The business referred to is that of the publication of the paper from April 1, 1870, to the present. In this business-the plaintiffs, with Mr. Cornish, were the agents; the plaintiffs and defendants were the principals and partners. There will be (after excluding the property in existence at the beginning which was owned in common) no difficulty in ascertaining what was partnership property. In consideration of the position that by agreement the good-will was owned in common at the beginning, as well as the business; a goodwill that under ordinary circumstances might be deemed attached to the operations of the partnership through the five years under the written agreement and since, must be considered as <mask> to, and an accretion of, the good-will *366and business that existed in the beginning, the plaintiffs will be entitled to reasonable compensation for their services since April 1, 1875. •


Defendant raises several arguments on appeal: the prosecution overreached when it charged her as an <mask> for refusing to testify, she cannot be guilty of being an accessory because her silence-refusing to testify-is not an affirmative act, her single act of refusing to testify does not support four felony convictions, the trial court failed to instruct on the elements of contempt, her statements to a detective were admitted into evidence in violation of her Fifth Amendment rights, and her trial counsel was ineffective for failing to raise the Fifth Amendment claim. We find no grounds for reversal and affirm the judgment.


However, even in instances involving <mask> uses, a disproportionate accessory use would still be barred (see Gallagher v Zoning Bd. of Adj., 32 Pa D & C 2d 669). And certainly uses ordinarily prohibited in a residential neighborhood, such as a slaughter house, could not invoke the First Amendment simply because the use is associated with deeply held religious beliefs.


A defendant may be convicted of being an <mask> even if the principal is not prosecuted. (§ 972.) Section 972 provides: "An accessory to the commission of a felony may be prosecuted, tried, and punished, though the principal may be neither prosecuted nor tried, and though the principal may have been acquitted." The prosecution against defendant as an accessory after the fact properly went forward even though Robinson, Green, and the Clarks were never brought to trial.


To bring any other than the owner or proprietor into this proceeding, one must look to section 27 of the Penal Law. This section provides: “ A person who commits or participates in any act which would make him an <mask> if the crime committed were a felony, is a principal and may be indicted and punished as such, if the crime be a misdemeanor.”


"(a) Signs of a duly constituted governmental body: including traffic or similar regulatory devices, legal notices, or warnings at railroad crossings "(b) Flags or emblems of a political, civic, philanthropic, educational, or religious organization "(c) Temporary signs announcing a campaign, drive, or event of the above organizations "(d) Memorial signs or tablets "(e) Signs denoting architect, engineer, or contractor when placed on construction sites and not exceeding 25 square feet in area "(f) Signs required to be maintained by law or governmental order, rule, or regulation, with a total surface area not exceeding ten square feet on any zoning lot "(g) Small signs displayed for the direction or convenience of the public, including signs which identify rest rooms, freight entrances, or the like, with a total surface area not exceeding five square feet on any zoning lot.” (Zoning Resolution § 12-10, "Sign”.) Section 42-52 of the Zoning Resolution provides that "<mask> business signs or advertising signs are permitted with no restrictions on size, illumination, or otherwise, except as provided in * * * Section 42-53.” Section 42-53 provides that, in Ml, M2 and M3 districts, "no advertising sign shall be located * * * within 200 feet of an arterial highway * * * if such advertising sign is within view of such arterial highway.” Appendix C of the Zoning Resolution lists the Brooklyn-Queens Expressway as an arterial highway.


Victor M. Ort, J. *381This is an application pursuant to CPL 440.10 to vacate a judgment of conviction upon the ground of ineffective assistance of counsel. On August 28, 2003, defendant was convicted upon his plea of guilty to the crimes of aggravated harassment in the second degree and aggravated harassment in the second degree as a <mask>.1 On October 24, 2003, defendant was sentenced to eight weekends at the Nassau County Jail and five years’ probation on the hate crime charge and three years of concurrent probation for the aggravated harassment.2 Prior to the entry of his guilty plea, defendant moved to dismiss the indictment upon the ground that the conduct alleged in the indictment did not constitute the crime of aggravated harassment in the second degree. The motion to dismiss was denied by the court in a decision dated June 12, 2003.


In moving to dismiss the indictment, defendant argued that Penal Law § 240.30 (1) requires that the threat be directed toward a specific individual, namely, the same person to whom the communication was addressed. In denying the motion to dismiss, the court held that there was no such requirement in the statute. Rather, the crime of aggravated harassment in the second degree could be committed by a threat directed toward a class of individuals. The court concluded that the threatening communication in this case was directed toward the class of *382potential purchasers of the home who were of African-American ancestry, a group clearly protected by the terms of the statute. In this application, defendant’s claim of ineffective assistance is to the effect that defense counsel failed to raise the claim that the <mask> statute, as applied, violated defendant’s right to free speech under the First Amendment to the Constitution of the United States. That is, the fliers should be considered “protected speech” under that amendment.


In People v Rokicki (307 111 App 3d 645, 718 NE2d 333 [2d Dist 1999]), the Appellate Court of Illinois upheld the Illinois <mask> statute against a challenge under the First Amendment. In that case, the defendant was convicted of disorderly conduct for subjecting a server in a pizza parlor to extreme verbal abuse because of his perception as to the victim’s sexual orientation. The Illinois hate crime statute provided that a person “commits a hate crime when, by reason of the actual or perceived race, color, creed . . . [or] sexual orientation ... of another individual or group of individuals, he commits [any one of a series of enumerated crimes including] disorderly conduct.” *383(307 III App 3d at 649, 718 NE2d at 336 [internal quotation marks omitted].) Thus, the Illinois statute was substantively equivalent to Penal Law § 485.05 (1) (b).3 The Illinois court held that the hate crime statute does not infringe on a defendant’s right of free speech because the statute does not punish an offender for merely thinking hateful thoughts or expressing bigoted beliefs but only punishes an offender who allows those beliefs to motivate his criminal conduct. (307 III App 3d at 651, 718 NE2d at 338.)


. Pursuant to Penal Law § 485.10 (2), when a person is convicted of a <mask> based upon a specified offense which is a misdemeanor or a class C, D, or E felony, the hate crime is deemed to be one category higher than the specified offense which he committed. Since aggravated harassment in the second degree is a class A misdemeanor, the corresponding hate crime is a class E felony.


. Indeed, the Illinois Supreme Court has recognized “the legislature . . . intended that improper bias which motivates certain criminal acts be the component which elevates the conduct to the level of a <mask>, rather than merely the status of a particular victim. There is no indication that the legislature intended only to redress the narrower wrong caused by biased selection of victims.” (In re B.C., 176 III 2d 536, 551, 680 NE2d 1355, 1363 [1997]; see also Penal Law § 485.00.)


In Apprendi v New Jersey (supra), the case upon which defendant principally relies, the Supreme Court faced a challenge to a sentence imposed under New Jersey’s <mask> statute, which had increased the penalty for firearms possession based upon a judicial finding that the defendant had acted with the intent to intimidate the victims based on their racial characteristics. In Apprendi, the Court discussed its earlier decision in Almendarez-Torres and, as defendant here correctly notes, did in fact state that it was “arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested.” (Apprendi v New Jersey, supra, 530 US at 489-490.) The Court also stated that because the issue of fact-finding as to a prior conviction was not before it in Apprendi, it would not then revisit the recidivist exception set forth in its decision in Almendarez-Torres. Lest there be any doubt as to its holding, the Apprendi court then stated, in unequivocal terms:


Jill Konviser, J. The defendants are charged in a single indictment with acting in concert to commit the following crimes: murder in the second degree as a <mask>, murder in the second degree, manslaughter in the second degree as a hate crime, manslaughter in the second degree, assault in the first degree as a hate crime, assault in the first degree, attempted robbery in the first degree as a hate crime, attempted robbery in the first degree, attempted robbery in the second degree as a hate crime, and attempted robbery in the second degree.


“A person commits a <mask> when he or she commits a specified offense[2] and . . . intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct.” In addition, Penal Law § 485.05 (2) provides:


The People maintain that the defendants, under an acting in concert theory, intentionally selected the decedent, Michael Sandy, as the person against whom the specified offenses were committed “in whole or in substantial part because of a belief *284or perception regarding” his sexual orientation. (See Penal Law § 485.05 [1] [a].) Specifically, the People allege, and the evidence before the grand jury shows, that on the evening of October 8, 2006, in Kings County, defendant Fortunato told defendant Fox and one Gary Timmins, in sum and substance, “that in the past, he had contacted gay men by means of a computer” and robbed them. (People’s affirmation in opposition to motion to dismiss <mask> counts at 2 11 3.) Fortunato allegedly also told Fox and Timmins in sum and substance that “this was an easy way to rob someone.” (Id.)


The defendants’ claim that their conduct does not fall within the scope of the hate crimes statute is rejected. A person commits a <mask> when he or she commits a specified offense and intentionally selects the person against whom the offense is committed or intended to be committed in whole, or in substantial part, based on a belief or perception regarding the person’s “race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation.” (Penal Law § 485.05 [1] [a].) In this case, the grand jury evidence shows that the defendants devised a plan to lure a gay man to a particular location in order to rob him, as Fortunato told Fox and Timmins he had done in the past. The evidence further shows that the defendants followed through on this plan by: (1) using the Internet to enter a gay chat room; (2) engaging in conversations in that gay chat room with Sandy, whom they believed to be a gay man; (3) luring Sandy to a remote location with false promises of sexual favors; and (4) attempting to rob Sandy upon his arrival.


The defendants implicitly recognize that their conduct falls within the plain language of the hate crimes statute and seek to avoid its implications by asking this court to redefine a <mask> in a manner that would remove them from the scope of the statute. They claim that the legislative findings set forth in Penal Law § 485.00 alter the definition of a hate crime and additionally require the People to prove that the crime was motivated by bias, prejudice or hatred. As the defendants assert that there is no evidence that they were motivated by bias, prejudice or hatred toward Sandy when they attempted to rob him, they claim the hate crimes charges must be dismissed.


