United States v. Travis Edward Gross , 661 F. App'x 1007 ( 2016 )


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  •                Case: 15-11780      Date Filed: 10/12/2016     Page: 1 of 41
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    _________________________
    No. 15-11780
    _________________________
    D.C. Docket No. 1:13-cr-00268-WS-C-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    TRAVIS EDWARD GROSS,
    Defendant-Appellant.
    _________________________
    Appeal from the United States District Court
    for the Southern District of Alabama
    ________________________
    (October 12, 2016)
    Before WILSON and MARTIN, Circuit Judges, and RODGERS, * District Judge.
    PER CURIAM:
    *
    Honorable Margaret C. Rodgers, Chief United States District Judge, Northern District
    of Florida, sitting by designation.
    Case: 15-11780       Date Filed: 10/12/2016      Page: 2 of 41
    Travis Gross was charged, tried, and convicted of conspiracy to smuggle a
    drug known as XLR11 into the United States and to introduce that drug into
    interstate commerce as misbranded, in violation of 
    18 U.S.C. §§ 371
    , 542, 545, and
    
    21 U.S.C. §§ 331
    , 333(a)(2) (Count One); as well as three counts of money
    laundering, in violation of 
    18 U.S.C. § 1957
     (Counts Four, Five, and Six); and
    conspiracy to commit money laundering, in violation of 
    18 U.S.C. § 1956
    (h)
    (Count Seven). 1 Gross was sentenced to 156 months’ imprisonment. He now
    appeals his convictions and sentence. Having carefully reviewed the matter and
    with the benefit of oral argument, we affirm.
    I.
    ZenBio, LLC (“ZenBio”) produced and sold smokable “designer” drugs
    commonly known as “spice,” which were manufactured with the synthetic drug
    XLR11. Travis Gross was responsible for ordering ZenBio’s supply of XLR11.
    The indictment charged Gross and others with a conspiracy to smuggle and
    misbrand XLR11 from November 20, 2012, through June 25, 2013. Although
    XLR11 was not a federally controlled substance until May 16, 2013, the record
    establishes that at all relevant times, XLR11 was a “drug” subject to FDA labeling
    1
    Additionally, Gross was charged in Counts Two and Three with conspiracy to import
    and to distribute “controlled substance analogues,” 
    21 U.S.C. §§ 802
    (32)(A), 846, 963, but these
    charges were dismissed before trial.
    2
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    and branding laws, 2 that it became a controlled substance in Florida in December
    2012, and that law enforcement was seizing XLR11 during the entire period.3
    ZenBio followed the ordinary “industry” model used by designer drug
    businesses, which was described at trial by Special Agent Scott Albrecht of the
    Drug Enforcement Administration (“DEA”). Agent Albrecht explained that
    “synthetic cannabinoids” are “designer drugs” developed from a nonorganic source
    and intended to produce effects similar to THC, the active ingredient in marijuana.4
    By 2008, synthetic cannabinoids had become part of a designer drug market in the
    United States for smokable products intended to circumvent existing drug laws.
    According to Agent Albrecht, a cycle developed in which new drugs emerged
    quickly whenever an existing synthetic cannabinoid was added to the list of
    controlled substances under state or federal law, making it difficult for the laws to
    keep up. The newest drugs on the market could be sold for a huge profit. Thus,
    there was an industry incentive to develop and market the next “legal” smokable
    2
    Under the Federal Food Drug and Cosmetic Act, a “drug” means an “article[] (other
    than food) intended to affect the structure or any function of the body of man or other animals.”
    
    21 U.S.C. § 321
    (g)(1)(C). The Federal Food Drug and Cosmetic Act prohibits delivering or
    introducing any misbranded drug into interstate commerce. 
    21 U.S.C. § 331
    (a).
    3
    The parties stipulated that the imported packages and products seized in this case
    contained XLR11.
    4
    Agent Albrecht explained that synthetic designer drugs are designed to imitate the
    effects of other substances and said that LSD and MDMA, also known as ecstasy, are among the
    list of well-known and now-illegal synthetic drugs.
    3
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    product before the drug was listed as a controlled substance. In the months
    preceding the July 9, 2012 effective date of the Synthetic Drug Abuse Prevention
    Act, which banned several synthetic drugs, the industry was already beginning to
    produce XLR11 and its close “chemical sister,” UR 144, to replace a drug called
    AM2201 in an anticipation of the new law. 5 XLR11 was temporarily listed as a
    Schedule I federally controlled substance on May 16, 2013, and was permanently
    scheduled on May 11, 2016.6
    Agent Albrecht explained that the industry’s shift to XLR11 as the newest
    synthetic designer drug did not escape the attention of law enforcement. Some
    states had already begun to ban the substance; in Florida, for instance, XLR11
    became a listed controlled substance in December 2012. Albrecht testified that 99
    percent of the time, XLR11 and all other synthetic cannabinoids were imported
    from China, and often ordered online. He stated, however, that as legislation
    5
    Agent Albrecht explained that after the first synthetic cannabinoid, JWH 018, was
    temporarily scheduled, which occurred in March 2011, the industry began producing AM2201.
    Both of these drugs became permanently scheduled controlled substances with the enactment of
    the Synthetic Drug Abuse Prevention Act on July 9, 2012.
    6
    On May 16, 2013, the DEA published a notice stating that XLR11 was being
    temporarily paced on Schedule I as an illegal substance as of that date. See Schedules of
    Controlled Substances: Temporary Placement of Three Synthetic Cannabinoids in Schedule I, 
    78 Fed. Reg. 28735
    -01, 
    2013 WL 2060961
     (May 16, 2013) (also providing 30 days for
    manufacturers who register with the DEA to comply with federal regulations). The temporary
    placement was effective for three years, and XLR11 was recently permanently added as a
    Schedule I controlled substance on May 11, 2016. See Schedules of Controlled Substances:
    Placement of UR-144, XLR11, and AKB48 into Schedule I, 
    81 Fed. Reg. 29142
    -01, 
    2016 WL 2643646
     (May 11, 2016) (Final Rule permanently placing XLR11 in Schedule 1); see also 21
    C.F.R. 1308.11(d)(49) (2016).
    4
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    designed to preclude the use of synthetic drugs increased, online ordering ceased,
    and the majority of the orders were placed by telephone and email instead, with
    payment sent by wire transfer.
    In an effort to avoid detection and possible seizure at ports of entry,
    importers divided XLR11 into smaller packages, which were shipped to busy ports
    of entry with hopes of the substance having a better chance of passing through
    customs. Agent Albrecht also testified that XLR11 shipments were often
    mislabeled as detergent or research chemicals. Special Agent Christopher
    Marshall, with the United States Customs and Border Protection agency, testified
    that customs officers often inspected and seized packages of chemicals or drugs
    from China labeled with suspicious names such as pearl powder, clean powder,
    sodium dioxide, bora nitro, or other very generic chemical descriptions, knowing
    that illicit drugs were regularly being imported from China, usually with a false
    declaration or bill of lading. Marshall had seen these names repeatedly on
    packages from China and said that when inspected, the packages were found to
    contain XLR11 instead of the chemical or product listed. Neither Albrecht nor
    Marshall had seen any packages with XLR11 listed on the bill of lading, despite
    federal law requiring an accurate description of a package’s contents.7
    7
    Federal law prohibits smuggling goods into the United States by means of a false or
    fraudulent invoice or document with the intent to defraud the United States and contrary to law.
    See 
    18 U.S.C. §§ 542
    , 545.
