Petition for Writ of Certiorari — Hassan Abbas, Petitioner v. United States
Supreme Court briefJul 26, 2024
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APPENDIX A
OPINION OF THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT, DATED APRIL 29, 2024
APPENDIX A
Case: 22-1864
Document: 00118138158
Page: 1
Date Filed: 04/29/2024
Entry ID: 6638895
United States Court of Appeals
For the First Circuit
No. 22-1864
UNITED STATES OF AMERICA,
Appellee,
v.
HASSAN ABBAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Kayatta, Lynch, and Gelpí,
Circuit Judges.
James M. Mason, with whom Handelman & Mason LLC was on brief,
for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Joshua S. Levy, Acting United States Attorney, was on brief, for
appellee.
April 29, 2024
Case: 22-1864
Document: 00118138158
GELPÍ,
Circuit
Page: 2
Date Filed: 04/29/2024
Judge.
Hassan
Abbas
Entry ID: 6638895
("Abbas")
was
convicted in the United States District Court for the District of
Massachusetts on several wire-fraud and money-laundering-related
charges.
For six days, a jury heard evidence connecting Abbas to
an email-based fraud scheme that, in part, targeted citizens of
the Commonwealth of Massachusetts.
He launches several challenges
on appeal, including whether Massachusetts was the proper venue.
We
affirm
Abbas's
convictions
for
wire
fraud
under
Counts One and Two and money laundering conspiracy (Count Six (B)),
including rejecting his challenges as to venue, sufficiency of the
evidence, and the admissibility of certain evidence.
money-laundering/unlawful-transactions
Three,
Four,
prejudice.
and
Five,
we
vacate
convictions
those
As to his
in
Counts
convictions,
without
We do so because under the venue provisions of 18
U.S.C. § 1956 (i)(1)(B), the statute as to which the jury was
instructed at the request of the government, venue did not lie in
Massachusetts. We do not reach the government's alternate argument
that venue was proper under 18 U.S.C. § 1956(i)(3), as the jury
was not so instructed.
Accordingly, we vacate and remand for
resentencing and recalculation of the restitution.
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I. Background
"When recounting the evidence relevant to
[Abbas's]
sufficiency-of-the-evidence challenges, we take the facts in the
light most favorable to the verdict.
For the other issues on
appeal, we present the facts in a balanced way, taking an objective
view of the evidence in the record."
United States v. Facteau, 89
F.4th 1, 16 (1st Cir. 2023) (cleaned up) (internal quotations and
citations omitted).
The second superseding indictment was the basis of the
trial and charged Abbas for his role in facilitating two types of
fraudulent schemes: (1) "romance scams" and (2) "Business Email
Compromises".
In romance scams, scammers typically create a fake
online dating profile, use it to woo their victims and earn their
victims' trust, and then convince the victims to wire funds to the
scammer under false pretenses.
Business Email Compromises, on the
other hand, target parties that send wire transfers as part of a
legitimate financial transaction, sending email messages that
appear to come from a participant in that legitimate transaction.
In reality, the request is from a "spoofed" email address -- one
that
looks
like
the
address
of
a
participant
in
the
transaction but has a subtle flaw, such as a missing letter -- with
which the scammer swindles the funds away from the victim.
As FBI
Special Agent Kelly Bell ("Special Agent Bell") testified at trial,
for both types of schemes "the money goes to a network of money
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launderers, instead of where the person who sent the funds expects
them to go."
A. Abbas's Involvement
Abbas is a dual citizen of Belgium and Lebanon, who
resided in the United States at the time of his arrest.
He earned
his law degree in 1991 from DePaul University and practiced from
his law office in Chicago, Illinois.
Abbas formed several legal
entities
(1) Midamines
on
the
following
dates:
Sprl,
Ltd.
("Midamines") on September 26, 2012; (2) Phoenicia Trust, Ltd.
("Phoenicia") on July 7, 2017; (3) Katchi, Inc. ("Katchi") on
November 29,
2017;
(4) Sparta
Gijon,
Inc.,
("Sparta")
on
December 11, 2017; (5) Sarah Eshel, Inc., on January 27, 2018; and
(6) EPMinerals LLC, on January 29, 2018.
Abbas set up bank
accounts respectively for each entity shortly after its creation,
listed himself as the sole corporate official on the relevant
corporate forms, and, aside from Sparta, listed his home or office
address in Chicago as the corporate address.
For example, Abbas opened a PNC Bank account in Illinois1
for Phoenicia on July 10, 2017, just three days after Abbas
incorporated the entity.
in Illinois.
Phoenicia was incorporated and located
And Abbas opened a U.S. Bank account for Sparta on
PNC Bank is located in Cleveland, Ohio, but Abbas accessed
Phoenicia's account from Illinois and testimony at trial
established that the address listed on the account was in Illinois.
1
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January 31, 2018.
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Sparta's account, corporate address, and state
of incorporation were listed in California.
Abbas was the sole
authorized signer for both Phoenicia and Sparta's bank accounts.
The
accounts
associated
with
the
several
corporate
entities, including Sparta and Phoenicia, engaged in transactions
that the government's witnesses described as unusual and not
indicative of regular business activity.
For instance, Katchi's
checking account with First Midwest Bank remained at a negative
balance for months after Abbas withdrew a large sum from the
account and wired most of the money into his personal account.
Abbas likewise opened Sparta's U.S. Bank account with a $225,000
check from Phoenicia; wired the majority of that money to another
company; left the account "stagnant" from February of 2018 until
October of 2018; received over $392,000 on December 11, 2018; and
then moved $389,750 to his personal accounts, accounts that he
controlled, and other accounts overseas.
The entities Abbas
created, including Sparta and Phoenicia, did not file tax returns
for 2017 or 2018 with the IRS, and evidence at trial revealed that
the entities did not issue 1099s or W2s to any individuals.
B. Fraudulent Conduct
i. Business Email Compromises
Maclover
Linhares
("Linhares"),
a
resident
of
Massachusetts, and his wife looked to buy their first house in
Marlborough, Massachusetts, in August of 2017.
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Linhares received
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a spoofed email purporting to be from a lawyer requesting Linhares
to wire funds to close on the Marlborough house.
Linhares wired
$30,427 from his account in Massachusetts on August 22, 2017 to
Phoenicia's PNC account in Illinois.
The next day, Linhares
discovered that he was conned out of that money.
Other homebuyers fell prey to spoofed emails associated
with Abbas's entities.
In June of 2017, Antonio Gatto ("Gatto")
was in the process of buying a house in Washington state.
He
received a spoofed email purporting to be from his real estate
agent on June 7, instructing him to submit $80,000 to Midamines's
JP
Morgan
Chase
bank
account
in
Illinois.
He
did
so,
not
recognizing until the next day that he was a victim of fraud.
Two
other potential homebuyers, Judy Lambert ("Lambert") and Stan
Hockerson ("Hockerson"), also became victims.
They wired around
$131,000 and $71,000 from Florida and New Mexico, respectively, in
August of 2017 to Phoenicia's PNC account in Illinois after spoofed
emails instructed them to do so to close on homes that they wanted
to buy.
Corporations were also not spared from fraud.
Properties,
LLC,
("Conquest")
in
Utah
wired
Conquest
$507,500
to
Midamines's Bank of America account in Illinois after receiving a
spoofed email from a title company that the corporation worked
with.
And Paulson-Cheek Mechanical, Inc. ("Paulson-Cheek") in
Georgia wired $256,837.47 on February 8, 2018, to Katchi's First
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Midwest account in Illinois in response to an email purporting to
be from an air-conditioning equipment supplier that Paulson-Cheek
worked with.
By timely informing their financial institutions and law
enforcement, Conquest and Linhares received the funds they wired
back in full.
And Lambert, Hockerson, and Paulson-Cheek received
back most of what they wired.
But Gatto lost the $80,000 he sent
to Midamines.
ii. Romance scams
Evelyn Fessenden
("Fessenden"), a retiree living in
Marblehead, Massachusetts, joined the dating website Match.com in
November of 2018.
A profile named "James Deere" -- purporting to
be a widower in Massachusetts -- contacted her on Match.com. Deere
communicated with Fessenden romantically via email and telephone
for a few weeks, and then requested money from her that would
purportedly allow him to receive funds from Dubai in relation to
his work as a consultant.
Fessenden, in response, wired $100,000
on December 12, 2018 and $11,000 on December 14, 2018 from her
bank account in Massachusetts to Sparta's U.S. Bank account in
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California.
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But in reality, Deere was Kenneth Chukwuemeka Ikedi
of Nigeria, who used the fake profile for romance scams.2
Fabyan
Pierro
("Pierro"),
a
retiree
in
New
York,
responded to a message on Facebook from someone purporting to be
"Wilson Brown," an Army general.
over the internet.
