United States v. Ghilarducci, August ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-2836 & 05-3165
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AUGUST C. GHILARDUCCI and
RONALD J. RICHARDSON,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 1101—David H. Coar, Judge.
____________
ARGUED JANUARY 3, 2007—DECIDED MARCH 14, 2007
____________
Before EASTERBROOK, Chief Judge, and WOOD and
WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. This case concerns dozens
of failed investment deals orchestrated by August C.
Ghilarducci, president and owner of Westchester Finan-
cial Associates, Inc. (“WFA”), at times with the assistance
of his co-defendant Ronald J. Richardson. Ghilarducci
and Richardson executed a series of deals in which they
charged WFA clients fees for procuring Confirmation of
Funds (“COF ”) letters from financial institutions. The
letters purported to show that financial institutions
were capable of leasing large sums of money to WFA
clients for a short time. Despite the defendants’ represen-
2 Nos. 05-2836 & 05-3165
tations, the COF letters proved worthless and WFA clients
sustained huge financial losses. Ghilarducci executed a
second class of investment deals in which he sold historic
railroad bonds issued in the late 1800s to clients at
enormous mark-ups. WFA clients reaped none of the
benefits Ghilarducci promised.
For his role in both schemes, Ghilarducci was convicted
by a jury of racketeering, wire fraud, money laundering,
making false statements to banks, and filing false tax
returns, and received a 190-month sentence. A jury
convicted Richardson of racketeering, wire fraud, money
laundering, and tax evasion, and he received 140 months
for his participation in the COF scheme.
On appeal, Richardson contends that his convictions
for racketeering, wire fraud, and money laundering are
invalid, because they are premised on false representa-
tions that could not have been material to the investors’
decision-making. Ghilarducci, whose counsel filed a brief
and moved to withdraw pursuant to Anders v. California,
386 U.S. 738 (1967), asked to adopt Richardson’s brief
(and, by extension, Richardson’s sole argument) on appeal.
We granted that request. The defendants’ joint argument
fails, however, because they confuse materiality—a
genuine element of criminal fraud—for reliance, a concept
without bearing in criminal fraud prosecutions. In his
Seventh Circuit Rule 51 statement in opposition to his
counsel’s Anders brief, Ghilarducci proposes several
potential arguments for appeal. Each of those arguments
would be frivolous.
I. BACKGROUND
A. Confirmation of Funds Scheme
The defendants engaged in the COF scheme between
March 1996 and June 2001. As part of the scheme, they
Nos. 05-2836 & 05-3165 3
charged WFA clients fees between $200,000 and $1.95
million to procure COF letters that committed financial
institutions to “lease” funds to WFA clients for a limited
time. The leased funds could then be used in trading
programs to generate high profits. Richardson marketed
the COF letters and Ghilarducci executed contractual
agreements with WFA clients. Altogether, several dozen
clients paid over $22 million in fees for the COF letters.
The contracts entered into between WFA and its clients
contained a number of warranties, including the following
provision indicating that WFA had not made any extra-
contractual representations to its clients:
Applicant acknowledges and agrees that “WFA”
has not made any promises or representations
other than those contained herein . . . or promised
to provide assistance of any kind in obtaining a
loan or extension thereto or soliciting any invest-
ment or security. Applicant further acknowledges
that “WFA” and its, [sic] agents, assigns, brokers
and related parties hereby specifically disclaim
that any financial benefit of any kind will be
realized by Applicant from any payments of any
kind made in furtherance or promotion of same
or that any debt instrument, as defined above will
be available to Applicant.
At trial, WFA clients testified that despite the contrac-
tual language, they had relied on oral representations
made by the defendants. According to witnesses, both
Richardson and Ghilarducci represented that COF deals
had been successful in the past, and that future COF deals
would also yield high returns. At least one client was made
to believe that the COF deals were “a slam dunk.” To
further alleviate any fears, Richardson promised to
introduce WFA clients to trading programs that he had
found reliable in the past. Clients also thought any risks
4 Nos. 05-2836 & 05-3165
were minimized by representations that their fees would
be deposited into, and remain in, an attorney’s escrow
account until a COF letter issued and trading began.
