper
and nonconforming—items. For example, instead of the spe-
cial military aircraft dome antennas that were the subject of
one contract, Day obtained and directed his co-conspirators to
deliver ordinary citizens band radio antennas. Similarly,
rather than the valuable infrared halogen light filters requested
by the DLA for nighttime use on F-16 fighter jets, Day and
his co-conspirators delivered noncomplying recessed lighting
components. Fifty-nine percent of the contracts obtained dur-
ing the scheme involved "critical application items," or items
that the military had determined to be essential to weapon sys-
tem operation or the safety of operating personnel. When all
was said and done, Day purchased the various nonconforming
parts for, on average, just 3.77% of the amount that he
received back in payment from the government.
The success of Day’s scheme was predicated on the fact
that, due to issues of cost and efficiency, the DLA could not
individually inspect each delivered part for quality assurance
prior to paying out many of its contracts. Thus, instead of
rejecting noncomplying parts upon receipt and refusing to
make payment, the DLA typically punished companies who
had shipped such parts by debarring them from winning
4 UNITED STATES v. DAY
future awards. Yet when the DLA identified the companies
used by Day and his co-conspirators as the proper subject of
debarment orders, Day circumvented those orders through the
simple expedient of instructing his co-conspirators to form
new companies, which could place and win bids on parts-
supply contracts anew.
Early on in the scheme, in May 2005, Day moved to Mex-
ico, where he directed Neufeld, Carroll, and Stewart through
emails, phone calls, and internet chats. He initially instructed
the three to route the proceeds of the scheme to him in Mex-
ico in the form of checks that he would deposit in a Belizean
bank account. However, the bank eventually shut down Day’s
account, leaving him without an easy way to pocket the pro-
ceeds of his project. Day reacted by instructing Carroll to con-
vert his funds into gold and to physically bring the gold to
him in Mexico.
The task of purchasing and then transporting the gold to
Day in Mexico involved several complicated steps. First, Day
told Carroll to purchase a large quantity of gold—some 2,030
ounces in gold bars and 1,522 ounces in gold coins—from a
gold dealer in Arizona and to have the gold shipped to Car-
roll’s residence in New Jersey. However, because Day did not
wish to enter the United States to transport the gold person-
ally, he instead asked other individuals to transport the gold
for him. Thus, in July 2006, Carroll drove 197 gold bars
(worth more than $1.3 million) from New Jersey to Houston,
Texas, where he met Juerg Mehr, an auto mechanic whom
Day had asked to help hide the gold inside the hollow front
bumper of a Toyota Land Cruiser. Once the gold was hidden,
Carroll picked up Stewart and drove across the U.S.-Mexico
border where they met up with Day. The three of them then
drove to Day’s home in Lo De Marcos, where after waiting
until nighttime, they hand-sawed the gold out of the Land
Cruiser’s bumper and placed it inside Day’s home.
The next effort to transport gold to Day in Mexico did not
meet with the same success, as Carroll was arrested by Mexi-
UNITED STATES v. DAY 5
can authorities while attempting to cross the border in Sep-
tember 2006. Although he was released shortly thereafter, the
arrest left Carroll unable to travel to Mexico and Day looking
for a new courier. Day eventually recruited Glenn Teal, a for-
mer law enforcement officer. In February 2007, Teal flew to
Houston where he met Carroll, Mehr, and a fourth individual.
Together they hid roughly $850,000 worth of gold that Carroll
had driven down from New Jersey inside the rear door panel
of an Austrian Pinzgauer military transport vehicle that
belonged to Day. Teal then drove the Pinzgauer into Mexico,
where he met Day, and the two transported the gold together
to Day’s home in Lo De Marcos.
Within a month of this second delivery, however, the
scheme began to unravel. Carroll and Stewart had run-ins
with law enforcement officers in February 2007, after which
Day sent Carroll an email instructing him to "stop bidding" on
the DLA contracts. Carroll was arrested soon thereafter, on
March 9. Day then abandoned his Mexican residence,
assumed multiple fake identities, and began recruiting addi-
tional individuals to help him transport his gold, first from
Mexico back to the United States and then to a gold dealer in
Canada. Finally, after more than a year on the run, Day was
arrested in July 2008 by Mexican authorities at the Cancun
International Airport. He was subsequently detained at a Mex-
ican prison where he awaited extradition to the United States.
In August 2008, a federal grand jury indicted Day for wire
fraud conspiracy, 18 U.S.C. § 1349; wire fraud, 18 U.S.C.
§ 1343; aggravated identity theft, 18 U.S.C. § 1028A; money
laundering conspiracy, 18 U.S.C. § 1956(h); smuggling con-
spiracy, 18 U.S.C. §§ 371, 554; and obstruction of justice, 18
U.S.C. § 1503. In December 2010, the Mexican government
agreed to extradite Day to the United States on all charges
other than the identity theft and obstruction counts.
6 UNITED STATES v. DAY
B.
After his extradition to the United States, Day was sched-
uled to be tried by a jury in the U.S. District Court for the
Eastern District of Virginia in August 2011.
Prior to the trial, Day filed a motion in limine seeking to
exclude a variety of evidence characterized as "uncharged
money laundering and miscellaneous bad acts" on the grounds
that such evidence would be unfairly prejudicial and irrele-
vant to the offenses that were actually charged. In particular,
Day’s counsel sought to bar the government from introducing
evidence concerning Day’s use of his Belizean and other bank
accounts to deposit proceeds from his scheme, his use of vari-
ous false names and identifications, and his purchase of sev-
eral expensive watches while living in Mexico. After
considering Day’s arguments, the trial court denied the
motion to exclude those disputed items of evidence, reasoning
that they were really "part and parcel of the money laundering
scheme" and not "attempts to slam [Day’s] character."
During the eight-day trial, the government introduced testi-
mony from a number of witnesses. One was Tom Higgin-
botham, a DLA engineer who tested several of the
nonconforming parts that the government purchased from
Day and his co-conspirators. On cross-examination of Higgin-
botham, Day’s counsel sought to admit into evidence an inter-
nal agency report that had concluded that some of the parts
Higginbotham tested had been mishandled by a government
investigator in the case.