    5
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    Agent Albrecht was also familiar with the industry-wide manner of
    processing XLR11 into a smokable retail product. He testified that after importing
    the XLR11, the designer drug manufacturers would dilute the XLR11 in acetone
    and mix it with an organic carrier, most often herbs or plant leaves, to make a final
    smokable product, which was then falsely marketed as herbal incense, potpourri, or
    “spice.” The final product would routinely be labeled “not for human
    consumption” in an effort to circumvent federal Food and Drug Administration
    (“FDA”) regulations and evade law enforcement. Lay witnesses testified that they
    had purchased the products to smoke and attested to their personal experiences
    with XLR11’s harmful effects.8
    Consistent with this industry model, the evidence at trial showed that
    ZenBio obtained XLR11 from China by importing it with false labels to avoid
    detection and seizure at the port of entry, and then manufactured smokable
    products by mixing the XLR11 with acetone and botanicals (organic material
    consisting of ground or shredded leaves of certain exotic plants, which are lawful
    8
    Although not a chemist, Agent Albrecht testified on cross examination that he
    understood XLR11 was in fact not substantially similar to marijuana chemically but that it was
    similar to other drugs. He was not asked to name what other drugs it was similar to. Other lay
    witnesses discussed the effects of XLR11 and stated that it caused severe paranoia, among other
    adverse effects.
    6
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    to possess, import, and sell). 9 The designer drugs were then packaged for resale in
    Ziploc plastic baggies, disguised as herbal incense or potpourri, and shipped to
    convenience stores and smokeshops throughout the United States for retail sale.10
    ZenBio’s product labels included ZenBio’s name and logo, the brand name of the
    product, and a caution, “not for human consumption.” The labeling listed the
    botanical material and also sometimes listed chemicals that were not in the packet,
    but none of the labels listed XLR11 or indicated that the packet contained a
    smokable product. Witnesses at trial testified that despite the label, the product
    was understood to be smokable and in fact was purchased for smoking, not as
    incense or potpourri.
    Prior to November 2012, ZenBio was known as Zencense Incense Works
    (“Zencense”). Zencense was based in Pensacola, Florida, and owned by Burton
    Ritchie. Zencense manufactured and distributed smokable synthetic cannabinoid
    products using XLR11 under the brand names Avalanche, Bizarro, Neutronium,
    Orgazmo, Posh, Shock Wave, and Sonic Zero. Crystal Henry was in charge of
    9
    ZenBio also followed the standard industry-wide manufacturing process of making a
    solution of XLR11 (a sandy, crystalline powder) and acetone. The solution was introduced to a
    botanical “carrier” by spraying the botanical with the solution and mixing them together. The
    treated botanicals were then spread out on drying tables for 12 to 24 hours before a flavoring was
    added.
    10
    ZenBio products were found in smokeshops in Missouri, Tennessee, Illinois,
    Minnesota, and Maryland. Special Agent Craig Underwood calculated that if an ordinary bag of
    potpourri were offered for sale at the prices being charged for ZenBio products, it would cost
    around $700.
    7
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    accounting for Zensence; Robert Biggerstaff was responsible for sales and
    production management; and Jason Way was described as the ultimate decision
    maker for the business. Ben Galecki initially coordinated Zensence’s supply of
    XLR11, which he ordered through a middleman, either Jason Fox 11 or Adam
    Libby. 12 Gross supplied Zencense with botanicals through his company, Sanctuary
    Traders.
    In August 2012, Anthony Nottoli, a smokeshop entrepreneur from California
    who was interested in purchasing Zencense, met with Ritchie, Henry, and Gross in
    Pensacola. Ritchie introduced Gross to Nottoli as Zencense’s botanical supplier.
    By mid-November 2012, Nottoli had purchased Zencense and changed the
    company name to ZenBio, LLC, but he retained Zencense’s key employees.
    ZenBio continued to manufacture the same product line as Zencense but moved the
    raw-materials storage and bulk manufacturing operations to a warehouse in
    Millbrae, California, where Tim Ortiz became head of production.                    ZenBio’s
    administrative functions remained in Pensacola until December 2012, when
    11
    Fox was a smokeshop owner in Arizona who was trying to start an XLR11 importing
    business when he began filling Galecki’s XLR11 orders from China. Fox’s first contact with the
    Zencense/ZenBio operation was meeting Galecki at a trade show in August 2012.
    12
    Libby was a chemist and chemical supplier from Virginia. His company, AI Biotech,
    provided ZenBio purity reports regarding its product. There were two types of reports: one
    listing the chemicals or substances that the product sample did not contain, which was produced
    to smokeshop owners, and another listing what the sample did contain, including XLR11, which
    was provided to ZenBio but not its customers.
    8
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    XLR11 was named as a scheduled controlled substance under Florida law (codified
    at 
    Fla. Stat. § 893.03
    (1)(c)(152)), at which point ZenBio immediately left Florida
    and moved its administrative office to Robertsdale, Alabama.
    When the administrative operations moved to Alabama in December 2012,
    Gross took over responsibility for obtaining and maintaining an adequate supply of
    XLR11 for ZenBio, and the record shows that he also purchased plastic Ziploc
    baggies from a company in China that were used to package ZenBio’s products.
    Nottoli testified at trial that he was told that the chemicals were coming directly
    from China. According to Nottoli, Gross was paid two percent of ZenBio’s profits,
    in addition to being reimbursed for the botanicals he supplied through Sanctuary
    Traders. 13 Henry testified consistent with Nottoli that Gross was paid two percent
    for his work of “finding the materials and management.” (Doc. 125, at 119–20).
    Similarly, Biggerstaff, head of sales, testified that although Gross never visited the
    Alabama office, he continued to order the necessary supply of XLR11 after the
    office moved to Alabama. He described Gross as “head of procurement” and knew
    him as the man who “we were buying the botanicals from to actually make the
    product, and that he was in charge [of] getting and securing the active ingredient
    for us as well.” (Doc. 124, at 88–89). Biggerstaff had seen the packages that the
    13
    Nottoli characterized this two-percent stake as an “ownership interest.”
    9
    Case: 15-11780       Date Filed: 10/12/2016      Page: 10 of 41
    chemicals arrived in and knew the writing to be Chinese or oriental, so he assumed
    they were coming from China.
    Fox, a middleman supplier, also testified that Gross was responsible for
    ordering all of ZenBio’s chemicals. He said Gross told him that he had taken over
    the job from Galecki. Although Gross and Fox never met in person, they talked,
    emailed, and texted frequently. Fox said he and Gross used several “throwaway”
    telephones to avoid law enforcement monitoring, and Fox said Gross would use the
    name “Arturo” in emails using his ZenBio email address, zenbiotravis@gmail.
    Fox testified that Gross would instruct him as to the quantity of XLR needed and
    would provide the addresses for shipping the goods, which consisted of several
    post office boxes, UPS or Copy/Com store accounts in New York, usually listed
    under the name Adam Libby, who was another supplier for Gross, but never in
    Gross’s name. 14 Fox testified that Gross asked how fast he could get the product
    and, based on the quantity Gross was ordering (50–100 kilograms of XLR11
    weekly), Fox advised him to arrange for several different mail or UPS boxes to
    receive the shipments. Fox explained at trial that it was necessary to break the
    large orders into smaller 2-kilogram packages to avoid customs scrutiny and
    minimize the impact of any seizure on ZenBio’s chemical supply, even though this
    14
    Fox explained that New York was preferred as a port of entry over Los Angeles
    because New York had a higher volume of import traffic, which made it more likely that the
    XLR11 shipments would be overlooked by customs enforcement.
    10
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    resulted in higher shipping costs. Fox said Gross was aware of this and said he
    would email or text Gross the tracking numbers corresponding to each shipped
    package. Fox also explained that, although he and Gross did not directly discuss
    the reason for this strategy, it was understood that this was the way it needed to
    work in this industry to ensure an uninterrupted supply of XLR11 and avoid
    customs seizures, which would result if the boxes were identified as XLR11. Fox
    said that Libby handled the product after it arrived in New York but that he (Fox)
    was responsible for replacing any product that was seized before delivery. Fox’s
    payment would be wired to his company, “Hostile Investing,” and Fox, in turn,
    would forward payment to China before the XLR11 would ship.15
    Henry testified that Gross would instruct her to wire payment for
    “chemicals” to Hostile Investing and other suppliers, including Elite Distributing
    and James Hertel. Henry testified that multiple emails she received from Gross
    instructing her to wire payments to these suppliers were in fact payments for
    “chemicals.” Also in evidence were bank records showing subsequent wires from
    Hostile Investment and Hertel directly to China. In a December 2012 email from
    Gross to Henry, he asked her to check on a wire and expressed concern because the
    money had not yet been received in China, although it was unclear from the email
    15
    Fox had his own middleman or “partner” who interacted directly with the Chinese
    suppliers.