In fact, however, a WFA attorney testified that there
were many instances in which he wired money out of the
escrow account at Ghilarducci’s direction before a COF
letter had issued (and, by implication, before any trading
could have begun). The COF letters were issued by foreign
banks of questionable repute. One such bank, Maximum
Finance Corporation (MFC), although located in Australia,
had no license to conduct business in Australia. Its only
legitimate basis for claiming itself a bank was its pur-
chase of a banking license for $1000 from the Republic of
Nauru. Not surprisingly, the COF letters proved worthless.
In 1997, the Illinois Attorney General’s (“IAG”) office
initiated a civil investigation into WFA’s activities after
an individual who had purchased a COF letter complained.
During the course of the investigation, Ghilarducci con-
ceded that none of his COF deals had been successful, and
said he had stopped doing those deals and would not
perform any in the future. The defendants did not tell
their clients about the investigation and continued to
engage in COF deals despite Ghilarducci’s representa-
tions to the IAG.
B. Railroad Bond Scheme
Between September and December 1996, Ghilarducci
sold historic railroad bonds issued in the late 1800s to
WFA clients, who sought to use the bonds as collateral to
secure financing for high-yielding deals. The bonds had a
face value of $1000, and WFA paid between $1800 and
$5000 per bond. WFA thereafter resold the bonds for as
much as $302,000 each, and collected more than $2.5
million in total for the bonds.
Nos. 05-2836 & 05-3165 5
To induce sales, Ghilarducci made a series of repre-
sentations about the railroad bonds. For instance, Albert
Ichelson, the largest single bond investor, testified that
Ghilarducci said he had paid $151,000 for a particular
type of bond and was doing Ichelson a favor by reselling
those bonds at the same price. Ghilarducci told Ichelson
that although the railroad companies were now bankrupt,
“the government’s part of the guarantee still existed.” And,
Ghilarducci provided Ichelson and others with high
appraisals of the bonds. During the course of his interac-
tions with clients, however, Ghilarducci learned that the
bonds were only valued as collectors’ items.
Although Ghilarducci testified that he acted in good
faith when selling the bonds, the jury had reason to
disbelieve him. Not only did the jury hear that Ghilarducci
misrepresented what he paid for the bonds, they were also
told that Ghilarducci sold bonds when he had reason to
believe they were worthless, and placated suspicious
clients through deceit. In August 1996, Ghilarducci ob-
tained an article explaining that one class of railroad
bonds, Saginaw railroad bonds, were sold by a now-
bankrupt company and that the bonds were mere collec-
tors’ items. Moreover, that November, he received a letter
from a bond trading program facilitator telling him that
the bond program was “fraught with fraud” and that
“[m]any bonds are invalid.” The facilitator clarified that
the suspicions related to Saginaw railroad bonds. None-
theless, two days later, Ghilarducci sold Ichelson two
Saginaw bonds. By May 1997, the bond program facilitator
sent Ghilarducci a letter indicating that the bonds had
only historic value, because the obligation to pay on the
bonds rested with private, long-bankrupt railroads, not
the government.
Far from informing his clients of these suspicions,
Ghilarducci sought to lull them into inactivity by explain-
ing why the promised pay-outs had yet to occur. Several of
6 Nos. 05-2836 & 05-3165
the excuse-laden faxes that Ghilarducci sent to Ichelson
in 1996 and 1997 were entered into evidence. Despite
Ghilarducci’s attempts to pacify Ichelson, Ichelson eventu-
ally threatened to contact the Securities and Exchange
Commission (“SEC”) regarding the railroad bond scheme.
Thereafter, Ghilarducci settled with Ichelson for $657,000;
ultimately, he settled with all of the bond purchasers, none
of whom obtained any profit from the transactions.
