UNITED STATES of America, Plaintiff-Appellee, v. Everette O. BAKER, d/b/a Bettye‘s Touch Above, d/b/a Fantasyland Theater & Arcade, d/b/a/ Fantasyland Night Club, d/b/a Fantasyland Massage Parlor, d/b/a Fantasy Massages, d/b/a Fantasy Massage Parlor, d/b/a American Printing & Publishing Company, Defendant-Appellant.
No. 99-3840.
United States Court of Appeals, Seventh Circuit.
Argued May 19, 2000. Decided Sept. 20, 2000.
227 F.3d 955
The majority intimates two policy justifications for grounding the reversal in a lack of identity between parties. First, every individual has a right to his day in court, and barring Perry because of an identity of claims might impair Lahucik‘s right. But that cannot be so; the majority correctly states that, regardless of Perry‘s initial failure on his claim, Lahucik was entitled to bring his own claim in his own name. At most, barring Perry from bringing the suit because of his prior failure would reduce by one the number of people interested in buying Lahucik‘s claim.
The majority also states that banks and insurance companies routinely take assignments of large numbers of claims arising out of a single transaction or occurrence, “and given the vagaries of litigation they undoubtedly win some and lose some.” Maj. Op. at 953. However, banks and insurance companies must buy the bulk of their claims before litigating them. If a bank bought a single claim, litigated it and lost, one might argue that the bank is (or should be) precluded from rustling up a second case to try its luck again. The situation seems different when a bank buys claims without any forewarning that the claims lack merit and then pursues them simultaneously to mixed results. In such cases, as well as here, it may be more appropriate to deny claim preclusion because the claims themselves are different in some respects.
In spite of the fact that an identity of parties is present here, the result reached by the majority is sustainable under another analysis that seems to be more consistent with the basic principles of claim preclusion. Beyond the question of identity of parties lies the need for identity of claims, and here the requirements of claim preclusion may not be met. The present RICO suit involves allegations of predicate acts of acceptance of bribes and conspiracy. Since Perry appears to have alleged a later terminal date for the conspiracy than in his previous complaints, he seems to have alleged new predicate acts of bribery. Consequently, even though Perry may have made a concession on this point, there may well be different claims here. So, even though the same party is bringing both claims, the second claim may still survive preclusion. However, on remand, Perry‘s claim should be limited to only the new dates of conspiracy he has alleged.
Mark G. Arnold (argued), Douglas P. Roller, Husch & Eppenberger, St. Louis, MO, for Defendant-Appellant.
Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.
MANION, Circuit Judge.
Everette Baker operated massage parlors that were fronts for his prostitution business. In addition to cash, his operation used credit card and automatic teller machine (ATM) transactions. He used the proceeds from his prostitution business to maintain and expand that business, as well as several other legal “adult businesses.” He was convicted of money laundering and conspiracy to commit money laundering and in addition to being sentenced to fifteen years in prison, was ordered to forfeit millions of dollars. We affirm Baker‘s convictions, sentence, and the forfeiture order.
I. Background
From 1989 to 1997, Baker operated a complex of inter-related sex businesses in Brooklyn, Illinois, including striptease bars, adult bookstores and movie theaters, and x-rated video arcades. The cornerstone of Baker‘s “Fantasyland” complex, however, was the “massage parlors” that were fronts for prostitution. The businesses were related in that customers who indulged in the legal adult businesses would fulfill their fantasy in another building in the compound where the prostitutes disguised as masseuses held forth. Customers would select a “masseuse” from a line-up and then rent a room by paying a “house charge” up front. After the customer and the “masseuse” went into a room, the customer would select the type of “massage” he wanted. The prostitutes never discussed specifics with the customers; they simply told the customers that the more they were willing to pay, the more “sensual” the massage would be. Customers would pay the prostitutes with “tips.” Both the room rentals and “tips” were often paid by credit card or ATM transactions.