    11
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    whether he was referencing a chemical payment or payment for plastic baggies. 16
    Henry also confirmed that Gross used several different untraceable cell phones
    when ordering chemicals for ZenBio and contacting her.
    Fox testified to once receiving an email inquiry from Gross about a package
    from China (which he assumed was from a different supplier) that was detained by
    customs at the port in New York. According to Fox, customs was asking Gross
    about the product, and Gross did not know what to tell them that the chemical
    would be used for. Fox said he understood that Gross needed to know what to say
    “to get it through customs,” and Fox responded “delicately,” giving Gross some
    general information about fragrances used in detergents and soaps that he quickly
    found on the internet and that Gross could offer as an explanation. Fox said that,
    to avoid detection, he never mentioned XLR11 directly in an email or text to
    Gross, and he did not know what exactly was written on the import labels;
    however, he acknowledged that the labels “certainly didn’t say [XLR11].”
    According to Fox, it was not necessary to instruct anyone to mislabel XLR11 on
    import packages because, “[i]n the industry, you just knew that it was coming in
    16
    Henry testified that Gross sometimes gave her invoices and receipts for payments
    related to botanicals supplied by Sanctuary Traders and for plastic baggie purchases, which he
    ordered from China. However, she said there were never invoices for the chemical purchases.
    The record reflects that Gross sent emails to Alice Yip at Caiyuntian Plastic Package, Co. in
    China, regarding orders of plastic baggies, but the record additionally reflects that Yip’s
    company also sold chemicals, and there was evidence linking chemical shipments from Yip’s
    company to Elite Distributing, which was one of Gross’s suppliers.
    12
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    under a different [name] –you didn’t need to tell anybody. The only way it was
    getting into the country is by it coming in under whatever they want to put on it. It
    could be shoe shine.”
    Gross used other XLR11 suppliers as well, including Adam Libby and
    Kevin Clancy. Libby’s name was on some of the post office and UPS boxes in
    New York that Gross directed Fox to send XLR11 shipments to. Clancy received
    shipments in New York under the name James Hertel and also received wire
    payments from Gross through a bank account in Hertel’s name, which Gross
    directed Henry to wire payments to for chemicals. 17 Henry testified, and emails
    confirmed, that Gross also used a chemical supplier in Nevada called Elite
    Distributing, which the evidence showed also imported chemicals from China.
    Although Gross used third-party suppliers and nominees for the chemical
    shipments from China, he himself purchased Ziploc baggies from China and had
    them shipped directly to the California facility in his own name.
    17
    Hertel testified that Clancy gave him money to open the account. Hertel knew money
    was being wired to the account but did not know Henry or ZenBio. He said Clancy would give
    him the numbers he used to transfer the money elsewhere but he did not know where it was
    going. Hertel said the money was Clancy’s, and that in return, Clancy paid him for the use of his
    name. Records showed that money was transferred from the account to China. Special Agent
    Christopher Marshall, Department of Homeland Security, reviewed lists of products shipped in
    Hertel’s name from China to New York (but not seized). The lists included names of items that
    Marshall recognized as showing up repeatedly on shipments of powder contraband, such as
    “pearl powder” and “silicone dioxide.” Agent Marshall said items bearing similar suspicious but
    innocuous names had been seized in the past from Chinese companies and found to contain
    XLR11.
    13
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    After import, the manufacturing and labeling of ZenBio’s product for retail
    sales occurred at the Milbrae, California, warehouse. Gross visited the California
    production warehouse on only one or two occasions, based on testimony from
    Nottoli and Biggerstaff. Biggerstaff testified that on one occasion, “[w]e were
    both there at the same time just overseeing production to make sure that everything
    was getting done like it was supposed to be.” He and Gross walked through the
    production warehouse together and observed workers weighing the product and
    packaging it into ZenBio’s black foil bags, each marked with a label containing the
    name of the retail product. Biggerstaff said each bag also contained a label that
    said “not for human consumption,” which he explained was intended to make it
    appear as though the product was not to be consumed orally, contrary to ZenBio’s
    intent in manufacturing it. There was also evidence that two emails dated
    December 6, 2012, titled “ZenBio adjusted art” and containing a text stating that
    the attachments included images of “Modified label art,” had been sent to Gross,
    Jason Way, and Crystal Henry for comment. The images were forwarded from the
    label company, and the attachments included proposed color photographs of labels,
    each clearly containing the ZenBio logo and the statement, “not for human
    consumption.” Two of the labels also included a list of chemicals the product did
    not contain. A third email, dated January 15, 2013, sent to Gross and two others at
    14
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    ZenBio merely referenced an attached list of revised product labels that was being
    ordered.
    ZenBio’s primary operating account was a Bank of America checking
    account opened on November 29, 2012.18 Henry testified that all of the company’s
    sales profits were deposited into the Bank of America account. Additionally,
    Henry paid Gross through Sanctuary Traders out of the Bank of America account
    and also wired payments to the chemical suppliers from that account, as directed
    by Gross. However, Gross did not have signature authority on the Bank of
    America account. For a time, ZenBio also had an account with Gulf Coast
    Community Bank in Florida on which Gross did have co-signing authority, but this
    account was closed when ZenBio moved to Alabama in December 2012, and there
    was no evidence that Gross ever used the account.
    On February 11, 2013, Ortiz notified Nottoli of a ZenBio product seizure,
    stating that the company was facing “impending doom.” 19 Biggerstaff and Henry
    testified that they were also aware of the seizure, as well as others, because ZenBio
    had a policy of replacing the product the first time it was seized and thus, product
    18
    ZenBio also had an account with Wells Fargo until the bank began to put holds on
    ZenBio’s wire transfers. In early February 2013, Henry sent an email to ZenBio members and
    employees (the list included Gross) stating that the Wells Fargo account was closed because the
    bank was not interested in doing business any longer with their “industry.” Gross did not have
    any signature authority on this account.
    19
    The email is from “Michael Fitton,” which Nottoli said was Ortiz’s “pen name.” The
    message included a forwarded note from Jim Vail, Gross’s co-defendant, stressing the
    importance of determining which law enforcement agency had intercepted the order.
    15
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    seizures cost the company money. Product seizures also threatened the company’s
    existence.
    In early April 2013, Gross told Henry he was leaving the business. He
    placed Henry in charge of purchasing the chemicals and instructed Fox to contact
    her. The record reflects, however, that although Gross was no longer ordering the
    chemicals, he continued to advise Henry because she was unfamiliar with the
    ordering process. For instance, on one occasion, Henry asked Gross whether she
    should follow Fox’s advice to arrange for a UPS postal address in Alabama to
    receive the imports in small packages and then send them on to California,
    repackaged. He advised her to follow that procedure, and she did. She also asked
    him to teach her about ordering the chemicals. Gross, however, would not do this
    over the telephone—Henry said Gross was very particular about what he discussed
    by telephone or text—so according to Henry, Gross agreed to meet her in the
    Atlanta airport to discuss the ordering process, which, again, was after he
    supposedly was no longer involved in the operation.20
    On April 11, 2013, Adam Libby was arrested on federal charges. When
    Nottoli learned this, he and other ZenBio members decided to disband the
    company. At this time, five months into its existence, ZenBio had grossed over
    $29.5 million from its sales. Additionally, bank records showed that ZenBio had
    20
    At the time, Henry lived in Pensacola, Florida, and Gross lived in Chicago.
    16
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    transferred over $1.4 million to Gross through payments to his company, Sanctuary
    Traders.
