Todd Lyons and Daniel Eremian worked for Sports Off Shore (SOS), a gambling business based in Antigua. After a wide-ranging investigation by federal and state law enforcement of SOS and its employees and agents, and a lengthy trial, a jury convicted both Lyons and Eremian on two counts under the Wire Act, 18 U.S.C. § 1084, two counts under RICO, 18 U.S.C. §§ 1962(c) and 1962(d), and one count under 18 U.S.C. § 1955 for conducting an illegal gambling business. Lyons was separately convicted on another eighteen counts. In this direct appeal from their convictions and sentences, Lyons and Ere-mian argue that: (1) the district court improperly denied them a safe harbor instruction on the government’s charges that they violated the Wire Act; (2) the Wire Act does not apply to the internet; (3) the government did not prove they had the necessary mens rea to violate the Wire Act; (4) their convictions involved an inappropriate extraterritorial application of the Wire Act; (5) their Wire Act convictions should be overturned because the government was required but failed to prove that all relevant bets were on sporting events; and (6) the district court improperly admitted into evidence a directory of SOS agents.
Lyons separately argues that: (7) the district court should have suppressed evidence derived from wiretaps of his phone conversations; (8) the district court should
Eremian separately argues that: (13) venue did not lie in Massachusetts; (14) there was insufficient evidence to convict him of racketeering; and (15) instructing the jury on Florida law constituted a constructive amendment of the indictment. Finally, Lyons and Eremian each challenges his punishment, arguing that (16) his prison sentence and the forfeiture judgment were unreasonable and violated the Eighth Amendment.
In the remainder of this opinion, we address these sixteen arguments in the order listed, above. For the reasons stated, we affirm the convictions and sentences, though we affirm Lyons’s Wire Act convictions in one limited respect on a basis different from that employed by the district court.
I. Background
SOS was a bookmaking business founded in 1996 by Robert Eremian, Daniel Eremian’s brother.
A bettor who wished to place bets on credit with SOS received a password and a customer code for placing bets through the internet or by phone. SOS employed agents in the United States, including Ere-mian and Todd Lyons, to “settle up” with credit bettors, collecting losses from losers and making payments to winners. These agents met with bettors in person in public places and primarily conducted transactions in cash or by receiving checks. Each agent managed a group of regular customers and received as a commission a percentage of those customers’ losses. Some agents also employed sub-agents who managed their own customers and shared commissions with the agents under whom they worked.
After deducting their commissions from the money leftover once customers settled up, the agents sent the balance to SOS in Antigua. Agents often sent this balance in cash, sometimes using a “six pack,” a package containing three bundles of $2,000. SOS agents also carried cash to Antigua in person. Agents also transferred or caused their customers to transfer funds to Antigua by check or wire transfer.
Daniel Eremian played an important role in the SOS operation from its incep
Todd Lyons came to SOS later than Eremian, but ended up playing a larger role in SOS’s Massachusetts operation than Eremian played in Florida. Like many agents, Lyons was a bettor with SOS before he became an agent. But at some point between 1997 and 2000 Lyons became an SOS agent. Like other SOS agents, Lyons provided customers with the information they needed to make bets. He also collected losses and distributed winnings. Lyons had at least one sub-agent. In addition to working as an agent, Lyons also served as “the bank” for SOS in Massachusetts, collecting money from, and disbursing it to, other agents. Starting in 2000, SOS paid Lyons a salary for this managerial role.
Lyons first drew the attention of Massachusetts state police investigating an illegal bookmaker in Boston. Police and prosecutors sought and received a wiretap of Lyons’s cell phone. This wiretap led to warrants for searches of Lyons’s home, car, and person conducted in January, 2006. The search of Lyons’s home uncovered records of bets and cash disbursements, and a substantial quantity of cash, including $34,318 in a briefcase and $50,000 in the leg of a pair of pants in a drawer. The Massachusetts State Police continued to investigate Lyons until 2009, when they executed a second search warrant for his house, finding $93,800 hidden above two ceiling tiles and more gambling records. A federal grand jury indicted Lyons in May, 2010. A superseding indictment was filed in August, 2010, charging Daniel Eremian, Robert Eremian, Lyons, and Richard Sullivan, another important figure in SOS. As of March 1, 2012, Robert Eremian and Sullivan were fugitives.
II. Analysis
We first address Lyons’s and Eremian’s common challenges to their convictions, then their individual challenges to their convictions, and finally their challenges to their sentences.
1. The Safe Harbor Provision of the Wire Act
Both Lyons and Eremian were convicted on two counts of violating the Wire Act by transmitting bets or betting information or assisting the transmission of bets over a wire communication facility. One count charged them with violating the Wire Act using telephones, the other with violating the Wire Act using the internet. In a challenge directed at both counts, they argue that the district court erred by failing to instruct the jury on the safe harbor provision of the Wire Act, 18 U.S.C. § 1084(b), which exempts from liability certain communications assisting in the transmission of bets between places where betting on sports is legal.