Over the years, Baker employed hundreds of prostitutes, so likely everyone in Brooklyn who cared knew what was going on. Indeed, two daughters of the chief of police, and at one time the brother and the cousin of the mayor, were on Baker‘s payroll. Around the holidays, Baker provided a sort of “Christmas bonus” — free “massages” to various municipal employees as a show of gratitude for allowing him to operate in Brooklyn without much (if any) interference. And Baker had good reason to be appreciative. His “adult businesses” (both legal and illegal) were extremely lucrative. Baker had gross revenues during this time of about nine million dollars. It was obviously a fairly extensive operation, with various managers helping Baker with the business (e.g., collecting money, reconciling accounts, stocking on-site ATMs).
To disguise his activities, he set up dummy checking accounts and credit card clearinghouse accounts at area banks under the name of American Printing and Publishing Company. He deposited the proceeds from his prostitution and other
While local officials apparently weren‘t inclined to interfere with Baker‘s illegal enterprise, the federal prosecutors had seen enough. In January 1997, his operation was raided. Baker reacted by transferring ownership of his businesses to his son, but he continued to maintain de facto control over the operation. Although prostitution is not a federal offense, money laundering is if the laundering is carried out using the means of interstate commerce. Baker allowed customers to pay for “massages” with credit card and ATM transactions which went across state lines to clearinghouses (the proceeds of which were deposited into dummy accounts). Baker thus used interstate wires to further and facilitate his prostitution business. In late 1997, the United States indicted Baker on fifteen counts of money laundering under
A jury convicted Baker of all counts except for the forfeiture count (which Baker agreed to have the court resolve on the briefs). The court sentenced Baker to 120 months on the money laundering charges and 180 months on the conspiracy charge (to run concurrently). In determining Baker‘s sentence, the district court increased his offense level by seven by including as relevant conduct millions of dollars of income from his “massage parlor” business as funds that were involved in his conspiracy to launder money (it did not include money from Baker‘s legal sex businesses, although it concluded that this money too was involved in Baker‘s money laundering conspiracy). The district court also increased Baker‘s offense level by five for leading a criminal enterprise of five or more persons. And it increased his offense level by two for obstruction of justice, which was based on transferring ownership of the businesses to his son.
As to forfeiture, the government sought to recover the “Fantasyland” complex and $7.5 million as proceeds from Baker‘s conspiracy to launder the monies from his prostitution business. Baker countered that only $2,590 should be subject to forfeiture as the amount of the specific credit card transactions that the indictment had set forth. The district court ordered Baker to forfeit all the monies that had been involved in the federal activities, not just the credit card transactions the government had proved. See Baker, 82 F.Supp.2d at 941-42. The court found that Baker‘s bank accounts were used to facilitate his federal crimes and therefore the millions of dollars that had passed into and out of these accounts were subject to forfeiture. Id. at 942-43. After deleting some entries to avoid double-counting, it ordered Baker to forfeit about $4.4 million as well as the real estate where the “Fantasyland” compound was located. See id. at 944.
II. Discussion
Baker appeals his conviction, arguing that the indictment was constructively
A. The Indictment
Baker contends that his conviction must be overturned because the indictment in this case was constructively amended in violation of the Fifth Amendment. The Fifth Amendment to the Constitution provides in relevant part that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”
In this case, one of the bases for Baker‘s convictions, the federal money laundering statute, provides that
Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity —
(A)(i) with the intent to promote the carrying on of specified unlawful activity ... shall be sentenced to a fine ... or imprisonment for not more than twenty years or both.
(a) Whoever travels in interstate commerce or uses the mail or any facility in interstate ... commerce, with intent to —
(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
and thereafter performs or attempts to perform —
(A) any act described in paragraph (1) or (3) shall be fined under this title, imprisoned for not more than five years, or both;....
