United States v. Bansal

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 06-1370, 06-2535, 06-2536, 06-3043, 07-1525, 07-1526,

07-4618, 09-1827

_____________

UNITED STATES OF AMERICA,

v.

AKHIL BANSAL,

Appellant in Nos. 06-1370,

06-2535, 07-1525,

and

FREDERICK MULLINIX,

Appellant in Nos. 06-2536,

06-3043, 07-1526,

07-4618, 09-1827.

__________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-05-cr-00193-002/011)

District Judge: Hon. Paul S. Diamond

__________

Submitted under Third Circuit LAR 34.1(a)

October 27, 2011

Before: SLOVITER, GREENAWAY, JR. and ALDISERT,

Circuit Judges.

(Filed: December 14, 2011)

Akhil Bansal (pro se)

Schuylkill FCI

P.O. Box 759

Minersville, PA 17954

Appellant

Frederick Mullinix (pro se)

Federal Prison Camp

P.O. Box 3949

Pensacola, FL 32516

Appellant

Raymond S. Sussman (on brief)

Law Office of Raymond S. Sussman

4523 Avenue H, First Floor

Brooklyn, NY 11234-1409

Counsel for Appellant Frederick Mullinix

Zane David Memeger

Robert A. Zauzmer

2

Frank R. Costello

Office of the United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

__________

OPINION OF THE COURT

__________

ALDISERT, Circuit Judge.

Akhil Bansal and Frederick Mullinix appeal from their

jury convictions in the United States District Court for the

Eastern District of Pennsylvania on a 42-count indictment al-

leging crimes arising from their multi-national, internet-

based, controlled-substance-distribution scheme. They have,

in our estimation, challenged every decision of the District

Court, at almost every moment of the litigation before, dur-

ing, and after their convictions. Yet in the more than 1,100

pages of briefing submitted to us by both defendants and the

government, we have identified not a single instance of re-

versible error. That the prior rulings and findings in this case

have emerged from such an onslaught wholly intact

represents no small achievement by the District Court, whose

decisions we will affirm in all respects. 1

1

We note at the outset that Bansal’s and Mullinix’s briefs

raise approximately 75 issues for our consideration. Although

the government responds by calling to our attention no fewer

than 339 cases drawn from the span of more than 120 years

(as well as 49 separate statutes and one book, for good meas-

3

I.

This case is about two defendants’ convictions for il-

legal drug sales via websites purporting to be online pharma-

cies. From 2003 to 2005, Appellants Bansal and Mullinix im-

ported controlled and noncontrolled substances from India,

which they then advertised on the internet and distributed to

customers in the United States via the mail without prescrip-

tions. In 2006 the Appellants were charged under a 42-count

indictment, tried, and convicted by a jury on all counts. This

is their direct appeal.

Bansal, who lived in Philadelphia, supervised the do-

mestic side of the multi-national controlled substance distri-

bution conspiracy at issue in this case. He received bulk

shipments of controlled substances from India, which he then

stored, repackaged, and shipped directly to customers who

ordered and paid for them online. He also oversaw the opera-

tion’s finances and payment system, which he managed by

opening on- and off-shore bank accounts, accepting payments

from and delivering controlled substances to participating

website operators, and transferring money between coconspi-

rators and various banks.

Consumers were invited to purchase controlled sub-

stances through several of Mullinix’s internet websites, the

ure), we reject any implication that we should pick up their

torch and embark upon a similar adventure ourselves. We ad-

dress only those issues we deem worthy of discussion, and

only to the extent we deem necessary to explain our reason-

ing.

4

most important of which was www.mymeds.com. Visitors to

his websites simply chose the type, strength, and quantity of

the drug they desired, paid with a credit card or online service

such as PayPal, and awaited postal delivery to any address

they provided. Between 2003 and 2005, approximately $1.3

million in proceeds from controlled substance sales flowed

between Mullinix and Bansal.

Bansal, Mullinix, and many other coconspirators were

indicted in April of 2005. Both of the Appellants here were

arrested quickly—Mullinix apparently without incident, and

Bansal as he attempted to flee the country the morning after

his bank accounts were frozen. Bansal waived his Miranda

rights, confessed to running an internet drug selling business,

and admitted that he knew the operation was illegal. At ap-

proximately the same time as Bansal’s arrest, federal agents

executed search warrants upon at least two homes and a UPS

store in New York, as well as two internet service providers

in Mountain View, California. These searches produced ap-

proximately 450 gallons of contraband medication, as well as

computer files and other records detailing the inner workings

of the distribution operation.

Both Appellants hired and fired various attorneys

throughout the course of their proceedings in the District

Court. Ultimately, their cases proceeded to a jury trial and

each was convicted on all counts alleged in their joint indict-

ment. The convictions under that indictment, portions of

which charged Bansal but not Mullinix, were:

Count 1: Conspiracy to distribute con-

trolled substances, in violation

of 21 U.S.C. § 846.

5

Count 2: Conspiracy to import con-

trolled substances, in violation

of 21 U.S.C. § 963.

Count 3: Operation of a continuing

criminal enterprise, in viola-

tion of 21 U.S.C. § 848

(Bansal only).

Count 4: Conspiracy to distribute mi-

sbranded substances, in viola-

tion of 21 U.S.C. §§ 331(a)

and 333(a)(2).

Count 5: Conspiracy to distribute con-

trolled substances, in violation

of 18 U.S.C. § 371.

Count 6: International travel and money

transfers in furtherance of un-

lawful activity, in violation of

18 U.S.C. §§ 1952(a)(3) and

1957.

Counts 7-10: Money laundering, in violation

of 18 U.S.C. § 1956(a)(2)(A)

(Bansal only).

Counts 11-13: Monetary transactions in

property derived from criminal

activity, in violation of 18

U.S.C. § 1957.

6

Counts 14-29: Money laundering in

violation of 18 U.S.C.

§ 1956(a)(1)(A)(i).

Counts 30-39: Monetary transactions in

property derived from criminal

activity, in violation of 18

U.S.C. § 1957 (Bansal only).

Counts 40-41: Money laundering in violation

of 18 U.S.C. § 1956

(a)(1)(A)(i) (Bansal only).

Counts 42-44: Monetary transactions in

property derived from criminal

activity, in violation of 18

U.S.C. § 1957 (Bansal only).

Forfeiture: Of all proceeds and property

derived from the conspiracy to

distribute controlled sub-

stances, pursuant to 21 U.S.C.

§§ 853 and 970.

Upon their convictions, both Appellants filed this di-

rect appeal, Mullinix through counsel and Bansal pro se. Af-

ter briefing, Mullinix filed a motion seeking to proceed pro se

as well, which we granted.

II.

7

The District Court had jurisdiction because the defen-

dants were charged with offenses against the United States.

See 18 U.S.C. § 3231. We have jurisdiction over its final

judgments pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a). The relevant standard of review is set forth in each

subsection below.

III.

For simplicity’s sake, we rearrange and analyze Ban-

sal’s and Mullinix’s most complex contentions in the follow-

ing order. First, both Appellants contend that their money

laundering convictions impermissibly merge with their under-

lying predicate felonies under United States v. Santos, 553

U.S. 507 (2008). Second, Bansal raises a host of issues re-

lated to his Continuing Criminal Enterprise (“CCE”) convic-

tion, concerning the indictment, the sufficiency of the evi-

dence, and the jury instructions on that charge. Third, Bansal

challenges the District Court’s decision to suppress evidence

obtained from untimely sealed surveillance records, on the

ground that the government did not provide a satisfactory ex-

planation for its seven- and ten-day delays in sealing the

records. See United States v. Carson, 969 F.2d 1480 (3d Cir.

1992). Fourth, both Appellants allege a violation of Apprendi

v. New Jersey, 530 U.S. 466 (2000), during sentencing. For

the reasons set forth infra Part IV and V, we reject each of

these contentions.

The remaining, more-frivolous contentions fall into

two groups: shared arguments and those made by Bansal

alone. Among the shared arguments, Appellants first chal-

lenge their conspiracy convictions under Counts One and

Two of their indictment on the ground that the underlying

8

conduct the government alleged, distribution of controlled

substances via the internet, was not illegal at the time they

were charged. Next, they challenge their money laundering

convictions on the related ground that they obtained the mon-

ey laundered by lawful means. Third, they contend their con-

victions under Count One were misdemeanors and not felo-

nies. For these reasons set forth infra Part VI, we will affirm

the District Court with respect to each of the above issues.

Finally, Bansal alone raises a number of issues. First,

he makes several contentions pertaining to the sufficiency of

his indictment, the grand jury procedures in his case, and the

voir dire procedures in empanelling his jury. Second, Bansal

challenges the scope and sufficiency of the warrants by which

evidence against him was obtained. Third, he challenges the

sufficiency of the evidence supporting the jury’s verdict of

guilty with respect to his controlled substance distribution and

importation charges. Fourth, he contends various items of

evidence were admitted against him in violation of the Sixth

Amendment’s Confrontation Clause and the Federal Rules of

Evidence. Fifth, he contends that various jury instructions

misstated the law or directed a verdict for the prosecution. Fi-

nally, he alleges that prosecutorial misconduct and Brady vi-

olations mandate a new trial. We conclude, for the reasons

infra Part VII, that all of these contentions are without merit.

We therefore will affirm the District Court.

IV.

We must determine: (1) whether Appellants’ money

laundering convictions violated United States v. Santos, 553

U.S. 507 (2008); (2) with what specificity must the govern-

ment list predicate offenses in an indictment to support a CCE

9

conviction after the Supreme Court’s decision in Richardson

v. United States, 526 U.S. 813 (1999); and (3) whether the

government’s mistake of fact constitutes a “satisfactory ex-

planation” for its delay in sealing intercepted communica-

tions, pursuant to our decision in United States v. Carson, 969

F.2d 1480 (3d Cir. 1992). We ultimately side with the gov-

ernment and the District Court on each of these contentions,

and will affirm the District Court’s judgment.

A.

Bansal and Mullinix challenge their convictions under

various federal money-laundering statutes, all of which pro-

hibit concealing the source of “proceeds” from a criminal ac-

tivity. See, e.g., 18 U.S.C. § 1956(a)(1)(A)(i). Appellants’

specific contention is that their convictions are invalid for the

reasons set forth in the plurality opinion in Santos, 553 U.S.

507. For the following reasons, we are not persuaded.

Whether the elements of a money laundering charge

merge with the elements of the crime that generated the mon-

ey to be laundered, and whether the “proceeds” laundered

must be “profits” or “gross receipts,” ordinarily are questions

of law we review de novo. Cf. United States v. Yusuf, 536

F.3d 178, 185 (3d Cir. 2008). When these issues are not

raised in the District Court, however, we limit our review to

plain error only. See United States v. Albertson, 645 F.3d

191, 196 (3d Cir. 2011).

In Santos, the Supreme Court issued a 4-1-4 decision

that appears to conclude that the word “proceeds,” as used by

18 U.S.C. § 1956, refers to “profits” but not “gross receipts.”

Id. at 513-514. Santos can also be read, however, to support

10

the conclusion that proceeds means both “profits” and “gross

receipts.” Id. at 525 (Stevens, J. concurring). Bansal and Mul-

linix contend, at bottom, that the government failed to dem-

onstrate that the money they were convicted of laundering

was “profit,” rather than “gross receipts,” and that, as a result,

their money laundering crimes merged with the crimes that

produced the money. We disagree and will affirm.

A jury convicted Bansal and Mullinix under § 1956,

which provides that a person is guilty of money laundering if

he or she knowingly uses the proceeds of criminal activity to

conduct a financial transaction designed in whole or part to

conceal the nature, the location, the source, the ownership, or

the control of the funds:

Whoever knowing that the property involved in

a financial transaction represents the proceeds

of some form of unlawful activity, conducts or

attempts to conduct such a financial transaction

which in fact involves the proceeds of specified

unlawful activity—

(A)

(i) with the intent to promote the car-

rying on of specified unlawful

activity; or

(ii) with intent to engage in conduct

constituting a violation of sec-

tion 7201 or 7206 of the Internal

Revenue Code of 1986; or

11

(B) knowing that the transaction is designed

in whole or in part—

(i) to conceal or disguise the nature,

the location, the source, the own-

ership, or the control of the

proceeds of specified unlawful ac-

tivity; or

(ii) to avoid a transaction reporting

requirement under State or Feder-

al law

18 U.S.C. § 1956(a)(1) (emphases added). Although the Dis-

trict Court denied Bansal’s and Mullinix’s general motions

for a new trial, it did not rule on the money laundering claims

because they did not raise them in their motion.