They developed a relationship
Brown asked Pierro for "emergency" help in
leaving Syria, and another Facebook profile -- purporting to be
"General Zack Philip" -- sent her messages inducing her to deposit
$60,000 on December 4, 2017 into Phoenicia's account with Citibank
in Illinois to assist Brown.
Fessenden and Pierro inevitably discovered that they
were the victims of fraud.
But neither ever retrieved the funds
that they wired to Sparta or Phoenicia.
And neither knew nor ever
had any contact with Abbas.
C. Flow of Funds and Investigation
At trial, Joe Vavruska, an investigator from PNC Bank,
testified
about
Abbas's
maneuvers
upon
Linhares.
Abbas withdrew around $8,000 from Phoenicia via ATMs
the day after Linhares wired the money.
receiving
money
from
He then wired $7,500 from
The government did not introduce direct evidence proving
that Ikedi and Abbas contacted one another. However, construing
the evidence in the light most favorable to the verdict, the jury
could conclude that they coordinated with each other. After all,
Ikedi instructed Fessenden to forward the money to Sparta, and
trial testimony established how participants in these schemes
generally communicate through encrypted messages unavailable to
law enforcement.
2
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Phoenicia's PNC account in Illinois to his personal PNC account in
Illinois on August 25, 2017.
John Harger ("Harger"), a forensic accountant with the
FBI, also testified that on December 13, 2018, the day after
Fessenden wired $100,000 to Sparta, Abbas wired $82,500 from
Sparta's U.S. Bank account in California to an account belonging
to TCL Air Conditioner in China.
Harger also testified how two
transfers of $39,200 each went from Sparta's U.S. Bank account in
California to Abbas's personal bank account at TD Bank in Illinois
on December 14, 2018.
Harger further testified that Abbas sent
more funds from Sparta's U.S. Bank account in California to his
personal account in Illinois and overseas accounts on the same day
that Fessenden wired the $11,000.
The government's witnesses painted Abbas's behavior as
a pattern.
Harger described how Abbas set up the accounts with
small initial deposits often a few days before the victims wired
funds; how he frequently withdrew funds for personal expenses; and
how those funds were spread out and redistributed across other
accounts -- some to accounts in Abbas's name, others for entities
he created, or to entities set up in his daughter's name -- almost
immediately after the victims wired money.
Special Agent Bell
testified that this pattern was common among perpetrators of
romance scams and Business Email Compromises.
She noted that the
money moves quickly because victims often recognize "that their
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money was sent elsewhere," so they notify their banks quickly to
"either
freeze
initiated."
those
funds
or
even
pull
back
a
wire
that's
Generally, fraudsters transfer that money across
multiple accounts to prevent that from happening.
Because most of the victims suspected fraud and informed
law enforcement and their financial institutions, the banks began
investigating further.
To that end, representatives from these
banks contacted Abbas about this activity and placed holds on his
accounts when he attempted to transfer these funds.
For instance, after Abbas wired $7,500 from Phoenicia in
Illinois to his personal account also in Illinois on August 25,
2017, Abbas attempted to wire money from Phoenicia that same day
to a Chinese company.
PNC Bank placed a hold on this transfer,
and one of its investigators contacted Abbas.
Abbas explained
that this transfer was to purchase electronics in China.
PNC
Bank's investigator likewise asked Abbas about the other wires
into
Phoenicia's
account -- including
from
Linhares
and
Lambert -- and Abbas explained that this money was "for selling
bonds."
The
bank
closed
the
account
activity.
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of
suspicious
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D. Procedural History
A federal grand jury indicted Abbas on January 21, 2020.
A second superseding indictment ultimately charged him with six
counts:
•
Count One: Wire Fraud, 18 U.S.C. § 1343, for the $30,427
transfer from Linhares in Massachusetts to Phoenicia in
Illinois on August 22, 2017;
•
Count Two: Wire Fraud, 18 U.S.C. § 1343, for the $100,000
transfer from Fessenden in Massachusetts to Sparta in
California on December 12, 2018;
•
Count Three: Money Laundering, 18 U.S.C. § 1956(a)(1)(B)(i),
related to the $7,500 transfer from the Phoenicia PNC account
in Illinois to Abbas's personal PNC account in Illinois on
August 25, 2017;
•
Count Four: Unlawful Monetary Transactions, 18 U.S.C. § 1957,
related to the $82,500 transfer from Sparta's U.S. Bank
account in California to TCL Air Conditioner in China on
December 13, 2018;
•
Count Five: Unlawful Monetary Transactions, 18 U.S.C. § 1957,
related to one of the $39,200 transfers from Sparta's U.S.
Bank account in California to Abbas's personal TD account in
Illinois on December 14, 2018; and
•
Count Six: Money Laundering Conspiracy, 18 U.S.C. § 1956(h),
related to conspiring to commit (A) concealment money
laundering, as alleged in Count Three, and (B) unlawful
monetary transactions, as charged in Counts Four and Five.
Abbas first challenged venue on Counts Three through
Five at the motion-to-dismiss stage. Abbas argued that Count Three
concerned a transfer of proceeds of wire fraud between two Illinois
bank accounts, while Counts Four and Five were transfers from a
California bank account to China and Illinois, so he contended
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that venue did not lie in Massachusetts. The district court turned
to the relevant venue provision, 18 U.S.C. § 1956(i).
government's
prompting,
the
district
court
With the
focused
on
§ 1956(i)(1)(B), which provides venue in "any district where a
prosecution for the underlying specified unlawful activity could
be brought, if the defendant participated in the transfer of the
proceeds of the specified unlawful activity from that district to
the
district
conducted."
property
where
the
financial
or
monetary
transaction
is
Section 1956(c)(9) further defines "proceeds" as "any
derived
from
or
obtained
or
retained,
directly
or
indirectly, through some form of unlawful activity, including the
gross receipts of such activity."
Abbas argued that the money derived from Linhares and
Fessenden was not "proceeds"
possession and control.
of wire fraud
until within his
The district court denied the motion
because it determined the issue of when the wired funds became
"proceeds"
"raise[d]
a
number
of
resolution"
before
trial.
In
considered
(1) the
principle
that
questions
doing
so,
the
not
capable
district
of
court
concealment-money-laundering
prosecutions not be premised on transactions that create proceeds,
but on the posterior conduct in concealing those proceeds, and
(2) how
§ 1956
defined
"proceeds",
which
the
district
court
reasoned could permit a jury to conclude that "at the moment the
victim initiated the wire transfer in Massachusetts, the victim
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may have transformed the funds into 'property derived from' or
'gross
receipts'
of
the
specified
unlawful
activity,
or
the
defendant may have otherwise 'obtained' the funds at the moment."
During trial, Abbas sought to introduce testimony from
Jon Boudreau ("Boudreau"), an employee of the Federal Reserve Bank
of Boston.
Abbas offered Boudreau to support his theory that the
wire-fraud charges lacked venue in Massachusetts and that the
transfers did not impact interstate commerce.
Boudreau would have
testified that when a transferor initiates a wire transfer, an
instruction is sent from the transferor to a Federal Reserve
processing center.
The processing center, upon receiving the
instruction to transfer funds, then processes the request and
debits and credits funds to the sender and recipient's respective
accounts.
Boudreau would have testified that when Linhares and
Fessenden initiated the wire transfers from Massachusetts, they
really sent instructions from Massachusetts to the Federal Reserve
processing center in Texas.
The Texas center then transferred the
funds to Abbas's account with PNC Bank.
excluded that testimony.
The district court
It reasoned that the testimony "tend[ed]
to show" that a wire originated in Massachusetts, so it was
irrelevant
to
Abbas's
theory
that
venue
did
not
lie
in
Massachusetts for wire fraud.
Abbas submitted proposed jury instructions.
He wanted
the jury to be instructed that it must "determine whether the
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single overall conspiracy charged in the indictment existed, or if
multiple conspiracies existed, or none at all" because this was "a
question of fact for . . . the jury, to determine in accordance
with [the district court's] instructions."
Abbas also requested
that the district court instruct the jury that "[w]ired funds do
not
become
proceeds
until
credited
to
the
account
of
the
beneficiary and under [the] defendant's control."
The district court instructed the jury that it could
find venue under § 1956(i)(1)(B) for Counts Three through Five if
the government proved by a preponderance of the evidence that
"Abbas participated in the transfer of this specified unlawful
activity (here, wire fraud) from Massachusetts to the district
where the financial or monetary transaction is conducted."
The
district court defined "proceeds" as "any profits or gross receipts
that someone acquires or retains as a result of the commission of
the unlawful activity."
Turning to conspiracy, the district court
instructed
that
the
jury
"[w]hether
there
was
a
single
conspiracy, . . . multiple conspiracies or no conspiracy at all is
a question of fact for you, the jury, to determine in accordance
with my instructions to you."