To establish a Travel Act violation it is not necessary for the government to prove that an act of prostitution under Illinois law followed each credit card transaction. See United States v. Campione, 942 F.2d 429, 434 (7th Cir.1991). Section “1952 refers to state law only to identify the defendant‘s unlawful activity[;] the federal crime to be proved in § 1952 is use of the interstate facilities in furtherance of the unlawful activity, not the violation of the law; therefore § 1952 does not require that the state crime ever be completed.” Id. In short, “[s]ince § 1952 does not incorporate state law as part of the federal offense, violation of the Act does not require proof of a violation of state law.” Id.
Baker acknowledges that, in theory, the government need not prove an underlying act of prostitution to make out a violation of the Travel Act. He argues, however, that the government was required to do so here because the indictment charged him with violating the Travel Act by causing his employees to use credit cards in order to “provide prostitution services,” with the implication being that an act of prostitution must result from each credit card transaction. As a result, he argues that the indictment was constructively amended when the district court instructed the jury that it was sufficient if the government proved that a credit card transaction entitled a customer to spend time with a masseuse, thereby affording him the opportunity to engage in sex, and that the government need not prove that each credit card transaction actually resulted in an act of prostitution. Similarly, he complains about the government arguing to the jury that it need only prove that “the use of the interstate facilities was in furtherance of the illegal activity,” and that while the government did prove transactions “in which customers actually did receive sex for the use of credit cards,” it was not required to do so. In short, according to Baker, because the jury instructions relieved the government of the responsibility of proving that an act of prostitution resulted from each credit card transaction, the instructions and the government‘s statements during closing argument constructively amended the indictment by allowing him to be convicted of an offense that is broader than or different from that set out in the indictment.
It is true that if an indictment makes a fact or a manner of committing an offense material to that offense, that fact or manner must be proven, not a substantially different one. See United States v. Johnson, 152 F.3d 618, 630 (7th Cir.1998) (where indictment specifically described destructive devices, government was required to provide proof substantially consistent with that description); United States v. Leichtnam, 948 F.2d 370, 374-75, 379-81 (7th Cir.1991). But Baker misreads the indictment. The government did not make committing an act of prostitution material to the Travel Act violation (and hence the money laundering and conspiracy crimes). As a result, the jury instructions — which were taken from Campione, see 942 F.2d at 434 — did not constructively amend the indictment (nor did the government‘s statements in accordance with them).
The indictment in this case listed the Travel Act as the predicate offense for the “specified unlawful activity” component for the money laundering counts, and it set forth the Illinois statute criminalizing the keeping of a house of prostitution as the
20. Each [financial transaction affecting interstate commerce] in fact involved the proceeds of unlawful activity specified in
Title 18, United States Code, Section 1956(c)(7) — that is, activity constituting an offense listed inTitle 18, United States Code, Section 1961(1) , namely: activity in which defendant EVERETTE O. BAKER caused use of facilities in interstate commerce with intent to carry on the unlawful activity of a business enterprise involved in Conspiracy to Keep a Place of Prostitution, in violation of Chapter 720, Act 5, Illinois Compiled Statutes (formerly Chapter 38, Illinois Revised Statutes), Sections 11-17 and 8-2, and in which defendant EVERETTE O. BAKER thereafter caused to be performed acts to carry on said unlawful activity, in violation ofTitle 18, United States Code, Section 1952(a)(3) .21. It was part of the manner and means of accomplishing this specified unlawful activity that defendant EVERETTE O. BAKER caused his employees to use the wires in interstate commerce to obtain credit card approval from a credit card clearing house in St. Louis, Missouri, for each customer who presented his credit card to obtain prostitution services at said defendant‘s place of business within the Southern District of Illinois. After such approval was obtained, said defendant‘s employees engaged in prostitution services with such customers.
The provisions of Illinois law to which paragraph 20 of the indictment refers is not the offense of engaging in prostitution but of “Keeping a Place of Prostitution” and “Conspiracy” or, as the indictment states, a “Conspiracy to Keep a Place of Prostitution.” See
With respect to paragraph 21, it first states that as part of Baker‘s conspiracy to keep a place of prostitution he “caused his employees to use the wires in interstate commerce to obtain credit card approval ... for each customer who presented his credit card to obtain prostitution services at said defendant‘s place of business....” This is the Travel Act violation. See id. at 435 (using “the interstate telephone system to secure authorization for the credit card transactions set out in the indictment facilitated the carrying on of keeping a place of prostitution, one of the state offenses listed” in the indictment). And this violation is not tied to the actual commission of an act of prostitution. It is clearly predicated on a customer presenting his credit card to obtain prostitution services, not on the customer having actually obtained such services.