The legislative findings, however, do not require proof of anything other than the intentional selection of a victim because of their “race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation.” (Penal Law § 485.05 [1] [a].) The Legislature appears to have included its findings within Penal Law article 485 as a means of: (1) justifying its decision to enhance sentences in cases where victims of specified offenses are intentionally selected based on a protected characteristic; (2) underscoring its outrage regarding such conduct; and (3) advancing its goal of deterring crimes motivated by bias, prejudice or hatred. (See Penal Law § 485.00 [enhanced punishment is necessary in such cases “to provide clear recognition of (their) gravity . . . and the compelling importance of preventing their recurrence”].) The Legislature, through its findings, therefore, made an assessment that the intentional selection of a victim based on a protected characteristic is tantamount to a crime motivated by bias, prejudice or hatred, thereby justifying enhanced punishment. (See Penal Law § 485.00.)4 Neither the legislative findings nor any other *287portion of the legislative history alter the definition of a <mask> as set forth in Penal Law § 485.05 (1) (a).5


Moreover, had the Legislature wanted to require that a <mask> be based on something more than just the intentional selection of the victim because of a particular attribute, it could have done so. That the Legislature limited such offenses solely to instances where a victim of a specified offense is intentionally selected in whole or in substantial part because of a protected trait is a clear indication of its intent that no other criterion was required in order to sustain such a charge. (See People v Tychanski, 78 NY2d 909, 911-912 [1991] [“ ‘The failure of the Legislature to include a matter within a particular statute is an indication that its exclusion was intended’ ” (quoting Pajak v Pajak, 56 NY2d 394, 397 [1982])]; McKinney’s Cons Laws of NY, Book 1, Statutes § 74; see also McKinney’s Cons Laws of NY, Book 1, Statutes § 240 [“The maxim expressio unius est ex-clusio alterius is applied in the construction of. . . statutes, so that where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded”]; McKinney’s Cons Laws of NY, Book 1, Statutes § 94, at 194 [“the language of an enactment should be given its plain meaning, or its everyday commonplace interpretation; and the court should neither limit nor extend plain language. Words will not be expanded so as to enlarge their meaning to something which the Legislature could easily have expressed but did not”].)


Finally, the defendants assert that they should not be charged with hate crimes as their decision to rob Sandy was motivated only by their desire to obtain money and drugs. This argument is without merit. The hate crimes statute is premised both on the intent to commit a specified offense and on the intent to select a victim of that offense because of that victim’s “race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation” (Penal Law § 485.05 [1] [a]). Thus, for a <mask> to be charged in this case the statute requires both an intent to attempt to forcibly steal property, which the defendants admit (see Penal Law §§ 110.00, 160.00), and an intent to select the robbery victim because of that victim’s sexual orientation, which the grand jury evidence supports. (See Penal Law § 485.05 [1] [a].) Simply stating that their motivation was limited to their desire to obtain money and drugs, therefore, does not take the defendants out of the ambit of the hate crimes statute.


The defendants claim that the hate crimes statute is unconstitutionally vague as applied to the facts of this case.6 Two grounds are raised in support of this claim. First, the defendants *289assert that the words “in whole or in substantial part” as set forth in the hate crimes statute are “imprecise.” Such imprecision, the defendants say, caused them to be charged with hate crimes even though their decision to select Sandy as their victim was not based on his sexual orientation, but rather on their belief that he would be an “easy mark and they would be able to take his drugs or money without much trouble.” (Defendants’ motion at 3.) The defendants’ second argument is apparently that the hate crimes statute does not provide officials with clear standards for enforcement unless it is read to require that a <mask> may be charged only when an offender is motivated by bias, prejudice or hate. For the reasons that follow, the constitutional challenge to the hate crimes statute is rejected.


In this case, any person of ordinary intelligence would understand that the words “in whole” mean completely or entirely and the words that immediately follow it “substantial part” mean a considerable portion or amount. (People v Nelson, 69 NY2d at 307.) Thus, when considered in the context of the statute and the facts of this case, these terms sufficiently inform a person of ordinary intellect that if you search the Internet for the express purpose of finding a gay man to rob, a man you believe would “probably not offer much resistance” (see defendants’ motion at 3), you will be charged with a <mask>. This is so because at least a considerable portion, if not the entirety of your decision to intentionally select the victim, was *293based on a belief or perception regarding his or her sexual orientation. (Penal Law § 485.05 [1] [a].)


The defendants’ second argument appears to be that the definition of a <mask> as set forth in Penal Law § 485.05 (1) (a) is unconstitutionally vague unless it is read to require that the crimes against Sandy were actually motivated by bias, prejudice or hate. The law is well settled, however, that a court examining a statute on vagueness grounds is required to determine whether the existing statutory language sufficiently informs persons of ordinary intelligence of the forbidden conduct and provides law enforcement officials with clear standards for enforcement. (See People v Stuart, 100 NY2d at 420-421.) If the statute as drafted accomplishes these goals then the constitutional challenge must be dismissed notwithstanding an assertion that the inclusion of an additional element in the statute would have made it easier for members of the public and law enforcement officials to understand the conduct prohibited by the statute. (See People v Stuart, 100 NY2d at 426-427 [rejecting claim that antistalking statute was unconstitutionally vague as applied because it did not require the People to prove that an offender “intend(ed) a specific result, such as fear or harm” because the statute, as written, provided citizens with clear notice of the prohibited conduct]; People v Nelson, 69 NY2d at *294307-308 [rejecting claim that jostling statute was unconstitutionally vague as applied because it did not require the People to prove larcenous intent since the statute as written provided innocent citizens with clear notice of the prohibited conduct].)


In this case, the defendants have not met their burden of proving beyond a reasonable doubt that the definition of a <mask> as set forth in Penal Law § 485.05 (1) (a), which makes no specific reference to bias, prejudice or hate, is unconstitutionally vague as applied. Nor could they as the definition “clearly delineates specific conduct easily avoided by the innocent-minded” — namely, the intentional selection of a crime victim in whole or in substantial part because of that victim’s sexual orientation. (People v Nelson, 69 NY2d at 307-308.) Indeed, such conduct could have been easily avoided in this case if the defendants had not intentionally selected a gay man to rob.


Moreover, the statute provides clear standards for enforcement in that it does not permit a <mask> to be charged merely because a victim happens to possess a trait protected by the statute. Indeed, Penal Law § 485.05 (2) would not countenance such a result. Rather, such a prosecution is permitted only when the victim is intentionally selected because of that protected trait. (See Penal Law § 485.05 [1] [a].) These clear standards of enforcement were easily applied by law enforcement officials in this case as the evidence shows that the defendants made a deliberate and purposeful decision to target Sandy because of his sexual orientation. (People v Stuart, 100 NY2d at 422.)9


. As hate crimes legislation is often a matter of great controversy (see e.g., MacNamara, New York’s Hate Crimes Act of 2000: Problematic and Redundant Legislation Aimed at Subjective Motivation, 66 Alb L Rev 519 [2003]), the Legislature apparently felt the need to justify its decision to enact such legislation by including its findings in the text of the statute. But no matter the reason for its inclusion, surely it was not to add an element to the definition of a <mask> as set forth in Penal Law § 485.05 (1) (a), which *287focuses solely on the intentional selection of a victim on account of a protected trait.


The DOC’s procedures for placing inmates in close custody were initially implemented by a directive issued in 2005, as amended by DOC Directive 6006R-D (available at http://prtlprd-web.nyc.gov/html/doc/downloads/pdf/6006R-D.pdf, cached at http://www.nycourts.gov/reporter/webdocs/6006R-D.pdf), effective May 28, 2009 (answer, exhibit A). According to respondent, close custody housing is “designed to protect vulnerable inmates (and in a smaller number of cases, to separate certain predatory inmates) who can not safely be held in General Population, or in another less restrictive housing unit than Close Custody.” (Id. 1f 37.) Close custody is the DOC’s “most restrictive security status,” and is comprised of two categories of inmates. (Aff of Frank Squillante [DOC Assistant Chief for Special Operations] If 2.) The first is close custody/protective custody (CC/PC), in which most inmates are placed at their own request, or occasionally involuntarily, because their safety would be at risk if they were to be placed in the general population. (Id. 1Í 4.) These inmates include prisoners who were charged with a violent sex or <mask>, child abuse, or child homicide; inmates, including gay and transgendered inmates, who are themselves victims of attacks from other inmates; cooperating witnesses; and inmates placed in protective custody because of their identity, e.g., their status as celebrities or in law enforcement. (See id. 1f 5.) The second category of inmates, termed non-protective custody/close custody housing (non-PC/CCH), includes inmates who pose a serious threat to security — for example, inmates who committed violent acts while previously incarcerated, are known gang members, or are known to have a propensity for violence. (Id. If 6.)


“(a) (i) a conviction of or a conviction for an attempt to commit any of the provisions of sections 120.70, 130.20, 130.25, 130.30, 130.40, 130.45, 130.60, 230.34, 250.50, 255.25, 255.26 and 255.27 or article two hundred sixty-three of the penal law, or section 135.05, 135.10, 135.20 or 135.25 of such law relating to kidnapping offenses, provided the victim of such kidnapping or related offense is less than seventeen years old and the offender is not the parent of the victim, or section 230.04, where the person patronized is in fact less than seventeen years of age, 230.05 or 230.06, or subdivision two of section 230.30, or section 230.32 or 230.33 of the penal law, or (ii) a conviction of or a conviction for an attempt to commit any of the provisions of section 235.22 of the penal law, or (iii) a conviction of or a conviction for an attempt to commit any provisions of the foregoing sections committed or attempted as a <mask> defined in section 485.05 of the penal law or as a crime of terrorism defined in section 490.25 of such law or as a sexually motivated felony defined in section 130.91 of such law.” (Correction Law § 168-a [2] [emphasis added].) The absence of a critical grammatical signpost, a parenthetical number preceding “as a sexually motivated felony,” seemingly limits the qualifying sexually motivated felony offenses only to *755those enumerated in subparagraphs (i) and (ii). By omitting a “(iv)” before the term “sexually motivated felony” in SORA, the term appears to be modified by the “foregoing sections,” thus excluding attempted robbery in the second degree (among other sexually motivated offenses) from the registration requirements under the statute—not likely the result the legislature intended, as many of the offenses enumerated in subparagraphs (i) and (ii) are sex offenses and already registerable. It is difficult to fathom that the legislature amended SORA to require already registerable sex offenders to register under SORA— this tautologic redundancy seems pointless. It is equally difficult to fathom that the legislature purposefully omitted the type of conduct the defendant committed here—attacking a woman with physical disabilities and demanding that she “suck his dick” as she lay on the ground immobilized—from the mandates of SORA. While the legislature seemingly intended to require registration for all sexually motivated felonies, that is simply not what the language of the amended statute conveys. This court is constrained, therefore, to find that, on its face, SORA does not include attempted robbery in the second degree as a sexually motivated felony. Thus, unless and until the statute is amended, the defendant need not register as a sex offender in connection with this matter.