The jury convicted Ghilarducci of one count of racketeer-
ing (18 U.S.C. § 1962(c)); 17 counts of wire fraud (18
U.S.C. § 1343); nine counts of engaging in monetary
transactions in property derived from a specified unlawful
activity (i.e., money laundering under 18 U.S.C. § 1957(a));
two counts of making false statements on a loan applica-
tion (18 U.S.C. § 1014); and six counts of filing a false tax
return (26 U.S.C. § 7206(1)). He was sentenced to 190
months’ imprisonment and was ordered to pay $20 million
in restitution.
Richardson was convicted of one count of racketeering
(18 U.S.C. § 1962(c)); eight counts of wire fraud (18 U.S.C.
§ 1343); two counts of engaging in monetary transactions
in property derived from a specified unlawful activity (18
U.S.C. § 1957(a)); two counts of making false statements
on a loan application (18 U.S.C. § 1014); and four counts
of filing a false tax return (26 U.S.C. § 7206(1)). Richard-
son received a term of 140 months’ imprisonment and
was ordered to pay over $19 million in restitution.
On appeal, both Richardson and Ghilarducci (who
adopted Richardson’s appellate brief) argue that the
district court erred in denying their motions for judgment
of acquittal because materiality, an essential element of
criminal fraud, is missing here. Additionally, Ghilarducci
asks us to deny his counsel’s motion to withdraw by
propounding several potentially nonfrivolous issues. We
address the defendants’ joint argument and each of
Ghilarducci’s potential arguments below.
Nos. 05-2836 & 05-3165 7
II. ANALYSIS
A. Richardson and Ghilarducci’s Sufficiency of the
Evidence Challenge Fails.
Both Richardson and Ghilarducci challenge the suffi-
ciency of the evidence in support of their convictions for
wire fraud, racketeering, and money laundering, claiming
that the prosecution failed to show that any of their
alleged misrepresentations to WFA clients were material.
To prevail, they must show that when viewing all the
evidence in the light most favorable to the government, no
rational jury could have found the essential elements of
the offenses beyond a reasonable doubt. United States v.
Humphreys, 468 F.3d 1051, 1054 (7th Cir. 2006).
We agree with the defendants’ basic premise that a
material misrepresentation must have been made to
sustain their convictions, because materiality (i.e., a
tendency to influence) is an essential element of a wire
fraud prosecution. See Neder v. United States, 527 U.S. 1,
20-25 (1999); United States v. Rosby, 454 F.3d 670, 673
(7th Cir. 2006). Because several episodes of wire fraud
form the predicate for the defendants’ racketeering and
money laundering charges, their convictions of those
crimes likewise depend on a finding of materiality. See
United States v. Anderson, 809 F.2d 1281, 1283 (7th Cir.
1987) (to convict a defendant of racketeering, a jury must
find that the defendant committed at least two predicate
acts); 18 U.S.C. § 1957(a) (to convict a defendant of money
laundering, a jury must find that the funds were derived
from unlawful activity, such as wire fraud).
However, we cannot agree with the manner in which the
defendants define materiality. The defendants contend
that any oral misrepresentations they might have made
were immaterial because investors signed contracts stat-
ing that no oral promises had been made. For their
argument, the defendants rely in large part on a civil fraud
8 Nos. 05-2836 & 05-3165
case, Rissman v. Rissman, 213 F.3d 381 (7th Cir. 2000),
which held that “a written anti-reliance clause precludes
any claim of deceit by prior representations.” Id. at 384.
That holding stems from the principle that “a person
who has received written disclosure of the truth may not
claim to rely on contrary oral falsehoods.” Id.
Rissman and the reliance concept, however, have no
application in the criminal fraud context. Whether or not
a victim in fact relied upon a defendant’s false representa-
tions is irrelevant in criminal fraud cases. See Neder, 527
U.S. at 24-25 (“ ‘justifiable reliance’ and ‘damages’ . . .
plainly have no place in the federal fraud statutes”); see
also Rosby, 454 F.3d at 674.