The next sentence is a closer question. This part of paragraph 21 states that “[a]fter such approval was obtained, [Baker‘s] employees engaged in prostitution services with such customers.” We think that this sentence merely identifies the underlying state offense, as the Travel Act requires.
Under this standard, there must be: 1) an error; 2) that is clear or obvious; and 3) that affects substantial rights. United States v. Olano, 507 U.S. 725, 732-35 (1993); Cusimano, 148 F.3d at 828. “In an effort to clarify when an error affects substantial rights, the [Supreme] Court said ‘in most cases it means that the error must have been prejudicial: It must have affected the outcome of the District Court proceedings.’ ” Remsza, 77 F.3d at 1044 (quoting Olano, 507 U.S. at 734). In this circuit it is clear that “the constructive amendment ‘must constitute a mistake so serious that but for it the defendant probably would have been acquitted in order for us to reverse.’ ” Hughes, 213 F.3d at 329 (quoting Cusimano, 148 F.3d at 828); see also Remsza, 77 F.3d at 1044. Even then, “we have the power to correct the error but are not required to do so.” Cusimano, 148 F.3d at 828 (citing Olano, 507 U.S. at 735). “We will not reverse unless we find the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.; see also, Remsza, 77 F.3d at 1044. Here, it is not plain or obvious the “engaged in prostitution services” sentence means that an actual act of prostitution is part of the Travel Act violation in this case — particularly in the context of the preceding sentence and paragraph. Because it is not obvious that the indictment narrowed the charge as Baker contends, the jury instructions and statements in closing argument did not impermissibly broaden the indictment.
But even if it were plain that the indictment narrowed the predicate state offense for the Travel Act violation as Baker urges, we still would not reverse his conviction. Baker does not contend that the government did not prove that acts of prostitution followed the credit card transactions. As a result, we cannot say that “but for [the constructive amendment] the defendant probably would have been acquitted.” Hughes, 213 F.3d at 329. Contrast Willoughby, 27 F.3d at 267 (“since no evidence linked the gun to Willoughby‘s actual distribution of cocaine ... the weapons conviction could only have been based upon a” theory not charged in the indictment). Moreover, given that Baker does not show that he was prejudiced in his defense, we also cannot say that this assumed error seriously affected “the fairness, integrity, or public reputation of judicial proceedings.” Hughes, 213 F.3d at 329.
Finally, Baker argues that the indictment was constructively amended when the district court allowed the government to argue another theory during closing argument: money laundering was spending or withdrawing funds from the illegal prostitution business, regardless of any connection to interstate commerce. The government points out that the statement Baker zeros in on was from its introductory remarks at closing argument when it was distinguishing the money laundering in this case from “concealment” money laundering (set out in
B. The Sentence Enhancements
In determining Baker‘s sentence, the district court‘s factual findings are reviewed for clear error and its interpretation of the Sentencing Guidelines is reviewed de novo. United States v. Emerson, 128 F.3d 557, 562 (7th Cir.1997). A district court‘s “characterization of a defendant‘s role in an offense and its determination of the ... money attributable to a defendant are factual determinations” that are reviewed only for clear error. United States v. House, 110 F.3d 1281, 1283 (7th Cir.1997). “Under this standard, we will vacate appellants’ sentences only if the district court‘s findings are without foundation in the evidence, such that we are left with the definite and firm conviction that a mistake has been committed.” Id.