Bansal and Mullinix challenge their money laundering

convictions on two grounds. First, they contend that because

they were unaware that their behavior was criminal in 2006,

they could not have been convicted of “knowing that the

property involved in a financial transaction represent[ed] the

proceeds of some form of unlawful activity.” 18 U.S.C.

§ 1956(a)(1). Second, they cite Santos to challenge both the

jury instructions and the sufficiency of the evidence support-

ing the jury’s finding that the “proceeds” they laundered were

“net profits” and not gross receipts. They contend that much

of the money they were accused of laundering was used to

pay for inventory, shipping costs, and other operating ex-

penses, and that those transactions were part of running a

drug operation in violation of the Controlled Substances Act,

not money laundering.

12

The government responds in two ways. First, it reads

the fractured decision in Santos to permit money laundering

convictions for transactions involving “proceeds” that are

used to pay operating expenses, and not just those proceeds

that are net profit. In Santos, Justice Scalia, writing for four

Justices, invoked the rule of lenity to conclude that

“proceeds,” as used in § 1956(a)(1), always means “profits.”

553 U.S. at 513-514. Justice Alito, writing for a four-Justice

dissent, would have held that “proceeds” means “gross re-

ceipts” and not merely net income or profits. Id. at 546 (Alito,

J., dissenting). Justice Stevens, whose concurring opinion

provided the fifth vote for Justice Scalia’s judgment, con-

cluded that if “proceeds” meant only gross receipts, then the

government could charge money laundering in cases where

the alleged laundering transaction was actually an ordinary

part of the underlying criminal activity. See id. at 526-527

(Stevens, J., concurring). For example, in Santos, the defen-

dant was convicted of illegal gambling and of laundering the

profits by paying his employees and by paying the gambling

winners. Id. at 509. In Justice Stevens’ view, this created a

merger problem because the elements of the laundering of-

fense were also elements of the illegal gambling offense. See

id. at 526-527. Justice Stevens went on to suggest that in cas-

es that presented a “merger issue,” the word “proceeds”

should be construed to mean “profits” and not “gross re-

ceipts,” but left open the question of whether, in other cases, a

defendant could be convicted of laundering gross receipts. Id.

at 525 (“[T]his Court need not pick a single definition of

“proceeds” applicable to every unlawful activity . . . .”).

Here, the government contends that Justice Stevens’

opinion controls because it represents the narrowest ground

13

for the plurality decision. See Marks v. United States, 430

U.S. 188, 193 (1977) (“When a fragmented Court decides a

case and no single rationale explaining the result enjoys the

assent of five Justices, the holding of the Court may be

viewed as that position taken by those Members who con-

curred in the judgments on the narrowest grounds.” (internal

quotation omitted)). Relying upon Justice Stevens’ opinion,

the government urges us to affirm the convictions in this case

because (1) in certain circumstances, “proceeds” may be ille-

gally laundered if they are gross receipts (and not just net

profits), and (2) the Appellants’ case presents such circums-

tances because the “financial transaction” and “intent to con-

ceal” elements do not merge with the elements of drug distri-

bution. The government then cites cases from four other

Courts of Appeals affirming money laundering convictions

based upon financial transactions involving gross receipts of

drug distribution. See Wilson v. Roy, 643 F.3d 433, 435 (5th

Cir. 2011) (addressing the issue in an innocence claim raised

by habeas petition); United States v. Quinones, 635 F.3d 590,

600 (2d Cir. 2011); United States v. Spencer, 592 F.3d 866,

880 (8th Cir. 2010); United States v. Demarest, 570 F.3d

1232, 1242 (11th Cir. 2009). Finally, the government con-

tends that under our plain error standard of review, which we

must apply because the defendants failed to raise this issue in

their motions for a new trial, the unsettled state of the law

precludes us from holding for the Appellants.

We agree with the government for the reasons that fol-

low. As a threshold matter, we agree that, in the very narrow

set of criminal cases arising from prescription-less sales of

controlled substances via the internet, money laundering

charges can apply to “gross receipts” of a criminal enterprise

and not merely its profits. Cf. Quinones, 635 F.3d at 600 (2d

14

Cir. 2011) (“[W]e hold that ‘proceeds’ under 18 U.S.C.

§ 1956 is not limited to ‘profits’ at least where, as here, the

predicate offense involves the sale of contraband.”).

We agree also that our standard of review for this issue

is plain error, but we reject the government’s interpretation of

that standard. The plain error standard of review asks whether

“the District Court plainly erred in such a way as to affect the

appellant’s substantial rights.” See Albertson, 645 F.3d at 196

(citing Rule 52(b), Federal Rules of Criminal Procedure). A

ruling under the plain error standard thus turns upon an as-

sessment of whether “the error . . . [was] prejudicial: It must

have affected the outcome of the district court proceedings.”

United States v. Olano, 507 U.S. 725, 734 (1993). It does not,

as the government implies, turn on the correct answer to a

question of law. Whether the jury’s verdict was plain error

does not depend upon whether the current state of the law sur-

rounding “proceeds” under § 1956 is confused and the Su-

preme Court’s decision in Santos is confusing. Rather, the

question we must ask is whether the evidence in this case

supported the jury’s findings pursuant to the essential ele-

ments of money laundering. For the following reasons, we

conclude that it does.

A person is guilty of money laundering under § 1956 if

he, (1) knowing that the property involved in a financial

transaction represents the proceeds of some form of unlawful

activity, (2) conducts or attempts to conduct such a financial

transaction involving the proceeds of unlawful activity, (3)

with either (a) the intent to promote the carrying on of speci-

fied unlawful activity; or (b) knowing that the transaction is

designed in whole or in part (i) to conceal or disguise the na-

ture, the location, the source, the ownership, or the control of

15

the proceeds of specified unlawful activity; or (ii) to avoid a

transaction reporting requirement under State or Federal law.

See § 1956(a)(1).

Here, the jury could have found evidence for element

(1) in the Appellants’ intentional sale of morphine, ketamine,

and steroids without prescriptions. Bansal and Mullinix con-

tend that they could not have known that the proceeds from

those sales were proceeds of illegal activity because they did

not know that prescription-less internet drug sales were illeg-

al. That contention misses the point. The elements of their

crimes have nothing to do with the internet. They were con-

victed of prescription-less sales to customers within the Unit-

ed States—an activity that was clearly illegal at the time they

were indicted. The jury could have inferred knowledge of that

illegality from its findings that the defendants kept their bank

accounts offshore, and that they conducted their sales only

with the help of the internet and its relative anonymity. The

jury’s finding under element (2) was amply supported by its

findings that the Appellants channeled money from one off-

shore account to another in what were clearly “financial

transactions” within the meaning of § 1956(a)(1). Finally, the

jury’s finding under element (3) above was supported by its

findings that the Appellants used their proceeds to purchase

controlled substances (i.e., “to promote the carrying on of

specified unlawful activity,” § 1956(a)(1)(A)(1)), and possi-

bly, to hide the location or source of the money they received

from customers (i.e., to conceal or disguise the nature, the lo-

cation, the source, the ownership, or the control of the

proceeds,” § 1956(a)(1)(B)(i)). The jury could also have in-

ferred that the reason the Appellants kept their accounts off-

shore was “to avoid a transaction reporting requirement under

State or Federal law,” § 1956(a)(1)(B)(ii). Because there was

16

evidence to support the jury’s findings on the money launder-

ing Counts, we will affirm the Appellants’ convictions.

B.

Bansal next challenges his CCE conviction on two

fronts, contending that (1) his indictment insufficiently stated

the elements of a CCE offense, and (2) his subsequent convic-

tion was flawed due to improper jury instructions and insuffi-

ciency of the evidence. For the reasons that follow, we will

affirm the District Court’s judgment on all issues relating to

Bansal’s CCE charge.

1.

Bansal contends that his conviction under Count Three

for conducting a Continuing Criminal Enterprise, see 21

U.S.C. § 848, should be vacated because the CCE count in his

indictment (Count Four) did not state three separate felony

offenses, and therefore did not properly state a CCE charge.

The pertinent part of Bansal’s indictment provided that he

committed a CCE offense when he:

violated one or more provisions of subchapter I

of Chapter 13 of Title 21, United States Code,

which are felonies, and such violations were

part of a continuing series of violations of sub-

chapter I of Chapter 13 of title 21, United States

Code, including but not limited to, the offenses

contained in Counts One and Two of this in-

dictment, and the Overt Acts listed in this In-

dictment at paragraphs 1 through 42 of Count

One of this indictment . . . .

17

Supp. App. 05011. In Bansal’s view, his indictment should be

dismissed because the language above does not allege three

distinct violations of federal drug laws. We disagree and con-

clude that the CCE count in the indictment was sound.

“The ‘sufficiency of an indictment to charge an of-

fense is a legal question subject to plenary review.’” Yusuf,

536 F.3d at 184 (quoting United States v. Conley, 37 F.3d

970, 975 n.9 (3d Cir. 1994)).

To obtain a CCE conviction, the government must, in

pertinent part, establish that the defendant’s felonious acts are

“part of a continuing series of violations.” United States v.

Grayson, 795 F.2d 278, 283-284 (3d Cir. 1986) (construing

§ 848(a)). The Supreme Court has held that the government

must show that the defendant committed three separate predi-

cate offenses to establish a “continuing series of violations.”

See Richardson, 526 U.S. at 815.

With regard to the sufficiency of a CCE indictment,

we noted in United States v. Echeverri, 854 F.2d 638, 642 n.4

(3d Cir. 1988), that the government need not list in the in-

dictment the three predicate offenses that would ultimately

support a CCE conviction. Instead, we permitted the govern-

ment “to rely upon all [criminal] activity, whether or not re-

ferred to in the indictment.” Id. In Richardson, however, the

Supreme Court impliedly overruled the broadest reading of

Echeverri. The Richardson Court held that a jury must find

with specificity the predicate offenses to a CCE charge, and

assumed without deciding that the necessary number of of-

fenses was three. See 526 U.S. at 818-819. The Court rea-

soned that each predicate act constitutes an element of the of-

fense. It necessarily follows, then, that, as elements of the of-

18

fense, each predicate act must appear in the indictment. Cf.

id. at 826 (Kennedy, J., dissenting) (noting that the majority

opinion means that indictments must specify predicate acts).

Although neither we nor the Supreme Court has eluci-

dated the contours of precisely what must appear in a post-

Richardson indictment, the Court of Appeals for the Second

Circuit has, and we find its reasoning persuasive. In United

States v. Flaharty, 295 F.3d 182 (2d Cir. 2002), the defen-

dants contended that the indictment was deficient because it

failed to specify which felonies within the indictment consti-

tuted the specific three felonies undergirding the CCE charge.

Under the CCE count, the government had instead referred

merely to vague “felony violations” of two criminal statutes,

as well as to Counts One and Two, which charged a conspira-

cy to violate the same statutes. The Flaharty court construed

Richardson to mean that although an indictment must contain

three felonies that could support a CCE conviction, it need

not specify which of those felonies will ultimately be used to

maintain the CCE conviction. Id. at 197. This holding makes

practical sense of Richardson’s dicta, comports with a nar-

rower reading of Echeverri, and maintains the purposes of an

indictment by apprising a defendant “of the nature of the ac-

cusation against him.” Russell v. United States, 369 U.S. 749,

766 (1962) (citation omitted).

Using the Flaharty court’s reasoning to guide our anal-

ysis, we conclude that an indictment must include the facts

and circumstances comprising at least three felonies, but that

the CCE count itself need not identify with exacting specifici-

ty which three will ultimately prove the CCE charge. Incorpo-

ration by reference is sufficient. The indictment here, there-

fore, passes muster under Echeverri and Richardson. The

19

CCE count alleged that Bansal committed “a continuing se-

ries of violations of subchapter I of Chapter 13 of Title 21,

United States Code, including but not limited to, the offenses

contained in Counts One and Two of this indictment, and the

Overt Acts listed in this indictment at paragraphs 1 through

42 of Count One of this indictment.” Supp. App. 05011. The

notion that the three CCE offenses need not be “limited to”

the indictment is incorrect; as discussed above, the offenses

must appear within the indictment. An evaluation of the in-

dictment, however, reveals that the acts comprising the CCE

charge—and, more importantly, the acts undergirding the

jury’s ultimate conviction—did indeed appear within it.