The government objected to the report’s admission under
Rule 403 of the Federal Rules of Evidence, arguing that it
concerned a collateral matter whose probative value would be
substantially outweighed by the risk of confusing the issues.
The trial court agreed, reasoning that the "report does not sug-
gest that . . . any of the evidence is tainted, or wrong in this
case," a characterization with which defense counsel con-
UNITED STATES v. DAY 7
curred. The court accordingly ruled that the report would
yield little probative value, while posing a high risk of preju-
dice. The court did, however, permit Day to cross-examine
the agent who had allegedly mishandled the evidence regard-
ing the ways in which he may have violated agency proce-
dures.
At the close of the trial, the court turned to the task of
instructing the jury. During the charge conference, the gov-
ernment sought an instruction on aiding and abetting liability.
Day’s counsel did not object, and the trial court proceeded to
instruct the jury that Day could be held liable under an aiding
and abetting theory.
The trial judge also instructed the jury on the meaning of
the word "proceeds" as it is used in the money laundering
statute, 18 U.S.C. § 1956(a)(2)(B). Specifically, the judge
instructed the jury—without objection—that the term "pro-
ceeds" includes "any interest in property that someone
acquires or retains as a result of the commission of . . . a spec-
ified unlawful activity."
On August 25, 2011, the jury unanimously found Day
guilty on all counts. During Day’s sentencing hearing, the dis-
trict court determined that based on his convictions and appli-
cable sentencing enhancements, Day’s Guidelines range was
1,260 months’ imprisonment. One of the enhancements that
the court found applicable was for obstruction of justice,
U.S.S.G. § 3C1.1, which the court determined to be warranted
because Day had "attempted to bribe United States and Mexi-
can officials," "attempted to escape while in Mexico," and "at
least plotted an escape while in jail" in Virginia.
After calculating the Guidelines range, the court considered
the 18 U.S.C. § 3553(a) sentencing factors and determined
that the 1,260-month sentence was appropriate. In particular,
the trial judge noted that the "nature and circumstances of the
offense are just absolutely vile," and that with respect to his
8 UNITED STATES v. DAY
character, Day had exhibited "absolutely no conscience" and
"no regret." The judge also explained that the need to protect
the public from further crimes by Day was a "paramount con-
sideration" in his sentencing determination because "if [Day]
was released today he would think of his next scheme before
sunset. . . . and would start to put it in action tomorrow."
Finally, in addition to the term of imprisonment, the court
imposed on Day a fine of $3 million, restitution of more than
$6 million, and forfeiture consisting of gold, vehicles, and
more than $2 million in cash.
Day now appeals his convictions and sentences, raising
challenges on a number of grounds. We address each in turn.
II.
Day’s initial arguments concern the trial court’s decision to
instruct the jury that he could be convicted under an aiding
and abetting theory. Day’s counsel did not object to the aiding
and abetting instruction, so we review his claims for plain
error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
As explained below, his claims fail the first prong of this stan-
dard, for the jury instruction was not erroneous.
A.
Day first argues that his convictions should be reversed
because the trial court’s aiding and abetting instruction
amounted to a constructive amendment of his indictment. "A
constructive amendment, also known as a ‘fatal variance,’
happens when the government, through its presentation of
evidence or its argument, or the district court, through its
instructions to the jury, or both, broadens the bases for con-
viction beyond those charged in the indictment." United
States v. Roe, 606 F.3d 180, 189 (4th Cir.) (internal quotation
marks omitted), cert. denied, 131 S. Ct. 617 (2010). Day
asserts that the aiding and abetting instruction broadened the
UNITED STATES v. DAY 9
bases of conviction in his case because his indictment neither
mentioned nor charged that particular theory of liability.
Day’s argument fails for the simple reason that—as this
court and other courts have repeatedly held—a defendant
"may be convicted of aiding and abetting under an indictment
which charges only the principal offense." United States v.
Duke, 409 F.2d 669, 671 (4th Cir. 1969); see also, e.g.,
United States v. McKnight, 799 F.2d 443, 445 (8th Cir. 1986);
United States v. Galiffa, 734 F.2d 306, 312 (7th Cir. 1984).
Indeed, we observed just two years ago, in United States v.
Ashley, that aiding and abetting liability "need not be charged
in an indictment." 606 F.3d 135, 143 (4th Cir.), cert. denied,
131. S. Ct. 428 (2010).
This conclusion follows ineluctably from the rule against
constructive amendments itself, which is focused not on par-
ticular theories of liability but on the offenses charged in an
indictment. That is, a constructive amendment occurs only
where an "indictment is altered to change the elements of the
offense charged, such that the defendant is actually convicted
of a crime other than that charged in the indictment." United
States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999) (empha-
sis added) (internal quotation marks omitted). Yet as we
explained in Ashley, aiding and abetting liability "does not set
forth an essential element of the offense with which the defen-
dant is charged or itself create a separate offense." 606 F.3d
at 143. Instead, "aiding and abetting simply describes the way
in which a defendant’s conduct resulted in the violation of a
particular law." Id. We therefore reject Day’s contention that
the aiding and abetting jury instruction was a constructive
amendment.
B.
Day next argues that his convictions should be reversed
because the aiding and abetting jury instruction violated the
extradition rule of specialty. As expressed in the United
10 UNITED STATES v. DAY
States’ extradition treaty with Mexico, the rule provides that
"a person extradited under [this Treaty] shall not be detained,
tried or punished in the territory of the requesting Party for an
offense other than that for which extradition has been
granted." Extradition Treaty Between the United States of
America and the United Mexican States, art. 17, May 4, 1978,
31 U.S.T. 5059 ("U.S.-Mexico Extradition Treaty"). Day con-
tends that the aiding and abetting instruction violated the rule
in this case because Mexico did not grant—or even consider
—extradition on the basis of aiding and abetting liability.
1.
Although the government disputes Day’s contention on the
merits, it argues as a threshold matter that Day lacks standing
to raise the specialty violation in the first place. As we have
noted before, the circuits are split on the question of whether
an individual defendant has standing to raise a specialty viola-
tion, and the Fourth Circuit has yet to rule on the matter.
United States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992). The
courts that have declined to find individual standing take the
view that "only an offended nation can complain about the
purported violation of an extradition treaty." United States v.