We review preserved claims of instructional error de novo. United States v. Baird,
For the following reasons, we find that Eremian was not entitled to an instruction on the safe harbor provision, and that it makes no difference whether Lyons was entitled to such an instruction.
a. Statutory Background
The Wire Act has two provisions relevant to Lyons and Eremian. Section 1084(a) creates criminal liability:
Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined under this title or imprisoned not more than two years, or both.
Section 1084(b) creates an exception to section 1084(a) applicable to certain transmissions of information assisting in the placing of bets:
Nothing in this section shall be construed to prevent ... the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal.
Two aspects of this safe harbor provision are pertinent to our analysis in this case. First, the safe harbor provision only applies when gambling on the events in question is legal in both the sending and receiving jurisdiction. Thus, for example, if New York allows betting on horses at race tracks in New York, and if Nevada allows betting in Nevada on the results of New York horse races, then information may be wired from New York to Nevada to assist in the betting in Nevada without violating the statute. See H.R.Rep. No. 87-967, reprinted in 1961 U.S.C.C.A.N. 2631, 2632-33. Second, the safe harbor provision only applies to the transmission of “information assisting in the' placing of bets.” The safe harbor provision does not exempt from liability the interstate transmission of bets themselves. See United States v. McDonough,
In this manner, the Wire Act prohibits interstate gambling without criminalizing lawful intrastate gambling or prohibiting the transmission of data needed to enable intrastate gambling on events held in other states if gambling in both states on such events is lawful.
b. Applying Section 1084(b) to Lyons and Eremian
Lyons and Eremian sought protection under section 1084(b)’s safe harbor provision in two ways: they argued that they were entitled to an acquittal as a matter of law because all of their charged Wire Act violations fell within the safe harbor provision; and they argued in the alternative that, at the very least, the district court should have instructed the jury on the safe harbor provision because some of their activities fell within it.
Lyons had a better potential argument regarding the safe- harbor because it is not clear that either Massachusetts or Antigua makes sports betting illegal. Both Massachusetts and Antigua law place limits on gambling, but otherwise allow it. Antigua appears to generally allow bets on sporting events, although bets may not be placed on credit. Massachusetts law criminalizes betting by telephone. Mass. Gen. Laws eh. 271, § 17A. It also criminalizes the operation and patronizing of gaming houses, id. at § 5, and the manufacture and sale of gaming devices. Id. at § 5A. The government, though, points to no Massachusetts law effectively criminalizing betting oh sporting events generally. The government nevertheless argues that the bets placed from Massachusetts to Antigua cannot be within the safe harbor provision because they violated the Antiguan gaming regulations. Lyons counters that a bet is “legal” for the'purposes of the Wire Act as long as “betting on that sporting event ... is legal,” 18 U.S.C. § 1084(b), in the jurisdiction. Cf. Bala,
We need not resolve this dispute. Specifically, in Lyons’s case, we need not decide if some of the activity for which he was indicted fell within the safe harbor. Rather, because the evidence was overwhelming that he also engaged in other activity clearly outside the safe harbor, for which he was indicted under the same count, his arguments based on the safe harbor must fail. Where a jury is properly instructed on two theories of guilt, one of which is later determined to be invalid, “we can affirm the conviction only if we conclude ‘beyond a reasonable doubt’ that ‘the jury verdict would have been the same absent the error.’ ” United States v. Zhen Zhou Wu,
The indictment on the two Wire Act counts charged Lyons not just with transmitting information assisting in the placing of bets, but also with aiding and abetting the use of a wire communication facility for the transmission of bets. It alleged that “Eremian ... Lyons, and others unknown to the grand jury, each aiding and abetting the other, being engaged in the business of betting and wagering, knowingly used a wire communication facility for the transmission in interstate and
An aider and abettor is punishable as a principal if, first, someone else actually committed the offense and, second, the aider and abettor “became associated with the endeavor and took part in it, intending to ensure its success.” United States v. Spinney,
Any reasonable jury would necessarily have found beyond a reasonable doubt that Lyons aided and abetted SOS’s receipt of inter-jurisdictional bets. The core mission of SOS was to engage in the business of interstate gambling on, among other things, sporting events, by causing and receiving the interstate and foreign transmission of wagers. It could not do this without receiving bets. Lyons’s efforts for over a decade were dedicated to facilitating that business. Lyons handled millions of dollars in proceeds from SOS agents in Massachusetts. He functioned as SOS’s “bank” in the state, collecting bettors’ losses, distributing winnings, and collecting money from and distributing it to SOS agents. SOS paid him a salary for this role. SOS would have received no bets had it lacked a way to settle up with bettors and so Lyons’ role was critical to its receipt of bets.