Count One (conspiracy to distribute controlled sub-

stances) and Count Two (conspiracy to import controlled sub-

stances) are inarguably separate felony offenses. See 21

U.S.C. §§ 846, 963. For the third felony, although neither the

indictment nor the jury’s verdict on the CCE count expressly

states which act or acts made up the third CCE offense, the

jury’s unanimous guilty verdicts on Counts One, Two, Three,

Four, and Five removed any doubt that the jury found that

Bansal committed (at least) one additional subchapter-I felo-

ny that appeared in the indictment. Because the overinclusive

language in the indictment did not affect the grand jury’s de-

cision nor the outcome of the trial, any such error was harm-

less. See United States v. Cotton, 535 U.S. 625, 634 (2002)

(holding that defects in an indictment do not deprive a court

or a petit jury of jurisdiction to ratify the indictment); Neder

v. United States, 527 U.S. 1, 9, 15 (1999) (holding that errors

that “do[] not necessarily render a criminal trial fundamental-

ly unfair or an unreliable vehicle for determining guilt or in-

nocence” are subject to harmless error review); Arizona v.

Fulminante, 499 U.S. 279, 306 (1991) (“[M]ost constitutional

20

errors can be harmless.”); United States v. Mechanik, 475

U.S. 66, 70 (1986) (holding that a petit jury’s guilty verdict

made harmless a set of errors made in connection with the in-

dictment); Russell, 369 U.S. at 763 (“Convictions are no

longer reversed because of minor and technical deficiencies

which did not prejudice the accused.” (quotation marks and

citation omitted)).

The overbroad language in the indictment did not af-

fect the outcome because the jury unanimously found Bansal

guilty on Counts Four and Five. Although those Counts were

brought under 18 U.S.C. § 371 (conspiracy to commit any of-

fense against the United States), Bansal’s guilt depended on

the jury finding that he engaged in conspiracies in violation of

subchapter I of Chapter 13 of Title 21. See Supp. App.

05012-05020. To reach its verdict, the jury was required to

conclude that Bansal committed one or more Overt Acts

listed in Count One in furtherance of these conspiracies. 2 See

2

Specifically, the indictment alleged that Bansal conspired to:

(1) “obtain substantial revenues and profits by illegally offer-

ing for sale and selling—without prescriptions—non-

controlled prescription drugs, including [Sildenafil citrate

(Viagra), Tadalafil (Cialis), Vardenafil (Levitra), Venlafaxine

(Effexor XR), Carisoprodol (Soma), Sertraline (Zoloft),

Tramdol (Ultram), Paroxetine (Paxil)], via internet websites

and otherwise, by illegally importing and packaging those

prescription drugs . . . . ,” Supp. App. 05016 (Count Four),

and (2) “obtain substantial revenues and profits by illegally

offering for sale and selling—without prescriptions—

controlled prescription drugs via internet websites and other-

wise, by illegally importing and packaging those prescription

drugs . . . . ,” Supp. App. 05019 (Count Five).

21

Supp. App. 03394. Not only are the conspiracies alleged in

Counts Four and Five themselves qualifying CCE felonies, 3

but any of the many Overt Acts that the jury could have found

to sustain those Counts—Overt Acts 1, 2, 3, 5, 8, 9, 12, 15,

21, 23, 24, 25, 29, 33, 35, 38, 39, 41, and 42—independently

violate Subchapter I. 4 Thus, by finding Bansal guilty of

3

The elements that necessarily underlie these conspiracies

appear in the indictment as Overt Acts. For example, a con-

viction on Count Four required the jury finding that Bansal

committed some combination of Overt Acts 15, 21, 23, 29,

and/or 35.

4

Subchapter I makes felonious a dizzying array of activity,

and each of the Overt Acts involving Bansal implicates some

portion of that subchapter. Notably, 21 U.S.C. § 844 makes it

felonious not only to (a) simply possess a controlled sub-

stance without a prescription, but also to (c) “conspir[e] to

possess, distribute, manufacture, cultivate, sell or transfer any

substance the possession of which is prohibited under this

subchapter.” See Supp. App. 04998-05007 (Overt Acts 1, 2,

3, 5, 8, 9, 21, 23, 24, 25, 41, 42). Section 841(a) similarly

makes it unlawful “for any person knowingly or intentionally

(1) to manufacture, distribute, or dispense, or possess with

intent to manufacture, distribute, or dispense, a controlled

substance.” See Supp. App. 04998-05007 (same). Section

841(c) makes it felonious to intend to evade the reporting re-

quirements for these drugs—implicit in importing drugs with

the intent to defraud the United States, as alleged in Counts

Four and Five. See Supp. App. 05001 (Overt Act 15). Section

841(g)(1)(B) and (2)(A)(ii) makes it unlawful to import and

sell ketamine (a date rape drug), specifically alleged in Count

Five. See Supp. App. 05000, 05003, 05017 (Overt Acts 14,

23). Section 841(h) makes even emailing potentially felo-

22

Counts Four and Five, the jury inexorably found that Bansal

committed a third drug felony under subchapter I that neces-

sarily appeared in the indictment.

In short, Bansal had constitutionally sufficient notice

of the “nature of the accusation[s] against him.” Russell, 369

U.S. at 766. The indictment’s reference to Overt Acts listed

elsewhere within it—and the petit jury’s subsequent convic-

tion based on those Acts—satisfies Richardson and Flaharty’s

requirement that three predicate felonies appear in the indict-

ment. Any erroneous clause pointing beyond the indictment

was, because of the jury’s findings, harmless. See, e.g., Me-

nious, so long as it involves using the internet to aid or abet

the distribution of a controlled substance. Subparts (2)(C)

(“serving as an agent, intermediary, or other entity that causes

the Internet to be used to bring together a buyer and seller to

engage in the dispensing of a controlled substance”) and (E)

are especially apt here. See Supp. App. 04999-5007 (Overt

Acts 8, 12, 15, 21, 23, 24, 25, 29, 33, 35, 38, 39). Section 842

(a)(4) makes it unlawful to alter a label on a prescription

drug. Section 842(a)(5) makes it felonious “to refuse or neg-

ligently fail to make, keep, or furnish any record, report, noti-

fication, declaration, order or order form, statement, invoice,

or information required under this subchapter or subchapter II

of this chapter.” See Supp. App. 05001 (Overt Act 15). Sec-

tion 844(a) makes it “unlawful for any person knowingly or

intentionally . . . (9) to distribute, import, or export a list I

chemical without the registration required by this subchapter

or subchapter II of this chapter.” See Supp. App. 04998-

05007 (Overt Acts 1, 2, 3, 5, 8, 9, 15, 21, 41, 42). Many of the

above, moreover, are necessary prerequisites for a guilty ver-

dict on Counts Four and Five.

23

chanik, 475 U.S. at 70 (“[T]he petit jury’s subsequent guilty

verdict means not only that there was probable cause to be-

lieve that the defendants were guilty as charged, but also that

they are in fact guilty as charged beyond a reasonable

doubt.”); Chapman v. California, 386 U.S. 18, 22 (1967) (not-

ing that the harmless-error doctrine “block[s] setting aside

[the defendant’s conviction] for small errors or defects that

have little, if any, likelihood of having changed the result of

the trial”). Here, the jury’s conclusions make apparent that

neither the grand jury’s charging decision nor the petit jury’s

conclusion would have changed whatsoever had the super-

fluous language in the indictment been omitted. We therefore

will not disturb the District Court’s judgment with regard to

Bansal’s indictment.

2.

Bansal raised a multitude of contentions with regard to

the sufficiency of the evidence in this case, including three

challenges of note relating to his CCE conviction. First, he

contends that the jury did not sufficiently find three predicate

felonies, which are essential to any CCE conviction. Second,

he contends that the government failed to prove he managed

five or more persons, as a CCE charge requires. Third, he

challenges the jury instructions as incorrect. We disagree as

to all three contentions and will affirm the CCE conviction.

To obtain a CCE conviction, the government must es-

tablish five material elements: “(1) a felony violation of the

federal narcotics law, (2) as part of a continuing series of vi-

olations, (3) in concert with five or more persons, (4) for

whom the defendant is an organizer or supervisor, (5) from

which he derives substantial income or resources.”

24

Grayson, 795 F.2d at 283-284 (3d Cir. 1986) (construing

§ 848(a)). As noted, the government must prove that the de-

fendant committed three separate predicate offenses to estab-

lish the second element. See Richardson, 526 U.S. at 818. To

prove the “organizer or supervisor” element, the government

must prove that the defendant supervised or managed five or

more people in furtherance of the CCE. Id. at 815-816 (quot-

ing § 848(a)).

Bansal contends that the government did not produce

evidence sufficient for the jury to find that he committed

three predicate felonies in furtherance of a CCE, which the

charge required. We disagree. As discussed above, Bansal’s

indictment described a laundry list of felonious conduct in-

cluding his participation in organized, serial violations of con-

trolled substances laws. The jury returned a unanimous guilty

verdict supported by the evidence on every allegation in the

indictment, including Counts Four and Five, and found that

Bansal committed felonious Overt Acts listed in the indict-

ment. The jury’s unanimous finding as to these felonies was a

sufficient basis for its conclusion that Bansal committed three

predicate felonies in furtherance of his CCE offense.

Second, Bansal contends that the government failed to

prove that he managed or supervised five or more persons,

which a CCE charge requires. But the jury received testimony

that Bansal: (1) hired coconspirator Richard Danby to be a

“shipper” in furtherance of the CCE, see Supp. App. 00191-

00193, 00411-00414, 00880-00890; (2) hired David and Eliz-

abeth Armstrong to be “shippers” in furtherance of Bansal’s

CCE, see Supp. App. 00193, 00891-00895, 02730, 02500-

02004; (3) directed codefendant Himanshu Kulshretha, who

25

carried out Bansal’s instructions in India, see Supp. App.

00891-00895; and (4) appointed Sanjeev Shrivastav to take

over operations at Bansal’s distribution business while Bansal

traveled to India, see Supp. App. 00893, 00906, 00915-

00920. The testimony about these five individuals—and we

note that the jury heard testimony regarding many more—was

sufficient to support the jury’s finding that Bansal managed or

supervised five or more people.

Third, Bansal challenges the jury instructions in sever-

al discrete ways, none of which persuade us to disturb the

District Court’s judgment. For instance, Bansal contends that

the District Court failed to charge the jury with instructions

that it must be unanimous in its findings on each of the three

predicate felonies supporting Bansal’s CCE charge. But the

District Court did instruct the jury that its finding must be un-

animous. See Supp. App. 03387 (“You must unanimously

agree on which three acts constitute the continuing series of

violations.”). We therefore reject this contention.

Bansal also appears to contend that the District Court

erred by not instructing the jury to unanimously find and spe-

cify which individuals formed the basis of its conclusions on

the CCE Count. We have rejected that argument and will not

reconsider it here. See United States v. Jackson, 879 F.2d 85,

88 (3d Cir. 1989) (stating that unanimous agreement is not

required as to the identity of the five or more persons super-

vised or managed pursuant to a CCE), vacated in part on oth-

er grounds by, 2000 WL 157172 (E.D. Pa. 2000).

Finally, Bansal challenges the District Court’s instruc-

tion to the jury that the third offense may come from acts

within the indictment or “acts not mentioned in the indictment

26

at all.” Supp. App. 03387. Bansal did not object to the jury

instructions at his trial, and consequently, we review his claim

for plain error only. Albertson, 645 F.3d at 196. Although we

now hold that acts not mentioned in the indictment cannot

sustain a CCE conviction, the District Court’s reliance on a

broader reading of Echeverri was hardly plain error. Moreo-

ver, any error was harmless: the jury unanimously convicted

Bansal on the CCE count for acts listed in the indictment. See

Neder, 527 U.S. at 8-15.

We find no basis to reverse Bansal’s CCE conviction

on any grounds, and will therefore affirm the District Court’s

judgment in this respect.

C.