Seymour Rotker, J. The defendant has been charged by an eight-count indictment filed on November 24, 2000 with attempted murder in the second degree as a <mask> and related offenses. On or *188about December 21, 2000, the defendant filed a timely omnibus motion seeking various relief. The People responded to the motion which was decided by the Court on or about January 17, 2001. Certain pretrial hearings were conducted on January 29, 2001 and, on or about January 30, 2001, the Court ruled on those pretrial issues. On March, 6, 2001, the case was forwarded from a TAP Part to K-TRP as a trial-ready case for April 4, 2001. On that date, the matter was adjourned until May 9, 2001 because the Legal Aid Society, which represented the defendant from the time of his arrest, had internally reassigned the case to a different attorney for trial. On May 9, 2001, the newly assigned attorney asked the Court to permit him to file a motion challenging the constitutionality of New York’s recently enacted “Hate Crimes” legislation (Penal Law § 485.00). The Court directed the defendant’s counsel to file an order to show cause addressed to this issue. The defendant filed the order as directed by the Court and the People responded with an affirmation in opposition dated May 15, 2001.


Jeffrey M. Atlas, J. The defendant has been indicted for assault in the third *342degree as a <mask>. In a pretrial motion, the defendant seeks dismissal of the indictment by challenging the constitutionality of the recently enacted Hate Crimes Act of 2000 (Penal Law §§ 485.00-485.10). Sections 485.05 and 485.10 of the Penal Law, as they apply in this case, enhance the penalties for assault in the third degree by elevating that crime from a misdemeanor to a felony when it has been proved that the offender committed the crime of assault in the third degree and intentionally selected the victim because of a belief or perception regarding the sexual orientation of the victim.1 The defendant claims that this new statute is unconstitutionally vague. In particular, the defendant claims that the statute provides insufficient notice of prohibited conduct and permits arbitrary and discriminatory enforcement. For the following reasons, the motion is denied.


As for the second issue, I also find that the language of the statute does not lend itself to arbitrary and discriminatory enforcement. To begin with, enforcement of these sections by the police is not likely to be expected. In fact, the provisions of these sections apply only when the defendant has already committed one of the underlying crimes specified in the section. Nothing in the statute changes the well-established requirement that the police must have probable cause before arresting an offender for the commission of the underlying specified crime. It is really irrelevant to the making of an arrest that the specified crime will in the fixture be elevated as a <mask>, even though that notion may affect the way the police investigate the crime. Beyond that, enforcement by the prosecutor, the Grand Jury and the trial court really turns on the sufficiency and clarity of proof establishing that the accused purposefully chose the victim, in whole or part, because of the accused’s perception that the selected victim was, as in this case, of a certain sexual orientation. The sufficiency of such evidence is, of course, subject first to objective review by the prosecutor and, in the case of felonies, to scrutiny by the Grand Jury and review by the court. The language of the statute, as I have pointed out, is such as to permit a fully objective assess*346ment of the evidence before initiating any prosecution. Thus, the law provides objective criteria which must be observed throughout the accusatory process and in no way provides for enforcement according to the subjective conclusions of the complainant, police or prosecutor (see, People v Shack, 86 NY2d 529 [1995]).


. <mask> legislation which permitted judges to enhance punishment beyond the statutory maximum sentence without the benefit of the trier of fact having found beyond a reasonable doubt that the prohibited victim selection had taken place was declared unconstitutional in Apprendi v New Jersey (530 US 466 [2000]). The New York statute avoids that pitfall by providing that the critical enhancing issues be charged as an element of the offense and proved beyond a reasonable doubt to the satisfaction of the trier of fact before serving to increase the penalties beyond the usual maximum.


Apprendi involved a New Jersey <mask> statute which permitted the sentencing court to impose an enhanced maximum sentence upon finding that the crime for which the defendant was convicted was motivated by bias. The United States Supreme Court struck the New Jersey bias statute because it authorized that the determination of racist motivation be made by the judge alone, rather than proved to a jury beyond a reasonable doubt. In so ruling, the Court held that any fact that extends the outer parameter of punishment is a de facto element of the crime, and that the Sixth Amendment right to jury trial is abridged if it is not submitted and proved to a jury beyond a reasonable doubt. The teaching of Apprendi thus is that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra at 490.)


Each of the two forcible sodomy counts included sustained allegations that it was a <mask> and committed in concert (§ 422.75, subd. (b)); that defendant was armed with and personally used a deadly weapon, and personally inflicted great bodily injury (§§ 667.61, subd. (d)(6), 12022.7, 12022.8); that the offense involved a kidnapping that substantially increased the risk to the victim (§ 667.61, subds.(d)(2)); and that it was committed for the benefit of a criminal street gang.


Three of the four forcible oral copulation counts included sustained allegations that it was a <mask> and committed in concert, for the benefit of a criminal street gang; that defendant was armed with a deadly weapon; and that the offense involved a kidnapping that substantially increased the risk to the victim. In addition, the fourth count also included the sustained allegation that during the commission of the offense defendant personally used a deadly weapon.


We recognize, obviously, that Section 52.1 is civil, while Section 241 is criminal, but in adopting the Screws standard we find it particularly significant that so much of the text and structure of Section 52.1 appears to descend from Section 241. It seems to us that, when our Legislature enacted <mask> legislation in 1987, it chose not to adhere strictly to the federal scheme by adopting a civil enforcement statute on the model of Section 1983, covering "deprivations" of rights and limiting the statute to public officials or other conduct evincing state action. Instead, it used as a model Section 241-a criminal conspiracy statute-giving the statute enough breadth to reach a wide range of "interference" with "secured rights" by means of fear-inducing conduct, whether undertaken by private actors or public officials. In essence, the Legislature created a hybrid of the historic federal civil rights enforcement scheme, using Section 241 as a unitary model for criminal as well as civil enforcement. The burden of proof is fundamentally different in these two arenas, of course, but other than that we see no reason why the applicable mens rea element ought to differ.31


In a series of cases going back some 20 years, California courts have repeatedly decried the rising number of hate crimes and related conduct.4 Yet such conduct proliferates. The most recent Bureau of Justice Statistics Report *335on hate crimes, states that "U.S. residents experienced an average of 250,000 <mask> victimizations each year from 2004 to 2015." (Hate Crime Victimization, 2004-2015 < https://www.bjs.gov/content/pub/pdf/hcv0415.pdf> (as of March 13, 2018).) Hate conduct takes its toll not only on individual victims *279but also on whole communities.5


Section 594.3, subdivision (b) provides: "Any person who knowingly commits any act of vandalism to a church, synagogue, mosque, temple, building owned and occupied by a religious educational institution, or other place primarily used as a place of worship where religious services are regularly conducted or a cemetery, which is shown to have been a <mask> and to have been committed for the purpose of intimidating and deterring persons from freely exercising their religious beliefs, is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170."


"a conviction of or a conviction for an attempt to commit any provisions of the foregoing sections committedor attempted as a <mask> defined in section 485.05 of the penal law or as a crime of terrorism defined in section 490.25 of such law or as a sexually motivated felony defined in section 130.91 of such law; or [other offenses not at issue here]" (Correction Law § 168-a[2][a] [emphasis added]).


You have asked for our views on the constitutionality of a pending bill, the Matthew Shepard Hate Crimes Prevention Act, S. 909, 111th Cong. (as introduced in the Senate, Apr. 28, 2009). In particular, you have asked us to review section 7(a) of S. 909, which would amend title 18 of the United States Code to create a new section 249, which would establish two criminal prohibitions called “<mask> acts.” First, proposed section 249(a)(1) would prohibit willfully causing bodi- ly injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, “because of the actual or perceived race, color, reli- gion, or national origin of any person.” This provision is similar to an existing federal law, 18 U.S.C. § 245 (2006), the principal difference being that the new section 249(a)(1), unlike section 245, would not re-


On or about September 12, 2012, indictment No. 7805/2012 was filed in Kings County, charging the respondent with, inter alia, scheme to defraud in the first degree, a class E felony in violation of Penal Law § 190.65, and grand larceny in the second degree as a <mask> (two counts), a class B felony in violation of Penal Law §§ 155.40 and 485.05.


On December 20, 2012, the respondent pleaded guilty in the Supreme Court, Kings County, to grand larceny in the first degree, a class B felony in violation of Penal Law § 155.42, grand larceny in the second degree as a <mask> (two counts), a class B felony in violation of Penal Law §§ 155.40 and 485.05, grand larceny in the second degree, a class C felony in violation of Penal Law § 155.40, criminal possession of a forged instrument in the second degree (two counts), a class D felony in violation of Penal Law § 170.25, offering a false instrument for filing in the first degree (10 counts), a class E felony in violation of Penal Law § 175.35, falsifying business records in the first degree (11 counts), a class E felony in violation of Penal Law § 175.10, and scheme to defraud in the first degree, a class E felony in violation of Penal Law § 190.65.