Once
he
heard
the
proposed
instructions,
Abbas
"specifically" objected to the district court's refusal to give
his
"proposed
instruction
regarding
venue,"
his
"instruction
regarding good faith," and his "instruction regarding reliance on
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representations of clients."
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He finally objected to the district
court's refusal to give "his proposed instruction regarding when
funds become proceeds."
The jury convicted Abbas on Counts One through Five and
Six (B).
Abbas renewed his Rule 29 motion, including on venue
grounds, after the verdict.
He again argued that the money sent
from Linhares and Fessenden did not become "proceeds" until in his
possession in Illinois and California. In opposing, the government
noted "that 'proceeds' may be derived from a completed offense or
a completed phase of an ongoing offense," so the jury could
conclude that the wired funds became proceeds once the victims
were successfully induced to part with their money -- even before
the funds arrived in Abbas's accounts by wire.
The government
also pointed to § 1956(i)(3):
For purposes of this section, a transfer of
funds from 1 place to another, by wire or any
other means, shall constitute a single,
continuing transaction.
Any person who
conducts (as that term is defined in
subsection
(c)(2))
any
portion
of
the
transaction may be charged in any district in
which the transaction takes place.
18 U.S.C. § 1956(i)(3).
Section 1956(c)(2) defines "conducts" to
"include[] initiating, concluding, or participating in initiating,
or concluding a transaction."
By the government's reading of
§ 1956(i)(3), Abbas "conducted a portion of a single, continuing
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transaction with [the] proceeds" of wire fraud "by receiving them
into
his
bank
account."
Because
"[t]hat
single,
continuing
transaction originated in Massachusetts," the government argued,
Abbas could be prosecuted there.
The government did not raise § 1956(i)(3) at any point
before its response in opposition to Abbas's renewed Rule 29
motion.
Rather, the government submitted the very instruction on
venue
that
the
district
court
adopted,
which
tracked
§ 1956(i)(1)(B).
The district court agreed with the government's reading
of § 1956(i)(1)(B) and denied Abbas's post-trial Rule 29 motion.
It found that "the jury could have reasonably concluded that the
funds"
sent
in
the
underlying
wire-fraud
charges
from
Massachusetts to Illinois and California "were transformed into
'property derived from' or 'gross receipts' of unlawful activity."
Due to this conclusion, the district court refused to address the
government's alternative theory of venue under § 1956(i)(3).
The
district
court
sentenced
Abbas
to
108
months'
imprisonment,3 followed by three years' supervised release, and
ordered him to pay $2,001,853.68 in restitution.
The district court imposed "108 months on each of the six
counts . . . to be served concurrently with each other."
3
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II. Discussion
Because Abbas conglomerates his sufficiency-of-theevidence and venue challenges, we consider them seriatim as needed.
We discuss the remaining issues afterwards.
Abbas
moved
for
acquittal
at
the
close
of
the
government's case, and he renewed this motion at the appropriate
time.
Thus, our review is de novo.
F.4th 31, 37 (1st Cir. 2023).
See United States v. Buoi, 84
For a sufficiency challenge, "the
relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt."
United States v. Falcón-Nieves, 79 F.4th
116, 123 (1st Cir. 2023) (emphasis deleted) (quoting United States
v. Woodward, 149 F.3d 46, 56 (1st Cir. 1998)); see also United
States v. Ayewoh, 627 F.3d 914, 917 (1st Cir. 2010).
"We may
uphold a conviction against a sufficiency challenge on the basis
of circumstantial evidence, though we may not pursue a divide and
conquer
strategy
in
evidence
[in
record]
the
considering
adds
whether
up"
or
the
"stack
inference in order to uphold the jury's verdict."
circumstantial
inference
upon
United States
v. Ramos-Baez, 86 F.4th 28, 48 (1st Cir. 2023) (alteration in
original) (quoting United States v. Guzman-Ortiz, 975 F.3d 43, 55
(1st Cir. 2020)).
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Abbas
also
Page: 18
preserved
Date Filed: 04/29/2024
his
venue
Entry ID: 6638895
objection.
The
Constitution as well as Federal Rule of Criminal Procedure 18
require the government to try Abbas in the venue "wherein the crime
[was] committed."
U.S. Const. amend. VI; Fed. R. Crim. P. 18.
"If the statute under which the defendant is charged contains a
specific
venue
provision,
(assuming,
of
minima)."
United States v. Salinas, 373 F.3d 161, 164 (1st Cir.
course,
that
that
provision
it
satisfies
must
the
be
honored
constitutional
2004); see United States v. Seward, 967 F.3d 57, 60 (1st Cir.
2020).
"Where a venue determination has been made by a jury, as
happened here, 'we will uphold the verdict if a rational juror
could have found proper venue by a preponderance of the evidence.'"
United States v. Georgiadis, 819 F.3d 4, 11 (1st Cir. 2016)
(cleaned up) (quoting United States v. Joselyn, 99 F.3d 1182, 1190
(1st Cir. 1996)).
We
resolve
all
credibility
issues
and
draw
all
reasonable inferences in the light most favorable to the verdict
for Abbas's venue and sufficiency challenges. See id.; Ramos-Baez,
86 F.4th at 48.
A. Wire Fraud (Counts One and Two)
i. Sufficiency of the Wire Fraud Evidence
For his wire fraud convictions, Abbas contends that
there was insufficient evidence of his involvement in the scheme
or intent to defraud.
As he puts it, the witnesses testified that
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they never communicated with him, did not know him, and did not
know specifically who defrauded them.
He argues that without
evidence to directly tie him to the fraud scheme, the jury could
not
infer
his
intent
or
involvement
in
the
scheme
beyond
a
reasonable doubt.
"Wire fraud has three elements: '1) a scheme to defraud
by means of false pretenses, 2) the defendant's knowing and willful
participation in the scheme with the intent to defraud, and 3) the
use
of
interstate
wire
communications
in
furtherance
of
the
scheme.'" Buoi, 84 F.4th at 38 (quoting United States v. Cassiere,
4
F.3d
1006,
1011
(1st
knowledge is not required.
Cir.
1993)).
"[D]irect
proof of
'The government's proof may [lie]
entirely in circumstantial evidence.'"
United States v. Ford, 821
F.3d 63, 75 (1st Cir. 2016) (cleaned up) (quoting United States v.
Valerio, 48 F.3d 58, 63 (1st Cir. 1995)).
Viewing the evidence in the light most favorable to the
verdict and as a whole, there was abundant evidence from which a
reasonable jury could conclude that Abbas acted with the intent to
defraud.
The government introduced evidence that Abbas set up and
controlled the bank accounts that received the money.
The jury
could reasonably conclude that Abbas gave his coconspirators his
account information and knew he would receive that money.
See,
e.g., United States v. Pena, 910 F.3d 591, 596-97 (1st Cir. 2018)
(affirming wire-fraud conviction where the government introduced
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evidence, in part, proving that the defendant received deposits
from the victims and facilitated the transfer of those funds);
United
States
v.
Appolon,
695
F.3d
44,
59
(1st
Cir.
2012)
(affirming wire-fraud conviction where the defendant was not a
direct participant in the individual fraudulent acts but received
payments because of the fraud and was "tied" to the scheme).
The government also introduced evidence that undermined
Abbas's explanations to fraud investigators.
Although Abbas told
investigators that he received the money from the sale of bonds
and to purchase electronics, the jury heard how Linhares and
Fessenden did not know Abbas; how they wired the money to Abbas's
accounts under the misconception that they were going to purchase
a
house
and
help
"James
Deere,"
respectively;
discovered that the emails were spoofed.
and
how
they
The jury could thus
conclude that his "implausible" excuses betrayed his knowledge of
the fraudulent scheme.
United States v. Gorski, 880 F.3d 27, 33
(1st Cir. 2018) (quoting United States v. Serrano, 870 F.2d 1, 7
(1st Cir. 1989)).
Moreover, the government showed that Abbas's actions
bore the hallmarks of Business Email Compromises and romance scams.
He set up the entities and accounts which received the money,
received that money shortly thereafter from the victims, and
immediately
accounts.
transferred
that
money
to
himself
or
overseas
The timing of these transactions did not do Abbas any
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favors.
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Cf. United States v. Agbi, 84 F.4th 702, 709 (7th Cir.
2023) (crediting the jury's inference that the defendant conspired
to commit mail fraud by romance scam based on his prompt transfer
of fraudulent funds to overseas accounts).
For example, Abbas set
up Phoenicia's PNC account shortly before receiving the wire
transfers from Linhares, Lambert, and Hockerson.
And the jury
heard how Abbas and his entities did not engage in ordinary
business activity, instead keeping the accounts dormant over many
months
until
acting
only
to
receive
Business-Email-Compromise-and-romance-scam
and
transfer
funds.