Kaufman, 874 F.2d 242, 243 (5th Cir. 1989) (per curiam)
(denying petition for rehearing and suggestion for rehearing
en banc); see also, e.g., Shapiro v. Ferrandina, 478 F.2d 894,
906 (2d Cir. 1973). In contrast, other courts have held that an
individual "may raise whatever objections the extraditing
country would have been entitled to raise." United States v.
Cuevas, 847 F.2d 1417, 1426 (9th Cir. 1988); see also, e.g.,
United States v. Diwan, 864 F.2d 715, 721 (11th Cir. 1989).
Because we conclude that Day’s specialty argument fails
on the merits, however, we need not resolve the government’s
standing argument now. To be sure, courts must resolve juris-
dictional Article III standing issues before proceeding to con-
sider the merits of a claim. Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 95 (1998). But the standing requirement
UNITED STATES v. DAY 11
at issue here does not flow from Article III, for there is little
question that an individual who is extradited for one offense
but then tried for a completely different one suffers a concrete
injury that is both fairly traceable to that prosecution and
redressable by a favorable judicial ruling. See Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
180-81 (2000). The standing question here instead involves
the prudential requirement that the interest a litigant seeks to
assert must be within the "zone of interests" that the statute
(or in this case, treaty) is designed to protect. See, e.g., Sha-
piro, 478 F.2d at 906 (noting that the rule of specialty is "de-
signed to protect [the asylum state’s] dignity and interests,"
not the interests of the accused).
Unlike Article III standing, issues of prudential standing
are non-jurisdictional and may be "pretermitted in favor of a
straightforward disposition on the merits." Finstuen v. Crut-
cher, 496 F.3d 1139, 1147 (10th Cir. 2007) (internal quotation
marks omitted). Accordingly, this court and others have
assumed without deciding that an individual defendant has
standing to assert a specialty violation where the defendant’s
position is readily disposed of on other grounds. See, e.g.,
Davis, 954 F.2d at 186-87; United States v. Sensi, 879 F.2d
888, 892 n.1 (D.C. Cir. 1989). That is the case here as well.
2.
With respect to the merits, the flaw in Day’s specialty argu-
ment is fundamentally the same as the flaw in his constructive
amendment argument: aiding and abetting is a theory of lia-
bility, not a separate offense. Yet as the Supreme Court
explained in its seminal decision recognizing the rule of spe-
cialty, United States v. Rauscher, the rule is keyed to particu-
lar offenses: it bars trying an extradited defendant for crimes
other than "the offense with which he is charged in the pro-
ceedings for his extradition." 119 U.S. 407, 430 (1886)
(emphasis added). The treaty between the United States and
Mexico reinforces this point as it, too, prohibits the trial of a
12 UNITED STATES v. DAY
person for "an offense" for which extradition has not been
granted. U.S.-Mexico Extradition Treaty, art. 17, 31 U.S.T.
5059.
Thus, a paradigmatic example of a specialty violation
would be a case in which the requesting state seeks extradi-
tion of a defendant for one offense, such as drug trafficking,
but then proceeds to try the defendant on a different offense,
such as securities fraud. Such a prosecution would violate the
norm of international comity upon which the rule of specialty
is premised. After all, if the United States wishes to protect
its own citizens from bait-and-switch prosecutions when they
are extradited for trial in a foreign nation, so too must it honor
the same limitation in the reciprocal situation. See United
States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994).
The rule’s concern with unexpected prosecutions on un-
extradited offenses accordingly makes great sense. But aiding
and abetting liability, far from being a separate offense, is
closely linked to the principal violation. Its capacity to sur-
prise or prejudice either the extradited defendant or the extra-
diting sovereign is therefore sharply limited. Moreover, the
rule of specialty has never been used to limit a requesting
state’s ability to try a defendant for an extradited offense
under a particular theory of liability, rule of evidence, or rule
of procedure. See, e.g., United States v. Thirion, 813 F.2d
146, 152-53 (8th Cir. 1987) (rule of specialty not violated by
jury instruction regarding theory of co-conspirator vicarious
liability); United States v. Flores, 538 F.2d 939, 944 (2d Cir.
1976) (rule of specialty "has never been construed to permit
foreign intrusion into the evidentiary or procedural rules of
the requisitioning state"). Consistent with this long line of
decisions—and further undercutting Day’s claim that the rule
of specialty required Mexico to make a determination as to
whether he could be tried under an aiding and abetting theory
—the extradition treaty between the United States and Mexico
makes absolutely no mention of theories of liability. See U.S.-
Mexico Extradition Treaty, 31 U.S.T. 5059.
UNITED STATES v. DAY 13
We accordingly hold that where, as here, a defendant is
tried for the exact offenses described in his extradition agree-
ment, the principle of specialty does not bar a trial court from
instructing the jury that it may convict on such offenses under
an unmentioned aiding and abetting theory.
3.
Day presses an additional specialty argument with respect
to the trial court’s sentence of forfeiture, which he contends
was not mentioned in his extradition agreement. This, too, is
without merit. For like the issue of jury instructions regarding
particular theories of liability, a district court’s decision to
impose a judgment of forfeiture is collateral to the rule’s con-
cern over prosecutions on un-extradited offenses. A forfeiture
judgment is not a free-standing criminal offense, but rather a
particular form of punishment for otherwise proscribed con-
duct. United States v. Saccoccia, 58 F.3d 754, 784 (1st Cir.
1995). Thus, as the First Circuit explained in Saccoccia, "a
defendant may be subjected to a forfeiture order even if extra-
dition was not specifically granted in respect to the forfeiture
allegations." Id. Underscoring this fact, the U.S.-Mexico
Extradition Treaty says nothing about limitations on forfei-
ture. See U.S.-Mexico Extradition Treaty, 31 U.S.T. 5059. We
therefore hold that the rule of specialty was not violated by
the forfeiture judgment imposed against Day.
III.
Day next challenges his conviction for conspiracy to com-
mit transportation money laundering in violation of 18 U.S.C.
§ 1956(a)(2)(b)(i). The statute makes it a crime to transport
a monetary instrument or funds from a place in the
United States to or through a place outside the
United States . . . knowing that the monetary instru-
ment or funds involved in the transportation . . . rep-
resent the proceeds of some form of unlawful
14 UNITED STATES v. DAY
activity and knowing that such transportation . . . is
designed in whole or in part . . . to conceal or dis-
guise the nature, the location, the source, the owner-
ship, or the control of the proceeds of specified
unlawful activity.