Indeed, we reached that exact conclusion in Rosby. In
that case, the defendants contended that false representa-
tions made to lenders were not material because the
lenders continued to conduct business with the defendants
although the lenders could have learned of a bill-ahead
scheme through investigation. Rosby, 454 F.3d at 673. In
rejecting the defendants’ argument, we noted that under
some federal statutes “a representation may be mate-
rial even though the hearer strongly suspects that it is
false. A witness commits the crime of perjury, for example,
if he lies under oath about a subject important to the
proceeding, even though the grand jury believes that it
knows the truth.” Id. Further, we explained that the
defendants had confused materiality with reliance.
At common law, both materiality (in the sense of
tendency to influence) and reliance (in the sense of
actual influence) are essential in private civil suits
for damages. That’s why, if the issuer of securities
furnishes an investor with the truth in writing, the
investor cannot claim to have been defrauded by
an oral misrepresentation: whether the writing
actually conveys the truth or just calls the oral
Nos. 05-2836 & 05-3165 9
statement into question, the investor is on notice.
It is also why an investor’s disclaimer of reliance
on certain representations, as part of a declaration
that the investor has done and is relying on his
own investigation, defeats a private damages
action for securities fraud.
Id. at 674. But, we noted, “[r]eliance is not . . . an ordinary
element of federal criminal statutes dealing with fraud.”
Id.
That the contracts should have placed the COF-scheme
victims on notice of the fact that no oral representation
would be honored, does not mean the oral representations
were immaterial or without tendency to influence. Many
investors testified that various oral representations,
particularly representations that the defendants had
engaged in successful COF deals in the past and would
keep fees in an escrow account until the COF letters
issued, influenced their decision to invest. Additionally,
the very fact that the defendants made the misrepresenta-
tions suggests that the defendants expected the state-
ments to have a tendency to influence prospective inves-
tors. See id. The defendants’ sufficiency challenge therefore
fails.
B. Additional Issues Advanced by Ghilarducci
1. Any Claim that Ghilarducci’s Sixth Amendment
Right to an Impartial Jury Was Infringed Would Be
Frivolous.
Ghilarducci believes that an argument could be made
that his Sixth Amendment right to a trial by a panel of
impartial jurors was compromised by the presence of
Barbara Jarvis on the jury. During the course of trial,
Jarvis voluntarily advised the court that some thirty
years earlier she attended high school with the lead
10 Nos. 05-2836 & 05-3165
prosecutor in the case. After the jury returned its verdict,
the court learned that several years before trial, Jarvis
was casually acquainted with an Assistant United States
Attorney, who was not involved in the case. Ghilarducci
wishes to argue that these two facts were a basis for
removing Jarvis for cause, and that their late discovery
deprived him of a peremptory challenge. We review a
decision to deny a motion for a new trial based on a claim
of juror bias for an abuse of discretion, and will only
reverse if there is a strong indication of prejudicial error.
See United States v. Medina, 430 F.3d 869, 875 (7th Cir.
2005).
In addressing this potential argument, we are guided
by the Supreme Court’s decision in McDonough Power
Equipment, Inc. v. Greenwood, where the Court set forth
the standard for determining when the responses of a
potential juror during jury selection mandate a new trial.
464 U.S. 548, 556 (1984). Under that standard, to obtain
a new trial, “a party must first show ‘that a juror failed
to answer honestly a material question on voir dire,’ and,
if successful, then must demonstrate that ‘a correct
response would have provided a valid basis for a challenge
for cause.’ ” Medina, 430 F.3d at 875 (quoting Greenwood,
464 U.S. at 556); see United States v. Arocho, 305 F.3d 627,
633 (7th Cir. 2002).
Ghilarducci’s proposed argument would fail at square
one, because he cannot show that Jarvis failed to answer
honestly any material question posed during voir dire.
Neither Jarvis’s delayed mention of attending high school
thirty years before trial with the government’s lead
counsel nor her failure to mention that she knew someone
who worked in the U.S. Attorney’s Office was dishonest.