    Later in April 2013, Bruce Allen, a United States Postal Inspector in
    Daphne, Alabama, seized several UPS packages containing a large quantity of
    product that had been imported from China and shipped to Crystal Henry. The
    product had been separated for shipping into 47, 2-kilogram shipments. Each was
    tested and found to contain XLR 11, although XLR11 was not listed on any of the
    import labels. Also, between March and May 2013, Special Agent Marshall, then
    working for the Department of Homeland Security, purchased ZenBio products
    undercover to be tested. Marshall testified that he ordered several ZenBio
    products, including Bizarro, which came in black packages with a content label
    that included only the product name and the name of plant materials. Some labels
    also listed chemicals that the product did not contain, but none of the product
    labels referenced XLR11. All of the product, however, contained XLR11.
    In July 2013, during the federal investigation of ZenBio, Special Agent
    Jason Gordon interviewed Gross. According to Gordon, Gross admitted selling
    botanicals to ZenBio and estimated that since November 2012, he had sold in the
    range of 36,000 pounds of botanicals to ZenBio at a price of $15 to $17 per pound.
    Gross also told Nottoli that he had a supplier for Ziploc baggies in China through
    which ZenBio purchased baggies for packaging its product. Gross admitted using
    17
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    an email address of zenbiotravis@gmail for communicating with Nottoli about the
    supply of botanicals.21 Gross told Special Agent Gordon that he visited the
    Millbrae production facility once or twice, toured the production floor, and
    admitted he suspected they were making “spice.” Gross also admitted he had been
    an authorized signer on one ZenBio bank account. He explained that Nottoli told
    him he would receive $12,000 a week for opening an account in his name as an
    employee of ZenBio, which he decided not to do, but he also said in vague terms
    that he had been employed to review “orders” for Nottoli, compare them with
    “invoices,” and send out payments if they matched. He did not tell Special Agent
    Gordon that he ordered chemicals for ZenBio or that he was paid a percentage of
    the company’s profits.
    The jury returned guilty verdicts against Gross on all counts. After the close
    of the Government’s evidence, the district court denied Gross’s Rule 29 motion for
    judgment of acquittal. Gross also moved for judgment of acquittal and a new trial
    after the verdict, renewing his arguments on the sufficiency of the evidence and
    challenging the district court’s evidentiary rulings admitting Special Agent
    Albrecht’s testimony about the industry, lay witness testimony about the effects of
    smoking ZenBio’s products, and two incidents where agents had referenced
    21
    According to Henry, Fox, and email exhibits, Gross also used the name Arturo Fuente
    in the zenbiotravis@gmail emails, although he did not use the name in person.
    18
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    XLR11 as “a controlled substance analogue.” 22 By a written order, the district
    court denied the renewed motion for judgment of acquittal and the motion for a
    new trial.
    At sentencing, the district court calculated Gross’s offense level pursuant to
    the money laundering guideline, United States Sentencing Commission, Guidelines
    Manual (“USSG”), § 2S1.1(a)(2), which directed a base offense level of 8 plus the
    number of offense levels corresponding to the value of the laundered funds as
    shown in the table under USSG § 2B1.1(b)(1)(L). Because the district court found
    that the value of the laundered funds was $23,566,000, 22 levels were added, for a
    Base Offense Level of 30. To this, the district court added 1 level because Gross
    was found guilty of 
    18 U.S.C. § 1957
    , and an additional 3 levels for his
    supervisory role in the offense, for a Total Offense Level of 34. See USSG
    §§ 2S1.1(b)(2)(A) (specific offense characteristics), 3B1.1(b) (aggravating role in
    the offense as manager or supervisor). Considering a Criminal History Category of
    I, Gross’s guidelines range was 151–188 months. The district court overruled
    Gross’s objections to the guidelines calculation and, after considering the factors in
    
    18 U.S.C. § 3553
    (a), sentenced him to 156 months of imprisonment, which was at
    22
    A controlled substance analogue is a category of substances substantially similar to
    those listed as federal controlled substances that are to be treated as Schedule I controlled
    substances if intended for human consumption. 
    21 U.S.C. §§ 802
    (32)(A) & 813. The analogue
    counts were dismissed prior to trial.
    19
    Case: 15-11780      Date Filed: 10/12/2016    Page: 20 of 41
    the lower end of the range. The district judge said that he would have imposed the
    same sentence regardless of the guidelines calculation, given the compelling
    evidence of Gross’s guilt and the trial record showing the dangerous nature of
    XLR11, the “staggering” amount of money made by smuggling the drug from
    China, and the lay witness testimony regarding the dangerous effects of the drug
    when consumed.
    II.
    Gross challenges the sufficiency of the evidence to support his convictions.
    “We review the sufficiency of the evidence to support a conviction de novo,
    viewing the evidence in the light most favorable to the government and drawing all
    reasonable inferences and credibility choices in favor of the jury’s verdict.” United
    States v. Taylor, 
    480 F.3d 1025
    , 1026 (11th Cir. 2007). In doing so, we consider
    whether there is evidence from which a reasonable trier of fact could find guilt
    beyond a reasonable doubt. See United States v. Green, 
    818 F.3d 1258
    , 1274 (11th
    Cir. 2016). A conviction may be based on direct or circumstantial evidence.
    United States v. Martin, 
    803 F.3d 581
    , 587 (11th Cir. 2015). Where credibility
    calls are at issue, this court “will not disturb the jury’s verdict ‘unless the testimony
    is incredible as a matter of law.’” Green, 818 F.3d at 1274 (quoting United States
    v. Flores, 
    572 F.3d 1254
    , 1263 (11th Cir. 2009)). Additionally, the evidence need
    not “exclude every reasonable hypothesis of innocence;” the “jury is free to choose
    20
    Case: 15-11780        Date Filed: 10/12/2016       Page: 21 of 41
    among reasonable constructions of the evidence.” United States v. Peters, 
    403 F.3d 1263
    , 1268 (11th Cir. 2005) (quoting United States v. Montes-Cardenas, 
    746 F.2d 771
    , 778 (11th Cir. 1984)).
    A. Smuggling and Misbranding Conspiracy
    The jury convicted Gross of a conspiracy to defraud the United States, on
    finding that the Government had proven two separate objects of the conspiracy,
    including smuggling XLR11 into the United States by means of a false statement
    contrary to law and in violation of 
    18 U.S.C. §§ 545
    , 542, 23 and (2) misbranding
    the XLR11 and causing it to be introduced into interstate commerce, in violation of
    
    21 U.S.C. §§ 331
    (a), 333(a)(2),24 all with intent to defraud the United States. See
    
    18 U.S.C. § 371
    . To prove a conspiracy to defraud the United States under § 371,
    the government must prove: (1) “an agreement among two or more persons to
    achieve an unlawful objective;” (2) knowledge of and voluntary participation in the
    agreement; and (3) a conspirator’s overt act in furtherance of that agreement. See
    23
    Federal law prohibits knowingly smuggling goods into the United States that should
    have been invoiced or that passed through customs by a fraudulent invoice or other document or
    paper, with intent to defraud the United States, and prohibits “knowingly receiv[ing],
    conceal[ing], buy[ing], sell[ing], or in any manner facilitat[ing] the transportation, concealment,
    or sale of such merchandise after importation, knowing” it was clandestinely imported, contrary
    to law. 
    18 U.S.C. § 545
    . Section 542 provides that introducing goods or imported merchandise
    into the commerce of the United States by means of a false statement is a criminal offense. 
    18 U.S.C. § 542
    .
    24
    The Federal Food Drug and Cosmetic Act prohibits “[t]he introduction or delivery for
    introduction into interstate commerce of any food, drug, device, tobacco product, or cosmetic
    that is adulterated or misbranded.” 
    21 U.S.C. § 331
    (a). Section 333 provides the criminal
    penalty for violating § 331 with intent to defraud or mislead. 
    21 U.S.C. § 333
    (a)(2).