Thus,
the
a
reasonable jury could conclude that Abbas actively and knowingly
participated in the fraud scheme.
That the victims did not know or communicate with Abbas
does not help him.
"[T]here is no requirement under § 1343 that
a defendant know the actual identities of the victims of the
fraudulent scheme for there to be sufficient evidence that the
defendant knowingly and willfully participated in perpetrating the
scheme."
Pena, 910 F.3d at 598 (citing United States v. Tum, 707
F.3d 68, 75 (1st Cir. 2013)).
And, to the extent that Abbas argues
that this should have led the jury to conclude that he was not an
active participant in the scheme, "the jury was entitled to come
to whatever rational conclusion it saw fit based on the evidence"
before
it.
Buoi,
84
F.4th
at
38
(citing
Soler-Montalvo, 44 F.4th 1, 8 (1st Cir. 2022)).
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States
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He further argues that the government did not present
enough evidence of a causal connection between his actions and the
victims' losses.
In this vein, he downplays his role and claims
that merely setting up the accounts did not prove that he induced
the victims to wire the money or that it was foreseeable that they
would do so.
Abbas
misapprehends
the
level
of
participation
or
foreseeability required to be guilty of wire fraud. The government
need only have proved that the use of a wire "was a reasonably
foreseeable part of the scheme in which [Abbas] participated."
Tum, 707 F.3d at 72 (quoting Woodward, 149 F.3d at 63); see United
States v. Fermín Castillo, 829 F.2d 1194, 1198-99 (1st Cir. 1987).
The jury could infer that the victims sent the money to Abbas
because
he
forwarded
his
account
information
to
his
coconspirators, so it could conclude that Abbas, the account
holder, would foresee wires to his account. It makes no difference
that his co-conspirators "did all the heavy lifting" by sending
the emails.
United States v. DiRosa, 761 F.3d 144, 151 (1st Cir.
2014) (affirming wire-fraud conviction where the defendant did not
personally induce the wire transactions but played a pivotal role
in the scheme).
accounts
that
Abbas facilitated wire fraud by creating the
the
money
was
wired
into,
so
the
jury
could
rationally conclude that he was a knowing participant in the scheme
who could reasonably foresee the victims' wires.
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ii. Wire Fraud Venue
Abbas's venue arguments for Counts One and Two largely
track his sufficiency arguments.
We note from the outset that
Abbas and the government agree that United States v. Pace, 314
F.3d 344 (9th Cir. 2002) offers the proper standard for venue in
wire-fraud prosecutions.
And the district court instructed the
jury with this standard in mind.
applies for this appeal.
We thus assume this standard
See United States v. Capelton, 966 F.3d
1, 6-7 (1st Cir. 2020) (assuming for the purposes of the appeal
that "generic aiding and abetting liability requires a shared
intent with the principal and that knowledge alone is insufficient
to meet the mens rea requirement" because the parties "generally
agree[d]" that this standard applied).
In Pace, the Ninth Circuit
determined that the proper venue for a wire-fraud prosecution is
wherever
"the
wire
transmission
at
issue
originated,
passed
through, or was received, or from which it was orchestrated."
F.3d at 349 (internal quotation marks omitted).
314
That is because
"the essential conduct prohibited by § 1343 [is] the misuse of
[the] wires."
Id.
Abbas lacks a meritorious challenge to venue under this
standard.
The wires here "originated" from Massachusetts because
Linhares and Fessenden sent them from their banks in Massachusetts.
And we have already explained that the jury could piece together
his knowing involvement in the scheme based on his control of the
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accounts, his flimsy justifications for why he received the money,
and
how
this
sequence
fits
Compromises and romance scams.
the
pattern
of
Business
The jury could thus conclude that
Abbas was part of that scheme, that the scheme involved "the misuse
of [the] wires" through fraudulent wire transfers, and that these
wires "originated" in Massachusetts.
Pace, 314 F.3d at 349.
Because this means that Massachusetts had a "direct" connection to
Abbas's misuse of the wires, it was an appropriate venue for his
wire-fraud charges.
Id. at 350.
Accordingly, Abbas's convictions on Counts One and Two
were supported by sufficient evidence and laid in the proper venue.
B. Money Laundering and Unlawful Monetary Transactions (Counts
Three through Five)
i. Money Laundering and Unlawful Monetary Transactions Venue
The parties and district court considered whether Abbas
could be tried for Counts Three through Five in Massachusetts under
§ 1956(i), so we consider whether the evidence was sufficient to
support venue under that section.4
To do so, we look to the
ordinary tools of statutory interpretation to "ascertain[] the
Abbas framed his challenge to venue below on both statutory
and constitutional grounds. Other than noting his constitutional
right to be tried in the proper venue, however, he does not
challenge § 1956(i) as unconstitutional before us on appeal. "[W]e
deem abandoned all arguments that have not been briefed and
developed on appeal." SEC v. Tambone, 597 F.3d 436, 441 (1st Cir.
2010) (citing United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990)).
4
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meaning of" the statute.
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Seward, 967 F.3d at 66; see Salinas, 373
F.3d at 164-65. "We begin, as always, with the text of the statute"
and read it "according to its 'plain meaning at the time of
enactment.'"
United States v. Winczuk, 67 F.4th 11, 16 (1st Cir.
2023) (quoting Tanzin v. Tanvir, 592 U.S. 43, 48 (2020)).
In doing
so, we "must read the words Congress enacted 'in their context and
with a view to their place in the overall statutory scheme.'"
Turkiye Halk Bankasi A.S. v. United States, 598 U.S. 264, 275
(2023) (quoting Davis v. Mich. Dep't of Treasury, 489 U.S. 803,
809 (1989)).
"[O]ur inquiry into the meaning of [a] statute's
text ceases when the statutory language is unambiguous and the
statutory scheme is coherent and consistent."
U.S.
218,
232
(2017)
(internal
quotation
Matal v. Tam, 582
marks
and
citation
omitted).
a. Section 1956(i)
As a reminder, Abbas was convicted of violating 18
U.S.C. §§ 1956(a)(1)(B)(i) and 1957.
Section 1956 (a)(1)(B)(i)
forbade Abbas, "knowing that the property involved in a financial
transaction represents the proceeds of some form of unlawful
activity,"
from
"conduct[ing]"
which . . . involve[d]
the
that
proceeds
"financial
of
transaction
specified
unlawful
activity" knowing that the transaction was "designed in whole or
in part" "to conceal or disguise the nature, the location, the
source, the ownership, or the control of the proceeds" of such
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unlawful activity.
Date Filed: 04/29/2024
Entry ID: 6638895
See United States v. Misla-Aldarondo, 478 F.3d
52, 68 (1st Cir. 2007).
"knowingly
Page: 26
Section 1957(a) prevented him from
engag[ing] . . . in
a
monetary
transaction
in
criminally derived property" exceeding "$10,000 and . . . derived
from specified unlawful activity."
means
"any
property
"Criminally derived property"
constituting,
or
obtained from a criminal offense."
derived
from,
proceeds
18 U.S.C. §§ 1957(f)(2),
(f)(3).
Section
1956(i)(1)(B)
provides
venue
for
both
§§ 1956(a)(1)(B) and 1957 where "the underlying specified unlawful
activity" could be prosecuted, "if [Abbas] participated in the
transfer of the proceeds of the specified unlawful activity from
that district to the district where the financial or monetary
transaction is conducted." It is not disputed that the "underlying
specified unlawful activity" here is wire fraud.
explained
charges
why
in
prosecute
the
government
Massachusetts.
Abbas
for
money
could
So,
prosecute
whether
laundering
in
the
And we have
the
wire-fraud
government
could
Massachusetts
turns
entirely on whether he "participate[d] in the transfer of the
proceeds of [wire fraud] from" Massachusetts to Illinois and
California.
Id. § 1956(i)(1)(B).
There was sufficient evidence that Abbas "participated"
in
the
underlying
scheme.
"In
common
parlance,
the
word
'participation' means 'taking part with others in an activity.'"
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United States v. Patch, 9 F.4th 43, 46 (1st Cir. 2021) (quoting
Participation, Webster's Third New Int'l Dictionary (1981)); see
also Participation, Black's Law Dictionary (11th ed. 2019).
The
jury could reasonably conclude that Abbas took part in the scheme
by
creating
the
accounts
that
the
money
went
into
and
thus
underlying
wire
facilitating wire fraud.
That
Abbas
"participated"
in
the
transfer, however, does not resolve when the funds that Linhares
and Fessenden transferred from Massachusetts became "proceeds" of
wire fraud.
Abbas argues that this money became proceeds under
§ 1956(i)(1)(B) only when the money reached his bank accounts
within Illinois and/or California.
Because he claims that he only
transferred the "proceeds" of wire fraud when he moved these funds
from Illinois and California, then he did not participate in the
transfer of proceeds from Massachusetts.