Like other agents Lyons also aided and abetted the receipt of bets by SOS by functioning as an agent. Witnesses described Lyons as the agent who provided them with the information they needed to place bets with SOS, collected losses from them, and distributed winnings. He also specifically directed at least one bettor to make payments to SOS by wire transfer to settle up bets placed with SOS. Perhaps the best evidence that Lyons intended to ensure SOS’s success by these actions, besides the actions themselves, is that he received a commission of 50 percent of the losses of the bettors he personally managed. Lyons was a critical part of SOS’s operation and thereby demonstrated a clear intent to further SOS’s business of receiving illegal inter-jurisdictional sports bets by phone and over the internet.
Nor could Lyons avoid liability for aiding and abetting the commission of a crime even if he could show that some of the charged conduct could have been performed lawfully. It is perfectly legal to drive a friend to the bank, but doing so with an intent to help him rob it is a crime. See Spinney,
2. The Internet and the Wire Act
Lyons and Eremian argue for the first time on appeal that they should have been granted an acquittal as a matter of law on the Wire Act count that was based on the transmission of information over the internet because, they claim, the internet is not a “wire communication facility.” They did not raise this specific argument in their post-trial motion for acquittal, in which they objected generally to the sufficiency of the evidence, but also made certain other specific objections. Normally, a general objection to the sufficiency of the evidence preserves all possible sufficiency arguments, but we have also suggested that a defendant who raises only specific sufficiency arguments waives all those he does not make. See United States v. Marston, 694 F.8d 131, 134 (1st Cir.2012) (collecting cases for both propositions). We have not decided what happens when a general sufficiency objection is accompanied by specific objections, but we have suggested, albeit in dictum, that such a practice preserves all possible objections because: “[i]t is helpful to the trial judge to have specific concerns explained even where a general motion is made; and to penalize the giving of examples, which might be understood as abandoning all other grounds, discourages defense counsel from doing so and also creates a trap for the unwary defense lawyer.” Id. at 135. We need not decide the issue, however, because, whatever the standard of review, the sufficiency challenge fails.
The sufficiency challenge fails because the internet is an “instrumentalit[y] ... used or useful in the transmission of writings, signs, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission.” 18 U.S.C. § 1081; see also United States v. Cohen
The argument to the contrary relies on two misapprehensions: First, that the Wire Act cannot be applied to communications over the internet because the Act was enacted in 1961, before the internet was created and, second, that because the internet is in some manner structurally dissimilar to a telephone or telegraph system, the Wire Act cannot apply to it. On the first point, we regularly apply statutes to technologies that were not in place when the statutes were enacted. See, e.g., Sec. & Exch. Comm’n v. SG Ltd.,
Nor is it relevant that the internet is not a common carrier, as Lyons and Eremian argue. While section 1084(d) does impose certain requirements on common carriers who are informed their facilities are being used for gambling, nothing in section 1084 or section 1081 limits the application of the Wire Act to transmissions made via common carriers.
3. Mens Rea and the Wire Act
Lyons and Eremian also argue that the government did not prove they had the necessary mens rea to violate the Wire Act. What exactly they say the government failed to prove is unclear. Reading their pleading generously, they appear to argue that even if the internet is a wire communication facility as a matter of law, the government was required to prove that they knew the law. While there are certainly good reasons why Congress might not wish to punish as criminals persons who do not know their conduct may be unlawful, as a general matter ignorance of the law is no defense. See Bryan v. United States,
4. Extraterritoriality and the Wire Act
Lyons’s and Eremian’s convictions were not an improper extraterritorial application of the Wire Act. It is a “longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” Equal Employment Opportunity Comm’n v. Arabian Am. Oil Co.,
5. Proof of Sports Betting under the Wire Act
The Wire Act applies only to “wagers on any sporting event or contest,” that is, sports betting. 18 U.S.C. 1084(a); see also In re MasterCard Int’l Inc.,
6.The Evidentiary Challenge to a Purported Directory of SOS Customers
At trial, Lyons and Eremian unsuccessfully objected to the government’s introduction of a directory of SOS customers and agents. We review preserved evidentiary claims for abuse of discretion. See United States v. Rivera-Donate,
There is more than enough evidence in the record to conclude that the district court did not abuse its discretion by admitting the directory. Each page of the exhibit is titled “agent directory” and has the names and addresses of bettors along with a column labeled “limit” which contains numbers between 0 and 15,000. The directory was turned over to police by government witness Linda Richardson. Richardson testified that she helped her “lover and best friend, mostly best friend” Richard Sullivan, who was named in the indictment but is currently a fugitive, transfer and store money related to SOS. She found the directory within SOS business records Sullivan left in her possession, but testified that she had no prior knowledge that it existed. She recognized at least one name on it as someone who had given or received a check to or from Richard Sullivan. The ledger also contained names and addresses for Daniel Eremian and Todd Lyons. Several other witnesses identified names on the list as SOS customers or agents, and some clarified that the agent number on the top of each page represented an SOS agent while the other names on that page were his customers.