    21
    Case: 15-11780     Date Filed: 10/12/2016    Page: 22 of 41
    United States v. Hasson, 
    333 F.3d 1264
    , 1270 (11th Cir. 2003). The government
    need only prove that the defendant knew the essential nature of the conspiracy, not
    every detail. See United States v. Vernon, 
    723 F.3d 1234
    , 1273 (11th Cir. 2013).
    And knowledge of a conspiracy is sufficient “when the circumstances surrounding
    a person’s presence at the scene of conspiratorial activity are so obvious that
    knowledge of its character can be fairly attributable to him.” 
    Id.
     at 1273–74
    (quoting United States v. Molina, 
    443 F.3d 824
    , 828 (11th Cir. 2006)). Voluntary
    participation is shown by evidence of “surrounding circumstances such as acts
    committed by the defendant which furthered the purpose of the conspiracy.” 
    Id.
    (quoting United States v. Parrado, 
    911 F.2d 1567
    , 1570 (11th Cir. 1990)). Finally,
    we have said that “[b]ecause conspiracies are secretive by nature, the existence of
    an agreement and [the defendant’s] participation in the conspiracy may be proven
    entirely from circumstantial evidence.” United States v. Flanders, 
    752 F.3d 1317
    ,
    1329 (11th Cir. 2014) (quoting United States v. White, 
    663 F.3d 1207
    , 1214 (11th
    Cir. 2011)), cert. denied, 
    135 S. Ct. 1188
     (2015).
    Gross argues the government failed to prove he had knowledge of the
    conspiracy by simply showing an industry practice or that others knew of the
    unlawful objective the conspiracy, citing United States v. Kaplan, 
    490 F.3d 110
    ,
    121 (2d Cir. 2007) (finding little relevance in proving that others in the office had
    knowledge of insurance fraud). The court agrees that generally, evidence of the
    22
    Case: 15-11780    Date Filed: 10/12/2016   Page: 23 of 41
    knowledge of others, without more, is insufficient to demonstrate a defendant’s
    knowledge of the unlawful object of a conspiracy. See United States v. Willner,
    
    795 F.3d 1297
    , 1309–10 (11th Cir. 2015) (reversing a conspiracy conviction for
    lack of proof of knowledge). It is well settled, however, that a defendant’s
    knowledge of an unlawful agreement and knowing participation can be proven by
    circumstantial evidence. See, e.g., United States v. Pierre, 
    825 F.3d 1183
    , 1193
    (11th Cir. 2016); Flanders, 752 F.3d at 1329. On careful review of the record in
    this case, the court finds that Gross’s own actions provide ample circumstantial
    evidence of his knowledge of the conspiracy and intent to join it. The record
    reflects that Gross not only attended the initial organizational meeting for ZenBio
    in November 2012, but also was one of three or four people who played a central
    role in the company from the outset, and he was solely responsible for ordering the
    XLR11. Gross spoke directly with the suppliers, always using one of multiple
    untraceable cell phones to place the XLR11 orders and to direct Henry to wire
    payments for XLR11 shipments. He also used a different name in emails and was
    careful to discuss XLR11 only as “units,” without ever referencing its name in
    writing. Gross knew the product was being shipped in multiple containers; he
    instructed suppliers to send it to mailboxes in the name of others; and he knew the
    shipments were sent to a busy port of entry and were making their way to
    numerous post office and UPS boxes without seizure. These actions are
    23
    Case: 15-11780     Date Filed: 10/12/2016    Page: 24 of 41
    compellingly inconsistent with what would be expected of a person attempting to
    honestly obtain a legal product. Also, because Fox was responsible for replacing
    the chemical if seized at the port of entry and Gross did not get paid unless there
    was a profit from the final product, Fox and Gross both had a strong incentive to
    avoid detection and seizure of the XLR11 at the port of entry. The jury was also
    free to believe Fox’s testimony that Gross once asked him what to say about the
    product’s use in order to get a shipment through customs. Gross had ordered the
    product, so if he believed it was legitimate and properly labeled, he would not have
    needed to ask Fox for a plausible explanation regarding its use. See Vernon, 723
    F.3d at 1273–74 (noting that “when the circumstances surrounding a person’s
    presence at the scene of conspiratorial activity are so obvious . . . knowledge of its
    character can fairly be attributed to him” (internal quotations omitted)). The jury
    could also infer knowledge from the fact that when questioned by law
    enforcement, Gross admitted he suspected ZenBio was producing spice, but he did
    not disclose his role of ordering the chemicals or his profits. He also falsely stated
    to an investigator that he used the zenbiotravis email only for the purpose of
    discussing botanicals with Nottoli, and he offered a false explanation as to how he
    earned $12,000 per week from ZenBio.
    For those reasons, Gross’s reliance on Kaplan and Willner is unavailing. In
    Kaplan, although the Second Circuit found that evidence of others’ knowledge had
    24
    Case: 15-11780     Date Filed: 10/12/2016    Page: 25 of 41
    little relevance in proving the defendant’s knowledge, the court also recognized
    that the knowledge of others would be “highly relevant” if supplemented by
    evidence that the information was communicated to the defendant or that “[the
    defendant] had been exposed to the same sources from which the[ ] others derived
    their knowledge.” 490 F.3d at 121. The court in Kaplan also found it significant
    that the insurance office where the fraud took place was not the type of office
    where the illegal nature of the business was necessarily visible to everyone who
    worked there. See id. Here, by contrast, the sole purpose of the business was to
    import XLR11 and sell XLR11 products before the law caught up with the scheme,
    and there was ample evidence that Gross was exposed to the same sources of
    information as others with knowledge because he was the one ordering chemicals
    for the business and communicating with the suppliers.
    In Willner, we reversed a Medicare fraud conspiracy conviction against one
    defendant, Dr. Vanya Abreu, who was the Medicare compliance program director
    in a clinic where other doctors were engaged in Medicare fraud. 795 F.3d at 1305–
    10. Despite her position in the clinic and some evidence at trial that Dr. Abreu
    should have known about the fraud based on what others were doing, we found no
    evidence, direct or circumstantial, sufficient to raise an inference that she actually
    knew of the fraud or that she knowingly joined in the conspiracy. See id. at 1309–
    10. We also noted that Dr. Abreu had not benefitted in any way from the fraud.
    25
    Case: 15-11780       Date Filed: 10/12/2016       Page: 26 of 41
    See id. Here, the circumstantial evidence of Gross’s knowledge is not based solely
    on his position in ZenBio or the knowledge of others, as Gross contends.
    Moreover, Gross personally profited enormously from the smuggling. Thus,
    contrary to the evidence in Willner, the record of Gross’s own actions, as outlined
    fully above, is sufficient for a reasonable jury to infer that he had knowledge of an
    agreement to engage in unlawful smuggling activity and that he knowingly joined
    that conspiracy. 25
    We also reject Gross’s argument that because XLR11 was not a controlled
    substance at the time of his offense, the rule of lenity should apply. Although we
    have previously applied the rule of lenity to a conviction under § 545, see United
    States v. Izurieta, 
    710 F.3d 1176
    , 1183–84 (11th Cir. 2013), the rule applied in that
    case only because the smuggling violation charged was contrary to a regulation
    that was ambiguous regarding criminal liability. By contrast, Gross’s conviction is
    based on a criminal statute that plainly prohibits smuggling by false labeling to
    25
    Alternatively, although the jury was not instructed on deliberate ignorance, Gross could
    not insulate himself from criminal liability by having the boxes shipped to others and remaining
    deliberately ignorant of the falsity of the labels where he had every reason to know that the
    mislabeling and smuggling were necessary for XLR11 to arrive in the United States. The
    evidence could have supported a verdict on this ground as well. This court has “consistently
    recognized deliberate ignorance of criminal activity as the equivalent of knowledge.” United
    States v. Alvarez-Coria, 
    447 F.3d 1340
    , 1344 (11th Cir. 2006) (internal quotations omitted); see
    also Willner, 795 F.3d at 1315 (stating deliberate ignorance may establish knowledge of the
    unlawful purpose of the conspiracy); United States v. Hristov, 
    466 F.3d 949
    , 952 (11th Cir.