Before NEWSOM, GRANT, and JULIE CARNES, Circuit Judges. PER CURIAM: Plaintiff Elbert Walker filed this action against his former criminal defense attorney, Defendant Gerald Williams, asserting a § 1983 claim and various state law claims arising from Defend- ant’s alleged ineffective assistance of counsel. The district court dismissed Plaintiff’s § 1983 claim under Federal Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Having dismissed Plaintiff’s only federal claim, the district court declined to exercise supplemental jurisdiction over Plaintiff’s remaining state claims and dismissed those claims without prejudice. Plain- tiff appeals both rulings. We find no error and thus AFFIRM. In conjunction with his appeal, Plaintiff submitted a Mo- tion for Untimely Reply to the Opposition Brief, which we con- strued as a Motion for Leave to File a Reply Brief Out of Time. We GRANT Plaintiff’s motion, and we have considered his reply brief in ruling on this appeal. BACKGROUND Plaintiff and two co-defendants were charged in 2012 with one count of conspiracy to commit multiple objects, including ar- son, bank fraud, <mask>, mail fraud, bankruptcy fraud, posses- sion of a forged security, and making false declarations in court in violation of 18 U.S.C. § 371. See United States v. Walker, 758 F. App’x 868, 869 (11th Cir. 2019). Plaintiff was also charged sepa- USCA11 Case: 21-10597 Date Filed: 02/08/2022 Page: 3 of 13


Before Davis, Willett, and Oldham, Circuit Judges. Don R. Willett, Circuit Judge: Sergio Fernando Lagos urged the district court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on the ground that he received ineffective assistance of counsel during sentencing. The district court denied Lagos’s motion, and for the reasons explained below, we AFFIRM. I Lagos pleaded guilty in 2015 to one count of conspiracy to commit <mask> and five counts of wire fraud, in violation of 18 U.S.C. §§ 2, 1343, and 1349. Lagos was the owner and CEO of U.S.A. Dry Van Logistics, LLC Case: 20-20283 Document: 00516192963 Page: 2 Date Filed: 02/07/2022


(USADV), a company that provided cross-border trucking services to the maquiladora industry. He entered into a loan financing agreement on behalf of USADV with General Electric Capital Corporation (GECC), a nonbank lender, under which GECC extended a revolving line of credit secured by USADV’s accounts receivable. The maximum sum that could be borrowed under the agreement was based on the amount of USADV’s eligible accounts receivable. From around March 2008 at least until January 2010, Lagos and his co-conspirators engaged in a <mask> scheme whereby they induced GECC to extend a $35 million line of credit by fraudulently inflating USADV’s accounts receivable. As a result of USADV’s admitted “substantial overstatement in . . . Eligible Accounts,” GECC had extended a “significance [sic] overadvance” under the loan agreement. 1 Consequently, USADV declared bankruptcy several days after GECC learned of the fraud, explaining to the bankruptcy court that the company’s “need” for financing and the “unlikelihood of finding other sources of financing given the significant overadvance position of [GECC]” made a bankruptcy proceeding USADV’s “only realistic option.” 2 Following Lagos’s 2015 guilty plea, the district court sentenced him to 97 months’ imprisonment and three years of supervised release and ordered him to pay a $600 special assessment and $15,970,517.37 in restitution. On direct appeal, Lagos challenged only the amount of restitution ordered, arguing that the restitution statute did not authorize the court to order restitution for GECC’s legal, expert, and consulting fees incurred in investigating the fraud or its legal fees from the bankruptcy proceedings caused by the fraud. We rejected Lagos’s argument, but the Supreme Court


By contrast, in a case relied on by plaintiff, the petitioner was indicted for violating the Federal Election Campaign Act (FECA), which contained a provision expressly permitting the commencement of an action to challenge its constitutionality. (Goland v United States, 903d 1247 [9th Cir 1990].) Although the Court distinguished Dennis as “restricted [to] the availability of certain defenses against criminal charges” (id. at 1253), it also observed that if the petitioner had been indicted *823solely for conspiring to defraud the government or giving false statements to the government, he would be barred from collaterally attacking FECA’s constitutionality. Moreover, the petitioner was directly charged with violating FECA, whereas here, plaintiff’s officers were indicted not for violating the New York DBE program but for conspiracy and mail and <mask> based on a scheme to defraud it. It is thus distinguishable.


Here, plaintiff’s officers have been indicted for mail fraud, <mask>, and conspiracy to launder money, in furtherance of *824a scheme to defraud by means of materially false and fraudulent pretenses, representations, and promises in connection with the DBE program; they are not charged with violating the program which plaintiff claims is unconstitutional. Consequently, as in Dennis and Bryson, any finding that the DBE program is unconstitutional is irrelevant and does not preclude a finding that plaintiff attempted to defraud it.


“From November 2003 through August 2008, Mr. Grobart and his company — now known as Teneyck, formerly known as Neill Supply Company — engaged in a scheme to unlawfully obtain a contract from Con Edison by furnishing bribes to a Con Edison employee named James Woodason. Mr Woodason was involved in the awarding of contracts by Con Edison to companies via what was supposed to be a competitive bidding process. In 2003, Robert Rosenberg . . . brokered a deal between Mr. Grobart and Neill Supply on one hand and Mr. Woodason on the other, whereby Mr. Grobart and Neill Supply would pay a bribe to Woodason in exchange for Woodason steering a Con Edison contract to Neill Supply.” (Emphasis added.) *196Thereafter, in March of 2012, plaintiff commenced this action against Rosenberg, a cooperating witness, who has pleaded guilty to conspiracy to commit bribery and <mask>, pursuant to 18 USC § 371, but who had not been sentenced prior to oral argument on this motion.


The court finds plaintiffs arguments to be without merit. According to the plea agreement, dated March 10, 2011, which was entered into by Grobart, both for himself and for Teneyck, Inc., formerly known as Neill Supply Co., Inc.,* plaintiff pleaded guilty to a one-count information charging it with a violation of 18 USC § 371 in connection with a conspiracy to pay bribes in violation of 18 USC § 666 (a) (2) and commit <mask> under 18 USC §§ 1343 and 1346. Rosenberg also entered into a plea agreement with the United States of America, dated December 2, 2010, in which he pleaded guilty to a one-count information charging him with a violation of 18 USC § 371 in connection with a conspiracy to commit bribery and wire fraud in violation of 18 USC §§ 666 (a) (2) and 1343. Therefore, it cannot be disputed that plaintiff and defendant each pleaded guilty to the same one-count information and defendant’s fault is equal to plaintiffs. Therefore, there is no need to impute Grobart’s acts to Neill Supply, since plaintiff itself has pleaded guilty to the one-count information.


In connection with a federal investigation into her conduct, the defendant had previously been charged in the United States District Court of Connecticut with making false statements (18 USC § 1001). On June 6, 2013, she pleaded guilty not only to that charge, but also to <mask> (18 USC § 1343), a charge which was filed the day of her plea. She was subsequently sentenced to eight months’ incarceration. Wire fraud is committed by a person who:


“A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless: “(a) The offenses as defined have substantially different elements and the acts establishing one of*881fense are in the main clearly distinguishable from those establishing the other; or “(b) Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil.” The People concede that the scheme to defraud count and the federal <mask> conviction are based on the same “criminal transaction.”2 3**They contend, however, that the defendant may still be prosecuted for the state offense because the prosecution falls within both of the exceptions contained in CPL 40.20 (2). Neither applies in this case.


First, the offenses as defined do not, within the meaning CPL 40.20 (2) (a), “have substantially different elements,” nor are “the acts establishing one offense ... in the main clearly distinguishable from those establishing the other.” Considering the first of these two prongs, it is evident that each crime has elements the other does not. Scheme to defraud in the first degree requires that the defendant actually “obtain[ ] property from one or more . . . persons” (Penal Law § 190.65 [1] [a]), while <mask> does not. Wire fraud requires the transmission of “any writings, signs, signals, pictures, or sounds” by use of “wire, radio, or television communication in interstate or foreign commerce” (18 USC § 1343), while scheme to defraud in the first degree does not. The question is not, however, whether the offenses have any different elements, but whether they have “substantially different elements.” I find that they do not.


As the Court of Appeals has recognized, “the Legislature in amending the Penal Law to add crimes based on a scheme to defraud (Penal Law §§ 190.60, 190.65; L 1976, ch 384), modeled the offenses upon the Federal mail fraud statute.” (People v First Meridian Planning Corp., 86 NY2d 608, 616 [1995], citing William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 190.60.)3 Indeed, in explicat*882ing the language the legislature used to define a scheme to defraud, the Court of Appeals has “look[ed] to Federal [mail fraud] precedents applying similar statutory language.” (First Meridian Planning Corp., 86 NY2d at 616.) <mask> is mail fraud’s “twin,”* **4 and like mail fraud, requires a “scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” (18 USC §§ 1343, 1341.)5


“[s]ections 190.60 and 190.65 contain language not found in the federal mail fraud section referring to a scheme ‘constituting a systematic ongoing course of conduct . . . [,]’ [t]his does not introduce a new, different element of the offense, but codifies what is contained in the concept ‘scheme to defraud’ under the federal statute.” (Richard A. Givens, Additional Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 190.60, 1988 Pocket Part at 277.) Similarly, the mens rea required for scheme to defraud, an “intent to defraud ... or to obtain property ... by false or fraudulent pretenses, representations or promises,” Penal Law *883§ 190.65 (1) (a), is also essentially the same as that required for <mask> and mail fraud, since the purpose of the “scheme or artifice” required for those two crimes must be to “obtain[ ] money or property by means of false or fraudulent pretenses, representations, or promises.” (18 USC §§ 1343, 1341.)


The fact that scheme to defraud in the first degree requires that property be obtained from at least one victim also does not mean that the two crimes have “substantially different” elements. In Matter of Abraham v Justices of N.Y. Supreme Ct. of Bronx County (37 NY2d 560 [1975]), the Court of Appeals held that the prosecution of the defendant for criminal possession of dangerous drugs in the first degree (Penal Law § 220.23, as repealed by L 1973, ch 276, § 18), was barred because of a prior conviction in federal court for conspiring to distribute and possess with the intent to distribute narcotic drugs. (21 USC §§ 812, 841 [a] [1]; [b] [1] [A].) Because “the same possession of the same drugs was among the acts charged and proved and for which a conviction was had,” the Court found “no substance in the claim, hypothetically posited, that the Federal convictions could have been obtained without proof of possession of the drugs.” (Abraham, 37 NY2d at 567 [internal quotation marks omitted]; see also People v Abbamonte, 43 NY2d 74 [1977].) Similarly, here the claim, “hypothetically posited,” that the <mask> conviction could have been obtained without proof that the defendant obtained property from at least one victim does not render the elements of scheme to defraud in the first degree and wire fraud substantially different.


Neither does the fact that <mask> requires the use of “wire, radio, or television communication in interstate or foreign commerce” (18 USC § 1343), and that a scheme to defraud conviction, “hypothetically posited,” could be obtained without proof of this element. In People v Lo Cicero (14 NY2d 374 [1964]), the defendant was charged with a robbery for which he had been acquitted in federal court. The Court of Appeals held that “[t]he additional element of obstruction of interstate commerce, necessarily present in the Federal indictment, does not diminish the substantial identity of the two charges,” and dismissed the robbery charge. (Id. at 379 [citations omitted].) Here, too, despite the jurisdictional interstate commerce requirement for wire fraud,6 that crime and scheme to defraud have substantially similar elements.