18 U.S.C. § 1956(a)(2)(b)(i). Day’s arguments concern three
aspects of this statute: first, whether the government proved
that Day transported gold with the requisite design to conceal;
second, whether gold is a "monetary instrument or funds"
covered under the statute; and third, whether the trial court
issued an improper jury instruction on the meaning of the
term "proceeds." We consider these arguments in turn.
A.
Day’s first argument involves the statute’s requirement that
a defendant must transport a monetary instrument or funds
knowing that such transportation "is designed in whole or in
part" to "conceal or disguise the nature, the location, the
source, the ownership, or the control of the proceeds." 18
U.S.C. § 1956(a)(2)(b)(i). Day contends that the government
did not prove the necessary design to conceal because even
though Day and his confederates hid the gold in the process
of transporting it across the Mexican border, the government
did not prove that the purpose of the concealment was to hide
the location, source, or ownership of the gold from the gov-
ernment. We review this challenge for sufficiency of the evi-
dence, asking "whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319
(1979).
The essence of Day’s argument is that the outcome of his
case is dictated by the Supreme Court’s decision in Cuellar v.
United States, 553 U.S. 550 (2008). In that case, the Supreme
Court held that there was insufficient evidence to convict a
UNITED STATES v. DAY 15
defendant of transportation money laundering where the evi-
dence only established that the defendant hid cash proceeds of
drug trafficking under a floorboard in his car for the purpose
of transporting it across the border to Mexico. Id. at 568. As
the Court explained, "[t]here is a difference between conceal-
ing something to transport it," which is not punishable under
the statute, and "transporting something to conceal it," which
is. Id. at 566 (internal quotation marks omitted). In Cuellar,
however, there was insufficient evidence of the latter purpose
—that is, no evidence that would permit a reasonable jury to
conclude that the transportation was designed to conceal an
attribute listed in the statute. Id. at 567 n.8, 568. In fact, the
only purpose of the transportation to which the government’s
own expert witness testified in Cuellar was to "compensate
the leaders of the operation." Id. at 566 & n.7. So too here,
argues Day, because even though the gold was hidden in
order to get it across the border, the purpose of the transporta-
tion was simply to get the gold to Mexico in order to compen-
sate him.
We do not think Cuellar sustains Day’s argument.
Although it held that "merely hiding funds during transporta-
tion is not sufficient to violate the statute," id. at 563, Cuellar
also made clear that a jury may infer the requisite design to
conceal based on circumstantial evidence that the defendant
"knew that taking the funds to Mexico would have had one of
the relevant effects" listed in the statute, id. at 567 n.8. In
Cuellar, no such circumstantial evidence existed because the
government did "not point[ ] to any evidence in the record" to
support such an inference. Id. But here, the government has
pointed to a record replete with evidence showing that Day
not only knew that transporting the gold to Mexico would
have the effect of concealing the location, nature, and source
of his unlawful proceeds, but also that he transported the gold
for precisely that purpose.
For example, just before Glenn Teal brought the second
shipment of gold to Day in Mexico in February 2007, Day
16 UNITED STATES v. DAY
told him that he "did not want to leave the gold" at Carroll’s
house in New Jersey. As Day explained to Carroll, he wanted
to move the gold because he was "afraid that things were
going to get hot" given that Stewart had just had a run-in with
law enforcement officers. Indeed, Day’s fears were confirmed
when, shortly after he made these remarks, Carroll was
arrested and his house was searched on March 9th—a search
that would have turned up the gold (amounting to roughly
$850,000 of the fraud scheme’s proceeds) had Day not suc-
cessfully concealed its location by transporting it to Mexico
just days earlier. A rational jury could infer based on this evi-
dence that one of the reasons why Day had the gold moved
to Mexico was to conceal its location from American authori-
ties who he (correctly) feared were on the verge of discover-
ing its whereabouts—a quintessential act targeted by the
transportation money laundering statute.
Moreover, the government adduced additional evidence
indicating that Day intended through transportation of the
gold to conceal the source, nature, and ownership of the fraud
proceeds. For instance, Day steadfastly declined to move the
gold himself; at least eight witnesses testified that Day asked
them to help move the gold into and out of Mexico on his
behalf. Day also used a false name when negotiating with a
gold dealer to exchange the gold for a wire transfer. And a
reasonable jury could have relied on the byzantine path that
the gold took during the conspiracy. Just like Day himself
after his scheme unraveled, it can truly be said in this case
that the gold was on the lam: first from Arizona to New Jer-
sey; then to Houston, Texas; next to Day’s home in Lo De
Marcos, Mexico; then to Juarez, Mexico; then back to the
United States in Albuquerque; then to Washington; and
finally to a gold dealer in Canada. In sum, based on that path
and the other evidence of Day’s purpose in moving the gold,
we hold that a rational jury could have found the design to
conceal element of transportation money laundering proven
beyond a reasonable doubt.
UNITED STATES v. DAY 17
B.
Day contends that even if there was sufficient evidence to
support the design to conceal element, his conviction should
be reversed because gold is not "a monetary instrument or
funds" as required by 18 U.S.C. § 1956(a)(2). This challenge
implicates two issues and two standards of review. First,
Day’s argument that the district court erred in interpreting the
legal meaning of offense elements—in particular, the meaning
of "monetary instrument" and "funds"—is subject to de novo
review. See United States v. Weaver, 659 F.3d 353, 356 (4th
Cir. 2011). Second, insofar as Day challenges the jury’s find-
ing that the government adequately proved the relevant
offense element, we review that argument for sufficiency of
the evidence. See Jackson, 443 U.S. at 319.
1.
Day’s primary argument is that, as a matter of law, gold
does not constitute a monetary instrument or funds under the
money laundering statute. We note that the statute is phrased
in the disjunctive: a person violates the law by transporting "a
monetary instrument or funds" in accordance with the other
elements of the offense. 18 U.S.C. § 1956(a)(2) (emphasis
added). In order to prevail, then, Day must establish both that
gold is not "a monetary instrument" and that it is not "funds"
as expressed in the statute. Because we conclude that Day’s
argument fails with respect to the "funds" prong, we need not
address whether gold may also be "a monetary instrument."