    2006) (noting this court has “long recognized” that deliberate ignorance may be proof of
    knowledge).
    26
    Case: 15-11780      Date Filed: 10/12/2016       Page: 27 of 41
    avoid customs detection. See 
    18 U.S.C. § 542
     (“Entry of goods by means of false
    statements”). Thus, the rule of lenity has no application here.
    There was also evidence from which the jury could infer that Gross had
    knowledge of and willfully joined the conspiracy with regard to the second
    objective, i.e., to misbrand drugs sold in interstate commerce. 26 Federal law
    prohibits introducing any adulterated or misbranded drug into interstate commerce.
    See 
    21 U.S.C. §§ 331
    (a); 331(k). The evidence at trial established that ZenBio was
    mislabeling drugs and delivering them into interstate commerce purporting to be
    pot-pourri. Gross’s knowledge and participation could be inferred from the fact
    that he was copied on emails containing product art labels that plainly show the
    product was labeled “not for human consumption,” despite the company’s clear
    intent to sell smokable designer drugs. Also, the labels emailed to Gross did not
    list XLR11 as an ingredient, and he knew that the product contained XLR11 (he
    maintained at trial that it was a legal product). It is immaterial that Gross did not
    respond to the emails. They were sent directly to his email address, he responded
    to other emails at that address, and thus he was exposed to the same source of
    information as others with knowledge. See, e.g., Kaplan, 490 F.3d at 121 (stating
    exposure to the same sources of knowledge as others is highly relevant).
    26
    Although “the evidence need only be sufficient for any one of the charged objects to
    sustain a conviction,” United States v. Moran, 
    778 F.3d 942
    , 963 (11th Cir.), cert. denied sub
    nom. Huarte v. United States, 
    136 S. Ct. 268
     (2015), the jury found Gross guilty of both objects
    of the conspiracy.
    27
    Case: 15-11780       Date Filed: 10/12/2016      Page: 28 of 41
    Additionally, the inference is bolstered by Gross’s visits to the California facility
    where the manufacturing and packaging occurred and his receipt of a cut of the
    profits from the misbranded products. And, because he was ordering the chemicals
    for the product, the jury could reasonably infer his knowledge that marketing the
    products as ordinary pot-pourri was false. In light of this evidence, it is immaterial
    to the conspiracy charge that Gross did not have direct involvement in the
    misbranding of the retail product.27
    B. Money Laundering and Money Laundering Conspiracy
    The jury convicted Gross on three counts of substantive money laundering
    based on three wire transfers from ZenBio’s Bank of America account on February
    19, 2013, and March 4 and 19, 2013, in violation of 
    18 U.S.C. § 1957
    , and one
    count of conspiracy to commit money laundering, in violation of 
    18 U.S.C. § 1956
    (h). A conviction under § 1957 requires proof that the defendant knowingly
    engaged in a monetary transaction in “criminally derived property of a greater
    value than $10,000” that was “derived from specified unlawful activity.” 
    18 U.S.C. § 1957
    (a); see also United States v. Toll, 
    804 F.3d 1344
    , 1358 (11th Cir.
    2015). The statute defines a “monetary transaction” as including a deposit,
    withdrawal or transfer of funds. § 1957(f)(1). The term “criminally derived
    27
    Again, alternatively, Gross cannot remain willfully blind to the purpose of the
    conspiracy where he had every reason to know of it. See Willner, 795 F.3d at 1315; Hristov, 466
    F.3d at 952.
    28
    Case: 15-11780     Date Filed: 10/12/2016   Page: 29 of 41
    property” means “any property constituting, or derived from, proceeds obtained
    from a criminal offense. § 1957(f)(2). The term “proceeds” is defined broadly as
    including “any property derived from or obtained or retained, directly or indirectly,
    through some form of unlawful activity, including the gross receipts of such
    activity.” 
    18 U.S.C. § 1956
    (c)(9); see also § 1957(f)(3). Because “[m]oney
    laundering is an offense to be punished separately from the underlying criminal
    offense,” it cannot occur until after “the predicate crime becomes a ‘completed
    offense.’” United States v. Nolan, 
    223 F.3d 1311
    , 1315 (11th Cir. 2000) (quoting
    United States v. Christo, 
    129 F.3d 578
    , 579 (11th Cir. 1997)).
    Regarding the substantive money laundering counts, Gross first argues there
    is insufficient evidence that he knew the funds were proceeds of criminal activity
    because he lacked knowledge of the underlying unlawful smuggling. This
    argument fails for the reasons recited above. We have already determined that
    there was sufficient evidence from which a jury could infer that Gross, who
    ordered the XLR11 from China through middlemen and received profits from the
    sales, knew of the smuggling and that it resulted in proceeds in ZenBio’s account.
    Special Agent Underwood testified that all of the receipts from the retail sales of
    the XLR11 products were deposited into ZenBio’s Bank of America account, and
    there is sufficient evidence that Gross directed Henry to wire the three payments
    (over $10,000 each) to Hertel’s account from ZenBio’s Bank of America account
    29
    Case: 15-11780     Date Filed: 10/12/2016   Page: 30 of 41
    for more chemicals. Henry wired the money. It is immaterial that Gross did not
    have signature authority on the account because his ability to direct Henry to make
    the payment shows he had control. See Nolan, 223 F.3d at 1316 (defendant
    demonstrated control over an account as if it was his own).
    Gross argues that there were no proceeds from the smuggling because the
    profits derived from the retail sale of ZenBio’s products were too attenuated to be
    considered proceeds of smuggling XLR11, relying on United States v. Khanani,
    
    502 F.3d 1281
    , 1296 (11th Cir. 2007). We disagree. In Khanani, we found that
    the connection between profits realized from the sale of jeans (goods sold) and the
    specified unlawful activity of employing undocumented aliens (labor), although
    causally plausible, was too indirect to be considered proceeds derived from the
    unlawful employment activity. 
    Id.
     The facts of Khanani are distinguishable from
    this case where the proceeds were derived from the sale of a product that included
    the unlawfully smuggled XLR11 as the vital ingredient. Moreover, after we
    decided Khanani, Congress amended the definition of proceeds to include any
    property obtained “directly or indirectly” from the unlawful activity. 
    18 U.S.C. § 1956
    (c)(9); see also 
    18 U.S.C. § 1957
    (f)(3). Because the smuggled XLR11 was
    a necessary part of the goods sold and was the sole reason the product generated
    extraordinarily high profits, the proceeds at issue were obtained at a minimum
    indirectly, if not directly, from the unlawful smuggling activity.
    30
    Case: 15-11780     Date Filed: 10/12/2016    Page: 31 of 41
    We also reject Gross’s argument that the three wire transfers providing the
    basis for the substantive money laundering counts, which occurred in February and
    March 2013, could not have included “proceeds” because the only XLR11
    shipments in evidence were seized in April 2013, which was after the wire
    transfers. This argument lacks merit and deserves little discussion. For reasons
    already stated, a reasonable jury could find from the evidence at trial that all
    shipments of XLR11 to ZenBio, which Gross had been ordering from Fox since at
    least December 2012, originated from China, were labeled incorrectly in order to
    pass through customs, and produced the proceeds that were deposited into
    ZenBio’s account.
    Similarly unavailing is Gross’s argument that the substantive money
    laundering transactions were nothing more than payment for XLR11, which was
    part of the underlying smuggling activity, citing United States v. Harris, 
    666 F.3d 905
     (5th Cir. 2012). While Harris stands for the proposition that a mere payment
    in exchange for controlled substances cannot be considered money laundering, the
    payment in Harris did not involve proceeds because the drug transaction was not
    completed until after the money exchanged hands. Here, as we have already
    determined, the money previously deposited into ZenBio’s Bank of America
    account and used in the wire transactions in February and March for the purpose of
    31
    Case: 15-11780     Date Filed: 10/12/2016   Page: 32 of 41
    purchasing more chemicals was proceeds from prior completed smuggling
    activity.