Alternatively, the People claim that the defendant’s prosecution for scheme to defraud in the first degree is not barred because it falls within the exception contained in CPL 40.20 (2) (b), since “[e]ach of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil.” As already noted, each offense does contain an element which is not an element of the other, satisfying the first prong of this exception. However, contrary to the People’s argument, the statutory provisions defining scheme to defraud and <mask> do not meet the requirement of the second prong.


In contrast, in Matter of Schmidt v Roberts (74 NY2d 513, 522 [1989]), the Court of Appeals held that a defendant convicted of the federal crimes of interstate transportation of stolen property (18 USC § 2314), and conspiracy to commit that crime (18 USC § 371), could not be prosecuted in New York for grand larceny in the second degree, former Penal Law § 155.35, now Penal Law § 155.40. The Court concluded that the federal and state crimes were not designed to prevent very different kinds of harm or evil, since “[t]he Federal crime of interstate transportation of stolen property and the State crime of larceny are both designed to punish thieves and to protect property owners from thefts.” (Id.) Similarly, the federal <mask> statute and New York’s scheme to defraud are both designed to protect the unwary from schemes to deprive them of their property by fraud. Thus, scheme to defraud in the first degree and wire fraud are not, as CPL 40.20 (2) (b) requires, designed to prevent very different kinds of harm or evil. (See also Matter of Kaplan v Ritter, 71 NY2d 222, 230-231 [1987] [“counts in the New York County indictment, which charge petitioners with securities fraud and grand larceny, cannot be prosecuted (pursuant to exceptions in CPL 40.20 [2] [b] and [e]) in light of the prior Federal prosecution for RICO violations and fraud”].)


The conduct for which the defendant is charged with scheme to defraud in the first degree is, without question, reprehensible. Nevertheless, because the exceptions set forth in paragraphs (a) and (b) of CPL 40.20 (2) do not apply here, the defendant, having been convicted of <mask> based on the same criminal transaction, can no longer be prosecuted for scheme to defraud in the first degree. Accordingly, count one of the indictment must be dismissed.


. Justice Donnino noted that the crimes of <mask> and crimes of scheme to defraud have been defined using “parallel language.” (William C. *882Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 190.60; see also People v Taylor, 304 AD2d 434, 435 [1st Dept 2003] [“The scheme to defraud statute (Penal Law §§ 190.60, 190.65) was derived from and patterned after the federal mail fraud statute” (citation omitted)]; People v Kaminsky, 127 Misc 2d 497, 501 [Sup Ct, NY County 1985].)


. Christopher Q. Cutler, McNally Revisited: The Misrepresentation Branch” of the Mail Fraud Statute a Decade Later, 13 BYU J Pub L 77 n 3 (1998); see also Carpenter v United States, 484 US 19, 25 n 6 (1987) (“The mail and <mask> statutes share the same language in relevant part, and accordingly we apply the same analysis to both sets of offenses here”). The legislative history of the wire fraud statute states that 18 USC § 1343, defining wire fraud, was designed as “a parallel [to the] provision now in the law for fraud by mail.” (United States v Garlick, 240d 789, 792 [9th Cir 2001], quoting S Rep No. 44, 82nd Cong, 1st Sess at 19 [1951].)


. See Neder v United States, 527 US 1, 20 (1999) (“Although the mail fraud and <mask> statutes contain different jurisdictional elements [§ 1341 *884requires use of the mails while § 1343 requires use of interstate wire facilities], they both prohibit, in pertinent part, ‘any scheme or artifice to defraud’ or to obtain money or property ‘by means of false or fraudulent pretenses, representations, or promises’ ”).


The elements of the <mask> statute (U. S. Code, tit. 18, § 1343) are: (1) a scheme to defraud and (2) the use of interstate or foreign wire facilities. These are necessary for the purpose of carrying out the execution of the scheme (Roberts v. United States, 226 F. 2d 464 [C. A. 6th, 1955], cert. den. 350 U. S. 935; Huff v. United States, 301 F. 2d 760 [C. A. 5th, 1962], cert. den. 371 U. S. 922; United States v. Whiting, 308 F. 2d 537 [C. A. 2d, 1962]; Lindsey v. United States, 332 F. 2d 688 [C. A. *3239th, 1964]; cf. Pereira v. United States, 347 U. S. 1 [1954]; Lemon v. United States, 278 F. 2d 369 [C. A. 9th, 1960] cases concerned with the mail fraud statute [U. S. Code, tit. 18, § 1341]). In United States v. Whiting (supra, p. 540) the court made this observation: “ Although no money was ever paid out to the defendants by the Banco do Brasil, the fact that a scheme to defraud fails of its purpose is not a defense. Hoffman v. United States, 249 F. 2d 338, 341 ”. And in United States v. Bagdasian (291 F. 2d 163 [C. A. 4th, 1961]) the court noted that it was not an essential part of the wire fraud statute for an indictment to allege that the defendant converted the money to his own use.


On September 22, 2016, the USAO unsealed a criminal complaint (USAO complaint) that charged Dr. Kaloyeros with one count of conspiring to commit <mask>. The charge is based on allegations that Dr. Kaloyeros conspired with real estate developers in Buffalo and Syracuse to defraud FSMC into awarding lucrative contracts to the developers (USAO complaint f 67). Specifically, Dr. Kaloyeros is accused of causing FSMC to issue purportedly competitive requests-for-proposals (RFPs) that secretly were tailored to the qualifications of preferred developers and designed to prevent competing bids—all while falsely representing to FSMC that the bidding process was fair, open and competitive (id. f 68). On November 22, 2016, the USAO filed a wire fraud indictment against Dr. Kaloyeros, and he entered a plea of not guilty to the charge at his December 1, 2016 arraignment.


Having determined that this court has jurisdiction it is necessary to next decide if the complaint states a cause of action under the RICO statute. The RICO statute, because of its broad definitions, appears to encompass many “fraud related civil claims which are state and common law in nature and which do not involve racketeering in the ordinary meaning of that word”. (See Brodsky, op. cit., p 2, col 1.) Thus, “because RICO requires only two acts of mail or <mask> to establish a violation, and because each mailing or wire used in furtherance of a fraudulent scheme, whether or not pursuant to the same scheme, constitutes a separate offense, a private right of action for treble damages is available for violation of section 1962 in virtually *158every case of commercial mail and wire fraud * * * Given the prevalence of mail and wire use in commercial transactions, RICO’s provision for a private cause of action predicated on violations of the mail and wire fraud statutes virtually federalizes common law fraud.” (Note, Civil RICO, op. cit., at pp 1104-1105.)


Even assuming jurisdiction, it does not appear that an adequate RICO claim is set forth. The United States Court of Appeals for the Second Circuit in Sedima, S.P.R.L. v Imrex Co. (741d 482, 492, decided July 25, 1984), held that under the statute, a party is entitled to treble damages only if it is alleged and proved that an enterprise’s affairs have been conducted through a “ ‘pattern of racketeering activity’ ”, which is defined under section 1961 (1) to include acts involving murder, kidnapping, gambling, robbery, bribery, narcotics, embezzlement, extortion, fraudulent securities and mail and <mask>. The court in Sedima believed there was no evidence that Congress intended to create a broad civil cause of action under RICO unrelated to organized crime and its attempt at infiltration of private businesses. The court noted that while there were few cases where RICO had been used against reputed mobsters, there was a veritable explosion of cases alleging RICO offenses against legitimate enterprises where “garden variety” allegations of fraud were alleged. Such use of the RICO statute was characterized by the court as “extraordinary, if not outrageous” (p 487). The court went on to hold that for “ ‘pattern of racketeering activity’ ” (p 492) to exist, the predicate acts upon which a RICO claim could be based would require at least two prior criminal convictions. Additionally, the court declared that beyond ordinary damages, one asserting a civil action under RICO must allege a “separate, distinct racketeering enterprise injury”. There was a vigorous dissent from Judge Cardamone.


Congress in enacting RICO focused primarily on eradicating organized crime but did not limit the application of the RICO statute only to organized crime. The application of RICO was intended to reach both legitimate and illegitimate enterprises regardless of organized crime involvement. (See, Sedima, S. P. R. L. v Imrex Co., 473 US 479.) The Supreme Court held in H. J. Inc. v Northwestern Bell Tel. Co. (492 US 229, 249 [1989] ): "We thus decline the invitation to invent a rule that RICO’s pattern of racketeering concept requires an allegation and proof of an organized crime nexus.” Since RICO includes Federal mail and <mask> as predicate offenses, the use of the mails and wire communications in furtherance of a scheme to defraud can easily place a violator of common-law fraud into the RICO statute subjecting him to sanctions of treble damages and attorney’s fees. Each use of the mails or wire communications under the statute is a separate violation, even if there is only one scheme to defraud. These aspects of the statute invited different "garden variety” fraud claims to be brought under RICO.


Plaintiff’s third cause of action alleged that defendant in carrying out his fraudulent scheme, used the mail and wires in connection with the acquisition of the house and the obtaining of the bank loans. It is alleged that each employment of the wire and mails constituted criminal mail and <mask>, and that since defendant was associated with other attorneys in law firms, he was engaged in an ongoing "enterprise” as part of his scheme to defraud, and that this constituted a "pattern of racketeering activity” pursuant to 18 USC § 1961 et seq. entitling plaintiff to recover treble damages and attorneys’ fees.


Plaintiff contends that the pattern of racketeering activity was made out by allegations that she was induced to obtain *575two separate loans, each of which involved mail or <mask>. The "ongoing enterprise” is alleged to be the existence of the law firm defendant was associated with, even though it is clear that the law firm received no fees for this essentially private and personal transaction. The initial Beauford decision (supra) was overruled en banc (Beauford v Helmsley, 865d 1386). But Simpson (supra) still stands as controlling New York law. While in Beauford, there was one scheme directed at buyers of 8,000 condominium units, here we have a single individual involved in virtually contemporaneous transactions focused on a single real estate purchase. A court should not permit a plaintiff to convert what was essentially a single transaction into micro-units of activity in an attempt to demonstrate a multiplicity of acts.