That is why he contends
that there was not venue in Massachusetts for Counts Three through
Five.
Section 1956(c)(9) defines "proceeds" in the past tense,
as "any property derived
"unlawful activity."
from or obtained or retained"
from
The ordinary meaning of "retained" means to
"keep in possession or use," Retain, Merriam-Webster's Collegiate
Dictionary (11th ed. 2020), while "property" implies ownership and
possession,
Property,
Merriam-Webster's
Collegiate
Dictionary
(11th ed. 2020); see, e.g., United States v. Piervinanzi, 23 F.3d
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670, 677 (2d Cir. 1994) (analyzing the meaning of "criminally
derived property" in § 1957 before Congress amended the statute to
add a specific definition for "proceeds"). "Obtain" likewise means
"to gain or attain," so these terms
possession.5
Obtain,
(11th ed. 2020).
connote acquisition and
Merriam-Webster's
Collegiate
Dictionary
We can infer from the ordinary meaning of these
words that a miscreant must possess or control a victim's property
before that property can be considered "proceeds."
See, e.g., In
re Brown, 953 F.3d 617, 623-24 (9th Cir. 2020) (collecting cases
which hold that "to show that a defendant 'obtained' proceeds,
there must be a demonstration of possession or control").
We have grappled with this question as it relates to the
criminal conduct that may be punished as money laundering under
§ 1956(a)(1).
That is relevant because § 1956(a)(1) punishes a
defendant for engaging in a financial transaction that "involves
the proceeds of specified unlawful activity" (emphasis added).
Cf. United States v. Richard, 234 F.3d 763, 769 (1st Cir. 2000)
(looking to how the money-laundering statutes use "proceeds" to
determine when "proceeds" are generated).
"We presume that the
same term has the same meaning when it occurs here and there in a
See Obtain, Black's Law Dictionary (11th ed. 2019) ("To
bring into one's possession[.]"); Property, Black's Law Dictionary
(11th
ed.
2019)
("[T]he
rights
in
a
valued
resource . . . includ[ing] the right to possess and use[.]");
Retain, Black's Law Dictionary (11th ed. 2019) ("To hold in
possession or under control[.]").
5
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single statute."
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United States v. Cruz-Rivera, 954 F.3d 410, 413
(1st Cir. 2020) (quoting Envtl. Def. v. Duke Energy Corp., 549
U.S. 561, 574 (2007)).
We look then to when "proceeds" are
generated under § 1956(a) to afford "proceeds" under § 1956(i) the
same meaning.
56,
73-75
Cf. Armour Packing Co. v. United States, 209 U.S.
(1908)
(considering
whether
a
venue
provision
authorizing prosecution for the transportation of goods at a rate
below the applicable tariffs in any district "through which the
transportation may have been conducted" applied by first reviewing
how the statute defined the crime to ascertain the extent to which
Congress intended to punish the transportation of those goods);
United States v. Morales, 801 F.3d 1, 5-6 (1st Cir. 2015) (defining
"offense" in a manner that was consistent with how "offense" was
defined in a statute concerning the same subject).
When Congress enacted the Money Laundering Control Act
of 1986, it "intended to criminalize a broad array of transactions
designed to facilitate numerous federal crimes," United States v.
Castellini, 392 F.3d 35, 48 (1st Cir. 2004) (quoting United States
v. LeBlanc, 24 F.3d 340, 346 (1st Cir. 1994)), and thus to cover
any gaps in the law "with respect to the post-crime hiding of
ill-gotten gains,"
LeBlanc, 24 F.3d at 346 (quoting United States
v. Johnson, 971 F.2d 562, 569 (10th Cir. 1992)).
But these
statutes "interdict only the financial transactions" that launder
the funds, "not the anterior criminal conduct that yielded the
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funds allegedly laundered."
Date Filed: 04/29/2024
Entry ID: 6638895
United States v. Cabrales, 524 U.S.
1, 7 (1998); see LeBlanc, 24 F.3d at 346.
In other words, "money
laundering
in
criminalizes
a
transaction
transaction that creates the proceeds."
proceeds,
not
the
Richard, 234 F.3d at 769
(citing Johnson, 971 F.2d at 570); see also United States v. Huff,
641 F.3d 1228, 1233 (10th Cir. 2011).
This
concept
is
not
as
rigid
as
it
might
seem.
"'Proceeds' of an illegal activity may be created before the
completion of an underlying on-going crime."
Castellini, 392 F.3d
at 48 (quoting United States v. Mankarious, 151 F.3d 694, 705 (7th
Cir. 1998)).
And the crime creating proceeds and the crime
transferring proceeds "need not be 'entirely separate in time.'"
Misla-Aldarondo, 478 F.3d at 68 (quoting Castellini, 392 F.3d at
48).
The question is whether "[t]he transaction that created the
proceeds . . . is sufficiently distinct from the side transactions
done to hide the trail . . . even if both crimes were complete
only upon the arrival of the funds in [the defendant's] hands."
Id. (distinguishing between extortion and sending checks to aides
and relatives to hide the proceeds of extortion); see LeBlanc, 24
F.3d at 346-47 (distinguishing between the generation of illegal
gambling money and subsequent laundering of the proceeds of illegal
gambling);
Mankarious,
money-laundering
151
conviction
F.3d
at
705-06
predicated
on
(affirming
fraud
because
although the defendants used the mail illegally only after the
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scheme generated proceeds, the scheme generated proceeds through
acts distinct from the laundering).
We relied on this principle in United States v. Richard,
234 F.3d 763 (1st Cir. 2000) to reject a defendant's argument that
he could not be prosecuted for money laundering because his
bankruptcy fraud was not "complete" and therefore did not yet
generate "proceeds."
Id. at 769-70.
Although "the laundering of
funds cannot occur in the same transaction through which those
funds first became tainted by crime," id. at 769 (quoting United
States v. Butler, 211 F.3d 826, 830 (4th Cir. 2000)), we determined
that the bankruptcy fraud reached a "completed phase" and produced
"proceeds" when the defendant possessed the property at issue, so
the
acts
of
laundering
generated the proceeds.
were
distinct
from
the
offense
that
Id. at 770.
We distinguished that defendant's situation from the one
presented in United States v. Johnson, 971 F.2d 562 (10th Cir.
1992), which Abbas relies upon here.
In Johnson, the government
prosecuted the defendant for money laundering where the predicate
wire
fraud
transfers
were
the
same
involved "proceeds" of wire fraud.
transfers
that
allegedly
Id. at 564-65, 569.
The Tenth
Circuit agreed with the defendant that he could not have engaged
in a criminally-derived-property transaction because he did not
possess these proceeds until after the wire transfer.
569-70.
Id. at
The wire fraud and alleged laundering were one and the
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same, so there was no transfer of "proceeds" because the wirings
of the funds were simply the transactions to obtain those proceeds.
Id.
We noted in Richard that what matters in this context was
"that the predicate offense has produced proceeds in transactions
distinct from those transactions allegedly constituting money
laundering."
Richard, 234 F.3d at 770 (quoting Mankarious, 151
F.3d at 706); see United States v. Morelli, 169 F.3d 798, 807 n.10
(3d Cir. 1999) (determining that the first set of fraudulent wire
transfers in a scheme could not be prosecuted as money laundering
because these transfers did not yet create proceeds of wire fraud).
And wire fraud "usually create[s] proceeds only on execution of
the first scheme," unlike other offenses.
Castellini, 392 F.3d at
48; see Mankarious, 151 F.3d at 705 ("Wire fraud often does not
give rise to proceeds until after a wire transfer."); cf. United
States v. Foley, 783 F.3d 7, 16 (1st Cir. 2015) ("The crime of
wire fraud was complete upon Foley's receipt of the mortgage loan
funds.").
This framework leads us to two conclusions that guide
our reading of § 1956(i)(1)(B) and aid in resolving whether Abbas
participated in the transfer of "proceeds" from Massachusetts.
One, the victims' wire transfers from Massachusetts to
Illinois or California could not be the predicate for venue for
Abbas's money-laundering convictions because "[a] money launderer
must
obtain
proceeds
before
laundering
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Castellini, 392 F.3d at 47 (quoting Mankarious, 151 F.3d at 704).
The evidence in the record shows only that the initial wire
transfers from Linhares and Fessenden were transfers to obtain
proceeds, not transfers of proceeds.
Indeed, the government
charged Abbas for the $7,500, $82,500, and $39,200 wire transfers
that occurred after the money reached Abbas's accounts in Illinois
and California because these were "sufficiently distinct" from the
wires that generated proceeds.
Misla-Aldarondo, 478 F.3d at 68.