    Gross relies for his merger argument on the concurrence in United States v.
    Santos, in which Justice Stevens stated that “[a]llowing the Government to treat the
    mere payment of the expense of operating an illegal gambling business as a
    separate offense is in practical effect tantamount to double jeopardy.” 
    553 U.S. 507
    , 527, 
    128 S. Ct. 2020
    , 2033 (2008) (Stevens, J., concurring). We have noted
    that the precedential value of Santos, where no rationale was supported by a
    majority of the Justices, is limited by the concurrence to cases in which the
    underlying criminal conduct is operating an unlicensed gambling business. See
    United States v. Demarest, 
    570 F.3d 1232
    , 1242 (11th Cir. 2009).
    Gross also quotes part of a sentence from our opinion in United States v.
    Esquenazi, 
    752 F.3d 912
     (11th Cir.), cert. denied, 
    135 S. Ct. 293
     (2014), for
    support. The full quote from Esquenazi is: “Conducting a criminal enterprise
    necessarily requires paying its essential expenses—doing so should not also be
    separately punishable as money-laundering, at least when the rule of lenity comes
    into play.” 
    Id.
     at 935–36 (emphasis added). But the rule of lenity is no longer in
    play. After Santos applied the rule of lenity to interpret the ambiguous term
    “proceeds” in the money laundering statutes, 
    553 U.S. 507
    , 
    128 S. Ct. 2020
    ,
    Congress amended the language of sections 1956 and 1957 by defining the term
    32
    Case: 15-11780     Date Filed: 10/12/2016   Page: 33 of 41
    “proceeds” to include gross receipts. See, e.g., United States v. Abdulwahab, 
    715 F.3d 521
    , 531 n.8 (4th Cir. 2013) (“After the Supreme Court decided Santos,
    Congress amended the money-laundering statute to specifically define ‘proceeds’
    as ‘any property derived from or obtained or retained, directly or indirectly,
    through some form of unlawful activity, including the gross receipts of such
    activity.’” (quoting Fraud Enforcement and Regulatory Act of 2009, Pub. L. No.
    111–21, § 2(f)(1), 
    123 Stat. 1617
    , 1618 (codified at 
    18 U.S.C. § 1956
    (c)(9))).
    Esquenazi and Abdulwahab, supra, on which Gross also relies, both addressed pre-
    amendment conduct.
    Also, contrary to Gross’s argument, the money laundering counts did not
    charge transactions that were merely payment for the essential expenses of the
    underlying conduct such that they were indistinct criminal offenses. Instead, the
    money laundering counts charged transactions made using gross receipts of past,
    completed criminal conduct for the purpose of financing new criminal conduct.
    Even considering that the smuggling conspiracy was ongoing criminal activity, it is
    sufficient that a portion or phase of the scheme had been completed and had
    produced the proceeds used in the subsequent transaction. See United States v.
    Richards, 
    234 F.3d 763
    , 770 (1st Cir. 2000) (finding that money laundering can
    occur with proceeds derived from “a completed phase of an ongoing offense”)
    (quoting United States v. Conley, 
    37 F.3d 970
    , 980 (3rd Cir. 1994)).
    33
    Case: 15-11780    Date Filed: 10/12/2016    Page: 34 of 41
    The money laundering conspiracy conviction is also supported by the record.
    To prove a money laundering conspiracy, the government must establish “(1) an
    agreement between two or more persons to commit a money-laundering offense;
    and (2) knowing and voluntary participation in that agreement by the defendant.”
    United States v. Moran, 
    778 F.3d 942
    , 962 (11th Cir.) (quoting United States v.
    Broughton, 
    689 F.3d 1260
    , 1280 (11th Cir. 2012)), cert. denied, 
    136 S. Ct. 268
    (2015). Proof of a “formal agreement” is not required and instead, the government
    may demonstrate the existence of “a meeting of the minds to commit an unlawful
    act” by circumstantial evidence. United States v. Arias–Izquierdo, 
    449 F.3d 1168
    ,
    1182 (11th Cir. 2006); see also Toll, 804 F.3d at 1355 (noting circumstantial
    evidence can establish the existence of an agreement). Additionally, “conspirators
    are liable for all of the acts and foreseeable consequences of the conspiracy.”
    United States v. Silvestri, 
    409 F.3d 1311
    , 1335 (11th Cir. 2005) (quoting United
    States v. Alas, 
    196 F.3d 1250
    , 1251 (11th Cir. 1999)). An agreement and Gross’s
    willing participation can be reasonably inferred from his knowledge that the
    smuggling activity was generating large receipts on the retail end, his acceptance
    of profits of over $1 million, which were transferred from ZenBio’s account and
    deposited into Gross’s Sanctuary Traders account, and his repeated acts of
    directing Henry to make payments to Hertel and other suppliers out of ZenBio’s
    account. See United States v. Castronuovo, 649 F. App’x 904 (11th Cir. 2016)
    34
    Case: 15-11780        Date Filed: 10/12/2016       Page: 35 of 41
    (finding an agreement to engage in “monetary transactions in criminally derived
    property valued greater than $10,000 by [defendants] accepting their paychecks
    with knowledge that the funds were derived from the clinics’ unlawful activity”)
    (unpublished), cert denied, 
    2016 WL 4272626
     (Oct. 3, 2016). Also, it was
    reasonably foreseeable that all of ZenBio’s profits would be deposited into its bank
    account. Thus, there was sufficient evidence from which a jury could find that
    Gross participated in a money laundering conspiracy.
    III.
    Gross also argues he is entitled to a new trial based on certain evidentiary
    rulings and references in the record to XLR11 having been an analogue drug at the
    time of the investigations. He contends this was highly prejudicial because the
    analogue counts were dismissed prior to trial. Specifically, Gross objected to
    Special Agent Albrecht’s testimony about synthetic drugs in general as lacking a
    scientific foundation; the testimony of laypersons on the physical effects of XLR11
    and ZenBio’s products in particular also as lacking a scientific foundation; and two
    statements by government witnesses to the effect that XLR11 was a controlled
    substance analogue.28 We review for an abuse of discretion the district court’s
    28
    During the Government’s examination of Special Agent Gordon, he answered one
    question with the unsolicited statement that XLR11 was a controlled substance analogue.
    Defense counsel declined the judge’s offer to give a cautionary instruction to the jury, finding it
    best not to emphasize the matter. Also, in response to a question by defense counsel as to
    whether XLR11 was a controlled substance at the time, Special Agent Randy Hoffman stated
    that XLR11 was listed as a controlled substance analogue. Hoffman also acknowledged in his
    35
    Case: 15-11780       Date Filed: 10/12/2016     Page: 36 of 41
    ruling on a motion for new trial, as well as its evidentiary rulings. See Toll, 804
    F.3d at 1353 (scope of lay testimony); United States v. Sweat, 
    555 F.3d 1364
    , 1367
    (11th Cir. 2009) (motion for new trial); United States v. Edouard, 
    485 F.3d 1324
    ,
    1343 (11th Cir. 2007) (evidentiary rulings). Even if an abuse of discretion is
    shown, we will not reverse for a non-constitutional evidentiary error “absent a
    reasonable likelihood that the defendant’s substantial rights were affected.” United
    States v. Malol, 
    476 F.3d 1283
    , 1291 (11th Cir. 2007) (quoting United States v.
    Sellers, 
    906 F.2d 597
    , 601 (11th Cir. 1990)).
    Having carefully reviewed the record, we find no error that affected Gross’s
    substantial rights. Even though Gross was not tried on the substantive analogue
    counts, the testimony of Special Agent Albrecht regarding the synthetic drug
    industry practices and testimony of lay witnesses regarding why the product was
    purchased and how it affected them was intrinsic to the crime charged.