During jury selection, Jarvis was only asked to reveal
whether any of her family members or close friends were
employed by a law enforcement agency. As these attorneys
were merely casual acquaintances with whom she was
Nos. 05-2836 & 05-3165 11
associated many years before trial, Jarvis honestly an-
swered the questions. Additionally, that Jarvis voluntarily
advised the court that the government’s lead counsel
may have been her high school classmate is further
evidence of her honesty. Any argument on this point would
therefore be frivolous.
2. Ghilarducci’s Proposed Confrontation Clause Argu-
ment Is Frivolous.
Ghilarducci contends that he could argue that by allow-
ing David Sova, a witness suffering from memory loss, to
read into evidence his grand jury testimony, the district
court violated Ghilarducci’s Sixth Amendment right to
confront witnesses against him. Evidentiary rulings that
might bear on a defendant’s right to confront witnesses are
subject to de novo review. See United States v. Ellis, 460
F.3d 920, 923 (7th Cir. 2006).
The Confrontation Clause gives every accused the right
“to be confronted with the witnesses against him.” U.S.
Const. amend. VI. That right is realized by affording
defendants an opportunity for effective cross-examination.
United States v. Crawford, 541 U.S. 36, 61 (2004); United
States v. Owens, 484 U.S. 554, 557 (1988). Importantly,
“the Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that
is effective in whatever way, and to whatever extent, the
defense might wish.” Delaware v. Fensterer, 474 U.S. 15,
20 (1985). Ghilarducci therefore wishes to argue that
Sova’s lack of memory regarding his prior statement was
so complete as to deprive Ghilarducci of a meaningful
opportunity to cross-examine Sova regarding that state-
ment. After considering the precedent, however, we doubt
such is the case.
In Fensterer, the Court considered whether the Confron-
tation Clause was offended when an expert testified in
12 Nos. 05-2836 & 05-3165
support of the government’s theory that a victim had been
strangled using a cat leash. Id. at 16. The expert opined
that the victim’s hair on the leash had been forcibly
removed, but could not recall the basis for his belief. Id. at
16-17. Reasoning that “it does not follow that the right
to cross-examine is denied by the State whenever the
witness’ lapse of memory impedes one method of dis-
crediting him,” id. at 19, the Court found no Confrontation
Clause violation. The Court admonished that:
The Confrontation Clause includes no guarantee
that every witness called by the prosecution will
refrain from giving testimony that is marred by
forgetfulness, confusion, or evasion. To the con-
trary, the Confrontation Clause is generally satis-
fied when the defense is given a full and fair
opportunity to probe and expose these infirmities
through cross-examination, thereby calling to the
attention of the factfinder the reasons for giving
scant weight to the witness’ testimony.
Id. at 21-22; see also Owens, 484 U.S. at 564 (“[T]he
Confrontation Clause . . . is [not] violated by admission of
an identification statement of a witness who is unable,
because of a memory loss, to testify concerning the basis
for the identification.”); United States v. DiCaro, 772 F.2d
1314, 1327-28 (7th Cir. 1985) (finding that, on the facts, a
witness’s assertions of memory loss did not deprive the
defendant of an effective cross-examination); Creekmore v.
Dist. Ct. of the Eighth Judicial Dist. of Montana, 745 F.2d
1236, 1238 (9th Cir. 1984); United States v. Riley, 657 F.2d
1377, 1386 (8th Cir. 1981); United States v. Payne, 492
F.2d 449, 454 (4th Cir. 1974).
The weight of authority suggests that there was no
Confrontation Clause violation on these facts. Sova did not
claim a total loss of memory regarding the events. Rather,
he cooperated with defense counsel’s questioning and
Nos. 05-2836 & 05-3165 13
succeeded in answering a great number of questions.
Ghilarducci’s counsel tested Sova’s credibility, probing
into the severity of Sova’s grand mal seizure, whether he
had been compensated for his trial or grand jury testi-
mony, and the extensiveness of his contact with govern-
ment attorneys or agents. By referencing documents that
memorialized his interactions with Ghilarducci, Sova
was also able to answer some questions on that topic.