Records that can be shown by a preponderance of the evidence to have been made by a member of a conspiracy may be admitted under Rule 801(d)(2)(E) even if their precise author cannot be identified. See, e.g., United States v. De Gudino,
Lyons and Eremian also argue that, even if admission of the directory was correct under the Federal Rules of Evidence, it nonetheless violated the Sixth Amendment’s Confrontation Clause. But they misunderstand the Confrontation Clause, mistakenly believing it confers a general right to cross-examine the source of all evidence introduced at trial. Instead, the Confrontation Clause applies only to testimonial evidence; that is, evidence produced with a “primary purpose of creating an out-of-court substitute for trial testimony.” Michigan v. Bryant,—U.S.-,
7. The Lyons Wiretaps
The initial wiretap application targeted a phone used by a member of another gambling operation and was filed on October 12, 2005. After that application was approved, assistant district attorneys filed a series of renewal applications that expanded the initial authorization to include additional telephone numbers, including, on December 8, 2005, Lyons’s number. Lyons was recorded both on his own phone and on others’ phones. Before trial, Lyons moved to suppress evidence derived from all of these wiretaps.
While Lyons’s brief conflates several distinct legal issues in its discussion of the wiretaps, he essentially makes three arguments: First, that the district court’s decision that gambling is legal in Massachusetts means the wiretap applications were not supported by probable cause and the evidence derived from them should therefore be suppressed. Second, that the wiretaps were not authorized by the Essex County District Attorney and therefore were granted in violation of federal law and should be suppressed or at least should have been subject to challenge in an evidentiary hearing. Third, that even if the wiretaps were in fact authorized they should be suppressed because the initial wiretap application did not facially demonstrate that it was properly authorized. We address these arguments in turn.
a. Probable Cause for the Wiretaps
Lyons argues for the first time on appeal that the police lacked probable cause for the wiretaps. “A party waives [a suppression argument under rule 12(c) ] ... not raised by the deadline the court sets.” Fed.R.Crim.P. 12(e). Here, Lyons did not raise this argument at all below. While “[f]or good cause, the court may grant relief from the waiver,” id., Lyons has not addressed the waiver issue at all, let alone explained why he has good cause to seek relief from it. Despite Rule 12’s clarity, we have suggested in the past that we may sometimes nonetheless review un-preserved suppression claims for plain error. See United States v. Nunez,
b. Authorization of the Wiretaps
Lyons did timely raise in the district court his other two challenges to the wiretaps. The standard of review for preserved suppression arguments can be somewhat confusing because such motions interweave questions of fact and law:
When reviewing a challenge to a district court’s decision on a suppression motion, we review the district court’s factual findings and credibility determinations only for clear error. United States v. Camacho,661 F.3d 718 , 723 (1st Cir.*721 2011); see Ornelas v. United States, 517 U.S. [690,] 699,116 S.Ct. 1657 [134 L.Ed.2d 911 (1996) ] (findings of historical fact reviewed for clear error). We review the court’s legal conclusions de novo. United States v. Rabbia,699 F.3d 85 , 89 (1st Cir.2012). That being said, it is also true that we ‘give due weight to inferences drawn from historical facts by resident judges and local law enforcement officers.’ Ornelas,517 U.S. at 699 ,116 S.Ct. 1657 .... As explained in United States v. Townsend,305 F.3d 537 (6th Cir.2002), the district court, which observes the testimony of the witnesses and understands local conditions, is at an institutional advantage in making this determination. Id. at 542. “Accordingly, ‘due weight’ should be given to the inferences drawn from the facts by ‘resident judges.’ ” Id. (quoting Ornelas,517 U.S. at 698 ,116 S.Ct. 1657 ).
United States v. Dapolito,
Lyons’s first preserved argument is that the wiretap applications were not reviewed by the Essex County District Attorney and are therefore invalid. Lyons is correct that a wiretap sought by state law enforcement must be authorized by the principal prosecuting attorney for the jurisdiction—either the state attorney general or the county district attorney, in this case the Essex County District Attorney. 18 U.S.C. § 2516(2). Under Massachusetts law, the principal prosecuting attorney need not himself appear in court in support of every wiretap application. Instead, he may specially designate a subordinate to exercise his authority on a case by case basis, but only in writing and after he has personally reviewed the wiretap application. Mass. Gen. Laws ch. 272, § 99(F)(1); see also United States v. Smith,
The Essex County District Attorney, Jonathan Blodgett, signed letters authorizing two assistant district attorneys to file the first wiretap application at issue here.