Concurrent with the diversion of funds from BNU an investigation of Steve’s operations by the United States Department of Justice was underway. Two weeks after the hearing before this court on BNU’s motion for a TRO on the funds in the accounts in New York City, the United States Attorney filed an indictment against Steve’s principals, Steve Wangboje and Azie Guice, in the United States District Court in New Jersey. The indictment charged that they had engaged in "money laundering” of funds from narcotic operations, <mask> and conspiracy. The affidavits of the United States Drug Enforcement Agency personnel in support of the orders for the interception of wire communications among the defendants indicated that the money laundering scheme was related to drug trafficking activities by car dealerships located in Nigeria. One such dealership was Skymit Motors, Ltd. in Lagos, Nigeria, to which Steve’s shipped luxury vehicles and parts. Communications intercepted from Wangboje’s home with the other defendants "reflect that the Subject[s] themselves are actively involved in fraudulent schemes * * * and have customers who were/are engaged in drug trafficking.” The wiretaps also revealed that Skymit attempted to impede the investigation in Nigeria by, inter alia, instructing Steve’s to manufacture and alter documents, and "stonewall” the investigators.


In July 1994, defendant and others were indicted by a Grand Jury of the United States District Court for the Northern District of Illinois for crimes involving the killing of four horses in order to collect insurance proceeds for the horses. On March 19, 1996, defendant pleaded guilty to one count of criminal conspiracy to commit <mask>. Defendant admitted that he conspired with three others to kill a horse in order to enable one of them to file a false insurance claim as to that horse. Defendant further admitted that he told the horse killer to keep quiet about the people who hired the killer to slaughter the horses, and, if he kept quiet about defendant’s friends and business associates, defendant would pay him money. Defendant also admitted that he later spoke with the horse killer and that defendant said that he would kill the horse killer if he did anything to hurt defendant. Defendant was sentenced to serve 33 months in prison, to be followed by three years of probation, and to make restitution of $200,000 to one of the defrauded insurance companies.


Attorney Friedler was subsequently indicted in the United States District Court, District of New Jersey, and pleaded guilty to charges of <mask> and obstruction of justice, based on his conduct in defrauding petitioner and other clients, Attorney Friedler is currently incarcerated in a Federal penal institution. According to a press release, Attorney Friedler admitted that he fraudulently solicited and obtained money from his clients by telling them that he would use the money to bribe judicial employees, government agents and civil investigators and cause them to stop or alter their criminal and civil cases. He further admitted that he obstructed justice by providing a false invoice to petitioner, when petitioner had withdrawn $54,000 from his company’s bank account so that it could not be seized by the Federal Bureau of Investigation.


Before LUCK, LAGOA, and EDMONDSON, Circuit Judges. PER CURIAM: Elisabeth Greenhill appeals her conviction after pleading guilty to conspiracy to commit <mask>, in violation of 18 U.S.C. 1349. Greenhill was sentenced to 87 months’ imprisonment. No reversible error has been shown; we affirm Greenhill’s conviction and sentence and dismiss this appeal in part. I. In 2018, a federal grand jury charged Greenhill and Green- hill’s brother (Jonathan) with conspiracy to commit wire fraud and with five counts of wire fraud. Briefly stated, Greenhill and Jona- than owned and operated a travel agency that specialized in mak- ing arrangements for faith-based and humanitarian organizations to travel overseas for mission or humanitarian work. The super- seding indictment alleged that Greenhill and Jonathan engaged in a fraudulent scheme in which they diverted client funds to use for their own personal benefit.


fraud counts. Throughout the plea process, Greenhill was repre- sented by her second court-appointed lawyer (P.C.). On 3 February 2020, the district court conducted a change- of-plea hearing. During the plea colloquy, Greenhill testified under oath that she understood the plea agreement, that no one had threatened or coerced her to plead guilty, that she had had suffi- cient time to think about and to discuss with her lawyer her deci- sion to plead guilty, and that she was satisfied with her lawyer’s representation. Greenhill also said she agreed with the govern- ment’s factual proffer and that she was in fact guilty of conspiracy to commit <mask>. The district court reviewed the terms of the plea agreement’s appeal waiver, explaining that by pleading guilty, Greenhill was giving up her right to appeal her conviction and sen- tence except in three narrow circumstances. Greenhill confirmed that she understood the appeal waiver. At the end of the plea colloquy, the district court determined that Greenhill understood the charges against her and the conse- quences of her guilty plea, that Greenhill was pleading guilty know- ingly and voluntarily, and that her plea was supported by an inde- pendent factual basis. The district court accepted Greenhill’s plea and adjudicated Greenhill guilty of conspiracy to commit wire fraud. The probation officer prepared a Presentence Investigation Report (“PSI”). The PSI calculated a total offense level of 26: a level that included a three-level acceptance-of-responsibility reduction and enhancements based upon the estimated loss amount USCA11 Case: 21-11102 Date Filed: 02/04/2022 Page: 4 of 12


conspiracy to defraud cell phone users. According to the superseding criminal indictment in the record, the respondent owned a company that provided specialized digital content for a fee to cell phone users via text message. The respondent was approached by owners of a mobile aggregator company, who devised a plan to unknowingly and automatically subscribe cell phone users to receive content from the respondent’s company, which, in turn, charged these users a monthly premium fee through their mobile carrier. The cell phone users never consented or agreed to the auto-subscription or resulting fee. The individuals at the mobile aggregator, and the respondent, then obtained that fraudulent fee from the mobile carrier, which mistakenly believed that the cell phone users had authorized the purchase of this respondent’s content. Based on this scheme, the respondent pled guilty in 2017 to conspiracy to commit <mask> in violation of 18 U.S.C. § 1349 and § 1343 (2012). 1 The Department of Homeland Security (“DHS”) placed him in removal proceedings, charging him with removability under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2018), as a respondent convicted of an aggravated felony involving fraud or deceit under section 101(a)(43)(M)(i) of the Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2018). 2 The DHS lodged an additional charge of removability under the same provision, charging the respondent with having been convicted of an aggravated felony attempt or conspiracy under section 101(a)(43)(U) of the Act. The DHS also submitted an additional factual allegation: that the respondent was ordered to pay forfeiture traceable to his criminal offense in the amount of $346,717.08.


Although the respondent pled guilty under the conspiracy provision in 18 U.S.C. § 1349, the judgment of conviction issued by the United States District Court for the Southern District of New York contained a clerical error, inadvertently stating that he was convicted under 18 U.S.C. § 1343, which defines the offense of fraud by wire, radio, or television. The district court later corrected the clerical error regarding the statute of conviction. The respondent has not demonstrated he was prejudiced by this clerical error because it is apparent from the record that all parties understood that the respondent was convicted under “conspiracy to commit <mask>,” despite the clerical error regarding the statute number. Additionally, the respondent admitted the allegation in the notice to appear that he was convicted of this offense and the charges of removability remain the same. Likewise, the respondent was not prejudiced by his prior counsel’s purported failure to inform the court of this clerical error. See Flores v. Barr, 930 F.3d 1082, 1087 (9th Cir. 2019) (per curiam) (acknowledging that a respondent must demonstrate that he or she suffered prejudice as a result of his or her counsel’s deficient performance). The DHS also charged the respondent under section 237(a)(2)(A)(i) of the Act for having been convicted of a crime involving moral turpitude within 5 years after admission, but this charge was later withdrawn.


to forfeiture, rather than the amount that was received by the entire criminal enterprise. We therefore conclude that the DHS can meet its burden of demonstrating a loss in excess of $10,000 to the victims of an offense involving fraud or deceit under section 101(a)(43)(M)(i) by showing that a respondent was subject to criminal forfeiture for such an amount and that the forfeiture ordered was traceable and sufficiently tethered to the conviction. See Chiao Fang Ku v. Att’y Gen. U.S., 912 F.3d 133, 140 (3d Cir. 2019) (considering a forfeiture allegation contained in the information and holding that a conviction under 18 U.S.C. § 1343 constituted an aggravated felony under section 101(a)(43)(M)(i)); Eversley-MacClaren v. Holder, 578 F. App’x 664, 666 (9th Cir. 2014) (determining that the Board appropriately relied on a forfeiture order, along with other sentencing documentation, to find the loss to the victims exceeded $10,000 under section 101(a)(43)(M)(i)); cf. Barikyan v. Barr, 917 F.3d 142, 146–47 (2d Cir. 2019) (holding that an order of forfeiture showing a respondent laundered more than $10,000, established that he was convicted of aggravated felony money laundering pursuant to section 101(a)(43)(D) of the Act). In the instant case, the respondent was convicted of conspiracy to commit <mask> under 18 U.S.C. §§ 1349 and 1343. He agreed in his plea agreement that he was subject to forfeiture for his offense under 18 U.S.C. § 981(a)(1)(C) (subjecting to forfeiture all property derived from proceeds traceable to the offense, or a conspiracy to commit the offense). See Thompson, 990 F.3d at 683 (involving a defendant convicted under 18 U.S.C. §§ 1349 and 1343 who was subject to forfeiture under 18 U.S.C. § 981(a)(1)(C)); United States v. Day, 524 F.3d 1361, 1375–76 (D.C. Cir. 2008) (describing when a forfeiture order is appropriate under 18 U.S.C. § 981(a)(1)(C)). The sentencing judge applied the Supreme Court’s decision in Honeycutt in determining the forfeiture amount, specifically linking this amount to proceeds directly traceable to the respondent. See Thompson, 990 F.3d at 689 (determining Honeycutt applies to forfeiture under 18 U.S.C. § 981(a)(1)(C)); see also Honeycutt, 137 S. Ct. at 1632–35 (holding that forfeiture is limited to property or proceeds in the defendant’s possession that are directly traceable to his or her conduct). According to the amended judgement, the respondent was ordered to pay “[f]orfeiture traceable to the offense, in the amount of $346,717.08.” The amended judgment and the letter from the Federal prosecutor both explicitly state that the $346,717.08 forfeiture amount was traceable to the respondent’s criminal conduct of conspiring to defraud cell phone customers. 3 This amount is thirty-four times greater than $10,000. The respondent asserts that the prosecutor’s letter is not sufficiently reliable to establish that he agreed to the $346,717.08 forfeiture amount. However, as we previously noted,