Bansal next contends that various emails intercepted

pursuant to two warrant-authorized wiretaps should have been

suppressed because they were not immediately sealed upon

the warrants’ expiration pursuant to 18 U.S.C. § 2518(8)(a),

which requires that the recordings of “[t]he contents of any

wire, oral, or electronic communication” obtained pursuant to

a search warrant be sealed “[i]mmediately upon the expiration

of the period of the order.” § 2518(8)(a). Violation of this sta-

tute requires suppression if the sealing was not “immediate”

and if the government fails to provide any “satisfactory ex-

planation for the delay.” United States v. Ojeda Rios, 495

U.S. 257, 264-268 (1990). For the reasons that follow, we

hold that the government’s reasonable mistake of fact pro-

vided a satisfactory explanation for its delay, and we will af-

firm the District Court’s decision not to suppress the commu-

nications on that ground.

27

The pertinent facts involve two delays. Bansal’s inter-

cepted emails were downloaded and copied to a laptop com-

puter in Philadelphia. Both involved the Assistant United

States Attorney’s mistake of fact regarding when a CD con-

taining the communications was available for sealing. In the

first instance, this resulted in a seven-day delay before seal-

ing. In the second, the initial delay was compounded by a

great deal of confusion as to whether the computer containing

the emails was functioning, as to who was to submit the CDs

for sealing, and as to where the sealing order should be sub-

mitted (the supervising judge, who was also the emergency

motions judge, was unavailable). This resulted in a ten-day

delay before all copies of the CDs were sealed.

The District Court took testimony and concluded that

the government’s delay was excusable because the Assistant

United States Attorney, who ultimately caused the delays, ful-

ly understood and intended to comply with the § 2518(8)(a)

sealing requirement, and indeed believed that she had done

so. See Supp. App. 04663-04664. It found that the delay was

caused by her “mistaken understanding” and “a reasonable

mistake.” Supp. App. 04664. We review the District Court’s

denial of a motion to suppress for clear error as to the under-

lying factual findings, and we exercise plenary review of its

application of the law to those facts. See United States v. Pe-

rez, 280 F.3d 318, 336 (3d Cir. 2002).

Because the District Court held, and the government

concedes, that the sealing in this case was not immediate, the

only issue before us on appeal is whether the government has

offered a “satisfactory explanation” for its delay. In Carson,

we held that a satisfactory explanation can be based on “ob-

jectively reasonable causes like understandable mistakes of

28

law and interference from unexpected, extrinsic events

beyond the government’s control.” 969 F.2d at 1488. We

went on to hold that the explanation must be the actual reason

for the delay, and must “substantially correspond” to the ex-

planation the government gave at the suppression hearing. Id.

at 1492 (quoting Ojeda Rios, 495 U.S. at 264, 267). We did

not, however, give abundant guidance as to what can consti-

tute a satisfactory explanation. Indeed, although Carson’s

language expressly allows reasonable mistakes of law to pro-

vide a satisfactory explanation for a delay, it did not expressly

state whether a reasonable mistake of fact—like the mistakes

at issue here—can also provide a satisfactory explanation. In-

stead, we left the question open by stating that “satisfactory

explanations for delays in sealing should relate directly to the

practicalities of obtaining a sealing order,” id. at 1498, with-

out defining “practicalities” more specifically than as unfore-

seen emergencies—certainly graver than reasonable mistakes

of fact, see id. We must determine, therefore, whether a rea-

sonable mistake of fact can constitute a satisfactory explana-

tion, and if so, whether the government’s mistakes were rea-

sonable. We answer both queries in the affirmative.

After reading Carson closely, we conclude that a rea-

sonable mistake of fact must necessarily be sufficient to con-

stitute a satisfactory explanation for the purposes of § 2518.

In other arenas of criminal law, constitutional rights, and gov-

ernment conduct, we have long espoused the proposition that

a mistake of fact is less culpable than a mistake of law. When

judging criminal behavior, it is axiomatic that, although “ig-

norance of the law will not excuse,” Shevlin-Carpenter Co. v.

Minnesota, 218 U.S. 57, 68 (1910), a reasonable mistake of

fact is less culpable because of the absence of mens rea. With

regard to government conduct vis-à-vis constitutional rights,

29

we cannot find any support, in any setting, for the proposition

that a government agent’s mistake of law might be excusable

while a mistake of fact would not. For example, in Montanez

v. Thompson, 603 F.3d 243, 250 (3d Cir. 2010), we recently

noted that qualified immunity applies regardless of whether a

government official’s conduct stemmed from a mistake of

law or a mistake of fact. In Curley v. Klem, 499 F.3d 199,

215 (3d Cir. 2007), we held that a police officer’s reasonable

mistake of fact in shooting the wrong person meant that no

constitutional violation had occurred, and thus obviated the

need for the court to continue to the question of whether the

officer had committed a mistake of law for qualified immuni-

ty purposes. In the Fourth Amendment suppression context—

logically analogous to the suppression remedy provided in

§ 2518(8)(a)—we have held that an officer’s “reasonable mis-

take of fact does not violate the Fourth Amendment,” whereas

a mistake of law, even a reasonable one, might. United States

v. Delfin-Colina, 464 F.3d 392, 398 (3d Cir. 2006) (internal

quotation and citation omitted); accord Illinois v. Rodriguez,

497 U.S. 177, 185 (1990) (noting that factual determinations

made by government agents need not “always be correct,” but

they always have to be “reasonable”). Finally, our sister

Courts of Appeals have had little difficulty extending Ojeda

Rios to cover reasonable mistakes of fact. See, e.g., United

States v. Coney, 407 F.3d 871, 875 (7th Cir. 2005) (permit-

ting a misunderstanding between attorneys as to who was

supposed to seal tapes to constitute a satisfactory explanation

for a 10-day delay); see also United States v. Pitera, 5 F.3d

624, 627 (2d Cir. 1993). We therefore find no problem in re-

cognizing that a reasonable mistake of fact can suffice to es-

tablish a satisfactory explanation pursuant to § 2518.

30

Having concluded that a “mistake of fact” exception

exists, we must next determine the contours of this exception

and whether the government’s conduct here fits within it. We

hold that the reasonable mistake of fact analysis should mirror

the reasonable mistake of law inquiry in Carson. See 969 F.2d

at 1494. In Carson, we held that a mistake of law “is objec-

tively reasonable only when the attorney involved acted as a

‘reasonably prudent’ attorney would to investigate the legal

question involved in a reasonably prudent manner.” Id. Thus,

absent any indication of tampering, bad faith, or deliberate

disregard for the requirements of Title III, we hold that an

agent, acting as a reasonably prudent government agent

would have, who has committed a reasonable mistake of fact

may qualify for the “satisfactory explanation” exception.

Applying the rule to the facts here, although the dis-

trict court in Carson made inadequate findings to determine

whether the attorneys in that case had acted reasonably, we

face no such difficulty. The District Court here found that the

attorney here had knowledge of and fully intended to comply

with the sealing requirement, and in fact, believed that she

had done so. See Supp. App. 04663-04664. Indeed, it found

that the delay was caused by a “reasonable mistake made in

good faith” regarding the mechanics of the sealing process.

Supp. App. 04664. The Court also found that none of the data

on the sealed CDs had been altered or corrupted. These find-

ings are not clearly erroneous, and demonstrate that the attor-

ney here acted as a reasonably prudent attorney in her situa-

tion would have.

We therefore hold that the delays here were an excusa-

ble breach of the § 2518(8)(a) sealing requirement and do not

warrant a retrial.

31

V.

We next must determine whether the District Court vi-

olated Apprendi v. New Jersey, 530 U.S. 466 (2000), during

sentencing. We conclude that no violation occurred, and we

will affirm the District Court’s judgment.

Bansal and Mullinix contend that the District Court

committed an Apprendi violation when calculating the sen-

tences for their convictions under Count One. They contend

that the violation occurred when the District Court sentenced

them pursuant to the Guidelines that apply to Schedule IV

controlled substances even though (1) they were charged with

conspiring to distribute Schedule II, III, and IV substances,

and (2) the jury made no finding of fact as to which sub-

stances the two actually conspired to distribute. We will af-

firm their sentences.

Whether the District Court’s sentence in this case con-

travened Apprendi is “a pure question of law over which we

exercise plenary review.” United States v. Barbosa, 271 F.3d

438, 452 (3d Cir. 2001); cf. United States v. Williams, 235

F.3d 858, 861 (3d Cir. 2000).

A federal statute classifies controlled substances ac-

cording to five Schedules: Schedule I describes the most se-

rious substances, and Schedule V describes the least serious.

The sentencing range for distribution of controlled substances

varies depending upon which Schedule describes the sub-

stance in question. In this case, Count One of Bansal and

Mullinix’s indictment alleged that they conspired to distribute

17 controlled substances, all of which fell into Schedule II,

32

III, or IV. At trial, the jury returned a general verdict of guilty

under Count One, but did not identify which of the 17 sub-

stances it concluded were actually involved in the conspiracy.

At sentencing, the District Court calculated Bansal and Mul-

linix’s sentences according to 21 U.S.C. § 841(b)(2), which

applies to Schedule IV controlled substances, the least culpa-

ble of the 17 substances described in Count One. Bansal and

Mullinix objected that the District Court could not have de-

termined that § 841(b)(2) and Schedule IV applied without

making a finding of fact as to what drugs they actually con-

spired to distribute, and they alleged that any such finding vi-

olated their right to a jury trial as set forth in Apprendi. The

District Court overruled the objection, and they appealed.

Bansal and Mullinix’s contention is that because the

jury in this case did not return a verdict specifying what drugs

were involved, there was no way for the District Court to ap-

ply the provisions for Schedule IV drugs without engaging in

fact-finding as to the drug or drugs involved. They contend

that this fact-finding violated their Sixth Amendment right to

a jury trial, because it increased the penalty for their crime

beyond the statutory maximum for Schedule V controlled

substances without a jury finding that Schedule IV controlled

substances were actually involved. See Apprendi, 530 U.S. at

490. They rely primarily upon Barbosa, wherein we held that

a district court violated Apprendi because it sentenced a de-

fendant according to the Guidelines for cocaine trafficking,

even though jury instructions resulted in a finding that the de-

fendant had “trafficked in a controlled substance, without any

finding as to a particular controlled substance or the amount

at issue.” 271 F.3d at 454. The defendant in Barbosa had car-

ried into the country on an international flight what a labora-

tory later proved was cocaine, believing—and maintaining at

33

trial—that it was heroin. Id. at 444, 450. Upon his charge for

trafficking in heroin and cocaine, the jury returned a guilty

verdict that did not specify the drug involved. The district

court sentenced the defendant according to the relatively

harsher provisions for cocaine. See id. at 449. Our Court con-

cluded that the absence of a jury finding as to the drug’s type

made it impossible for the trial judge to determine which Sen-

tencing Guidelines applied to the defendant without fact-

finding. See id. at 456-457, 459. Because the district court

implicitly found a fact that had the effect of increasing the

bottom end of the Barbosa’s statutory range, an Apprendi vi-

olation occurred. Id. at 457. But we then went on to examine

what effect, if any, a jury’s finding would have had upon the

sentence the district court actually imposed and we concluded

that “irrespective of which of the two drugs the jury could

have found, Barbosa’s twenty-year sentence falls [above the

statutory minimum for both drugs and] well below the pre-

scribed statutory maximum of life for either heroin or cocaine

base.” Id. at 460. Because the jury could only have found one

of two drugs—cocaine or heroin—and because the sentence

Barbosa received was appropriate for either drug, we con-

cluded that the Apprendi violation in his case was a harmless

error and affirmed his sentence. Id.

Bansal and Mullinix’s position is that—like in Barbo-

sa—the jury did not specify the drug they were accused of

distributing. They contend that as a result the District Court

could not know which Schedule to apply unless it engaged in

its own fact-finding, thereby committing an Apprendi viola-

tion. They urge us to vacate their sentences and remand for a

new trial on the issue. The government responds that, like

Barbosa, the jury’s choice in this case was limited to a finite

set of controlled substances, any of which would support the

34

Appellants’ sentences. It points out that Count One of the in-

dictment charged the Appellants with conspiring to distribute

Schedule II, III, and IV controlled substances, and went on to

list 17 different substances the defendants had agreed to dis-

tribute. Because the District Court sentenced the Appellants

pursuant to the provisions providing for Schedule IV sub-

stances (which carry the least culpability), the government

contends that even if the jury had identified which of the 17

substances were actually involved, a more lenient provision

of the Sentencing Guidelines still could not have applied. It

therefore urges us to hold that any Apprendi violation in this

case was harmless error.