Day asserts that gold is not encompassed within the mean-
ing of the term "funds" for two interrelated reasons: first, the
money laundering statute does not define the term; and sec-
ond, in the absence of a statutory definition, to permit the
government to rely on definitions from dictionaries and other
criminal provisions would render the statute unconstitution-
ally vague. Day is correct as to the former proposition—the
money laundering statute does not define the meaning of
18 UNITED STATES v. DAY
"funds"—but he is wrong as to the latter. It is beyond cavil
that a criminal statute need not define explicitly every last
term within its text, for as the Supreme Court has repeatedly
explained, where "terms used in a statute are undefined, we
give them their ordinary meaning." Jones v. United States,
529 U.S. 848, 855 (2000) (internal quotation marks omitted)
(construing the meaning of "used" in 18 U.S.C. § 844(i)). In
fact, in Chapman v. United States, the Court construed the
undefined term "mixture" as it was used in 21 U.S.C.
§ 841(b)(1)(B)(v) by looking to its ordinary meaning—and
proceeded to hold that such a construction did not leave the
statute unconstitutionally vague. 500 U.S. 453, 462, 467-68
(1991).
Turning to the ordinary meaning of "funds," we think the
term refers to assets of monetary value that are susceptible to
ready financial use. This is the meaning captured by Black’s
Law Dictionary, which defines "fund" as a "sum of money or
other liquid assets established for a specific purpose." Black’s
Law Dictionary 743 (9th ed. 2009). A "liquid asset" is defined
by cross-reference to "current asset," id. at 1014, which means
"[a]n asset that is readily convertible into cash," id. at 134. So
too is this ordinary meaning expressed in non-legal dictionar-
ies: Random House defines "funds" to mean "money immedi-
ately available; pecuniary resources." Random House
Dictionary of the English Language 776 (2d ed. 1987). "Pecu-
niary" is defined, in turn, to mean "of or pertaining to money."
Id. at 1428. We accordingly conclude that gold can constitute
"funds" under the transportation money laundering statute
where it is moved as a liquid, monetary asset.
Our conclusion finds support in the purpose and structure
of the money laundering statute. At its core, Day’s argument
is that a defendant can violate the transportation money laun-
dering provision if he moves cash or some other ordinary
financial instrument with a design to conceal its source, own-
ership, or other listed attribute, but not if he takes the further
deceitful step of first converting the cash into the more
UNITED STATES v. DAY 19
difficult-to-trace financial asset of gold. To accept Day’s
argument would turn the transportation money laundering
statute on its head, creating an odd safe harbor for criminals
to transport and conceal their criminal proceeds where they
engage in more deceit and concealment, not less. We do not
think Congress could have intended such a result, and we thus
hold that gold can constitute "funds" within the ordinary
meaning of 18 U.S.C. § 1956(a)(2).
2.
Having settled in the affirmative the legal question of
whether gold can ever constitute "funds" under 18 U.S.C.
§ 1956(a)(2), we must next consider whether the government
presented sufficient evidence for a jury to conclude in this
case that Day transported gold as "funds" under the ordinary
meaning of that term. We hold that it did.
The government adduced testimony from Carroll, Neufeld,
and Stewart that Day specifically referred to gold as a good
financial "investment" in conversations with each of them.
The government also introduced testimony from a gold dealer
who explained that people commonly hold "gold funds" as a
pecuniary investment asset, and that "[g]old is an investment
for many many people." Significantly, during the conspiracy,
Day used his gold in a manner that took advantage of its
liquidity as an investment asset, essentially using it as a sub-
stitute for cash. To that end, a Canadian gold dealer testified
that Day made a "series of transactions" in which he shipped
gold in exchange for cash wire transfers. Day’s counsel even
declared during his opening statement that one reason why
Day "had gold shipped to him in Mexico" was "[s]o he can
spend it." Day’s counsel also highlighted the liquid, pecuniary
nature of gold during his closing argument, when he stated
that "gold is something you can hold in your hand with a
serial number on it. That is the value. That is what you can
take into the gold dealer."
20 UNITED STATES v. DAY
That sufficient evidence existed for a jury to conclude that
Day transported gold in its capacity as "funds" does not mean,
of course, that every transportation of gold necessarily quali-
fies as such. If Day had transported the gold for the purpose
of filling or crowning a tooth, to make jewelry, or to manufac-
ture microprocessors, such uses would not have fallen within
the ordinary understanding of a "fund" as a "sum of money or
other liquid asset" or "pecuniary resource." It hardly needs
mentioning, though, that no such evidence was adduced in
Day’s defense; the government instead demonstrated that
Day’s gold remained in bar and coin form throughout the
scheme and was used essentially as a bank account for his
various exchanges with gold dealers. In sum, there was ample
evidence for a jury to conclude that Day transported the gold
in its capacity as a liquid, monetary asset.1
IV.
Day next argues that venue for his criminal trial was
improper in the Eastern District of Virginia. To establish
venue, the government must adduce sufficient evidence for a
reasonable jury to conclude that the defendant committed an
overt act in furtherance of the charged conspiracy inside the
1
Day’s last challenge to his money laundering conspiracy conviction
concerns the trial court’s jury instruction that the term "proceeds" encom-
passed "any interest in property that someone acquires or retains as a
result of . . . specified unlawful activity." This challenge fails, however,
because a "defendant in a criminal case cannot complain of error which
he himself has invited." Shields v. United States, 273 U.S. 583, 586 (1927)
(internal quotation marks omitted). Here, Day and the government jointly
proffered the very "proceeds" jury instruction that he now objects to on
appeal, precluding him from challenging the instruction at this juncture.
See United States v. Collins, 372 F.3d 629, 635 (4th Cir. 2004) (challenge
to jury instructions that defendants themselves requested was barred as
invited error). Moreover, his claim is meritless in any event because Day’s
exposure to money laundering liability is not based on transactions that
were essential to his predicate fraud offenses, but rather on the entirely
separate criminal act of concealing the location and ownership of his fraud
proceeds by transporting gold to Mexico.