Just as the wires from Linhares and Fessenden could not warrant a
money-laundering conviction because they were not transactions in
"proceeds" of wire fraud, we cannot say that they were evidence
that Abbas participated in the transfer of "proceeds" of wire fraud
from Massachusetts.
Cf. Johnson, 971 F.2d at 569-70.
Two, the record does not show that Abbas controlled the
wired funds until after Linhares and Fessenden transferred them
out of Massachusetts.
Section 1956's use of "proceeds" requires
that there be evidence that the funds are in the defendant's
possession or at his disposal.
While this does not require
physical possession, it implies at least some constructive control
over funds before they can be considered "proceeds" of crime.
See
In re Brown, 953 F.3d at 624 (defendant obtained "proceeds" of
bankruptcy fraud where he transferred the money to a close family
member
because
the
funds
were
in
his
constructive
control).
Nothing in the record shows that Abbas could use or exercise
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control over the funds here before Linhares and Fessenden sent
them out of Massachusetts.
To the contrary, Special Agent Bell
testified
that
Compromises
can
victims
of
romance
"even
pull
back
scams
or
wire
that's
a
Business
initiated,"
suggesting that the funds from Linhares and Fessenden were not
within
Abbas's
control
and
transfer was completed.
therefore
not
proceeds
until
the
Cf. Piervinanzi, 23 F.3d at 677 (vacating
money-laundering conviction based on a $24 million wire transfer
even though the funds were transferred because the money "never
came
into
the
possession
or
under
the
control
of
the
conspirators").
Reviewing the record in the light most favorable to the
jury's venue finding, we find that a rational jury, instructed as
this jury was under § 1956(i)(1)(B), could not conclude that venue
was proper in Massachusetts on Counts Three through Five.
evidence
demonstrates
that,
at
the
earliest,
Abbas
The
acquired
"proceeds" of wire fraud when the funds entered his bank accounts
in
Illinois
and
California.
By
that
point,
his
subsequent
transactions to hide those funds -- which took place entirely
outside of Massachusetts -- were sufficiently distinct from the
wire
transfers
that
created
the
funds,
and
Abbas
exercised
sufficient control over the funds as evidenced by his ability to
access and transfer them.
So, that was the earliest point in which
the funds could be deemed "proceeds" under § 1956.
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could not have reasonably concluded that he participated in the
transfer of proceeds from Massachusetts.
Abbas did not "participate in the transfer of proceeds"
of wire fraud when he facilitated the transfers from Massachusetts
because those "were not transactions in proceeds of the wire
fraud -- they were transactions to obtain those proceeds."
641 F.3d at 1232.
Huff,
And although the district court correctly
recognized that a defendant may obtain "proceeds" before a crime
is completed, nothing in the record shows that Abbas controlled
the money until after it passed outside of Massachusetts.
Rather,
the only evidence of his control is his subsequent actions to move
the money from Illinois and California.
The government's arguments otherwise do not persuade us.6
First, the government implies that Abbas does not wrestle with
§ 1956(c)(9)'s
express
definition
of
"proceeds"
and
depicts
Abbas's argument as an attempt to impose the substantive law of
money laundering onto a venue provision.
But the government does
not illustrate why "proceeds" should mean one thing in §§ 1956(a)
and another in (i), even though the usual presumption is that
The government posits that Abbas "failed to address, and
thus waived, any objection to the district court's conclusion that
wires from the Massachusetts victims could be deemed property
derived from some form of unlawful activity" (cleaned up). But
Abbas's proposed instruction would have clarified that the wired
funds could not be "proceeds" until they reached his account and
were under his control. And he objected on this point numerous
times below and does so here, hence he did not waive his argument.
6
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"identical words used in different parts of the same act are
intended to have the same meaning."
Morales, 801 F.3d at 5
(quoting Dep't of Revenue of Or. v. ACF Indus., Inc., 510 U.S.
332, 342 (1994)).
Nor does the government engage with the text of
§ 1956(c)(9) and, specifically, its definition of "proceeds" as
"property derived from or obtained or retained," verbs which seem
to imply a prior act through which the property came to be in the
defendant's
possession
(emphasis added).
or
control.
18
U.S.C.
§ 1956(c)(9)
We, instead, heed § 1956's textual cues as we
have explained above.
Second,
the
government
argues
that
the
jury
could
conclude that the wired funds became "proceeds" while "in transit"
in Massachusetts.
conclusion.
The jury instructions did not permit such a
The jury
was instructed to
determine
whether a
preponderance of the evidence showed that Abbas "participated in
the
transfer
of
the
proceeds
Massachusetts" (emphasis added).
of . . . wire
fraud[]
from
The victims' wire transfers from
bank accounts in Massachusetts to bank accounts in Illinois or
California were not transactions in proceeds under our caselaw.
See Castellini, 392 F.3d at 48-49; Richard, 234 F.3d at 769-70;
see also Johnson, 971 F.2d at 569-70.
Finally, the government urges us to rely on § 1956(i)(3)
to affirm the jury's venue determination on Counts Three through
Five.
As we stated above, the government reasons that Abbas
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conducted part of the underlying wire fraud in Massachusetts, so
he can be prosecuted there.
We reject the government's argument
that a different statutory venue provision on which the jury was
not instructed could provide venue.
Ordinarily,
"[a]n
appellate
court
may
not
lawfully
sustain a conviction on a theory entirely different from the theory
upon which the jury was charged."
United States v. Gomes, 969
F.2d 1290, 1295 (1st Cir. 1992) (first citing Chiarella v. United
States, 445 U.S. 222, 236 (1980); then citing United States v.
Angiulo, 897 F.2d 1169, 1197 (1st Cir. 1990); and then citing
United States v. Hill, 835 F.2d 759, 764 n.7 (10th Cir. 1987)).
Here, the jury was only instructed on § 1956(i)(1)(B).
While the
government had ample opportunities to request that the jury be
also or alternatively instructed under § 1956(i)(3), it chose not
to invoke this provision until after the jury returned its verdict.
Nor was § 1956(i)(3) discussed at any point before the verdict,
including at the hearing on Abbas's motion to dismiss or the final
jury-charging
conference.
Rather,
at
both
hearings,
the
government either argued for venue on § 1956(i)(1)(B) alone or
acquiesced to its being the only part of the statute at issue.
The record thus does not offer a single instance in which the
government attempted to present this theory to the jury.
Under
these unique circumstances, "we will not speculate upon whether"
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venue was appropriate under § 1956(i)(3).
Entry ID: 6638895
Chiarella, 445 U.S. at
236; cf. Percoco v. United States, 598 U.S. 319, 331-33 (2023).
We thus vacate and remand Abbas's convictions on Counts
Three through Five and instruct the district court to dismiss these
Counts without prejudice for lack of venue.
at 170.
See Salinas, 373 F.3d
We note that this does not trigger the Double Jeopardy
Clause, so Abbas may be retried on these Counts in any appropriate
venue.
See Smith v. United States, 599 U.S. 236, 253-54 (2023).
Because we vacate and remand these convictions, we will not opine
on Abbas's remaining challenges relevant thereto, including his
sufficiency challenges for those Counts, and whether the jury was
properly instructed on venue under 18 U.S.C. § 1956(i)(3) and on
the meaning of "proceeds."
Our ruling today is a narrow one.
Venue did not lie in
Massachusetts under § 1956(i)(1)(B) here because the jury could
not conclude from the evidence presented that the wire transfers
from Massachusetts were transactions in "proceeds."
And we may
not consider § 1956(i)(3) because it was not presented to the jury.
Accordingly, Abbas's convictions on Counts Three through Five are
vacated and remanded.
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C. Conspiracy to Commit Money Laundering (Count Six (B))7
i. Sufficiency of the Conspiracy Evidence
Abbas notes that, to prove his intent to conspire, the
government needed to show that he "knew that the property involved"
for the transactions charged in Counts Four and Five "had been
derived from some form of criminal activity."
Carucci, 364 F.3d 339, 343 (1st Cir. 2004).
United States v.
He thus argues that
the government did not prove this knowledge.
However, the jury could infer that Abbas "had general
knowledge" of the money's "criminal nature."
United States v.
Rivera-Izquierdo, 850 F.3d 38, 49 (1st Cir. 2017) (quoting Richard,
234 F.3d at 769).
Consider, for instance, how a bank investigator
informed Abbas about the suspicious nature of the $7,500 wire from
Phoenicia and closed his account because of this.
Abbas heard
this in August of 2017, and yet received fraudulent funds through
Count Six (B) charged Abbas with conspiring to commit Counts
Four and Five. Although we vacate Counts Four and Five for lack
of venue, that does not affect Abbas's conviction under Count
Six (B)
because
that
Count
raises
distinct
venue
and
sufficiency-of-the-evidence questions.
Cf. United States v.