We agree with the government. An Apprendi violation

occurs if a district court makes a finding of fact that “increas-

es the penalty for a crime beyond the prescribed statutory

maximum.” 530 U.S. at 490. The 17 drugs Bansal and Mulli-

nix were indicted with conspiring to distribute ranged from

Schedule II to Schedule IV substances, but the sentences that

the two received were based only upon the guidelines appli-

cable to Schedule IV substances. The sentences, therefore,

were based upon the lowest conceivable liability under the

indictment. To the degree the District Court found any facts

as to what substances were involved in the conspiracy, the

finding did not increase the penalty for their crimes because it

represented the lowest possible sentencing range compatible

with the jury’s verdict. We therefore hold that any Apprendi

violation was harmless. We will affirm the sentences Bansal

and Mullinix received for their convictions under Count One.

VI.

35

Of the remaining joint contentions, Appellants chal-

lenge their conspiracy convictions under Counts One and

Two of their indictment on the ground that the underlying

conduct the government alleged, distribution of controlled

substances via the internet, was not illegal at the time they

were charged. They then challenge their money laundering

convictions on the related ground that they obtained the mon-

ey laundered by lawful means. Finally, they contend their

convictions under Count One were misdemeanors and not fe-

lonies. We will affirm the District Court’s conclusion in all

respects.

A.

Bansal and Mullinix challenge their convictions for (1)

conspiracy to distribute controlled substances in violation of

21 U.S.C. § 846; (2) conspiracy to import controlled sub-

stances in violation of 21 U.S.C. § 963; and (3) illicit money

transfers and laundering in violation of 18 U.S.C §§ 1956 and

1957, on the ground that their conduct—distributing con-

trolled substances via the internet—was not illegal when they

were indicted. The cornerstone of their position is that con-

trolled substance distribution via the internet could not have

been illegal in 2006 because the relevant statute did not ex-

pressly address the internet until 2008. We disagree.

We exercise plenary review over a challenge to the

sufficiency of an indictment. See United States v. Whited,

311 F.3d 259, 262 (3d Cir. 2002).

The predicate felonies alleged in the conspiracy

charges under Counts One and Two were distribution and im-

portation of controlled substances in violation of § 841(a).

36

These also were the “specified unlawful activit[ies]” that

formed the basis for the money laundering charges under

§ 1956. Section 841(a), which is unchanged since 2006, pro-

vides:

Except as authorized by this subchapter, it shall

be unlawful for any person knowingly or inten-

tionally—

(1) to manufacture, distribute, or dispense,

or possess with intent to manufacture,

distribute, or dispense, a controlled sub-

stance; or

(2) to create, distribute, or dispense, or pos-

sess with intent to distribute or dispense,

a counterfeit substance.

21 U.S.C. § 841(a). An exception to this blanket prohibition

permits physicians or other authorized health professionals to

distribute controlled substances pursuant to a prescription.

See 21 U.S.C. § 829. The Code of Federal Regulations further

provides that every “prescription for a controlled substance

. . . must be issued for a legitimate medical purpose by an in-

dividual practitioner acting in the usual course of his profes-

sional practice.” 21 C.F.R. § 1306.04. Any distribution of a

controlled substance pursuant to a prescription that does not

meet this standard is a criminal violation of § 841.

Bansal and Mullinix contend that their convictions for

conspiracy to distribute controlled substances are invalid be-

cause their conduct did not violate § 841. They rely primarily

upon the Ryan Haight Online Pharmacy Consumer Protection

37

Act (“the Ryan Haight Act”), which in 2008, imposed direct

federal regulation upon online pharmacies. See Pub. L. No.

110-425, 122 Stat. 4820. The Ryan Haight Act sought to ex-

pand the Controlled Substances Act, the statute under which

Bansal and Mullinix were convicted, by expressly regulating

distribution of controlled substances over the internet. It does

so by defining a valid doctor-patient relationship and provid-

ing “statutory clarification” to the law surrounding internet

controlled-substance sales. See App. 59 (Senate Hearing

Transcription). Relying upon statements by various senators

and by then-Attorney General Alberto Gonzales, Bansal and

Mullinix contend that because the word “internet” was not

added to the Controlled Substances Act until 2008, their in-

ternet-based conduct must have been legal when they were

indicted in 2006. They contend that any application to this

case of the Ryan Haight Act’s prohibition of internet drug

sales is therefore ex post facto and unconstitutional. Their

fallback position is that even if the 2006 version of § 841

could be read to apply to online pharmacies, such a reading

would be open to interpretation and debate, thereby rendering

it unconstitutionally vague—at least as applied to pre-2008

online pharmacy operations.

The government responds that § 841 clearly and un-

ambiguously applied to Bansal and Mullinix’s online opera-

tions in 2006. In support of its contention that Bansal and

Mullinix could be prosecuted under the pre-Ryan Haight Act

version of the statute, it cites United States v. Moore, 423

U.S. 122, 124 (1975) (holding that physicians may be prose-

cuted under § 841 if they distribute medication “outside the

usual course of professional practice”), as well as cases from

federal courts across the country holding that § 841 applied to

controlled substance distributions by online pharmacies even

38

before Congress enacted the Ryan Haight Act amendments,

e.g., United States v. Birbragher, 603 F.3d 478, 484-490 (8th

Cir. 2010); United States v. Lovern, 590 F.3d 1095, 1103

(10th Cir. 2009); United States v. Quinones, 536 F. Supp. 2d

267, 268-271 (E.D.N.Y. 2008), aff’d 635 F.3d 590 (2d Cir.

2011). The government’s position is that, because the pre-

Ryan Haight Act version of § 841(a) applied to all distribu-

tions of controlled substances, Bansal’s and Mullinix’s con-

victions were not an ex post facto application of the Ryan

Haight Act.

We agree with the government. Strictly speaking, Ban-

sal and Mullinix were not charged with distributing controlled

substances via the internet; they were charged with distribut-

ing controlled substances, period. Their conduct—

prescription-less sales of controlled substances—fell squarely

within § 841(a)’s blanket statement that “it shall be unlawful

for any person knowingly or intentionally to manufacture,

distribute, or dispense, or possess with intent to manufacture,

distribute, or dispense, a controlled substance,” and does not

qualify for the exception that § 849 affords to sales in the

usual course of medical business pursuant to valid prescrip-

tions. We find this text abundantly clear: it was illegal in

2006 to sell controlled substances without a valid prescrip-

tion. That the Ryan Haight Act later criminalized the precise

machinery by which they effected their illegal transactions

does not alter the basic fact that they were selling controlled

substances without prescriptions. We therefore conclude that

Bansal and Mullinix were properly indicted and convicted

under § 841(a).

B.

39

Bansal and Mullinix contend that their money-

laundering convictions are invalid because they laundered

from lawful sources—i.e., because it was legal in 2006 to sell

controlled substances over the internet without prescriptions.

As explained above, prescription-less sales of controlled sub-

stances were illegal when the Appellants were indicted, re-

gardless whether the sale took place online. Consequently, we

will affirm the District Court.

Whether the money a defendant has laundered

represents the “proceeds” of “specified unlawful activity” un-

der 18 U.S.C. § 1956(c)(7) is a question of law we review de

novo. Cf. United States v. Yusuf, 536 F.3d 178, 185 (3d Cir.

2008).

A person is guilty of money laundering under 18

U.S.C §§ 1956 and 1957 if, with the intent to commit a crime,

he conducts a financial transaction designed in whole or in

part to conceal the source, ownership, or control of “the

proceeds of specified unlawful activity.” The statute then sets

forth a list of “specified unlawful activit[ies].” Id.

§ 1956(c)(7). Importantly, a person commits money launder-

ing only if the laundered money is “proceeds” from at least

one of the criminal activities specified in § 1956(c)(7).

Appellants contend that their money laundering con-

victions are invalid because the government did not prove that

the money involved was proceeds from a “specified unlawful

activity.” They insist that their underlying conduct was the

“sale of pharmacy medication,” which is not listed in

§ 1956(c)(7). The government responds that the “proceeds”

were generated by felonies enumerated in § 1956(c)(7). It

points out that § 1956(c)(7)(A) includes any “offense listed in

40

section 1961(1) of Title 18.” Subsection D of 18 U.S.C.

§ 1961(1) includes “the felonious manufacture, importation,

receiving, concealment, buying, selling, or otherwise dealing

in a controlled substance . . . (as defined in section 102 of the

Controlled Substances Act).” The government contends that

the money laundering in this case involved the proceeds of

Bansal and Mullinix’s distribution of prescription drugs with-

out prescriptions. In the government’s view, the laundered

money was therefore proceeds of felonious activity described

in § 1961(1), which § 1956(c)(7) incorporates in full.

We agree with the government. The evidence at trial

established that Bansal and Mullinix committed felony viola-

tions of the Controlled Substances Act. Their conduct in-

cluded “the distribution of, and conspiracy to distribute, con-

trolled substances,” which—by way of § 1956(c)(7)’s incor-

poration of § 1961(1)—is an “enumerated felony” for the

purposes of money laundering. We therefore will not disturb

the jury’s verdict.

C.

Bansal and Mullinix contend that their convictions un-

der Count One were misdemeanors and not felonies—a con-

clusion that, if correct, might (1) undermine their money

laundering convictions (which require that proceeds be from

specified “felonies”), (2) alter their Sentencing Guideline cal-

culations, or (3) bear upon the mutual understanding of the

defendants and the government in executing their forfeiture

agreement. We need not address these issues in detail, how-

ever, because Bansal and Mullinix are wrong; their convic-

tions under Count One are indeed felonies.

41

Whether a crime is a felony or misdemeanor is a ques-

tion of law we review de novo. Biskupski v. Att’y Gen., 503

F.3d 274, 279 (3d Cir. 2007) (stating that “issues of statutory

construction are questions of law over which we exercise ple-

nary review” while examining the felony and misdemeanor

classifications set forth in 18 U.S.C. § 3559(a)).

The United States Code classifies crimes according to

the maximum possible sentence the crime can receive. It pro-

vides that offenses punishable by more than one year impri-

sonment (or by death) are felonies, and offenses punishable

by no more than one year are either misdemeanors or infrac-

tions. See 18 U.S.C. § 3559(a)(5)-(6), (9). Federal statutes

further provide that the maximum sentence for distribution of

a Schedule IV controlled substance is five years, plus fines.

See 21 U.S.C. § 841(b)(2). Schedule III substances carry a

maximum sentence of 15 years, see § 841(b)(1)(E), and

Schedule II substances carry a maximum sentence of life im-

prisonment, see § 841(b)(1)(C). Because the maximum sen-

tence for each of these crimes is greater than one year, any

distribution of a Schedule II, III, or IV substance is a felony.

Bansal and Mullinix were charged and convicted of

conspiracy to distribute Schedule II, III, and IV controlled

substances, all of which carry maximum sentences greater

than one year of imprisonment. Further, Bansal and Mullinix

actually received sentences greater than one year. Their con-

victions clearly are felonies. We therefore reject all of the

Appellants’ arguments that require us to accept as a premise

that their convictions under Count One were misdemeanors. 5

5

Mullinix relatedly contends that his forfeiture agreement is

invalid because he and the government mutually mistook the

42

VII.

Bansal argues for reversal on several matters that re-

late only to his appeal. Bansal first raises several issues per-

taining to the sufficiency of his indictment, the grand jury

procedures in his case, and the voir dire procedures in empa-

nelling his jury. Second, Bansal challenges the scope and suf-

ficiency of the warrants by which evidence against him was

obtained. Third, he challenges the sufficiency of the evidence

supporting the jury’s verdict of guilty with respect to his con-

trolled substance distribution and importation charges.

Fourth, he contends various items of evidence were admitted

against him in violation of the Sixth Amendment’s Confron-

tation Clause and the Federal Rules of Evidence. Fifth, he

contends that various jury instructions misstated the law or

directed a verdict for the prosecution. Finally, he alleges that

prosecutorial misconduct and Brady violations mandate a new

trial. We conclude, for the reasons that follow, that all of

these contentions are without merit. We therefore will affirm

the District Court.

A.

charges in Count One for felonies when they were misdemea-

nors. The only mistake in this connection is Mullinix’s appar-

ent belief that the charges were misdemeanors. They were

not. See 18 U.S.C. § 3559(a). At any rate, that mistake was

not mutual. The government was well aware—and made ab-

undantly clear to Mullinix—that he faced felony charges un-

der Count One. We will therefore not disturb the forfeiture

agreement.