UNITED STATES v. DAY 21
appropriate judicial district. United States v. Green, 599 F.3d
360, 374 (4th Cir. 2010); see also 18 U.S.C. § 1956(i)(2).
Contrary to Day’s claims, venue was proper in the Eastern
District of Virginia based on at least two classes of overt acts.
First, a jury could have reasonably concluded that venue was
justified based on phone calls that Carroll made in furtherance
of the conspiracies while in the Eastern District of Virginia.
Carroll testified that in May 2006, while in Crewe, Virginia,
he made phone calls to (and received a phone call from) a
gold dealer in Arizona to "shore up the pricing" for Day’s
gold purchases. In addition, the jury could have reasonably
concluded that emails sent by Day’s co-conspirators to DLA
personnel in Richmond, Virginia, constituted overt acts in fur-
therance of the wire fraud, money laundering, and smuggling
conspiracies. For instance, Stewart sent multiple emails to
DLA personnel located within the district regarding contracts
that one of his companies had won during the wire fraud
scheme and on which he had received payment from the DOD
in a specified account. Day and his co-conspirators subse-
quently used funds from that same account to, among other
things, pay Mehr and Teal to transport the gold to Mexico.2
Day argues that the foregoing acts were "de minimis in
context" and "completely legal," and therefore insufficient to
give rise to venue in the district. In making this argument,
however, Day confuses the question of how much an overt act
furthers a conspiracy with the question of whether it furthers
the conspiracy. It is the latter question that matters for venue
purposes, and the circuits have recognized that simple acts
such as phone calls from a district can give rise to venue in
conspiracy cases. See, e.g., United States v. Smith, 198 F.3d
377, 382 (2d Cir. 1999); United States v. Lewis, 676 F.2d 508,
2
Because we find the emails and phone calls sufficient to establish
venue, we need not reach the question of whether certain flights that Teal
took over the Eastern District of Virginia en route to Houston, Texas also
gave rise to venue.
22 UNITED STATES v. DAY
511 (11th Cir. 1982). Venue was therefore proper in the East-
ern District of Virginia.
V.
Day’s final challenges to his convictions concern the trial
court’s evidentiary rulings with respect to (1) a government
report describing mishandled evidence, and (2) bad act evi-
dence under Federal Rule of Evidence 404(b). We review the
trial court’s rulings for abuse of discretion and "will only
overturn an evidentiary ruling that is arbitrary and irrational."
United States v. Cloud, 680 F.3d 396, 401 (4th Cir.) (internal
quotation marks omitted), cert. denied, 81 U.S.L.W. 3164(2012). Upon examining the record, we hold that the district
court did not err in either ruling. Moreover, given the volume
of incriminating evidence produced, any error would have
been harmless.
A.
Day argues that the district court abused its discretion by
declining to admit a government report of an investigation
that described how several pieces of evidence used to convict
him—namely, certain nonconforming parts that Day had
delivered to the DOD during his wire fraud scheme—were
mishandled by a particular lead investigator. Day first con-
tends that the report should have been admitted into evidence
under Federal Rules of Evidence 401 and 402 because the
report was relevant to the integrity of the evidence presented
to the jury, including issues regarding chain of custody and
unauthorized access to the evidence.
We find this argument unpersuasive. For starters, the trial
court’s decision to exclude the report was founded not on a
determination that the report was irrelevant under Rules 401
and 402, but rather on a Rule 403 finding that the report’s
"improperly prejudicial harm" would "exceed[ ]" its probative
value. This finding was soundly reasoned. In particular, with
UNITED STATES v. DAY 23
regard to the report’s limited probative value, the trial court
specifically asked Day’s counsel whether he had any reason
to "contend that any of these chain of custody rules were vio-
lated," to which counsel candidly responded "[n]ot at this
time." The court then inquired whether Day’s counsel had
"any evidence that shows that" the "[mishandled] evidence
was in any way mutilated or damaged so that the quality of
the testing [might be] called into question." Again, Day’s
counsel forthrightly responded "no." The district court itself
found that the report "does not suggest . . . that any of the evi-
dence is tainted, or is wrong in this case." Given the limited
probative value of the report, the district court reasonably
concluded that introducing the report would present a real
danger of unfair prejudice given its general conclusion that a
lead investigator had not complied with certain DOD eviden-
tiary procedures.
Day also argues that he should have been permitted to
introduce the report for a separate purpose: to impeach the
lead investigator’s character for truthfulness under Federal
Rule of Evidence 608(b). This argument fares no better. In
contrast to Day’s assertion, Rule 608(b) does not require the
admissibility of extrinsic evidence for the purpose of
impeaching a witness’s character for truthfulness—it actually
does the opposite. The rule provides that "[e]xcept for a crimi-
nal conviction under Rule 609, extrinsic evidence is not
admissible to prove specific instances of a witness’s conduct
in order to attack or support the witness’s character for truth-
fulness." Fed. R. Evid. 608(b) (emphasis added). Rule 608(b)
instead allows for precisely what the district court did here:
"the court may, on cross-examination, allow [instances of a
witness’s conduct] to be inquired into if they are probative of
the character for truthfulness or untruthfulness." Id. Thus, the
district court properly gave Day wide latitude to cross-
examine the lead investigator regarding his conduct, permit-
ting inquiry into his unauthorized access to the evidence
room, inaccurate inventory of parts, and failure to document
evidence transfers, custody forms, and shipping information.
24 UNITED STATES v. DAY
We accordingly hold that the district court did not abuse its
discretion in excluding the report.
B.
Day next contends that the trial court abused its discretion
in admitting certain uncharged "bad act" evidence against
Day, including evidence about his use of foreign bank
accounts and false names, and his purchase of several expen-
sive watches. Day argues that the introduction of this evi-
dence violated Federal Rule of Evidence 404(b), which
prohibits introduction of such other acts for the general pur-
pose of "prov[ing] a person’s character in order to show that
on a particular occasion the person acted in accordance with
the character."
We reject this argument for the simple reason that it fails
to recognize the distinction between extrinsic other act evi-
dence and intrinsic other act evidence. See United States v.