We agree with the Immigration Judge that the respondent’s conviction for conspiracy to commit <mask> constitutes a particularly serious crime barring asylum and withholding of removal under the Act and under the Convention Against Torture. See sections 208(b)(2)(A)(ii), (B)(i) 241(b)(3)(B)(ii) of the Act; 8 C.F.R. § 1208.16(d)(2) (2021). The Act prohibits the respondent from obtaining asylum or withholding of removal if he has “been convicted by a final judgment of a particularly serious crime [and is] a danger to the community of the United States.” Sections 208(b)(2)(A)(ii), 241(b)(3)(B)(iii) of the Act. Where the record “indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the [applicant] shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.” Matter of M-B-C-, 27 I&N Dec. 31, 33 (BIA 2017) (emphases omitted) (quoting 8 C.F.R. § 1240.8(d) (2016)). As discussed above, the respondent’s conviction for conspiracy to commit wire fraud is a conviction for an aggravated felony. This conviction renders the respondent statutorily ineligible for asylum because it is one for a particularly serious crime. See sections 208(b)(2)(A)(ii), (B)(i) of the Act. Because the respondent was not sentenced to an aggregate term of imprisonment of at least 5 years, however, his conviction is not automatically


At trial, the Government claimed that the plan had a property interest in Barringer’s 401(k) account. J.A. 555 (“The plan itself controls the assets in the plan until they are withdrawn. Accordingly, the plan has property rights in the assets of the plan until it withdraws.”). As the district court’s grant of the posttrial motion for a judgment of acquittal on the <mask> counts necessarily reflects, this proposition was not proven. invalidated count that would otherwise be inadmissible on the remaining counts, and this


I. FACTS AND PROCEDURAL HISTORY On July 29, 2015, a grand jury indicted Simone Swenson on four counts of <mask> and mail fraud based on a scheme to defraud prospective adoptive parents through her adoption agency, Sans Pareil Center for Children and Family Services, LLC (“Sans Pareil”). As alleged in the indictment, the heart of this scheme was Swenson’s practice of “double matching”—matching two prospective families with the same birth mother and receiving payments from both families. In September 2019, the case was tried before a jury. The jury returned a verdict of “not guilty” on the two wire fraud counts (counts 1 and 2), and a verdict of “guilty” on the two mail fraud counts (counts 3 and 4). The district court then granted Swenson’s motion for judgment of acquittal only as to count 3. The sole remaining count of conviction, count 4, stemmed from a check for $1,800 to pay for birth-mother expenses sent to Swenson on September 18, 2013. 1 That check, in turn, was related to the double matching of birth-mother Ashley Smolt with two different prospective birth families— Daniel and Christopher Cuschieri (the “Cuschieris”) and Annise and Jason Neidrich (the “Neidriches”). The Cuschieris had previously sent Swenson $13,400 in agency fees on June 7 for an adoption match with a potential birth mother; that match eventually fell through. Similarly, the Neidriches had paid Swenson $11,700 on July 1 for a match that eventually failed. After that failed match, the Neidriches were matched with birth- mother Smolt in mid-September. As part of that match, they were informed on September 12 by e-mail that their agency fees from the previous failed match would be rolled over, but that they needed to pay $1,800 for Smolt’s birth-mother expenses. Annise Neidrich also testified that, after this e-mail,


“omission or non-disclosure of material facts by a non-fiduciary” cannot support a mail fraud conviction). While Loughrin was interpreting the bank fraud statute, 18 U.S.C. § 1344, we have noted that precedents based on that statute can be used when interpreting the mail fraud statute, 18 U.S.C. § 1341, since the bank fraud statute was modeled on the mail and <mask> statutes. See United States v. Saks, 964 F.2d 1514, 1520 (5th Cir. 1992) (“It is well settled that Congress modelled § 1344 on the mail and wire fraud statutes, and that the usual practice is to look to precedents under those statutes to determine its scope and proper interpretation.”).


Before WILLIAM PRYOR, Chief Judge, GRANT, and ANDERSON, Cir- cuit Judges. GRANT, Circuit Judge: This case concerns two defendants found guilty of orchestrating large-scale corporate fraud. Nathan Hardwick was convicted at trial on counts of conspiracy, making a false statement to a financial institution, and <mask>. The district court sentenced him to 15 years in prison and required him, along with his alleged co-conspirator Asha Maurya, to pay over $40 million in restitution. Hardwick argues on appeal that the district court failed to support its restitution order with the reasoning required by law. He also attacks his convictions on a number of grounds and contends that his sentence is substantively unreasonable. We agree with Hardwick that the district court must vacate and reissue its restitution order, but we otherwise affirm Hardwick’s convictions and sentence. Hardwick’s case has been consolidated with Maurya’s on appeal. Maurya pleaded guilty to conspiracy to commit wire fraud. She joins Hardwick’s challenge of the restitution order, and further USCA11 Case: 19-10746 Date Filed: 02/01/2022 Page: 5 of 24


his private accolades to her. He claimed that she had “duped” him by stealing money from MHS, altering the firm’s records to cover her tracks, and sending him payouts to hide the firm’s real financial situation. After further investigation revealed large payments from MHS to Hardwick and his casino creditors, however, it became clear that “the jig was up.” A grand jury indicted Hardwick and Maurya. After Maurya pleaded guilty, the grand jury issued a superseding indictment against Hardwick. He went to trial, where he was convicted of <mask>, conspiracy to commit wire fraud, and making false statements to a federally insured financial institution. The district court sentenced him to 180 months in prison—an upward variance from the Guidelines range of 108 to 135 months. Maurya received a sentence of 84 months. The court also issued a restitution order requiring Maurya and Hardwick to “pay restitution, jointly and severally, in the amount of $40,307,431.00.” Both defendants now appeal. Maurya asks the court to vacate both the restitution order and her sentence. Hardwick requests the same relief, but he also directly challenges his convictions. II. We begin with Maurya’s appeal. Maurya first argues that her sentence must be vacated because the district court applied a sentencing enhancement that did not exist when her offense was committed. The sentence, she says, thus violated the USCA11 Case: 19-10746 Date Filed: 02/01/2022 Page: 8 of 24


The district court allowed the question after specifically noting that the subject of Maurya’s guilty plea had already been raised in opening. The defense’s only response was that an opening statement “is not evidence.” That is true—but even so, a party cannot repeatedly emphasize a fact at length in an opening statement and then hope to persuade us that prejudice has resulted when the opposing party references it in a single question. The defense repeatedly told the jury that Maurya had entered a plea deal; Hardwick cannot possibly complain that the government led the jury to believe his own assertion. The district court did not abuse its discretion in allowing the question. E. Hardwick also challenges the sufficiency of the evidence, arguing that the court erred in denying his motion for judgment of acquittal because his convictions were unsupported by the record. We review a denial of a motion for judgment of acquittal de novo. United States v. Broughton, 689 F.3d 1260, 1276 (11th Cir. 2012). The evidence is sufficient if, taking it in the light most favorable to the government, “a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt.” Id. We consider each of Hardwick’s convictions in turn, beginning with conspiracy to commit <mask> under 18 U.S.C. § 1349. To prove conspiracy, the government needed to show that USCA11 Case: 19-10746 Date Filed: 02/01/2022 Page: 19 of 24


“(1) a conspiracy existed; (2) the defendant knew of it; and (3) the defendant knowingly and voluntarily joined it.” United States v. Moran, 778 F.3d 942, 960 (11th Cir. 2015). Hardwick argues that “[t]heoretically, the only evidence that could link Hardwick to a conspiracy with Maurya was Maurya’s testimony, which the Government chose not to rely upon.” But the record belies that assertion. To begin, the government introduced several communications between Hardwick and Maurya suggesting an understanding between the two about the fraudulent nature of the transfers. And further evidence suggested that Hardwick knowingly received far more money than he could have expected from ordinary distributions. It is true that inferences were required to connect the dots; as in many white-collar trials, the government produced not a smoking gun but a pile of documents and figures. And here those documents and figures gave the jury ample evidence to find that Hardwick and Maurya were entangled in an embezzlement conspiracy. We next consider Hardwick’s 21 convictions of <mask> under 18 U.S.C. § 1343, which required the government to prove both “(1) intentional participation in a scheme to defraud and (2) use of the interstate wires in furtherance of the scheme.” United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003). Hardwick conceded the second element of this offense at trial. And as we have just explained, the government offered substantial evidence to support its allegations that Hardwick intentionally participated in a scheme to defraud MHS. On appeal, Hardwick argues that USCA11 Case: 19-10746 Date Filed: 02/01/2022 Page: 20 of 24


on the military community at Fort Drum. Finally, unlike the investigators in Wilcox who presumably were not affected by the controversial statements they uncovered, SPC V.G. was (according to the stipulated facts) “likely” to suffer “emotional distress” because of the broadcasting of the videos. Under the plain language of Article 117a(a)(4), UCMJ, nothing more is needed to establish a “direct and palpable connection to a . . . military environment.” C. Other Contentions We note three other arguments that Appellant has made. The first argument lacks merit. Appellant contends that a court-martial cannot use “a single factual basis . . . to satisfy two elements” of Article 117a(a), UCMJ. Accordingly, Appel- lant argues, the court-martial could not consider the effects of the video on SPC V.G. for elements in Article 117a(a)(3), UCMJ, and also Article 117a(a)(4), UCMJ. We reject this con- tention. Evidence sometimes may satisfy two elements of an offense. See, e.g., Pasquantino v. United States, 544 U.S. 349, 355 (2005) (holding that evidence of “[p]etitioners’ smuggling operation” satisfied two elements of the federal <mask> statute). The second and third arguments are not properly before this Court. Appellant contends that Article 117a(a), UCMJ, has “[c]onstitutional implications” that this Court must con- sider. Citing United States v. Williams, 553 U.S. 285, 304 (2008), and other decisions, he questions whether Article 117a(a), UCMJ, gives persons of ordinary intelligence fair no- tice of what is prohibited. Appellant also contended at oral argument that there were some unresolved inconsistencies between what Appellant stated in the stipulation of fact and what the videos actually showed when they were introduced later at sentencing. We decline to reach these arguments be- cause they are not within the scope of the granted issue and were not briefed by both parties. See United States v. Guardado, 77 M.J. 90, 95 n.1 (C.A.A.F. 2017) (declining to ad- dress an issue outside the scope of the granted issue). IV. Conclusion The judgment of the United States Army Court of Crimi- nal Appeals is affirmed.


g. What is shocking, if our suspicion is correct, is the disproportionate legal and regulatory consequence to [Lenders] and [Agent Partner] of [Lenders], as well as Holland & Knight, willingly joining Lee’s apparent scheme to defraud PBM. Holland & Knight could not possibly have performed due diligence or complied with Pennsylvania law to advance Lee’s scheme and harassment campaign against PBM. If our analysis is correct, then [Lenders] and [their] attorneys impaired PBM’s secured property rights and lien, tortuously interfered with PBM’s contractual rights and engaged in the tort equivalent of (at a minimum) <mask>.