43

Bansal contends first that his grand jury proceedings

were tainted by the presence of an allegedly improperly ap-

pointed Special Assistant United States Attorney. We reject

that claim because any error he created in the grand jury’s

finding was cured by Bansal’s later conviction on all Counts

by the petit jury. Second, Bansal contends that prosecutors

made material misstatements and elicited false testimony at

his grand jury proceedings. We reject this contention on the

same ground: any alleged misstatements by prosecutors dur-

ing the grand jury proceedings were cured by the petit jury’s

verdict of guilty on all Counts. Third, Bansal contends that

his indictment for engaging in a CCE insufficiently stated the

elements of the offense because the CCE Count did not allege

with particularity three predicate felonies upon which a valid

CCE charge must rely. We reject this contention because

Bansal misunderstands the law: when seeking a CCE convic-

tion, the government must allege at least three predicate felo-

nies, but they need only be alleged within the indictment tak-

en as a whole. Finally, Bansal contends that he is entitled to a

new trial because portions of the District Court’s voir dire

procedures effectively closed his trial to the press and public.

Because we conclude that Bansal waived this objection and

that the District Court did not actually bar access to his voir

dire procedures at any time, we will not order a new trial. We

will affirm the District Court on each of these issues.

1.

Bansal did not challenge in the District Court the grand

jury proceedings in his case. The issue likely is waived in its

entirety. See Rule 12(b)(3), Federal Rules of Criminal Proce-

dure (setting forth objections that “must” be raised prior to

trial). Assuming we reached the question, we would review

44

Bansal’s claim for plain error only, because “a guilty verdict

by a petit jury remedies any possible defects in the grand jury

indictment.” United States v. Eltayib, 88 F.3d 157, 173 (2d

Cir. 1996) (citing United States v. Mechanik, 475 U.S. 66, 70

(1986)).

Bansal contends that the participation of James R. Pav-

lock in the grand jury proceedings warrants the dismissal of

the indictment. United States Attorney Patrick Meehan ap-

pointed Pavlock, pursuant to 28 U.S.C. § 543, to serve as a

Special Assistant United States Attorney in this case. Pavlock

then participated in the grand jury proceedings. Bansal con-

tends that the appointment was invalid because Meehan did

not have statutory authority to make the appointment.

We reject Bansal’s contentions—raised for the first

time on appeal—for three reasons. First, Bansal has waived

his right to challenge the sufficiency of his indictment. Rule

12(b)(3) provides that objections based upon defects in an in-

dictment, other than those attacking jurisdiction or alleging

that the indictment fails to charge an offense, “must be raised

before trial” or are otherwise waived. Bansal’s contention is

therefore untimely. See United States v. Coppola, 526 F.2d

764, 772-773 (10th Cir. 1975) (holding that a defendant’s

failure to object before trial to the presence of a “special at-

torney” before the grand jury was waiver of the issue).

Second, to the degree Pavlock’s presence improperly affected

the grand jury’s conclusions as to probable cause, any error

was cured by the petit jury’s verdict of “guilty” on all counts

charged in the indictment. See Mechanik, 475 U.S. at 70

(“[T]he petit jury’s verdict rendered harmless any conceivable

error in the charging decision” of the grand jury, which may

have been affected by improper persons at the proceeding).

45

For both of these reasons—waiver and cure—we will

not reach the merits of Bansal’s argument as to Pavlock.

2.

Bansal contends that his prosecutors committed mis-

conduct during the grand jury proceedings, either by making

misstatements of fact to the grand jury or by eliciting false

testimony. We disagree.

We exercise plenary review over the District Court’s

legal conclusions. United States v. Nolan-Cooper, 155 F.3d

221, 229 (3d Cir. 1998).

Bansal and the government quibble as to whether the

other side has misrepresented the record of testimony before

the grand jury. We will not enter the fray. Because dismissal

of an indictment is “the most drastic remedy,” United States

v. Morrison, 449 U.S. 361, 365 n.2 (1981), a defendant who

seeks to set aside an indictment must show that misstatements

to a grand jury caused actual prejudice to the defendant, see

Bank of Nova Scotia v. United States, 487 U.S. 250, 256

(1988). We agree with the government that Bansal cannot

make that showing here. In this case, the grand jury found

that there was probable cause to indict him on multiple counts

for multiple crimes. A petit jury later returned a verdict find-

ing beyond a reasonable doubt that he was guilty under all of

those counts. Even if it were true that prosecutors made ma-

terial misstatements to the grand jury, each of the grand jury’s

findings of probable cause was later ratified in full by the pe-

tit jury, thus curing the defects Bansal now alleges. See U-

nited States v. Console, 13 F.3d 641, 672 (3d Cir. 1993)

46

(holding that a petit jury’s guilty verdict renders “any prose-

cutorial misconduct before the indicting grand jury harmless”

as a matter of law). We therefore reject Bansal’s contentions

in this vein.

3.

Bansal requests a new trial on the ground that the Dis-

trict Court improperly limited public and press access to the

pretrial jury selection procedures. We will not order a new

trial because we do not that agree the District Court improper-

ly closed the courtroom.

Because Bansal did not object to the voir dire proce-

dures at his trial, we review his challenges on appeal for plain

error only. United States v. Albertson, 645 F.3d 191, 196 (3d

Cir. 2011).

The District Court conducted voir dire in this case ac-

cording to the following procedures. First, prospective jurors

were screened based upon their responses to general question-

ing in open court. Then, members of the voir dire panel were

individually questioned about more sensitive subjects—in the

presence of the defendants and attorneys for both sides—in a

closed jury room adjacent to the courtroom. Neither party ob-

jected to these procedures at that time.

Bansal contends that the closed-room questioning vi-

olated the Sixth Amendment’s public trial guarantee. We dis-

agree for several reasons. First, this is classic sandbagging of

the trial judge, as Bansal complains for the first time on ap-

peal about a decision by the trial court to which he did not ob-

ject at the time. Second, at no time did anyone—Bansal, the

47

press, or the public—request access to the closed jury-room.

At most, the judge prevented the members of the voir dire

panel from hearing other members’ responses, and we are

aware of no case holding that such procedures offend the

Sixth Amendment. Third, to the extent Bansal complains

about the right of the press to access his entire voir dire pro-

ceedings, Bansal likely lacks standing to challenge the Dis-

trict Court’s action on the media’s behalf. See, e.g.,

Press-Enter. v. Superior Court, 464 U.S. 501, 505-506 (1984)

(noting that the press has a longstanding right to access crim-

inal voir dire proceedings); United States v. Hitt, 473 F.3d

146, 155 (5th Cir. 2006) (holding that a failure to object to

closed-questioning waives any right to a public trial the de-

fendant may have asserted). Finally, the entire jury selection

process was transcribed and recorded; nothing was sealed or

concealed from public view. Given these facts, we will not

order Bansal a new trial on these grounds.

B.

Bansal’s pro se brief alleges nine constitutional defects

surrounding the search warrants and warrant application pro-

cedures in this case. Bansal goes on to assert that the District

Court should have suppressed three categories of evidence:

information obtained from the internet service providers that

managed his email accounts, items obtained during the search

of a garage in New York, and items obtained from his vehicle

pursuant to his arrest. Because we conclude that none of this

evidence was tainted by a constitutional violation, we will af-

firm the District Court’s denial of Bansal’s suppression mo-

tions.

48

We review a district court’s denial of a motion to sup-

press for clear error as to the underlying factual findings, and

we exercise plenary review of its application of the law to

those facts. See United States v. Perez, 280 F.3d 318, 336 (3d

Cir. 2002).

1.

Five Magistrate Judges, sitting for the Eastern District

of Pennsylvania, granted requests by agents of the Drug En-

forcement Administration (“DEA”) for warrants authorizing a

search for, and seizure of, information believed to be con-

tained in Bansal’s Gmail and MSN hotmail email accounts.

The agents obtained the warrants and found what they were

looking for. Bansal moved to suppress the evidence, and the

District Court denied his motion. We will affirm.

First, Bansal contends that the Pennsylvania Magi-

strate Judges who issued the warrants lacked jurisdiction to

do so because the warrants were ultimately executed upon in-

ternet service providers in California. We disagree. The pro-

cedures that federal and state law enforcement officers must

follow when compelling disclosure from network service

providers is set forth at 18 U.S.C. § 2703(a). The version of

the statute in effect when these warrants were issued in 2004

authorized any “court with jurisdiction over the offense under

investigation” to issue a warrant for electronic communica-

tions—even if the warrants were ultimately executed in

another state. See § 2703(a). Bansal contends that Rule 41(b),

which limits a Magistrate Judge’s jurisdiction to the District

in which he or she sits, trumps § 2703(a). We, along with oth-

er courts to consider the question, reject that contention. E.g.,

United States v. Berkos, 543 F.3d 392, 396-398 (7th Cir.

49

2008) (holding that Rule 41(b) “does not apply to

§ 2703(a)”). We therefore conclude that the Pennsylvania

Magistrate Judges had authority to issue the warrants in this

case, even though they were ultimately executed in Califor-

nia.

Second, Bansal contends that the warrants authorizing

searches of his email accounts were unconstitutional general

warrants. We disagree. The United States Constitution re-

quires that warrants “particularly describ[e] the place to be

searched, and the persons or things to be seized.” U.S. Const.

amend. IV. The warrants in this case met that requirement.

They particularly described several categories of records: in-

formation on accounts, billing, payment, and “stored electron-

ic information or files” associated with Bansal’s email ac-

counts. Supp. App. 04847. In short, these were not general

warrants.

Third, Bansal contends that the warrants for the search

of his email accounts were invalid because they lacked prob-

able cause. We disagree. The Constitution provides that “no

Warrants shall issue, but upon probable cause, supported by

Oath or affirmation.” U.S. Const. amend. IV. Such oath or

affirmation is generally provided in the form of a sworn affi-

davit attached to the search warrant application. This was the

procedure used in Bansal’s case. Our review of the warrant

application, see Supp. App. 04849-04857, reveals nine single-

spaced pages of sworn statements from DEA Agent Eric M.

Russ detailing his investigation, surveillance, and monitoring

of Bansal’s controlled substance distribution operation. The

affidavit more than sufficiently establishes probable cause to

believe Bansal’s email accounts contained evidence of his in-

50

ternet-based illegal controlled substance distribution opera-

tion.

Fourth, Bansal contends that evidence obtained from

his email accounts should have been suppressed on ground

that the agents executing the warrants failed to adhere to the

“notice requirements” imposed by Rule 41 because the ex-

ecuting agents did not provide him with a copy of the war-

rants. Rule 41 requires that searching officers put searched

persons on notice of any property seized:

The officer executing the warrant must give a

copy of the warrant and a receipt for the proper-

ty taken to the person from whom, or from

whose premises, the property was taken or leave

a copy of the warrant and receipt at the place

where the officer took the property.

Rule 41(f)(1)(C). The plain text of Rule 41 thus requires no-

tice only “to the person from whom, or from whose premises,

the property was taken.” Id. (emphasis added). Because Ban-

sal does not deny that the warrant was provided to the internet

service providers upon whom the search warrants were ex-

ecuted, we conclude that notice was properly made in this

case. We will therefore affirm the District Court.

2.

Bansal contends that the approximately 450 gallons of

controlled substances found in a garage in Point Lookout,

New York, should not have been admitted at his trial because

they were seized in violation of the Fourth Amendment. We

disagree.

51

In 2005 a federal Magistrate Judge sitting for the East-

ern District of New York approved a search warrant for a

house described as “the premises known and described as 23

Garden City Avenue[,] Point Lookout, New York.” Supp.

App. 04286-04245. When DEA agents executed the warrant,

they discovered—contrary to their expectation—that the ga-

rage was not attached to the house. Wanting to search the ga-

rage, they telephoned the Assistant United States Attorney

assigned to the case, who told the agents that the garage was

within the scope of the warrant. Inside the garage, agents

found and seized ten 45-gallon plastic containers filled with

controlled substances, some of which were packaged for deli-

very to customers. Bansal moved to suppress the evidence on

the grounds that (1) the garage was not part of the “premises”

at 23 Garden City Avenue, and (2) the agents had not acted in

good faith in searching the garage. The District Court con-

cluded as a matter of fact that the garage was part of the curti-

lage of the residence at 23 Garden Avenue and as a matter of

law that the agents acted in good faith.