1. Including the proceeds involved in the conspiracy.
The Sentencing Guidelines provide that 23 is the base offense level for someone convicted under
(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense;
The district court determined that about $4.4 million was involved in Baker‘s conspiracy to launder money from his prostitution business, so it increased his base level by seven. See id. at
Indeed, the amount of funds that are included as part of Baker‘s “relevant conduct” is not even limited by the funds charged in the money laundering counts themselves. See Sokolow, 91 F.3d at 411 (“Funds associated with uncharged instances of money laundering can be added in to determine the offense level under § 2S1.1 if those acts are within the scope of relevant conduct under § 1B1.3(a)(2). Thus, in determining the ‘value of funds’ under § 2S1.1, the district court is not necessarily limited only to the funds identified with the counts of conviction.“). In a conspiracy spanning several years, the value of funds is determined by the amount of money that is “reasonably foreseeable” to Baker, including monies that were generated (and then laundered) to further or facilitate the conspiracy. See House, 110 F.3d at 1284-85 (“Because a sentencing court is required to take into account not only the acts of a defendant charged with conspiracy, but also ‘all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity,’ these total amounts would be attributable to a defendant found to have reasonably foreseen the scope of the conspiracy.“) (quoting
Furthermore, it is not necessary, as Baker contends, for the government to separate out income from bona fide massages (whatever those were) from income from sexual services. The “clean” money was also “involved in” the conspiracy in that, as noted, it helped further and facilitate the operation. Cf. $448,342.85, supra; United States v. Tencer, 107 F.3d 1120, 1134 (5th Cir.1997) (because “clean” money that is commingled with “unclean” money facilitates the money laundering operation, the “clean” money is “involved” in the offense and is therefore forfeitable); United States v. Jackson, 935 F.2d 832, 840 (7th Cir.1991) (Section 1956(a)(1)(A)(i) allows “for convictions where the funds involved in the transaction are derived only in part from ‘specified unlawful activities.’ ” We “cannot believe that Congress intended that participants in unlawful activity could prevent their own convictions under the money laundering statute simply by commingling funds derived from both ‘specified unlawful activities’ and other activities. Indeed, the commingling in this case is itself suggestive of a design to hide the source of ill-gotten gains.... “). Nor is it necessary for the government to at-
As to Baker‘s second contention, the money laundering conspiracy was much longer than the six months that Baker‘s son had nominal control. It lasted for several years. Baker complains that the government stipulated that his son was a part of the conspiracy only for several months and that during this time the only proven amount of financial transactions was $235,000. But Baker was not part of the stipulation, and the stipulation did not purport to deal with all of Baker‘s activities. The government‘s stipulation as to the involvement of Baker‘s son in the conspiracy does not preclude it from showing that Baker conspired with others for much longer. And the district court did not clearly err in finding that from 1990 to 1997 Baker conspired with at least seven others — upper-level and mid-level managers, supervisors, and lower-level employees — to launder money from his prostitution business (the involvement of whom we shall discuss next).
2. Leading five or more people in a criminal enterprise.
Pursuant to
The evidence clearly shows that Baker led and organized at least seven employees. These people processed credit card transactions, kept the books, issued checks, accounted for shift receipts, delivered the receipts to Baker and his son, hired and fired masseuses, made schedules, held meetings, and set policies; all knew that Baker was laundering the proceeds of the prostitution business which ultimately furthered that business, including its receipt and usage of credit card and ATM transactions. The activities of these people were thus integral to the conspiracy. The district court did not clearly err in considering them in evaluating Baker‘s role in the offense. See House, 110 F.3d at 1284 (although wires in a money laundering conspiracy were sent and received
3. Obstruction of justice.
The district court also enhanced Baker‘s offense level by two for attempting to obstruct justice based on his transfer of the business to his son after it was raided. See
As to Baker‘s second argument, he notes that real estate cannot be hidden (unlike chattel), and that he transferred this property by way of a deed which was on the public record. Because the chain of title is clear, he argues, there is no mystery as to ownership of the business. But an attempt to conceal evidence that is material to an investigation, such as by transferring assets to another, warrants an enhancement for obstruction of justice. See
C. Forfeiture
As with the sentencing enhancements, the district court‘s factual findings regarding forfeiture are reviewed for clear error and its “determination whether the facts adduced at a forfeiture hearing constitute proper forfeiture” is reviewed de novo. See United States v. 1977 Porsche Carrera, 946 F.2d 30, 33 (5th Cir.1991). The criminal forfeiture statute,
The court, in imposing sentence on a person convicted of an offense in violation of section ... 1956, 1957, or 1960 of this title, shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property.