Lighty, 616 F.3d 321, 352 (4th Cir. 2010). As we have
explained, evidence of uncharged other acts is intrinsic and
not subject to Rule 404 if the acts "arose out of the same
series of transactions as the charged offense, or if [evidence
of the uncharged conduct] is necessary to complete the story
of the crime on trial." United States v. Siegel, 536 F.3d 306,
316 (4th Cir. 2008) (alteration in original) (internal quotation
marks omitted). The evidence of which Day complains falls
within this definition because each item arose out of the same
series of transactions as the charged offenses and was neces-
sary to complete the context of the crime on trial: Day’s for-
eign bank transfers took place during the heart of the scheme,
in 2006-07, and involved proceeds from the DLA contracts;
the false name evidence demonstrated Day’s effort to conceal
his connection to the scheme’s proceeds; and evidence con-
cerning his watch purchases showed one in-kind medium
through which Day received proceeds from the scheme. The
trial court did not abuse its discretion in admitting this evi-
dence.
UNITED STATES v. DAY 25
VI.
We turn now to Day’s challenges to his sentence of impris-
onment. Specifically, Day argues that his 1,260-month prison
sentence should be vacated because it was both procedurally
and substantively unreasonable. We reject each argument for
the reasons below.
A.
Day argues that the district court committed procedural
error when it imposed an unwarranted two-level enhancement
for obstruction of justice, resulting in an incorrect calculation
of his Guidelines range. The trial court’s obstruction enhance-
ment was proper for many reasons, however, among them that
Day had attempted to bribe Mexican officials in an effort to
escape from custody. Day also physically tried to escape from
Mexican authorities. Further, Day had formulated a plan to
enlist Mexican cartel members to conduct an attack on a
prison van in which he would be transported in yet another
attempted prison escape, this time in Virginia. Day has shown
none of these factual findings to be clear error. See United
States v. Chandia, 675 F.3d 329, 337 (4th Cir. 2012).
B.
Day next argues that his prison sentence should be vacated
as substantively unreasonable. "Substantive reasonableness
examines the totality of the circumstances to see whether the
sentencing court abused its discretion in concluding that the
sentence it chose satisfied the standards set forth in
§ 3553(a)." United States v. Mendoza-Mendoza, 597 F.3d
212, 216 (4th Cir. 2010). If "the sentence is within the Guide-
lines range," we are permitted to apply on appeal "a presump-
tion of reasonableness." Gall v. United States, 552 U.S. 38, 51
(2007).
Our review of the sentencing transcript reveals that the trial
court closely considered the § 3553(a) sentencing factors and
26 UNITED STATES v. DAY
chose the 1,260-month sentence based on the serious nature
of Day’s offense, his dangerous character, and the need to
protect the public. With regard to the severity of the offense,
the court observed that Day’s scheme "was a calculated,
sophisticated theft" that exposed the men and women of the
armed services to serious risk of injury, or worse. For
instance, the court noted that because of Day’s scheme
"[t]here could be a soldier in the field who is wounded and
needs cover from a jet, and that jet has the wrong antenna
shipped out there and is unable to provide that cover." Or
"[t]here could be a soldier in the field who needs a Humvee
to come pick him up because he is wounded and that Humvee
can’t come because the wrong parts were there." "Day never
thought about those impacts on others, or he thought about
them and said, I am going to go ahead with my offense any
way." At bottom, the court concluded, the "nature and circum-
stances of [his] offense are just absolutely vile."
With respect to the defendant’s character, the court repeat-
edly emphasized that Day possesses "absolutely no con-
science," noting that he "steals everything he can lay his
hands on," and "has no regret about dragging his friends
down." And with respect to the need to protect the public
from further crimes by Day, the court observed that this sen-
tencing factor was a "paramount consideration" because "if
[Day] was released today he would think of his next scheme
before sunset. . . . and would start to put it in action tomor-
row."
Notwithstanding the court’s detailed consideration of the
§ 3553(a) factors, Day argues that the sentence was substan-
tively unreasonable for two reasons. First, he argues that the
trial court’s sentence failed to account for alleged prison
abuses he suffered in Mexico. Not so. In point of fact, the
court expressly took his claim of mistreatment "into account,"
concluding that it was "not convinced that [Day’s] imprison-
ment in Mexico was as bad as he says it is." Moreover, the
court explained that even if it "was convinced" that the abuse
UNITED STATES v. DAY 27
occurred, "what happened to him in Mexico does not out-
weigh what he did in his criminal behavior in this case." Thus,
the district court considered Day’s prison abuse argument and
had a reasonable basis for its sentence notwithstanding it.
Second, Day argues that the district court’s imposition of
the 1,260-month sentence under the Guidelines was unreason-
able because the court based the sentence on a factor—harm
to military personnel—that was "speculative" and "unsup-
ported by the evidence." Specifically, Day complains of the
government’s inability to "identify a bona fide ‘warfighter’
who was frustrated, limited in her mission, or even wounded."
But the trial court’s choice of sentence was not predicated on
particular injuries suffered by particular servicemen and ser-
vicewomen. The trial court instead focused on the risk of
harm to members of the armed forces as powerful evidence of
Day’s "absolute lack of consci[ence]." And on that front, the
trial court’s conclusion was fully supported by the record: as
a chief DLA engineer explained, fully 59% of the contracts
obtained by Day were for "critical application items," or items
that the military itself has classified as "essential" to the "pres-
ervation of life or safety of operating personnel" or "weapon
system performance." We accordingly reject Day’s substan-
tive unreasonableness claim.
VII.
Day’s final arguments concern the interplay between the
Supreme Court’s recent decision in Southern Union Co. v.
United States, 132 S. Ct. 2344 (2012), and the trial court’s
decision to impose (1) a $3 million fine, (2) more than $6 mil-
lion in restitution, and (3) a forfeiture award of more than $2
million plus gold and vehicles. In Southern Union, the
Supreme Court held that the rule of Apprendi—that "any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt"—applies to criminal fines. Id. at
2350 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490
28 UNITED STATES v. DAY
(2000)). Day contends that under this rule, his fine, restitu-
tion, and forfeiture must all be vacated because each required
fact-finding by a jury that did not occur. For the reasons that
follow, we disagree.
A.