Bansal reargues on appeal that the garage was not

within the curtilage and that the agents’ reliance upon an in-

terested prosecutor’s telephone advice is not sufficient to es-

tablish a good faith defense. We will not reach the good faith

inquiry because we conclude that the warrant authorized the

search of the garage. First, the warrant was not limited only to

a search of the home at 23 Garden Avenue. It authorized a

search of the entire “premises,” which included the garage.

Second, we are puzzled as to how Bansal’s case is advanced

by his assertion that the garage was outside the curtilage of

the home at 23 Garden Avenue. It is axiomatic that “[a] per-

son’s curtilage is the area immediately adjacent to his home

52

in which he has a legitimate expectation of privacy.” Estate of

Smith v. Marasco, 430 F.3d 140, 156 n.14 (3d Cir. 2005) (cit-

ing United States v. Dunn, 480 U.S. 294, 300 (1987)). We are

puzzled because Bansal’s contention that the garage was out-

side the curtilage actually decreases his legitimate expectation

of privacy in the building, and presumably places it merely on

the “premises” at 23 Garden Avenue, squarely within the

terms of the search warrant. In sum, we conclude that if the

garage was within the curtilage, as the District Court found,

then for Fourth Amendment purposes it was part of the pre-

mises at 23 Garden Avenue (the search of which no party dis-

putes was authorized); if it was instead beyond the curtilage,

Bansal’s expectation of privacy was diminished to the point

that no violation could have occurred.

At bottom, we find the curtilage and good faith conten-

tions ancillary to the validity of the search in this case. We

conclude that the plain text of the warrant authorized the

search of the garage at 23 Garden Avenue, and we will affirm

the District Court’s denial of Bansal’s motion to suppress.

3.

Bansal contends that a laptop computer, compact discs,

and computer thumb drives seized during the search of his car

when he was arrested were obtained in violation of the Fourth

Amendment, and thus should not have been admitted at his

trial. We disagree.

After realizing that DEA agents were about to arrest

him, Bansal attempted to flee the country at 1:30 in the morn-

ing of April 19, 2005. FBI agents were conducting surveil-

lance of his apartment at the time because they planned to ex-

53

ecute a search warrant at 6:00 that morning. Realizing that

Bansal was about to flee, the FBI agents stopped his vehicle

and arrested him. DEA agents then arrived at the scene.

Knowing that Bansal’s vehicle was under a forfeiture order,

and thus subject to impoundment pursuant to Bansal’s already

issued indictment, the DEA agent began an inventory search.

Prosecutors later offered various items the agents had discov-

ered, some of which they found in closed containers, as evi-

dence at Bansal’s trial. Bansal filed a motion to suppress,

which the District Court denied on the ground that the search

was a proper inventory search, a proper search incident to va-

lid arrest, or a proper search pursuant to the automobile ex-

ception.

We agree that the search was a proper inventory search

and do not address the search-incident-to-arrest exception or

the automobile exception. The search was a proper inventory

search because the forfeiture order authorized agents to take

custody of the car. After taking custody of property, officers

may make a warrantless inventory search so long as the

search is conducted pursuant to standardized procedures. See

South Dakota v. Opperman, 428 U.S. 364, 369 (1976). Such a

search may extend to closed containers. See Illinois v. La-

fayette, 462 U.S. 640, 648 (1983).

The District Court took testimony and issued a finding

of fact that the search of Bansal’s car was conducted pursuant

to standardized DEA procedures. Bansal has not adduced any

evidence indicating that the District Court’s factual finding,

which it based upon testimony it deemed credible, was clear

error. Further, even if the search did violate DEA procedures

in some way, any evidence obtained from Bansal’s car at the

scene eventually would have been discovered pursuant to im-

54

poundment under the forfeiture order. This places this case

squarely within the “inevitable discovery rule.” See Nix v.

Williams, 467 U.S. 431, 443-444 (1984). Accordingly, we

hold that evidence obtained from Bansal’s car therefore was

not tainted by an unconstitutional search. We will affirm the

District Court. 6

C.

Bansal was convicted of various conspiracy charges,

set forth in Counts One, Two, Three, Four, and Five of his

indictment. He contends that the government produced insuf-

ficient evidence at trial for a jury to find beyond a reasonable

doubt that he was guilty of each of the crimes. We disagree.

6

Bansal also challenges warrants issued by Eastern District of

Pennsylvania Magistrate Judges authorizing two wiretaps of

his email accounts. These also were executed in California.

He contends first that the Magistrate Judges in this case

lacked jurisdiction to issue warrants outside the Eastern Dis-

trict of Pennsylvania—a contention we have already rejected.

He contends also that the intercepted emails should be sup-

pressed because the warrants were not supported by probable

cause. We disagree. The wiretaps of Bansal’s email accounts

were authorized by two warrants, which are reproduced at

pages 04136-04210 of the Supplemental Appendix. These 74

pages, almost all of which represent the affidavit of probable

cause, spell out in great detail why there was probable cause

to believe that Bansal’s email accounts contained evidence of

illegal controlled substance distribution. We are satisfied,

without restating that record here, that they more than suffi-

ciently established probable cause to support the warrants.

55

We apply a particularly deferential standard of review

when deciding whether a jury verdict rests on sufficient evi-

dence. “It is not for us to weigh the evidence or to determine

the credibility of the witnesses.” United States v. Voigt, 89

F.3d 1050, 1080 (3d Cir. 1996) (citation omitted). We must

view the evidence in the light most favorable to the govern-

ment, see United States v. Thomas, 114 F.3d 403, 405 (3d

Cir. 1997), and we will sustain the verdict if “‘any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” Voigt, 89 F.3d at 1080

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

1.

Bansal contends that his convictions under Counts One

and Two of his indictment, alleging conspiracy to distribute

and conspiracy to import controlled substances in violation of

21 U.S.C. § 846, were not supported by evidence sufficient to

sustain the jury’s verdict. We disagree.

In United States v. Iglesias, 535 F.3d 150, 156 (3d Cir.

2008), we stated that to obtain a conviction under § 846, the

government must establish: (1) a unity of purpose, (2) an in-

tent to achieve a common goal, and (3) an agreement to work

toward the goal.

The government may prove the existence of the above ele-

ments by circumstantial evidence. See United States v. Ap-

plewhaite, 195 F.3d 679, 684 (3d Cir. 1999). Further, in ex-

amining the circumstantial evidence relevant to the above

elements, we “must view the evidence in the light most favor-

able to the government, and will sustain the verdict if any ra-

tional trier of fact could have found the essential elements of

56

a crime beyond a reasonable doubt.” United States v. Dent,

149 F.3d 180, 187 (3d Cir. 1998) (internal quotations and ci-

tations omitted).

Here, we have no difficulty concluding the govern-

ment carried its burden. The jury received evidence that the

defendants knowingly distributed, without prescriptions, con-

trolled substances that were imported from India. See, e.g.,

Supp. App. 00104-00111 (testimony from a DEA agent ex-

plaining how customers purchased controlled substances from

Bansal’s website); id. at 01309-01310 (emails from coconspi-

rator stating “we” ship from India, and process packages in

the United States); id. at 01874-01875 (testimony by cocons-

pirator as to how “we” set up and managed websites). From

this evidence, a rational trier of fact could have found a unity

of purpose, intent to achieve a common goal, and agreement

to work toward that common goal. In short, the evidence rea-

dily supports the jury’s conclusion that the defendants con-

spired to carry out the acts that they did in fact carry out to-

gether. We will not disturb the jury’s verdict. 7

2.

7

Counts Three, Four, and Five of Bansal’s indictment also

represented conspiracy charges. Although Bansal’s brief pur-

ports to challenge the evidentiary sufficiency for “all” of his

conspiracy convictions, his brief addresses only Counts One

and Two. To the extent that his evidentiary challenge to his

convictions under Counts Three, Four, and Five are indeed

before this Court, we conclude that Bansal—having not as-

serted any argument on his behalf—has not carried the “very

heavy burden” of demonstrating insufficient evidence. Dent,

149 F.3d at 187. We will affirm the convictions.

57

Bansal, who under Count Four of his indictment was

convicted of conspiracy to commit felony misbranding of

drugs, contends that the government failed to prove he mi-

sbranded drugs with intent to defraud. If true, the failure

would reduce his crime from a felony to a misdemeanor. We

disagree with Bansal’s contention, however, and will affirm

his felony conviction. Bansal was convicted of conspiring to

distribute misbranded prescription drugs, in violation of 21

U.S.C. § 331(a). This offense is a felony if committed “with

the intent to defraud or mislead.” Id. § 333(a)(2). Bansal con-

tends that the government failed to produce evidence suffi-

cient to support the jury’s finding that he committed the of-

fense with intent to defraud. He is wrong. The jury received

evidence that Bansal was aware that he was distributing mi-

sbranded controlled substances that ordinarily would require a

prescription, see Supp. App. 00197, 00911, 01277-01278, and

that he had commented that his customers’ lack of prescrip-

tions was cause for concern, see Supp. App. 00911. Yet he

continued to represent falsely to customers that either no pre-

scriptions were necessary or that his business would provide

prescriptions, see Supp. App. 01277, and he continued to dis-

tribute controlled substances to customers after making such

assurances, see Supp. App. 01280. From this evidence, the

jury could have concluded that Bansal’s misrepresentations of

customers’ liability evidenced an intent to fraudulently induce

them into making prescription-less purchases. That conclu-

sion, based upon permissible inferences from evidence the

jury received, is sufficient to support its finding that he distri-

buted misbranded medication with intent to defraud.

D.

58

Bansal contends that various items of evidence were

admitted against him in violation of the Sixth Amendment’s

Confrontation Clause or in violation of the Federal Rules of

Evidence. We disagree and will affirm each of the District

Court’s rulings.

“We review the District Court’s decisions as to the

admissibility of evidence for abuse of discretion.” United

States v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000) (cit-

ing United States v. Pelullo, 964 F.2d 193, 199 (3d Cir.

1992)). “To the extent that these rulings were based on an in-

terpretation of the Federal Rules of Evidence, however, our

review is plenary.” Id.

1.

During Bansal’s trial, the District Court permitted

records kept by domestic and foreign businesses to be admit-

ted, subject to authentication by declarations of record custo-

dians pursuant to Rule 803(6) Federal Rule of Evidence and

18 U.S.C. § 3505(a)(1). Bansal claims first that these records

contained testimonial hearsay and their admission violated his

Sixth Amendment right to confrontation; and second, that

various exhibits lacked foundation to qualify as business

records. We disagree on both points.

Rule 803(6) creates a hearsay exception for business

records that: “(1) Were made at or near the time of the event

the record describes; (2) Were made by a person with know-

ledge of the record’s contents; (3) Were kept in the regular

course of business.”

59

Rule 803(6) further provides that the above prerequisites may

be established by the testimony of a record custodian, either

in person or by sworn declaration. Finally, § 3505(a)(1) pro-

vides that “foreign records of regularly conducted activity”

(e.g., records kept by entities overseas) may be admitted ac-

cording to essentially the same criteria.

First, the evidence to which Bansal claims a confronta-

tion right were records from domestic and foreign banks, car

dealerships, and other business entities. All were authenti-

cated by sworn declarations of record custodians. See App.

00255-00384 (custodians’ declarations). His primary conten-

tion is that the records contain testimonial statements, so he

had a right to confront the documents’ authors and custo-

dians. We disagree, first, because the Supreme Court has in-

dicated that business records are almost never “testimonial”

for Confrontation Clauses purposes, see Melendez-Diaz v.

Massachusetts, 129 S. Ct. 2527, 2539-2540 (2009) (“Business

and public records are generally admissible absent confronta-

tion . . . .”), and because the statements in the records here

were made for the purpose of documenting business activity,

like car sales and account balances, and not for providing evi-

dence to law enforcement or a jury.

Next, Bansal claims that certain excel spreadsheets

that were attached to emails to and from his coconspirators

should not have been admitted as business records. Bansal is

correct that these spreadsheets do not qualify as business

records. But they were not admitted as business records; they

were admitted as coconspirator statements in furtherance of

the conspiracy and as admissions of party opponents. See

Supp. App. 00128-00190. Their admission on these grounds

was proper.

60

Bansal claims that all of the government’s bank check

and wire-transfer exhibits were improperly admitted as busi-

ness records, even though the trial court sustained his objec-

tion to their admission. But the objection that the trial judge

sustained was to the admission of one particular record—not

to every bank and wire transfer document. See Supp. App.