Standing on its own, this letter might be insufficient because Massachusetts requires that the district attorney personally review the application—a desig-nee is insufficient. Vitello, 367 Mass, at 231-32,
Because the district court was uncertain whether Massachusetts law required re-designation and personal review
We have previously held that, in combination with letters substantially equivalent to the ones that accompanied the initial application in this case, an affidavit like that submitted by District Attorney Blodgett is sufficient to establish actual authorization. United States v. Albertelli,
c. Facial Sufficiency of the Wiretap Application
Lyons also argues that the wiretap evidence should be suppressed because, even if the warrant was properly authorized, it did not make clear on its face that it had been reviewed by District Attorney Blodgett. This argument conflates two separate sections of the federal law governing wiretaps, Title 18, sections 2516 and 2518. Section 2516 sets out the substantive requirements for the authorization of a wiretap, including the requirement of review by the principal prosecuting attorney, while section 2518 sets out the procedure by which wiretaps can be requested. Nothing in section 2518 requires that a wiretap application itself contain proof that it has been reviewed by the principal prosecuting attorney. United States v. Vento,
The designation letter made clear that District Attorney Blodgett authorized the application. Our conclusion that proof of review by the district attorney is not required on the face of the application also follows from United States v. Smith,
8. The Lyons Searches
In addition to the wiretaps, Lyons argues that the district court erred by denying his motion to suppress evidence obtained from the 2006 searches of his home, car, and person pursuant to warrants. First, Lyons argues that there was not probable cause for the search of his home. Second, he argues that the state justice’s failure to sign the final page of each warrant means that the searches violated the Fourth Amendment of the United States Constitution. We reject both arguments and affirm the district court’s denial of Lyons’s motion to suppress.
a. Probable Cause For the Searches
Lyons challenges the warrants to search his home, car, and person using the same argument he first made about the wiretaps: that the subsequent decision by the district court that internet gambling is legal in Massachusetts means there was not probable cause to suspect him of a crime. He has again waived that argument by failing to raise it below and we therefore reject it without further discussion for the reasons stated above.
Lyons also brings a properly preserved challenge to the search of his home, arguing that there was no nexus between the evidence sought in the search warrant and his home. A valid warrant application must establish that there is probable cause to believe that the evidence described in it will be found in the place to be searched. United States v. Feliz,
The trooper’s affidavit submitted in support of the warrant application for Lyons’s home contained sufficient evidence of a nexus between the evidence it sought and Lyons’s home. The trooper stated under oath that “Lyons would go directly to his residence when he had completed his meets [with bettors.]”
b. The Unsigned Warrants
Absent exceptions not present here, police may not search a person’s home without a warrant.
The judge, however, unintentionally forgot to sign the warrant itself before the officers conducted the search. The following day, after the search was complete, state law enforcement officials noticed the omission. The prosecutor promptly returned that day to the same judge, who belatedly signed the warrant, at the same time writing a note explaining that his failure to sign previously “was inadvertent and of no substantive consequence.”
Lyons speculates that the state judge in fact never saw or approved the warrant until he later signed it, but the evidence amply supports the district court’s factual finding to the contrary. Cf United States v. Dubose,
Lyons argues, finally, that the warrant was invalid precisely because it was not signed until after the search. This court has not previously ruled on whether a signature is required for a search warrant. But we see nothing in the Fourth Amendment that conditions the validity of a warrant on its being signed. Similarly, while Federal Rule of Criminal Procedure 4(b)(1)(D) explicitly states that arrest warrants must be signed (as does Mass. R.Crim. P. 6(b)(1)), neither federal
Our related precedent, while not directly on point, supports the conclusion that a signature is not required. In Burke v. Town of Walpole,
Our conclusion is strengthened by the consistent rejection of formalistic approaches to signatures in warrants by federal appellate courts in other contexts. Like other circuits, we have rejected the position that the copy of the warrant presented to a homeowner must bear a signature. See Sadlowski v. Benoit,
The Second Circuit has gone further, noting that “the Fourth Amendment requires that ... the judgmental function of drawing inferences from evidence and deciding whether probable cause exists be made by a neutral and detached magistrate,” but that “nothing in, the Fourth Amendment prevents a] magistrate from delegating” the “purely ministerial task” of signing the warrant to someone else. United States v. Turner,
Though none of these cases from other circuits address the precise question before us,
We do, though, add a note of caution: The presence of a signature provides easy and reliable proof that a warrant was in fact issued. An officer who observes that a warrant is unsigned might not be assured that it was actually issued, and might execute it at his peril if he has no other good reason to believe the warrant was issued. And when, as here, the warrant is not signed, proof of issuance becomes more involved and less certain. In many circumstances, the magistrate or judge may not recall reviewing or issuing the warrant by the time his belated signature is sought. For these reasons, we are confident that police will continue to have ample incentive to secure signatures. In any event, we find no sufficient reason to read a signature requirement into the Fourth Amendment, and we leave to any future revisers of Federal Rule of Criminal Procedure 41(e) whether to adopt such a
9. Lyons’s Money Laundering Conviction
Lyons challenges the sufficiency of the evidence for his conviction on two counts of money laundering under 18 U.S.C. § 1957, arguing that the statute applies only to the transmission of profits from illegal activity, not to the transmission of gross receipts, and that the government failed to prove he transmitted profits.