Day asks us to vacate his $3 million fine because it "was
not based upon facts already found by the jury, which was
concerned strictly with whether Day had violated the wire
fraud, money laundering, smuggling, [and] conspiracy" stat-
utes. Because Day’s counsel did not raise this argument
below, we review it now for plain error. See Puckett, 556 U.S.
at 135.
In Southern Union, the Supreme Court explained that the
rule of Apprendi precludes "judicial factfinding that enlarges
the maximum punishment a defendant faces beyond what the
jury’s verdict or the defendant’s admissions allow." 132 S. Ct.
at 2352 (emphasis added). As relevant here, the criminal fine
statute provides that the maximum fine to which a defendant
may be subject is "twice the gross gain or twice the gross
loss" produced by the offense. 18 U.S.C. § 3571(d). Thus, for
Day’s $3 million fine to be consistent with Apprendi, either
the jury’s verdict or Day’s own admissions must establish that
Day enjoyed a gross gain of $1.5 million through his wire
fraud scheme (or that his victims suffered a loss of the same
amount).
Based on our review of the record, we hold that no
Apprendi error occurred because Day’s admissions estab-
lished both that he enjoyed a gross gain in excess of $1.5 mil-
lion and that his offense produced a loss of at least the same
amount—either of which alone would be sufficient to support
the $3 million fine. To wit, Day admitted in a Rule 29 motion
filed in September 2011, that it was "undisputed at trial" that
he received "94.7% of the total gold" purchased during his
scheme. Given that Day proffered bank records indicating that
UNITED STATES v. DAY 29
the total value of the gold purchased during the scheme was
$2.29 million, Day’s own admissions established that he
received a gain of at least $2.16 million, which would support
a fine of up to $4.32 million. Likewise, Day admitted at sen-
tencing that his offense caused a loss of no less than $2.5 mil-
lion, an amount that would support a fine of up to $5 million.
Thus, because Day’s admissions enlarged the maximum fine
to which he could be sentenced to an amount in excess of the
$3 million sum that was actually imposed, we hold that no
Apprendi error took place. Moreover, given the substantial
undisputed evidence of loss far in excess of the amount neces-
sary to justify the fine imposed, Day cannot demonstrate that
any error affected his substantial rights, much less the integ-
rity or public reputation of the criminal proceedings.
B.
Day next argues that the trial court’s imposition of restitu-
tion in excess of $6 million violated Apprendi because the
jury did not find facts giving rise to that amount. Again,
because Day’s counsel did not press any Apprendi challenge
below, we review for plain error. See Puckett, 556 U.S. at
135.
Day’s restitution argument is unavailing, although for a dif-
ferent reason than that which supports the imposition of his
fine. For unlike that challenge, which is encompassed by
Southern Union’s holding that "Apprendi applies to the impo-
sition of criminal fines," 132 S. Ct. at 2357, there is the initial
question in the restitution context of whether Apprendi applies
at all. Prior to Southern Union, every circuit to consider
whether Apprendi applies to restitution held that it did not.
See United States v. Milkiewicz, 470 F.3d 390, 403 (1st Cir.
2006) ("[L]ike all of the other circuits to consider this ques-
tion, we conclude that [Apprendi does] not bar judges from
finding the facts necessary to impose a restitution order.").
Day argues that we should break ranks with these prior deci-
30 UNITED STATES v. DAY
sions in light of Southern Union and apply Apprendi to resti-
tution because it is "similar" to a criminal fine.
We decline to take Day’s suggested course. As an initial
matter, we note that Southern Union does not discuss restitu-
tion, let alone hold that Apprendi should apply to it. Instead,
far from demanding a change in tack, the logic of Southern
Union actually reinforces the correctness of the uniform rule
adopted in the federal courts to date. That is, Southern Union
makes clear that Apprendi requires a jury determination
regarding any fact that "increases the penalty for a crime
beyond the prescribed statutory maximum." 132 S. Ct. at
2350 (quoting Apprendi, 530 U.S. at 490). Thus, in Southern
Union itself, the Apprendi issue was triggered by the fact that
the district court imposed a fine in excess of the statutory
maximum that applied in that case. Id. at 2349.
Critically, however, there is no prescribed statutory maxi-
mum in the restitution context; the amount of restitution that
a court may order is instead indeterminate and varies based on
the amount of damage and injury caused by the offense. See
18 U.S.C. §§ 3663(b), 3663A(b). As a consequence, the rule
of Apprendi is simply not implicated to begin with by a trial
court’s entry of restitution. As the Sixth Circuit aptly
explained in United States v. Sosebee, "restitution is not sub-
ject to [Apprendi] because the statutes authorizing restitution,
unlike ordinary penalty statutes, do not provide a determinate
statutory maximum." 419 F.3d 451, 454 (6th Cir.), cert.
denied, 546 U.S. 1082 (2005). That logic was sound when
written before Southern Union, and it remains so today.
C.
Finally, Day argues that the district court erred in imposing
a forfeiture award of 3,496 ounces of gold, two vehicles, and
a $2,128,549.50 money judgment. This claim fails at its
inception, however, because like our conclusion with respect
to restitution, Apprendi does not apply to forfeiture. As we
UNITED STATES v. DAY 31
explained in United States v. Alamoudi, "[b]ecause no statu-
tory or other maximum limits the amount of forfeiture, a for-
feiture order can never violate" Apprendi. 452 F.3d 310, 314
(4th Cir. 2006). Nor, as discussed above, does the Supreme
Court’s decision in Southern Union change this fact, as that
decision did not concern forfeiture and instead reinforces the
essential requirement that a statute must prescribe a maximum
punishment in order to implicate Apprendi concerns.
What is more, the Supreme Court has expressly held that
"the right to a jury verdict on forfeitability does not fall within
the Sixth Amendment’s constitutional protection." Libretti v.
United States, 516 U.S. 29, 49 (1995). We do not think the
Supreme Court intended to overrule this holding, sub silentio,
in Southern Union. We therefore hold that the rule of
Apprendi does not apply to a sentence of forfeiture. More-
over, nothing in Day’s contentions persuades us that the fair-
ness or integrity of proceedings was affected in any manner
that would cause us to vacate under plain error review either
the restitution or forfeiture rulings.
VIII.
We have reviewed each of Day’s various claims with care
and find them all without merit. For the foregoing reasons, we
affirm the judgment of the district court.
AFFIRMED