Therefore, we doubt that Ghilarducci’s opportunity to
cross-examine Sova fell below constitutional standards.
Ultimately, however, even if it was error to admit Sova’s
testimony, that error was harmless. See Murillo v. Frank,
402 F.3d 786, 791 (7th Cir. 2005) (alleged violations of the
Confrontation Clause are subject to harmless error analy-
sis). In Delaware v. Van Arsdall, 475 U.S. 673 (1986), the
Court held that in assessing whether a Confrontation
Clause violation was harmless, a court should consider
the importance of the witness’s testimony; whether the
testimony is cumulative; the presence or absence of
evidence corroborating or contradicting the testimony; the
extent of cross-examination permitted; and the overall
strength of the prosecution’s case. Id. at 684.
Each of these factors leads to a conclusion that any error
in allowing Sova to read his statement was harmless. The
prosecution gave Sova’s testimony little importance, not
even referencing it during closing argument. His testimony
was largely cumulative and corroborated; it restated
several points revealed in exhibits. As stated above, cross-
examination was fairly extensive and was only occasionally
hampered by Sova’s memory lapses.
Most importantly, even without Sova’s grand jury
testimony, the prosecution had a strong case; the jury was
presented ample evidence of the defendant’s role in the
railroad bond scheme. Faxes sent by Ghilarducci consis-
tently reassuring clients that the railroad bonds were
14 Nos. 05-2836 & 05-3165
legitimate and that a payout was imminent were admitted
into evidence without objection. The jury heard Ichelson
testify that before investing over $1.3 million in the
railroad bonds, Ghilarducci told him that the bond trading
program had been operating for five years without a
failure, and that Ghilarducci had buyers on hand ready
to buy out any dissatisfied investor. WFA employee
Brian McGuire testified that he told Ghilarducci in 1997
that the government had no interest in the railroad bonds
and that the individual who appraised the bonds was being
investigated by the SEC. According to McGuire, that
information was never passed on to customers. In light of
the evidence, if there was a Confrontation Clause problem
(and we do not believe there was), it was harmless. For
that reason, Ghilarducci could not proffer a nonfrivolous
Confrontation Clause argument.
3. Ghilarducci’s Simultaneous Indictments Do Not
Implicate the Double Jeopardy Clause.
Ghilarducci believes a nonfrivolous argument could be
made that he was held in double jeopardy by virtue of his
simultaneous indictments for wire fraud in the United
States District Court for the Northern District of Illinois
and for mail fraud in the United States District Court for
the Eastern District of California. See U.S. Const. amend
V (providing that no person “shall . . . be subject for the
same offence to be twice put in jeopardy of life or limb”).
This argument would fail because mail and wire fraud are
distinct crimes. Specifically, the Double Jeopardy Clause
is not offended when a defendant is convicted under two
provisions, so long as “each provision requires proof of a
fact which the other does not.” Brown v. Ohio, 432 U.S.
161, 166 (1977) (quoting Blockburger v. United States, 284
U.S. 299, 304 (1932)). Because wire and mail fraud re-
quire proof of at least one distinct fact (the existence of
Nos. 05-2836 & 05-3165 15
a mailing or wire transmission), Ghilarducci cannot
advance a nonfrivolous argument under the Double
Jeopardy Clause.
4. The District Court Did Not Abuse Its Discretion in
Denying Ghilarducci’s Second Motion to Extend the
Time for Filing Post-Trial Motions.
As another potential appellate issue, Ghilarducci
contends that the district court erred in denying his sec-
ond request to extend the time for filing post-trial motions.
We disagree. A court’s denial of a motion for an extension
is reviewed for abuse of discretion. See Gonzalez v.
Ingersoll Milling Mach. Co., 133 F.3d 1025, 1030 (7th Cir.
1998). At the time this case was before the district court,
Rule 45 of the Federal Rules of Criminal Procedure only
allowed extensions of time to file Rule 29 motions for
judgment of acquittal and Rule 33 motions for a new
trial as determined by those rules. See Fed. R. Crim. P.