Section 1957(a) provides (and provided in 2006 when the transmissions at issue here were made) that “[w]hoever ... knowingly engages or attempts to engage in a monetary transaction in criminally derived property of a value greater than $10,000” violates the law if the funds áre “derived from specified unlawful activity.” “Specified unlawful activity” is defined as a violation of any of the statutes or types of statutes listed in 18 U.S.C. § 1956(c)(7). “ ‘Criminally derived property* ” is “any property constituting, or derived from, proceeds obtained from a criminal offense.” 18 U.S.C. § 1957(f)(2). Until a definition of “proceeds” was added to section 1956 in 2009, the term was undefined. See Fraud Enforcement and Recovery Act of 2009, Pub L. No. 111-21 § 2, 123 Stat. 1617. The 2009 amendment was a response to United States v. Santos,
Santos further explained, however, that to prove a defendant transmitted “profits ... the prosecution needs to show only that a single instance of specified unlawful activity was profitable and gave rise to the money involved in a charged transaction.” Id. at 520,
There was sufficient evidence for such a finding. Lyons was acquitted of money laundering on all but two counts, each of which was based on transfers from Lyons’s customer Thomas Belekewicz. The indictment describes the underlying crime simply as “unlawful gambling activity” without specifying a particular statute (besides section 1957) that the transfers violated. However, the previous section of the indictment, charging money laundering under section 1956, specifies that the underlying crime of “illegal gambling activity” was a violation of 18 U.S.C. § 1955 (the same statute at issue in Santos), which criminalizes operation of an illegal gambling business, and 18 U.S.C. § 1084, the Wire Act. Violations of both statutes are “specified unlawful activity” as that term is defined under 18 U.S.C. § 1957(f)(3) because they are offenses listed in 18 U.S.C. § 1961(1), and therefore fit the definition of unlawful gambling activity by 18 U.S.C. § 1956(c)(7)(A).
Belekewicz testified that he and his business partner Ed Doherty placed bets on sporting events using the telephone or internet. By receiving such bets, SOS violated the Wire Act. 18 U.S.C. § 1084(a). On November 17, 2005, following Lyons’s instructions, Belekewicz attempted to transfer $20,381 to Benevolence Funding, a company controlled by Robert Eremian. This transfer constituted SOS’s profits from its violation of the Wire Act by receiving bets from Belekewicz and Dohertry because the transfer represented the difference between Belekewicz’s winnings and losses over those bets. Similarly, an $86,656 transfer (also made per Lyons’s instructions) was “the accumulation of a few weeks” of Belekewicz’s losses and so constituted SOS profits. There was therefore sufficient evidence for a reasonable jury to convict Lyons on each money laundering count because the evidence was sufficient to show that, on both occasions, Lyons caused the transmission or attempted transmission of at least $10,000 in profits from unlawful activity. The fact that Lyons or SOS may have lost money on other bets does not insulate Lyons from liability for these charged bets.
10. Lyons’s Travel Act Convictions
Lyons challenges the sufficiency of the evidence for his conviction on four counts of violating the Travel Act, 18 U.S.C. § 1952, on the same grounds upon which he challenged his money laundering convictions. Lyons was convicted of four counts of “travelling] in interstate or foreign commerce or usfing] the mail or any facility in interstate or foreign commerce, with intent to ... distribute the proceeds of ... any business enterprise involving gambling.” 18 U.S.C. § 1952(a), (b). The indictment charged four specific instances in 2005 in which Lyons sent money to Antigua via FedEx. Lyons argues that there was no evidence these transactions constituted profits. It is undisputed, though, that SOS agents collected losses from bettors, paid out winnings, deducted their commission, and only then remitted the remainder to SOS. Lyons functioned as a bank for SOS in Massachusetts, collecting these profits from SOS agents and paying out extra money to agents who needed it to cover large winnings. A reasonable jury could easily have concluded, therefore, that the money he sent to SOS in Antigua constituted proceeds of the SOS operation in Massachusetts even if we as
11. Lyons’s UIGEA Convictions
Lyons also challenges his convictions on ten counts of violating the Unlawful Internet Gambling Enforcement Act, 31 U.S.C. §§ 5361-67. Lyons argues that it was impossible to violate the statute until certain regulations implementing it were passed. See Prohibition on Funding of Unlawful Internet Gambling, 73 F.R. 69382-01 (Nov. 18, 2008). These regulations clarify liability for financial institutions under the law. See 31 C.F.R. § 132.2. As applied to this case not involving a charge against a financial institution, UIGEA was adequately clear before these regulations were passed. The statute prohibits the knowing acceptance of certain financial instruments “in connection with the participation of another person in unlawful Internet gambling.” 31 U.S.C. § 5363. “Unlawful Internet gambling,” in turn, is defined as “to place, receive, or otherwise knowingly transmit a bet or wager by any means which involves ... the Internet where such bet or wager is unlawful under any applicable Federal or State law....” 31 U.S.C. § 5362(10)(A). It is, as we have already noted, illegal to transmit or receive a sports bet in interstate commerce under the Wire Act even if placing the bet is legal at both ends of the transmission. 18 U.S.C. § 1084(a). The Wire Act is a federal law, and therefore transmitting or receiving bets is “unlawful gambling” as that term is defined in UI-GEA. The final implementing regulations for UIGEA do not alter this analysis. It was therefore possible to violate the statute before the implementing regulations were passed. Nor was the statute so vague on its face that its enforcement was unconstitutional. See Interactive Media Entm’t & Gaming Ass’n Inc. v. Atty. Gen. of U.S.,