    Additionally, the testimony was grounded in personal experiences and was not
    offered as scientific evidence. Finally, we agree with the district court that the two
    statements by agents that XLR11 was an analogue were harmless. Although the
    analogue counts had been dismissed, we agree that the jury was not likely to have
    understood the meaning of the term. Also, defense counsel declined a curative
    testimony, however, as had other witnesses, that XLR11 was not a controlled substance and that
    if someone possessed XLR11 during the month prior to May 16, 2013, they had one month to
    dispose of it.
    36
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    instruction. On this record, we find no reasonable probability that “but for the
    offending remarks, the defendant would not have been convicted.” United States
    v. Snyder, 
    291 F.3d 1291
    , 1294 (11th Cir. 2002) (quoting United States v.
    Calderon, 
    127 F.3d 1314
    , 1335 (11th Cir. 1997)). Because Gross’s substantial
    rights were not affected, see Malol, 
    476 F.3d at 1291
    , we find no error or abuse of
    discretion in the district court’s evidentiary rulings, much less reversible error.
    IV.
    Finally, Gross challenges his sentence on several grounds. We review a
    district court’s sentencing decision for procedural and substantive reasonableness
    applying an abuse of discretion standard. See Gall v. United States, 
    552 U.S. 38
    ,
    51, 
    128 S. Ct. 586
    , 597 (2007); United States v. Barrington, 
    648 F.3d 1178
    , 1194
    (11th Cir. 2011), cert. denied, 
    132 S. Ct. 1066
     (2012). An abuse of discretion
    occurs if the district court “applies an incorrect legal standard, follows improper
    procedures in making the determination, or makes findings of fact that are clearly
    erroneous.” Barrington, 
    648 F.3d at 1194
     (quoting United States v. Ellisor, 
    522 F.3d 1255
    , 1273 n.25 (11th Cir. 2008)). We therefore review the district court’s
    fact findings for clear error, and we apply de novo review to its interpretation and
    application of the United States Sentencing Guidelines. See 
    id.
     at 1194–95, 1197.
    We first consider whether the district court committed procedural error. A
    “significant procedural error” occurs at sentencing when the district court fails to
    37
    Case: 15-11780      Date Filed: 10/12/2016    Page: 38 of 41
    properly calculate the guidelines range, treats the guidelines as mandatory, fails to
    consider the sentencing factors of 
    18 U.S.C. § 3553
    (a), or selects a sentence based
    on clearly erroneous facts. Gall, 
    552 U.S. at 51
    , 128 S. Ct. at 597; see also
    Barrington, 
    648 F.3d at 1194
    . If the sentence is procedurally sound, we then
    consider its substantive reasonableness, taking into account the totality of the
    circumstances, being mindful that “[t]he sentencing judge is in a superior position
    to find facts and judge their import under § 3553(a) in the individual case.” Gall,
    
    552 U.S. at 51
    , 128 S. Ct. at 597 (internal quotations omitted). Also, an error in
    calculating a guidelines sentencing range may be harmless if the district court
    stated on the record that it would have imposed the same sentence regardless of
    any error in the calculation, and if we determine that the sentence is reasonable
    even if the guidelines issue had been determined in the defendant’s favor. See
    United States v. Keene, 
    470 F.3d 1347
    , 1349 (11th Cir. 2006).
    Gross argues that the district court miscalculated his sentencing range by
    selecting a base offense level according to the value of the laundered funds under
    USSG § 2S.1.1(a)(2) instead of under the guideline applicable to the underlying
    offense from which the proceeds were derived, i.e., smuggling, pursuant to USSG
    § 2S1.1(a)(1). We find no procedural error. Guideline § 2S1.1(a)(1) directs the
    district court to apply the offense level for the underlying offense if it can be
    determined. The underlying offense in this case is smuggling, §§ 545, 542.
    38
    Case: 15-11780     Date Filed: 10/12/2016   Page: 39 of 41
    Guideline § 2T3.1, which is applicable to Custom Taxes and deals with some
    violations of § 545. The Introductory Commentary to USSG § 2T3.1 states that
    the guideline applies even when some types of contraband are involved, such as
    uncertified diamonds, but provides further that it “is not intended to deal with the
    importation of other types of contraband, such as drugs . . . the importation of
    which is prohibited or restricted for non-economic reasons.” USSG Ch. 2, Pt.T.3,
    intro. comment. This case involves drugs that were illegal in some states at the
    time of the smuggling activity and thus could be categorized as contraband,
    making USSG § 2T3.1 inapplicable. As a result, the district court was required to
    use the next analogous guideline, but Part 2D was inapplicable because the drugs
    were not listed as controlled substances at the time of the offense, and there was no
    proof that they were analogue drugs at the time. Thus, the district court correctly
    applied the money laundering guideline, USSG § 2S1.1(a)(2).
    Gross argues alternatively that the district court erred in determining the
    monetary value of the laundered funds, but we find no clear error in the district
    court’s determination of value. The government presented evidence that the total
    amount laundered through ZenBio’s bank account by checks and transfers
    amounted to $23,566,000. Gross’s lack of signature authority on the Bank of
    America account is immaterial because, as already discussed, Gross demonstrated
    he had the authority to direct payments from the account, his Sanctuary Traders
    39
    Case: 15-11780     Date Filed: 10/12/2016    Page: 40 of 41
    account received substantial proceeds, and the number and size of the transactions
    were reasonably foreseeable to Gross because making a quick profit was the
    purpose of the scheme. Gross also argues that because the government stipulated
    to a money judgment of $300,000 to settle the forfeiture count, the value of the
    money laundering conspiracy at sentencing was limited to that amount. We
    disagree. It is clear from the record that the government had already seized over
    $600,000 from Gross through Sanctuary Traders and agreed to settle the forfeiture
    issue for an additional $300,000 to avoid having to try the forfeiture count to the
    jury. This did not resolve Gross’s criminal liability for purposes of calculating his
    sentencing guidelines range.
    Gross also challenges the three-level enhancement under USSG § 3B1.1(b)
    for his role in the offense as a “manager or supervisor,” arguing that he was not a
    leader with respect to any money laundering activity. See United States v.
    Salgado, 
    745 F.3d 1135
    , 1140 (11th Cir. 2014) (stating “relevant conduct for
    Chapter Three adjustments is limited to [the defendant’s] part in the money
    laundering offense”). Because the determination of a defendant’s role in an offense
    is a finding of fact, we review the decision for clear error. United States v.
    Rodriguez De Varon, 
    175 F.3d 930
    , 937 (11th Cir. 1999) (en banc). We note that
    in making this fact-intensive determination, the district court has “considerable
    discretion.” United States v. Boyd, 
    291 F.3d 1274
    , 1277–78 (11th Cir. 2002). The
    40
    Case: 15-11780     Date Filed: 10/12/2016    Page: 41 of 41
    district court’s finding that Gross was a supervisor on this record where he had
    either an ownership or manager interest, accepted large profits, and directed Henry
    to make wire payments with proceeds is not clear error.
    Moreover, the sentence, which is at the low end of the guidelines range, is
    not substantively unreasonable. “Although we do not automatically presume a
    sentence within the guidelines range is reasonable, we ordinarily expect a sentence
    within the [g]uidelines range to be reasonable.” United States v. Hunt, 
    526 F.3d 739
    , 746 (11th Cir. 2008) (alteration and internal quotation marks omitted). In this
    case, the district court properly considered the record and the 
    18 U.S.C. § 3553
    (a)
    factors. Although in imposing sentence the district court relied in part on the
    dangerous nature of XLR11, despite the fact that there was no proof that it was an
    analogue drug at the time, the district court’s concerns were supported by the
    record. Also, “[t]he weight to be accorded any given § 3553(a) factor is a matter
    committed to the sound discretion of the district court.” See United States v. Clay,
    
    483 F.3d 739
    , 743 (11th Cir. 2007) (internal quotation marks omitted). We find no
    abuse of discretion.
    V.
    For the reasons stated above, Gross’s convictions and sentence are
    AFFIRMED.
    41