45(b)(2) (2004) (“The court may not extend the time to
take any action under Rules 29, 33, 34, and 35, except as
stated in those rules.”).
Rule 29 provided that “[a] defendant may move for a
judgment of acquittal, or renew such a motion, within 7
days after a guilty verdict or after the court discharges the
jury, whichever is later, or within any other time the
court sets during the 7-day period.” Fed. R. Crim. P.
29(c)(1) (2004) (emphasis added). Likewise, Rule 33
provided that motions for a new trial not based on newly
discovered evidence must be filed within seven days of
the verdict or finding of guilty, or “within such further
time as the court sets during the 7-day period.” Fed. R.
Crim. P. 33(b)(2) (2004) (emphasis added). Under the plain
language of the rules, the district court had no authority
to grant an extension of time to file a post-trial motion for
16 Nos. 05-2836 & 05-3165
judgment of acquittal or new trial more than seven days
after the verdict or jury discharge.
Here, the jury issued its verdict on December 15, 2004
and was discharged on December 17, 2004. Therefore,
motions to extend had to be filed and granted within seven
days of December 17, excluding weekends and holidays.
The only request for extension made before that date
(December 29, 2004) occurred on December 16, 2004. The
court granted that motion, setting the outer limits for
filing any post-trial motions at January 31, 2005.
Ghilarducci did not file his post-trial motion during that
time period. Instead, on January 28, 2005, he requested a
further extension of the deadline to file post-trial motions.
The court did not abuse its discretion in denying that
untimely request. See Fed. R. Crim. P. 45, 29, 33; see also
United States v. Canova, 412 F.3d 331, 345 (2d Cir. 2005);
United States v. Hocking, 841 F.2d 735, 737 (7th Cir.
1988).1 Any argument on this point would be frivolous.
5. The District Court Did not Err in Admitting Testi-
mony Regarding Ghilarducci’s Negotiations with the
Illinois Attorney General’s Office.
Ghilarducci would also take issue with the district
court’s decision to allow testimony regarding a proposed
settlement between Ghilarducci and the Illinois Attorney
General’s office. Contrary to Ghilarducci’s suggestion, in
1
Rule 45(b) was amended in April 2005. The amended provision,
which took effect on December 1, 2005, provides in relevant part
that “The court may not extend the time to take any action under
Rule 35, except as stated in that rule.” Although the new rule
still requires that defendants file their Rule 29 and 33 motions
within the seven-day periods discussed in those rules, Rule 45
no longer requires the court to act on those motions within a
defined period of time.
Nos. 05-2836 & 05-3165 17
allowing the testimony, the district court did not violate
Federal Rule of Evidence 408, because the Seventh Cir-
cuit has long held that Rule 408 only applies in civil cases.
See, e.g., United States v. Prewitt, 34 F.3d 436, 439 (7th
Cir. 1994).
6. Ghilarducci’s Argument for Overturning His Money
Laundering Conviction Is Frivolous.
Finally, Ghilarducci seeks to argue that his money
laundering convictions must be reversed because the
government failed to prove that he attempted to conceal
the proceeds of any criminal activity. Ghilarducci’s con-
tention would fail simply because he relies upon the wrong
money laundering provision. He was charged with money
laundering under 18 U.S.C. § 1957, not 18 U.S.C. § 1956,
as he contends. A defendant is guilty of money laundering
under Section 1957 if while in the United States, the
defendant knowingly engages in a monetary transaction
in criminally derived property that has a value in excess
of $10,000 and that is derived from specified unlawful
activity. There is simply no concealment requirement
under 18 U.S.C. § 1957. Accordingly, this argument
would fail.
III. CONCLUSION
For the reasons stated above, we AFFIRM the judgment
of the district court. We also GRANT counsel’s motion to
withdraw and DISMISS Ghilarducci’s appeal.
18 Nos. 05-2836 & 05-3165
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-14-07