00298. The portions of that record to which Bansal objected

were redacted. See Supp. App. 00298-00299. The remaining

bank and wire transfer records to which Bansal now contends

he objected were admissible business records.

Bansal also contends that IRS Special Agent Carp was

incompetent to testify about domestic and international wire

transfers in general. But Special Agent Carp testified about

his personal examination of the bank and wire transfer

records actually introduced at trial; his testimony did not turn

on pontification about wire transfers in general. See Supp.

App. 2793. Although there was some general discussion of

wire transfers, that discussion came after general testimony

about wire transfers from a fraud investigator, who was com-

petent to render it. See Supp. App. 1437-1440. Special Agent

Carp’s testimony was admissible personal knowledge under

Federal Rule of Evidence 602.

2.

The District Court admitted into evidence screenshots

of Bansal’s website, which included information about his

online pharmacy operation. Bansal contends that these

screenshots were not properly authenticated. We disagree.

Rule 901(b)(1) requires that before evidence is admitted, its

proponent must produce evidence “sufficient to support a

61

finding that it is what it purports to be.” Testimony of a wit-

ness with personal knowledge is sufficient. Id. In this case,

the government obtained the screenshot images from a com-

pany called the Internet Archive, which runs a website called

the Wayback Machine. The Wayback Machine seeks to cata-

logue all websites on the internet and currently has a database

spanning more than a decade. To authenticate that the screen-

shot was what it purported to be, the government called a

witness to testify about how the Wayback Machine website

works and how reliable its contents are. The witness also

compared the screenshots with previously authenticated and

admitted images from Bansal’s website and concluded, based

upon her personal knowledge, that the screenshots were au-

thentic. This was evidence “sufficient to support a finding”

that the screenshots were “what they purport[ed] to be,” ren-

dering them admissible under Rule 901(b)(1). Accordingly,

we will affirm the District Court.

3.

Bansal contends that the District Court abused its dis-

cretion in admitting two summary exhibits, each of which

was based upon spreadsheets and invoices that Bansal’s or-

ganization had sent to various website operators. We find no

abuse of discretion. Rule 1006 permits parties to use charts or

other exhibits to summarize voluminous materials if a sum-

mary would be helpful to the jury. Decisions in this connec-

tion are committed to the sound discretion of the trial court,

which in this context is very broad. See Pritchard v. Liggett &

Myers Tobacco Co., 295 F.2d 292, 299 (3d Cir. 1961) (“[T]he

use of a summary is a matter that rests within the sound dis-

cretion of the trial court.”). Bansal objects first to Exhibit 837,

which was a summary of the entire collection of invoices that

62

an analyst for the National Drug Intelligence Center had col-

lected from website operators working with Bansal’s opera-

tion. He also objects to Exhibit 838, which contained the

same information as Exhibit 837 but included a column iden-

tifying what percentage of each website operator’s revenues

represented controlled substance sales. Both Exhibits were

derived entirely from other exhibits that had been authenti-

cated and admitted without objection by Bansal. Given the

volume of documents each Exhibit summarized, we have no

difficulty holding that the trial court was within its discretion

when it concluded that summaries would be helpful to the

jury. We will therefore affirm its decision to admit the Exhi-

bits. 8

E.

Bansal’s appeal raises numerous issues pertaining to

the jury instructions. His various contentions are iterations of

a single theme: that the District Court made statements that

implicitly directed a verdict for the prosecution. This conten-

tion has no merit. We will affirm the District Court on all

points.

8

Bansal also makes a number of other challenges to the Dis-

trict Court’s decisions to admit evidence, including conten-

tions that it should not have admitted evidence of DEA and

FDA guidelines pertaining to online sales of controlled sub-

stances, and that Summary Exhibit 1016—which was admit-

ted under Rule 611(a)—should have been excluded because it

did not qualify for admission under Rule 1006. Simply put,

these contentions are meritless. We are content to affirm the

District Court’s decisions for the reasons it has stated on the

record.

63

Bansal did not object to the jury instructions at his tri-

al—consequently, we review his claim for plain error only.

Albertson, 645 F.3d at 196; cf. Henderson v. Kibbe, 431 U.S.

145, 154 (1977) (“It is the rare case in which an improper in-

struction will justify reversal of a criminal conviction when

no objection has been made in the trial court.”).

Bansal contends, first, that when instructing on Count

One, the District Court erred in stating, “You are instructed as

a matter of law that [each of the drugs listed in the indict-

ment] are controlled substances.” Supp. App. 03377. In Ban-

sal’s view, this statement usurped the jury’s role as fact-finder

because it instructed a finding of fact on a material element of

a crime. Contrary to Bansal’s contention, however, each drug

alleged in the indictment was a controlled substance, as a

matter of law. Each substance is listed in Schedule II, III, or

IV of the Controlled Substances Act, and the indictment de-

fined the substances it listed as “controlled substances” within

the meaning of that Act. There was no plain error.

Bansal also contends that the District Court erroneous-

ly defined “business enterprises involving narcotics” when

charging the jury as to money laundering. The District Court,

which essentially read the elements of the definition from 18

U.S.C. § 1852, committed no plain error.

Bansal contends that the District Court “implicitly in-

structed the defendant’s guilt in several other jury instruc-

tions.” Bansal Br. at 160. In particular, he points to the Dis-

trict Court’s cautionary instruction regarding cooperating

witnesses, see Supp. App. 03368-03369 (“I also caution you

that you have heard testimony from persons having pled

64

guilty to charges arising out of similar facts of the case.”), and

its instruction to consider whether witnesses who have

pleaded guilty have an incentive to lie, see id. We disagree

with Bansal. Neither of these statements “instructs” the jury

to find for the government, and similar statements have been

approved by this Court. See United States v. Universal Re-

hab. Servs. (PA), Inc., 205 F.3d 657, 667 (3d Cir. 2000) (en

banc).

Bansal contends that the District Court lowered the

government’s burden of proof by instructing jurors to “seek

the truth” in Bansal’s case. Bansal ignores, however, the

Court’s voluminous instructions as to what constitutes rea-

sonable doubt, see Supp. App. 00432, the role of the jury in

fact-finding, see id. at 00430, 00445, and which party to a

criminal prosecution carries the burden of proof, see id. at

00430-00431. Given all of these instructions, we have diffi-

culty understanding how the trial judge committed plain error

by also telling jurors to “seek the truth.”

Bansal also contends that the District Court’s “willful

blindness” instruction regarding deliberate indifference lo-

wered the government’s burden of proof. He contends first

that the instruction should not have been given at all because

it was not warranted by the evidence at trial. We disagree.

Bansal’s staunch denial of his knowledge of criminal activity

in the face of overwhelming contrary evidence strongly sug-

gests that he closed his eyes to what would otherwise have

been obvious to him. He next contends that the District Court

failed to identify which facts proved willful blindness. This

contention misses the point because precise identification of

the facts supporting the charge was exactly the decision the

jury was being charged to make. Bansal also contends that the

65

Court failed to emphasize the subjective nature of willful

blindness. Again, we disagree, because although the jury in-

struction did not use the word “subjective,” it focused entirely

upon how to determine a person’s state of mind. See Supp.

App. 03373-03374.

Finally, Bansal contends that the District Court misin-

structed the jury on the elements of conspiracy and on the in-

tent element of felony misbranding. He is wrong. The Dis-

trict Court’s conspiracy instruction, which it set forth in great

detail, see Supp. App. 00449, 00473-00475, and summarized

as “an agreement or a mutual understanding knowingly made

or knowingly entered into by two or more people to commit a

crime by some joint or common plan or course of action,”

Supp. App. 00453, properly set forth the essential elements of

conspiracy, which are: (1) a mutual agreement or understand-

ing, (2) knowingly entered by the defendant, with (3) an in-

tent to jointly commit a crime. See Third Circuit Model Jury

Instruction 6.18.371A. Similarly, the District Court’s instruc-

tion on the intent element of felony misbranding was proper.

It stated that the jury “must also determine whether [Bansal]

acted with intent to defraud and mislead in connection with

the conspiracy to introduce drugs into interstate commerce,”

and then explained what type of evidence the jury could use

to infer intent. Supp. App. 00470-00471. We are satisfied that

these instructions, to which Bansal did not object at trial,

were not plain error.

F.

Bansal’s final category of contentions focuses on al-

leged prosecutorial misconduct and Brady violations, which

66

he contends warrant a new trial. The District Court consi-

dered and rejected these claims. We will affirm.

1.

Ordinarily, we review for abuse of discretion a district

court’s denial of a motion for new trial made on the basis of

newly discovered evidence. See United States v. Pelullo, 14

F.3d 881, 886 (3d Cir. 1994) (citation omitted). A Brady

claim, however, presents questions of law and fact. Accor-

dingly, we conduct a de novo review of the District Court’s

conclusions of law and we review its findings of fact for clear

error. See id.

Bansal contends that the District Court should have

granted his motion for a new trial because prosecutors with-

held exculpatory evidence in violation of Brady v. Maryland,

373 U.S. 83 (1963). We disagree. Under Brady and Federal

Rule of Criminal Procedure 16, the government must disclose

evidence that is (1) material to either guilt or punishment and

(2) favorable to the accused. See United States v. Bagley, 473

U.S. 667, 674 (1985). A Brady violation occurs if the gov-

ernment does not turn over such evidence and its failure to do

so causes prejudice to the defendant. See Strickler v. Greene,

527 U.S. 263, 281-282 (1999). Importantly, our “prejudice”

inquiry turns not on whether the defendant would have re-

ceived a different verdict had the evidence been produced, but

upon “whether in its absence he received a fair trial, unders-

tood as a trial resulting in a verdict worthy of confidence.” Id.

at 289-290.

Bansal calls to our attention several alleged violations

of the Brady rule. He contends that prosecutors should have

67

produced certain intercepted phone calls, emails, an indict-

ment filed against his coconspirators in New York, proffer

statements from one of his coconspirators, and impeachment

evidence against one of his coconspirators. The District Court

held a hearing, after which it determined that all of the above-

described evidence either (1) had been produced, (2) had not

been requested by Bansal even though he was aware of it, (3)

was in Bansal’s (and not the government’s) possession, or (4)

was not in any way favorable to Bansal. These conclusions,

which are findings of fact, support the District Court’s denial

of Bansal’s motion for a new trial. Even if Bansal were cor-

rect and the District Court reached each of these factual find-

ings in error, we remain convinced that Bansal received “a

fair trial, understood as a trial resulting in a verdict worthy of

confidence.” Id. at 289-290. For those reasons, we will affirm

the District Court.

2.

Bansal moved in the District Court for a new trial on

the ground that the government had intruded into the defense

camp by intercepting telephone calls he made while incarce-

rated in a federal detention center. The District Court denied

the motion, and we will affirm.

We review for abuse of discretion a District Court’s

denial of a motion for a new trial. See Hook v. Ernst &

Young, 28 F.3d 366, 370 (3d Cir. 1994).

After Bansal was arrested, the government advised

him that all telephone calls to and from the federal detention

center where he was to be held would be monitored and rec-

orded. And that is exactly what happened. Bansal contends

68

that certain calls between him and his attorney were privi-

leged communications that the government was not entitled to

hear. The District Court conducted a hearing on this issue, at

which a Postal Inspector—who was not involved in the pros-

ecution—testified that he screened all of Bansal’s calls and

personally verified that (1) no privileged communication be-

tween Bansal and his attorney was intercepted, and (2) none

of the taped conversations were ever distributed to the prose-

cutors or agents involved with Bansal’s case. Based on this

evidence, which was uncontroverted, the District Court ruled

that prosecutors did not access any privileged information,

and denied Bansal’s motion for a new trial. Its conclusion will

be affirmed. 9

VIII.

We have considered all of the contentions made by the

parties and we conclude no further discussion is necessary.

We will AFFIRM the orders and decisions of the District

Court in all respects.

9

Bansal also challenges, for the first time, certain allegedly

prejudicial prosecutorial statements made at trial, a claim we

review for plain error because this issue was not raised in the

District Court. See Albertson, 645 F.3d at 196. These conten-

tions are so baseless—several of the allegedly prejudicial

statements actually were recitations of the jury instructions

that Bansal had already approved, see Supp. App. 03592-

03593—that we will not restate them here. The District Court

considered and rejected each of these issues in its denial of

Bansal’s motion for a new trial and we are content that there

was no error, much less plain error, in its conclusions.

69