The government next points to case law. It argues that our decision in Miller is distinguishable. Even were that so, it would be irrelevant. In Miller, we held that the intent to defraud under the <mask> statute, 18 U.S.C. § 1343, “requires the intent to deceive and cheat.” 953 F.3d at 1103. But our holding today rests on the plain and ordinary meaning of a different statute, one that Miller neither considered nor discussed.


Congress responded the next year by enacting a new statute to revive the honest-services doctrine. See 18 U.S.C. § 1346 (clarifying that in mail fraud (§ 1341) and <mask> (§ 1343) prosecutions, “the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services”). The Supreme Court later determined § 1346 was vague in its scope, and so read the statute narrowly to cover only conduct falling within the core of pre-McNally honest-services fraud—“schemes to deprive another of honest services through bribes and kickbacks supplied by a third party.” Skilling, 561 U.S. at 404. Skilling is less relevant than McNally here because the meaning of § 1346 has little direct bearing on the meaning of §1343, while § 1341 and § 1343 are nearly identical.


This case arises out of a criminal corruption investigation of officers in the San Francisco Police Department (SFPD). The investigation began in 2011 and was led by the United States Attorney's Office *781(USAO), with the assistance of select members of the criminal unit of SFPD's Internal Affairs Division (IAD-Crim). During the course of the investigation, search warrants of the cellphone records of former SFPD Sergeant Ian Furminger-the central figure in the corruption scheme-led to the discovery in about December 2012 of racist, sexist, homophobic, and anti-Semitic text messages between Furminger and nine SFPD officers.2 *936The criminal case proceeded to trial and resulted in a verdict against Furminger and a codefendant for conspiracy to commit theft, conspiracy against civil rights and <mask>. Three days after the verdict, on December 8, 2014, the text messages were released by the USAO to the administrative unit of SFPD's Internal Affairs Division (IAD-Admin). After IAD-Admin completed its investigation of the text messages, the chief of police issued disciplinary charges against respondents in April 2015.


On December 5, 2014, a federal jury convicted Furminger and Robles of conspiracy to commit theft, conspiracy against civil rights and <mask>. Three days later, a meeting was held between Lieutenant Yick and members of IAD-Admin, IAD-Crim, and AUSA's Villazor and John Hemann. At this meeting, the USAO lifted the confidentiality restriction and authorized IAD-Crim to release respondents' text messages to IAD-Admin. In the following days, IAD-Crim provided voluminous records to IAD-Admin, including a CD containing thousands of pages of text messages sent and received by Furminger. Lieutenant Yick assigned three investigators to review the records for evidence of administrative misconduct.


In 2010, the BLP collapsed and Plaintiffs lost their investments. An FBI investigation revealed that Sigillito operated the BLP as a Ponzi scheme. Unsealing the indictment in May 2011, the United States charged Sigillito with money laundering, <mask>, and mail fraud. The federal indictment asserted that, inter alia , Sigillito and Brown retained unauthorized placement fees after transferring their clients' assets. A jury found Sigillito guilty, and the federal district court sentenced him to forty years in prison. Sigillito's convictions and sentences were affirmed. United States v. Sigillito, 759 F.3d 913, 941 (8th Cir. 2014).


Applying the capable-of-ascertaimnent test objectively, the facts alleged by Plaintiffs demonstrate that their damages were capable of ascertainment by May 2011, The parties agree that the BLP collapsed after an FBI investigation in 2010 and that Plaintiffs received notice of their extensive investment losses shortly thereafter. The parties acknowledge that Sigillito's federal indictment was unsealed in May 2011. Sigillito's indictment revealed the charges of money laundering, <mask>, and mail fraud arising from BLP operations. The federal indictment exposed the wrongful nature of the BLP venture, linking Plaintiffs' investment losses to, and unveiling the damage caused by, the BLP's administration. The federal indictment also established that Sigillito, in managing the BLP, retained numerous unauthorized placement fees before directing the distribution of his clients' assets to overseas borrowers and committed improper self-dealing in these transfers.


On June 3, 2010, the United States filed a seven count indictment against Plaintiffs. Count I charged Plaintiffs with conspiracy to commit mail and <mask>, counts II through VI charged Plaintiffs with mail fraud, and count VII charged Plaintiffs with knowingly making a false statement for the purpose of obtaining a loan to be accepted and guaranteed by the United States Department of Housing and Urban Development ("HUD"). The indictment alleged Plaintiffs worked on several real estate transactions between September 1, 2003, and September 1, 2005, where Plaintiffs prepared applications for financing on behalf of the buyers which contained false, material statements about the buyer's ability to repay. Specifically, the indictment referenced five transactions in St. Louis, only one of which was listed in the MREC disciplinary proceeding. The conspiracy charge (count I) referenced all five transactions, the mail fraud charges (counts II through VI) applied to each property individually, and the knowingly making a false statement to HUD charge (count VII) only applied to the one property in common with the criminal and MREC charges.


Reynolds was convicted of <mask> in 2017. The district court sentenced her to nineteen months’ imprisonment, to be followed by three years of supervised release. One special condition of release provided that Reynolds must not use or possess alcohol, and must not enter bars and taverns. The court imposed this condition in light of information that Reynolds had a problematic history of alcohol use, including two convictions for driving while intoxicated, and convictions for assault and criminal trespass that arose from acts taken while Reynolds was intoxicated.


Before EASTERBROOK, KANNE, and BRENNAN, Circuit Judges. KANNE, Circuit Judge. Defendant Eric Mboule was charged with conspiracy to commit <mask> and entered a plea agreement that contained a waiver of the right to appeal. Nonetheless, Mboule has appealed, raising arguments re- garding the district court’s denial of his motion to withdraw his guilty plea and various purported problems with his sen- tence. Because Mboule has not shown that the plea agreement 2 No. 20-3225


should be voided in its entirety, the appellate waiver is appli- cable, and this appeal will be dismissed. I. BACKGROUND Mboule was charged with one count of conspiracy to com- mit <mask> for working with his co-conspirator, Patrick Guentangue, to defraud the University of Illinois Urbana- Champaign of $265,193.75. In the summer of 2016, an individ- ual purporting to work for Williams Brothers Construction, a contractor of the university, convinced a university employee to transfer that amount to a bank account owned by Guen- tangue. After Guentangue was arrested, he explained to law enforcement that he had set up the account on Mboule’s in- structions and that Mboule told him to expect a wire totaling $265,000. Guentangue received approximately twenty-ﬁve percent of the proceeds with the remaining funds being dis- tributed according to Mboule’s instructions. Mboule and Guentangue had conducted similar frauds on several occa- sions prior to this one. After he was charged, Mboule signed a cooperation agree- ment with the government in which he promised to provide complete and truthful information regarding his criminal conduct in exchange for the government informing the court of Mboule’s cooperation in any sentencing hearing. Mboule also agreed to plead guilty pursuant to a plea agreement. In pertinent part, the plea agreement provided that Mboule was entitled to a 2-level reduction in his oﬀense level because, “based upon the facts currently known by the United States,” he had “clearly demonstrated a recognition and aﬃrmative acceptance of personal responsibility.” The plea agreement nonetheless did not “preclude the United No. 20-3225 3


FBI agent that Mboule lied to him during the proﬀer session, in breach of the cooperation agreement. It also heard testi- mony from a victim of a diﬀerent <mask> that Mboule committed during the summer of 2016. Sentencing proceed- ings resumed on September 21, 2020. The district court con- cluded that the evidence from the ﬁrst sentencing hearing es- tablished that Mboule “violated that portion of his plea agree- ment concerning cooperation in that he engaged in that fraud- ulent activity.” After that hearing, Mboule, represented by a new lawyer, ﬁled a motion to withdraw his guilty plea under Federal Rule of Criminal Procedure 11(d)(2)(B). The motion stated that Mboule’s previous trial counsel failed to inform Mboule that he could “enter[] an open plea of guilty,” leaving Mboule to believe that his only options were to “proceed with trial or plead guilty pursuant to a plea agreement.” The district court denied the motion without holding an evidentiary hearing. In its order, the court observed that Mboule did not express dis- satisfaction with his attorney or a desire to cancel the plea agreement “until immediately after the January 13, 2020, hearing, where [Mboule] ﬁrst saw the consequences of his lies.” At the third and ﬁnal sentencing hearing, held on Novem- ber 6, 2020, the district court resolved the remaining sentenc- ing issues and sentenced Mboule to 42 months’ imprison- ment, which was within the guidelines range of 37 to 46 months, as well as 3 years of supervised release, and ordered him to pay restitution in the amount of $265,193.75. The judge rejected the idea that Mboule had been coerced into pleading guilty and stated that Mboule was simply experiencing “buyer’s remorse.” 6 No. 20-3225


the term “proceeds” in the federal money-laundering statute, 18 U.S.C. § 1956(a)(1)(A)(i) (2006), means “profits” and not “receipts,” and that its meaning must be uniform across contexts); compare id. at 525 (Stevens, J., concurring in the judgment) (concluding that “proceeds” could mean “receipts” or “profits” depending on the context, suggesting that, “[i]f Congress could have expressly defined the term ‘proceeds’ differently when applied to different specified unlawful activities, it seems to me that judges filling the gap in a statute with such a variety of applications may also do so, as long as they are conscien- tiously endeavoring to carry out the intent of Congress”), with id. at 522 (Scalia, J., concurring in the judgment) (describing Justice Stevens’s approach as a form of “interpre- tive contortion,” and contending that the Court had “forcefully rejected” that approach in Clark), and id. at 532 (Alito, J., dissenting) (“I cannot agree with Justice Stevens’s approach insofar as it holds that the meaning of the term ‘proceeds’ varies depending on the nature of the illegal activity that produces the laundered funds[.]”); see also Pasquan- tino v. United States, 544 U.S. 349, 358–59 (2005) (citing Clark in concluding that because the federal <mask> statute, 18 U.S.C. § 1343, “applies without differentiation” to “fraudulent uses of domestic wires,” it must necessarily apply to a scheme to use the domestic wires to deprive a foreign sovereign of taxes that are due).