12. The Prosecutor’s Purported Reference to Lyons’s Silence
Lyons presses his argument, first made at trial, that the prosecutor improperly referred before the jury to Lyons’s decision not to testify, violating his Fifth Amendment right against self-incrimination. The government agrees that our review of this objection is de novo. The applicable test we apply is well established. See United States v. Rodriguez-Velez,
Lyons’s counsel argued at trial that Lyons “didn’t think that he was doing anything wrong,” supporting this argument with various examples of actions he said Lyons would not have taken if he had believed he was acting illegally. In closing, the prosecutor responded as follows:
Now there’s been a lot of talk about, what did the defendants know? What did they intend? What did they believe? And [Lyons’s counsel] wants to get up here and tell you what Todd Lyons thought. Now, I want you to check your notes, check the record, and see if there is any evidence before you about what Todd Lyons thought, or if there’s any evidence from any witness about conversations between them and Todd Lyons*730 where Todd Lyons expressed his opinion about the legality of Sports Off Shore. I suggest to you there is no evidence at all.
The prosecutor went on to suggest that the jury should infer Lyons’s mental state from his actions. After the closing argument, Lyons’s counsel objected to this statement and the district court offered to give a curative instruction. Lyons’s counsel indicated that he did not want to “highlight it right now” but did request and received an instruction on the Fifth Amendment when other jury instructions were given.
We have made clear that “[w]here the defendant has presented a defense ... the government is permitted to discuss competing inferences from the evidence on the record.” United States v. Glover,
13. Venue in Massachusetts for Ere-mian
Shortly before trial, Eremian’s counsel requested an instruction on venue. When the district court made clear it could not rule on the request without further briefing, he promised to provide it by the end of the day, adding that “[i]f I don’t file it by 5:00 ... today, it means I’m not requesting it.” He did not file any further briefing and therefore knowingly waived the issue, precluding any appellate review. See Fed. R.Crim. Pro. 12(e); United States v. Walker,
14. Eremian’s RICO Conspiracy Conviction
Eremian was convicted on one count of racketeering conspiracy and one count of racketeering, only the latter of which he challenges. The prosecution may prove racketeering through, among other things, proof of collection of an unlawful debt. 18 U.S.C. § 1962(c). The indictment listed by name four people from whom Eremian purportedly collected an unlawful debt. Each testified at trial that he lived in Florida and paid money to Eremian to settle gambling debts.
A debt is “unlawful” under § 1962(c) if it is “(A) incurred or contracted in gambling activity which was in violation of the law of the United States, a State or political subdivision thereof, ... and (B) ... was incurred in connection with the business of gambling in violation of the law of the United States.” 18 U.S.C. § 1961(6). We have already noted that the bets placed by SOS bettors were illegal under both federal and Florida law and such bets were incurred “in connection with the business of gambling.” There was therefore more than sufficient evidence to convict Eremian of collecting an illegal debt and, hence, of racketeering.
Eremian also argues that instructing the jury on Florida law to help it determine whether the debts he collected were unlawful constituted a constructive amendment of the indictment because the indictment did not specifically mention Florida law. The indictment was clear that Eremian lived in Florida and conducted his business for SOS there and that he was accused of collecting an unlawful debt from specific people who testified that they interacted with him in Florida. The indictment cited 18 U.S.C. § 1961(6), which defines an unlawful debt as “a debt ... incurred or contracted in gambling activity which was in violation of the law of the United States, a State or political subdivision thereof.” The indictment also described these debts as those “incurred in connection with the business of gambling in violation of the laws of the United States and the law of the Commonwealth of Massachusetts.”
Though Florida, unlike Massachusetts, was not explicitly mentioned in the indictment, Eremian knew he was being charged with collecting a debt, unlawful under state or federal law, while residing in Florida. He was therefore on notice that Florida law would likely be at issue. See United States v. Vega Molina,
16. Sentencing and Forfeiture
Lyons was sentenced to 48 months in prison while Eremian was sentenced to 36 months. Lyons and Eremian do not dispute that their sentences were within the range proscribed by the United States Sentencing Guidelines or that the guideline ranges for their convictions were properly calculated. Lyons and Eremian are less clear on what they are challenging, but they reference both the Eighth Amendment and the reasonableness of their sentences under the guidelines and so we will treat them as appealing their sentences on both bases.