Márquez-Figueroa, 187 F. App'x 18, 21 (1st Cir. 2006) (per curiam)
(citing United States v. Powell, 469 U.S. 57, 66 (1984))
("[A]cquittal on one count does not preclude conviction on another
count based upon the same evidence, as long as that evidence is
legally sufficient to support a finding of guilt on the count of
conviction.").
"Even if we were to view this as an
inconsistency," that does not warrant "overturning a conviction
that is sufficiently supported by the evidence" and laid in the
proper venue. United States v. Angulo-Hernández, 565 F.3d 2, 7
(1st Cir. 2009) (citing United States v. DeCologero, 530 F.3d 36,
69 (1st Cir. 2008)).
7
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identical circumstances from Fessenden on December 12 and 14,
2018, evidence that greatly undermines his claim that he was
unaware that these funds were illegally obtained.
This, along
with the evidence showing that Abbas owned the accounts and engaged
in multiple suspicious transactions, demonstrated his knowledge
that the $82,500 and $39,200 wires included money derived from
fraud.
See Rivera-Izquierdo, 850 F.3d at 49 (finding that the
jury could infer intent to commit unlawful monetary transactions
where "the government presented wide-ranging evidence of [the
defendant's] participation in the fraud scheme").
Abbas also contends that the evidence was insufficient
to establish that the laundered proceeds "were derived from illegal
activity."
To him, these proceeds included money from sources
that did not underlie the counts of conviction, and evidence in
the record suggested that the amount that he allegedly laundered
exceeded the amount that he received from the victims.
But we have remarked that the government need not prove
that
all
the
"constituted
money
the
laundered
proceeds
through
illegal
of . . . fraud."
transactions
United
States
v.
McGauley, 279 F.3d 62, 71 (1st Cir. 2002). That would "eviscerate"
§ 1957, "permitting one to avoid its reach simply by commingling
proceeds of unlawful activity with legitimate funds."
Id.
On
this basis, we upheld a money-laundering conviction where the jury
could
have
found
that
the
laundering
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"included
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proceeds" of fraud.
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Id.; see also United States v. George, 761
F.3d 42, 53-54 (1st Cir. 2014); Rivera-Izquierdo, 850 F.3d at 45
("[T]he
government
needed
money . . . constituted
to
property
prove
only
'derived
from'
that
the
the
fraud's
'proceeds.'").
With that in mind, recall that Fessenden wired $111,000
to Sparta's account on December 12 and 14, 2018.
Abbas then wired
$82,500 and $39,200 from Sparta's U.S. Bank account to TCL Air
Conditioner and Abbas's personal TD bank account, respectively, on
December 13 and 14.
Because of Abbas's rapid transfers and this
suspicious timing, the jury could conclude that these transfers at
least "included" the proceeds of fraud.
McGauley, 279 F.3d at 71;
see Rivera-Izquierdo, 850 F.3d at 45.
ii. Conspiracy Venue
Abbas challenges venue in Massachusetts on the Count
Six (B)
charge
that
he
conspired
to
commit
the
monetary
transactions and laundering offenses charged in Counts Four and
Five.
He contends that the respective transfers of $82,500 and
$39,200 "took place solely where the funds resided at the time of
the unlawful monetary transactions," in Sparta's bank account in
California.
Another portion of § 1956(i), however, insulates Count
Six (B).
Section
1956(i)(2)
provides
for
venue
in
money-laundering-conspiracy prosecutions "in the district where
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venue would lie for the completed offense . . . or in any other
district where an act in furtherance of the attempt or conspiracy
took place."
See Georgiadis, 819 F.3d at 10-11.
Venue is thus
proper where "an overt act in furtherance of the conspiracy was
committed, even where an overt act is not a required element of
the conspiracy offense."
209, 218 (2005).
Whitfield v. United States, 543 U.S.
The district court instructed the jury to decide
whether a preponderance of evidence showed "that at least part of
the conspiracy . . . took place in Massachusetts," reflecting this
standard.
We affirm the jury's reasonable conclusion under this
standard based on the evidence presented. The government presented
significant evidence that
Abbas's unknown coconspirators
sent
emails into Massachusetts to induce Fessenden to wire $111,000 on
December 12 and 14, 2018.
These emails were overt acts that
furthered the conspiracy because the steps a conspirator takes to
produce
the
proceeds
subsequently
money-laundering conspiracy.
laundered
furthers
a
See United States v. Day, 700 F.3d
713, 727 (4th Cir. 2012) (venue was proper under § 1956(i)(2) in
the district into which the defendant's coconspirators sent emails
to the victimized agency's personnel); United States v. Green, 599
F.3d
360,
372,
374
(4th
Cir.
2010)
(venue
was
proper
under
§ 1956(i)(2) in the district where "acts aimed at obtaining the
proceeds
from
trafficking
in
illegal
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took
place,
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including where the drugs were sold); United States v. Myers, 854
F.3d 341, 354 (6th Cir. 2017) (venue was proper under § 1956(i)(2)
in the district where the defendant stole motor homes, the sales
of
which
generated
districts).
And
proceeds
Fessenden
that
were
responded
Massachusetts, where she lived.
laundered
to
these
in
other
emails
in
See, e.g., United States v.
Iossifov, 45 F.4th 899, 911 (6th Cir. 2022) (considering, in part,
that "various victims were located" within the venue district
before
affirming
§ 1956(i)(2)).
the
jury's
venue
determination
under
Because this at least amounted to a preponderance
of the evidence that "act[s] in furtherance of" the conspiracy to
launder money took place in Massachusetts, the jury could have
reasonably found that venue was proper for Count Six (B).
18
U.S.C. § 1956(i)(2).
D. Evidentiary Challenges
Abbas raises two preserved evidentiary challenges.
"We
review preserved objections to evidentiary rulings for abuse of
discretion, reversing only if any abused discretion caused more
than harmless error."
United States v. Galíndez, 999 F.3d 60, 64
(1st Cir. 2021) (citing United States v. Taylor, 848 F.3d 476, 484
(1st Cir. 2017)).
The government bears the burden to show that an
error was harmless, meaning "that it is highly probable that the
error did not contribute to the verdict."
848 F.3d at 484).
Id. (quoting Taylor,
For errors "of constitutional dimension," the
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government
must
"prove
Page: 44
beyond
a
Date Filed: 04/29/2024
reasonable
doubt"
Entry ID: 6638895
that
allegedly harmless error "did not influence the verdict."
the
United
States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012) (first citing
Chapman v. California, 386 U.S. 18, 23-24 (1967); and then citing
United States v. Argentine, 814 F.2d 783, 789 (1st Cir. 1987)).
i. Rule 404(b) Challenge as to Wire-Fraud Counts
Abbas moved to exclude, under Federal Rules of Evidence
403 and 404(b), evidence concerning fraud victims who were not the
direct basis for the charges in the indictment, i.e., not Linhares
or Fessenden.
The district court determined that this evidence
was either "intrinsic" to the fraud charged in the indictment or,
in the alternative, relevant and not unfairly prejudicial.
Abbas
posits that the evidence was "not intrinsic" to the crimes he was
charged with, but was propensity evidence inadmissible under Rule
404(b).
He further contends that whatever relevance this evidence
had was substantially outweighed by unfair prejudice because this
conduct was totally separate from the specific charged conduct in
the indictment.
The
district
intrinsic was correct.
court's
ruling
that
the
evidence
was
"Evidence of bad acts that are 'part of
the charged crime' is admissible as 'intrinsic' evidence" and not
subject to Rule 404(b). United States v. Ramirez-Frechel, 23 F.4th
69, 76 (1st Cir. 2022) (quoting United States v. Rodríguez-Soler,
773 F.3d 289, 297-98 (1st Cir. 2014)).
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proving a defendant's involvement in the underlying wire-fraud
scheme.
See McGauley, 279 F.3d at 72; United States v. Santagata,
924 F.2d 391, 393-94 (1st Cir. 1991).
Evidence that Abbas helped
defraud others besides Linhares and Fessenden by providing his
account
information
to
facilitate
wire
fraud
was
evidence
pertaining to the overall scheme to defraud, so it was admissible
notwithstanding Rule 404(b).
See, e.g., McGauley, 279 F.3d at 72
(affirming admission of 217 fraudulent checks that were not charged
in the indictment); United States v. DeSimone, 699 F.3d 113, 124
(1st Cir. 2012).
This evidence was also relevant.8
Evidence is relevant
if it tends "to make a fact more or less probable than it would be
without
the
evidence"
determining the action."
and
that
fact
"is
Fed. R. Evid. 401.
of
consequence
in
"'[R]elevancy is a
very low threshold' that only requires the tendered evidence to
'move the inquiry forward to some degree.'"
United States v.
Rathbun, 98 F.4th 40, 51 (1st Cir. 2024) (quoting United States v.
Cruz-Ramos, 987 F.3d 27, 42 (1st Cir. 2021)).