(Emphasis added.)1 The district court ordered Baker to forfeit about $4.4 million as proceeds that had been involved in his offenses. It arrived at this figure by focusing on the “specified unlawful activity” under the money laundering statutes. It held that the “specified unlawful activity” was Baker‘s prostitution business, and then added up the proceeds over the years from that business. The court also ordered Baker to forfeit the Fantasyland compound on the ground that it was financed with proceeds from the prostitution business. See Baker, 82 F.Supp.2d at 941-44. The court ordered the $4.4 million to be “FORFEITED as a personal monetary judgment” and stated “that this judgment may be enforced as a regular monetary judgment against” Baker. Id. at 944.
Similar to his argument with respect to “relevant conduct,” Baker argues that the only money that is forfeitable is the $2,590 that the government proved at trial was used to obtain prostitution services. He contends that the district court erred by defining the “specified unlawful activity” as his prostitution business. According to Baker, the “specified unlawful activity” is the federal crime, not the state crime which is the predicate for the federal crime. We agree with Baker that the district court misanalyzed the “specified unlawful activity,” but not to the extent Baker would hope.
As noted, under the federal money laundering statute,
To be guilty of money laundering, then, a financial transaction must not only be made up of proceeds of any “unlawful activity” (e.g., prostitution); it must also contain the proceeds of “specified unlawful activity” (e.g., credit card transactions from prostitution) with the intent to promote the carrying on of the “specified unlawful activity.” See
By analogy, in United States v. Trost, 152 F.3d 715 (7th Cir.1998), a defendant was charged with mail fraud and with eight specific acts of money laundering, totaling $23,000. The district court ordered him to forfeit $57,000 — the amount of the money laundering and the mail fraud counts. On appeal, Trost, similar to Baker, argued that he only had to forfeit the specific sums set forth in the money laundering counts. Id. at 720. We rejected this argument, noting that the district court had found that Trost‘s “account was used to facilitate the crimes of which Trost was convicted and that significantly more than $23,000 was funneled through the account to conceal or disguise the true nature of his activities.” Id. at 721 (emphasis added). “Given those findings,” we held that the amount of the forfeiture order was “well within acceptable parameters. Money does not need to be derived from the crime to be forfeited. It can be forfeited if it is involved in the crime.” Id.
To arrive at the forfeitable amount here, the district court excluded any income over the years from Baker‘s legal sex businesses. It then concluded that Baker‘s income over the years from his “massage parlor” business was forfeitable because all of these funds were involved in Baker‘s prostitution business. As noted, the district court should not have based its analysis on the prostitution business per se. Rather, it should have based its analysis on the fact that these funds were involved in Baker‘s conspiracy to launder the proceeds of his prostitution business — one of the federal offenses of which he was convicted. See
Specifically, as with the forfeited funds in Trost, all of the funds from Baker‘s prostitution business over the years — both the proceeds from credit card and ATM transactions and other proceeds — were illegal, and as a result Baker laundered all of them. All of these funds were thus “involved in” the money laundering conspiracy, not just the specific credit card transactions the government proved were for prostitution services and not just the specific monies the government proved were laundered. See Trost, 152 F.3d at 721. Furthermore, the funds that were not from credit card and ATM transactions facilitated the conspiracy by helping to further the prostitution business, and, more specifically, the use of credit card and ATM transactions in that business. In short, these funds helped “bankroll” the conspiracy. See $448,342.85, 969 F.2d at 477 (“Money need not be derived from a crime to be ‘involved‘; perhaps a particular sum is used as the bankroll facilitating the fraud.“).4 It would be incorrect, then,
Limiting the forfeiture of funds under these circumstances to the proceeds of the initial [illegal] activity would effectively undermine the purpose of the forfeiture statute. Criminal activity such as money laundering largely depends upon the use of [other] monies to advance or facilitate the scheme.