A sentence violates the Eighth Amendment’s prohibition of “cruel and unusual punishment if it is ‘grossly disproportionate to the underlying offense.’” United States v. Raymond,
First they argue their sentences are unreasonable because they exceed those of other SOS conspirators who were not charged or did not spend time in jail. The district court found that Lyons’s and Eremian’s roles were more central to SOS than those of others who were not charged (except, presumably, for Richard Sullivan and Robert Eremian who are fugitives). Moreover, many of the other SOS agents cooperated with the government’s investigation and therefore are not directly comparable to Lyons and Eremian for sentencing purposes. United States v. Mateo-Espejo,
Second, Lyons and Eremian argue that their sentences are unreasonable because they exceed the maximum sentences for their Wire Act convictions and the guideline range for federal statutes specifically criminalizing the operation of a gambling business. The government agrees that “RICO and RICO conspiracy convictions largely drove the offense level calculation.” But there is nothing unreasonable about sentencing Lyons and Ere-mian for violating RICO when they were actually convicted of violating RICO. A court could perhaps have considered Lyons and Eremian’s argument in making a downward departure, but the district court certainly did not abuse its discretion by declining to do so, nor do Lyons and Eremian cite any precedent to the contrary. Because “[w]e generally respect the district court’s sentence as long as the court has provided a plausible explanation, and the overall result is defensible,” we do so in this case as well. United States v. Innarelli,
Lyons’s and Eremian’s remaining arguments are even less deserving of substantial discussion. The rule of lenity is a rule of statutory interpretation and does not, contrary to Lyons’s and Eremian’s assertions, apply to the reasonableness of sentences. United States v. Aponte-Guzman,
Finally, we affirm the forfeitures as well. The district court, after a three-day bench trial, determined the total amount of criminal proceeds
III. Conclusion
For the reasons stated above we affirm Lyons’s and Eremian’s convictions and sentences.
So ordered.
Notes
. This opinion will always refer to Robert Eremian by his full name. "Eremian,” on its own, will be used to refer to Daniel Eremian.
. Lyons and Eremian also argue that "[r]epeated unsuccessful efforts by the [sic] Congress to amend the Wire Act are further evidence that it does not apply to Internet-gambling of whatever type.” Even if unsuccessful attempts to amend a statute decades after it was passed were relevant to our interpretation of that statute, which we doubt, Lyons and Eremian point only to evidence that Congress sought to amend the Wire Act to criminalize forms of gambling other than sports betting. See In re MasterCard Int'l Inc., Internet Gambling Litig.,
. Lyons and Eremian claim that the directory was admitted under Federal Rule of Evidence 803(6)(B) but in fact the district court’s references to United States v. Petrozziello,
. The actual warrant applications are not part of the record on appeal or available on the district court docket. There is no dispute, however, that the initial wiretap at issue was sought by the assistant district attorneys designated by District Attorney Blodgett and so nothing in the wiretap applications is relevant to the issue before us.
. Lyons also suggests that he had a right to confront District Attorney Blodgett. Again, he misunderstands the Confrontation Clause. See United States v. Mitchell-Hunter,
. The distinction between the identity of the authorizing official, which must be present on the face of the application, and proof of authorization, which need not be included, is critical. Lyons mistakenly relies on United States v. Staffeldt,
. Lyons is correct that the affidavit does not describe these incidents with particularity, but provides no reason to believe the trooper’s statement inaccurately describes what he and other troopers observed.
. Because the evidence Lyons seeks to suppress was, it appears from the record, found in his home, not his car or on his person, we discuss only the warrant for the search of his home. Our analysis would apply equally, however, to all three warrants.
. The Massachusetts Supreme Judicial Court has held that signatures are not required for a search warrant to be validly issued. Commonwealth v. Pellegrini,
. The majority of the few district court opinions on point reject the position that a warrant must be signed to be validly issued. See United States v. Jackson,
. Lyons’s brief includes some discussion, of the district court’s instructions to the jury on this subject and his objection to them. The court's instructions, however, would be relevant only if Lyons were seeking a new trial rather than a reversal of the district court’s denial of his Rule 29 motion and he has chosen not to do so. Lyons’s statement of the issues, argument summary, and the portion of his brief dealing with this count all make clear that he has chosen to only challenge the sufficiency of the evidence. If this had simply been a case of unclear drafting, Lyons presumably would have explained in his reply brief that he intended to argue instructional error as well as sufficiency of the evidence. But he did not, even after the government, in its brief, pointed out the limited scope of his appeal.
. Lyons and Eremian have not challenged the method the district court used to calculate their forfeiture judgment, only the proportionality of the total figure.