Evidence that Abbas
received money through the same pattern of suspicious conduct on
several occasions cleared this threshold.
It undermined Abbas's
Abbas clarifies in his reply brief that he believes the
evidence was irrelevant because it lacked any connection to him,
but he admits that the transfers from Gatto, Lambert, Hockerson,
Paulson-Cheek, and Conquest went into "an account held by
Phoenicia, Katchi, or Midamines." He set up those entities and
their bank accounts, so the evidence was probative of his actions.
8
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argument that he was innocent and helped prove the scheme to
defraud.
See Santagata, 924 F.2d at 394 (admitting allegedly
repetitive
evidence
proving
a
fraud
scheme
because
that
"repetition . . . was itself distinctly probative" of the scheme)
(quoting United States v. Rodriguez-Estrada, 877 F.2d 153, 156
(1st Cir. 1989)).
And it demonstrated the modus operandi Abbas
and his coconspirators employed: use spoofed emails to induce
victims to send money to accounts Abbas controlled and quickly
whisk that money away.
Abbas
See DeSimone, 699 F.3d at 125.
contends
that
this
evidence
comprised
the
government's entire case, so it was unfairly prejudicial.
Rule
403 permits the district court to exclude otherwise "relevant
evidence if its probative value is substantially outweighed" by
"unfair prejudice," among other things.
Cf. Rathbun, 98 F.4th at
51 ("[T]here is no debate that the trial court judge possesses
considerable latitude in Rule 403 rulings.") (internal quotation
marks omitted).
But the record belies Abbas's argument for why
this evidence was unfairly prejudicial.
Ample evidence connected
Abbas
Linhares
to
the
charged
transfers
from
and
Fessenden,
including that he controlled the accounts that the funds were sent
to, so this evidence concerning other victims of the same scheme
was "hardly inflammatory."
United States v. Robles-Alvarez, 874
F.3d 46, 51 (1st Cir. 2017); cf. United States v. Santana, 342
F.3d 60, 67 (1st Cir. 2003) (finding that evidence of similar acts
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not
unfairly
Page: 47
prejudicial,
in
Date Filed: 04/29/2024
part,
where
the
Entry ID: 6638895
government
introduced other evidence of the defendant's involvement in a
conspiracy). We thus affirm the district court's decision to admit
this probative evidence.
ii. Exclusion of Witness Testimony as to Wire-Fraud Counts
Before
us,
Abbas
claims
that
excluding
Boudreau's
testimony about how a wire transfer takes place violated his
constitutional right to defend himself.
He contends that this
evidence was relevant for disproving venue on the wire-fraud
charges9 and to show that no interstate nexus existed for those
charges.
We
testimony
affirm
the
not
tend
did
district
court's
to
that
prove
Massachusetts for wire fraud.
ruling
venue
was
because
the
improper
in
Abbas assumes that venue on the
wire-fraud charges included where a wire originates, see Pace, 314
F.3d
at
349-50,
and
Boudreau
would
have
testified
that
the
instruction for the wire transfers originated in Massachusetts.
Boudreau's testimony, if anything, would have emphasized why venue
was
proper
in
Massachusetts
by
specifying
that
Linhares
and
Fessenden sent the wire-transfer instructions from Massachusetts.
The difference between saying that Linhares and Fessenden sent
Because we vacate and remand on Counts Three through Five,
we need not speculate on whether Boudreau's testimony was relevant
to those Counts.
9
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instructions to wire funds from Massachusetts and saying that they
sent a "wire" from Massachusetts is semantical because, either
way, the wire originated in Massachusetts.
And this testimony was irrelevant to Abbas's theory
about the interstate-nexus element.
This element of wire fraud
requires "the use of interstate or foreign 'wire communications'
to further that scheme."
United States v. Valdés-Ayala, 900 F.3d
20, 33 (1st Cir. 2021) (quoting DiRosa, 761 F.3d at 150-51)
(finding this element met where the defendant sent emails that
would have crossed state lines).
Boudreau would have testified
that "the electronic transferring of funds involved banks" in other
states, even if it is more accurate to say that Linhares and
Fessenden sent an instruction, from Massachusetts to Texas, to
transfer funds.
Tum, 707 F.3d at 73.
Thus, whether the transfers
from Massachusetts were described as "instructions" or "wires"
makes no difference because the overall sequence involved the use
of an interstate wire.
Cf. id. at 70, 73 (finding interstate nexus
where the defendant initiated a wire transfer in Maine which
(1) sent information to a South Carolina server, (2) then was
processed in Florida, and (3) then led to electronic transfers
involving banks in Ohio and Illinois).
This spells the end for Abbas's constitutional claim.
A
defendant "does not have an unfettered right to offer testimony
that is . . . inadmissible under standard rules of evidence."
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Taylor v. Illinois, 484 U.S. 400, 410 (1988). Boudreau's testimony
was "properly ruled irrelevant," so Abbas's constitutional right
to defend himself was not impaired.
F.3d
10,
20
(1st
Cir.
2012)
United States v. Brown, 669
(quoting
United
States
v.
Vázquez-Botet, 532 F.3d 37, 51 (1st Cir. 2008)) (citing United
States v. Maxwell, 254 F.3d 21, 26 (1st Cir. 2001)).
E. Jury Instructions
i. Instruction on "Conspiracy"
We turn next to Abbas's argument about the district
court's conspiracy instruction.
"[W]e review challenges to the
propriety of jury instructions de novo.
However, where, as here,
a defendant fails to properly preserve an objection at trial, we
review the record under the plain-error standard."
United States
v. Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014) (citations
omitted); see United States v. Andino-Rodríguez, 79 F.4th 7, 28-29
(1st Cir. 2023).
Abbas objected only to the district court's
refusal to give his good-faith, venue, attorney-representations,
and proceeds instructions -- not the conspiracy instruction.
That
means plain error applies.
And because Abbas does not address the
plain-error
standard
his
challenge.
See United States v. Colón-De Jesús, 85 F.4th 15, 25
in
briefing
here,
he
waives
this
(1st Cir. 2023); Cruz-Ramos, 987 F.3d at 40 (defendant's failure
to advance a specific argument about why a jury instruction was
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incorrect, coupled with his failure to show plain error, meant
that he waived that argument).10
F. Sentencing and Restitution
Abbas's remaining challenges concern his sentence and
restitution.
The presentence investigation report grouped the six
counts of conviction together under U.S.S.G. § 3B1.1.
Finding
that the Guidelines provisions for wire fraud shepherded its
analysis,
the
district
restitution based on the
court
imposed
Abbas's
monetary losses
sentence
and
that he caused the
victims.
Our standard practice when we vacate some but not every
conviction
under
a
multicount
indictment
"is
resentencing on the other (non-vacated) counts."
to
remand
for
United States v.
Tkhilaishvili, 926 F.3d 1, 21 (1st Cir. 2019) (quoting United
States v. García-Ortiz, 657 F.3d 25, 31 (1st Cir. 2011)).
do this
We often
because our ruling "may implicate the trial judge's
comprehensive, interdependent imposition of a penalty and thus
require resentencing on all counts."
United States v. Francois,
Even were we to overlook Abbas's waiver, we discern no
error.
The district court's instruction "substantially covered
the
key
point
that
the
requested
instruction
would
have made": that the jury consider whether one, multiple, or no
conspiracy existed. United States v. Bedini, 861 F.3d 10, 18 (1st
Cir. 2017). Moreover, contrary to his perfunctory arguments, the
district court relayed to the jury that it must find "an
agreement . . . to commit money laundering" based on "the elements
of the underlying offenses" and appropriately narrowed the jury's
scope to the conspiracy as charged in Count Six.
10
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715 F.3d 21, 34 (1st Cir. 2013) (quoting United States v. Melvin,
27 F.3d 710, 712 (1st Cir. 1994)); see also United States v.
Pimienta–Redondo, 874 F.2d 9, 14 (1st Cir. 1989) (en banc) (noting
that, in this scenario, "common sense dictates that the judge
should be free to review the efficacy of what remains in light of
the original plan, and to reconstruct the sentencing architecture
upon remand").
We
need
not
consider
Abbas's
remaining
challenges.
Because we vacate and remand on Counts Three through Five for lack
of venue, we vacate Abbas's sentence and the restitution order
imposed on Counts One, Two, and Six (B) and remand for further
proceedings.
See Tkhilaishvili, 926 F.3d at 20-21.
III. Conclusion
We affirm Abbas's convictions on Counts One, Two, and
Six (B).
We vacate and remand Abbas's convictions on Counts Three
through Five.
Upon remand, we instruct the district court to
dismiss these Counts without prejudice for lack of venue.
We also
vacate Abbas's sentence and the district court's restitution order
and remand so that the district court may reconfigure its approach
on both issues in the wake of our opinion.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.