United States v. Abbas

100 F.4th 267

• Court: Court of Appeals for the First Circuit
• Decided: April 29, 2024
• Docket: 22-1864
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 22-1864

UNITED STATES OF AMERICA,

Appellee,

v.

HASSAN ABBAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Kayatta, Lynch, and Gelpí, Circuit Judges.

James M. Mason, with whom Handelman & Mason LLC was on brief, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.

April 29, 2024 GELPÍ, Circuit Judge. Hassan Abbas ("Abbas") was

convicted in the United States District Court for the District of

Massachusetts on several wire-fraud and money-laundering-related

charges. For six days, a jury heard evidence connecting Abbas to

an email-based fraud scheme that, in part, targeted citizens of

the Commonwealth of Massachusetts. He launches several challenges

on appeal, including whether Massachusetts was the proper venue.

We affirm Abbas's convictions for wire fraud under

Counts One and Two and money laundering conspiracy (Count Six (B)),

including rejecting his challenges as to venue, sufficiency of the

evidence, and the admissibility of certain evidence. As to his

money-laundering/unlawful-transactions convictions in Counts

Three, Four, and Five, we vacate those convictions, without

prejudice. We do so because under the venue provisions of 18

U.S.C. § 1956 (i)(1)(B), the statute as to which the jury was

instructed at the request of the government, venue did not lie in

Massachusetts. We do not reach the government's alternate argument

that venue was proper under 18 U.S.C. § 1956(i)(3), as the jury

was not so instructed. Accordingly, we vacate and remand for

resentencing and recalculation of the restitution.

- 2 - I. Background

"When recounting the evidence relevant to [Abbas's]

sufficiency-of-the-evidence challenges, we take the facts in the

light most favorable to the verdict. For the other issues on

appeal, we present the facts in a balanced way, taking an objective

view of the evidence in the record." United States v. Facteau, 89

F.4th 1, 16 (1st Cir. 2023) (cleaned up) (internal quotations and

citations omitted).

The second superseding indictment was the basis of the

trial and charged Abbas for his role in facilitating two types of

fraudulent schemes: (1) "romance scams" and (2) "Business Email

Compromises". In romance scams, scammers typically create a fake

online dating profile, use it to woo their victims and earn their

victims' trust, and then convince the victims to wire funds to the

scammer under false pretenses. Business Email Compromises, on the

other hand, target parties that send wire transfers as part of a

legitimate financial transaction, sending email messages that

appear to come from a participant in that legitimate transaction.

In reality, the request is from a "spoofed" email address -- one

that looks like the email address of a participant in the

transaction but has a subtle flaw, such as a missing letter -- with

which the scammer swindles the funds away from the victim. As FBI

Special Agent Kelly Bell ("Special Agent Bell") testified at trial,

for both types of schemes "the money goes to a network of money

- 3 - launderers, instead of where the person who sent the funds expects

them to go."

A. Abbas's Involvement

Abbas is a dual citizen of Belgium and Lebanon, who

resided in the United States at the time of his arrest. He earned

his law degree in 1991 from DePaul University and practiced from

his law office in Chicago, Illinois. Abbas formed several legal

entities on the following dates: (1) Midamines Sprl, Ltd.

("Midamines") on September 26, 2012; (2) Phoenicia Trust, Ltd.

("Phoenicia") on July 7, 2017; (3) Katchi, Inc. ("Katchi") on

November 29, 2017; (4) Sparta Gijon, Inc., ("Sparta") on

December 11, 2017; (5) Sarah Eshel, Inc., on January 27, 2018; and

(6) EPMinerals LLC, on January 29, 2018. Abbas set up bank

accounts respectively for each entity shortly after its creation,

listed himself as the sole corporate official on the relevant

corporate forms, and, aside from Sparta, listed his home or office

address in Chicago as the corporate address.

For example, Abbas opened a PNC Bank account in Illinois1

for Phoenicia on July 10, 2017, just three days after Abbas

incorporated the entity. Phoenicia was incorporated and located

in Illinois. And Abbas opened a U.S. Bank account for Sparta on

1 PNC Bank is located in Cleveland, Ohio, but Abbas accessed Phoenicia's account from Illinois and testimony at trial established that the address listed on the account was in Illinois.

- 4 - January 31, 2018. Sparta's account, corporate address, and state

of incorporation were listed in California. Abbas was the sole

authorized signer for both Phoenicia and Sparta's bank accounts.

The accounts associated with the several corporate

entities, including Sparta and Phoenicia, engaged in transactions

that the government's witnesses described as unusual and not

indicative of regular business activity. For instance, Katchi's

checking account with First Midwest Bank remained at a negative

balance for months after Abbas withdrew a large sum from the

account and wired most of the money into his personal account.