Tencer, 107 F.3d at 1135; cf. id. at 1134 (“[C]ourts have concluded that the commingling of crime proceeds with ‘clean’ money makes money laundering less difficult and may even be necessary to the successful completion of the offense. Such untainted funds have been found to be ‘involved’ for purposes of the forfeiture statute.“). While the district court may have misperceived the precise focus of the proper analysis, it made the relevant findings, and its ultimate conclusion was correct. See, e.g., Baker, 82 F.Supp.2d at 942 (“Much like the accounts in Trost, here the evidence clearly established that the accounts were used to facilitate the crimes of which the defendant was convicted. By virtue of the defendant‘s use of these accounts, the total amount traceable to or involved in the conspiracy to commit money laundering is subject to forfeiture.“). Therefore, we need not reverse or remand the issue for further findings.5
Finally, we note that the district court ordered Baker to “forfeit” $4.4 million. He does not now have anywhere near that amount. This figure includes the income Baker generated over the years, not what he now has. Significantly, Baker does not assert on appeal that the court erred in its order to forfeit a large amount of money that he does not now have. Perhaps that is because the district court did not err by including such nonexistent proceeds, cf. United States v. Ginsburg, 773 F.2d 798, 799, 801 (7th Cir.1985) (en banc) (“The government‘s right to forfeit the profits or proceeds of racketeering activity under section 1963(a)(1) is therefore not limited to whatever is left over or unspent at the time of the conviction, but instead includes the entire amount that was acquired by the defendant in violation of RICO.“). Perhaps also the government can satisfy part of the forfeiture award with assets “traceable to” proceeds of Baker‘s conspiracy, or with substitute assets. See
The district court also stated that the government could enforce its forfeiture award against Baker as a regular in personam judgment. This was proper, too. See United States v. Candelaria-Silva, 166 F.3d 19, 42 (1st Cir.1999) (“A criminal forfeiture order may take several forms. First, the government is entitled to an in personam judgment against the defendant for the amount of money the defendant obtained as proceeds of the offense.“); accord United States v. Voigt, 89 F.3d 1050, 1084 (3d Cir.1996); United States v. Lester, 85 F.3d 1409, 1413 (9th Cir.1996). In effect this places a judgment lien against Baker for the balance of his prison term and beyond. See Voigt, 89 F.3d at 1086 n. 21; cf. United States v. $814,254.76, 51 F.3d 207, 211 (9th Cir.1995) (“[T]he substitute assets provision of the criminal forfeiture statute is merely another mechanism for collecting a judgment against the defendant criminal....“). Because Baker does not assign this as an error, we do not reach the question of whether this consti-
III. Conclusion
Because the indictment did not make the commission of acts of prostitution material to the money laundering and conspiracy counts, it is not “plainly obvious” that the indictment was constructively amended when the district court charged the jury that it need not find that an act of prostitution accompanied each credit card transaction that was presented to obtain prostitution services, or when the government made similar statements during closing argument. Furthermore, the district court did not clearly err in including as relevant conduct the proceeds from Baker‘s prostitution business over the years as monies “involved in” the conspiracy because they furthered and facilitated the money laundering conspiracy. The district court also did not clearly err in enhancing Baker‘s offense level for leading five or more people in the conspiracy and for attempting to obstruct justice by transferring ownership of his businesses to his son. Finally, because the millions of dollars that Baker generated from his prostitution business over the years facilitated his money laundering conspiracy, the district court did not clearly err in including these proceeds in its forfeiture order as monies “involved in” Baker‘s offense.
For the foregoing reasons, the judgment of the district court is AFFIRMED.