Abbas likewise opened Sparta's U.S. Bank account with a $225,000

check from Phoenicia; wired the majority of that money to another

company; left the account "stagnant" from February of 2018 until

October of 2018; received over $392,000 on December 11, 2018; and

then moved $389,750 to his personal accounts, accounts that he

controlled, and other accounts overseas. The entities Abbas

created, including Sparta and Phoenicia, did not file tax returns

for 2017 or 2018 with the IRS, and evidence at trial revealed that

the entities did not issue 1099s or W2s to any individuals.

B. Fraudulent Conduct

i. Business Email Compromises

Maclover Linhares ("Linhares"), a resident of

Massachusetts, and his wife looked to buy their first house in

Marlborough, Massachusetts, in August of 2017. Linhares received

- 5 - a spoofed email purporting to be from a lawyer requesting Linhares

to wire funds to close on the Marlborough house. Linhares wired

$30,427 from his account in Massachusetts on August 22, 2017 to

Phoenicia's PNC account in Illinois. The next day, Linhares

discovered that he was conned out of that money.

Other homebuyers fell prey to spoofed emails associated

with Abbas's entities. In June of 2017, Antonio Gatto ("Gatto")

was in the process of buying a house in Washington state. He

received a spoofed email purporting to be from his real estate

agent on June 7, instructing him to submit $80,000 to Midamines's

JP Morgan Chase bank account in Illinois. He did so, not

recognizing until the next day that he was a victim of fraud. Two

other potential homebuyers, Judy Lambert ("Lambert") and Stan

Hockerson ("Hockerson"), also became victims. They wired around

$131,000 and $71,000 from Florida and New Mexico, respectively, in

August of 2017 to Phoenicia's PNC account in Illinois after spoofed

emails instructed them to do so to close on homes that they wanted

to buy.

Corporations were also not spared from fraud. Conquest

Properties, LLC, ("Conquest") in Utah wired $507,500 to

Midamines's Bank of America account in Illinois after receiving a

spoofed email from a title company that the corporation worked

with. And Paulson-Cheek Mechanical, Inc. ("Paulson-Cheek") in

Georgia wired $256,837.47 on February 8, 2018, to Katchi's First

- 6 - Midwest account in Illinois in response to an email purporting to

be from an air-conditioning equipment supplier that Paulson-Cheek

worked with.

By timely informing their financial institutions and law

enforcement, Conquest and Linhares received the funds they wired

back in full. And Lambert, Hockerson, and Paulson-Cheek received

back most of what they wired. But Gatto lost the $80,000 he sent

to Midamines.

ii. Romance scams

Evelyn Fessenden ("Fessenden"), a retiree living in

Marblehead, Massachusetts, joined the dating website Match.com in

November of 2018. A profile named "James Deere" -- purporting to

be a widower in Massachusetts -- contacted her on Match.com. Deere

communicated with Fessenden romantically via email and telephone

for a few weeks, and then requested money from her that would

purportedly allow him to receive funds from Dubai in relation to

his work as a consultant. Fessenden, in response, wired $100,000

on December 12, 2018 and $11,000 on December 14, 2018 from her

bank account in Massachusetts to Sparta's U.S. Bank account in

- 7 - California. But in reality, Deere was Kenneth Chukwuemeka Ikedi

of Nigeria, who used the fake profile for romance scams.2

Fabyan Pierro ("Pierro"), a retiree in New York,

responded to a message on Facebook from someone purporting to be

"Wilson Brown," an Army general. They developed a relationship

over the internet. Brown asked Pierro for "emergency" help in

leaving Syria, and another Facebook profile -- purporting to be

"General Zack Philip" -- sent her messages inducing her to deposit

$60,000 on December 4, 2017 into Phoenicia's account with Citibank

in Illinois to assist Brown.

Fessenden and Pierro inevitably discovered that they

were the victims of fraud. But neither ever retrieved the funds

that they wired to Sparta or Phoenicia. And neither knew nor ever

had any contact with Abbas.

C. Flow of Funds and Investigation

At trial, Joe Vavruska, an investigator from PNC Bank,

testified about Abbas's maneuvers upon receiving money from

Linhares. Abbas withdrew around $8,000 from Phoenicia via ATMs

the day after Linhares wired the money. He then wired $7,500 from

2 The government did not introduce direct evidence proving that Ikedi and Abbas contacted one another. However, construing the evidence in the light most favorable to the verdict, the jury could conclude that they coordinated with each other. After all, Ikedi instructed Fessenden to forward the money to Sparta, and trial testimony established how participants in these schemes generally communicate through encrypted messages unavailable to law enforcement.

- 8 - Phoenicia's PNC account in Illinois to his personal PNC account in

Illinois on August 25, 2017.

John Harger ("Harger"), a forensic accountant with the

FBI, also testified that on December 13, 2018, the day after

Fessenden wired $100,000 to Sparta, Abbas wired $82,500 from

Sparta's U.S. Bank account in California to an account belonging

to TCL Air Conditioner in China. Harger also testified how two

transfers of $39,200 each went from Sparta's U.S. Bank account in

California to Abbas's personal bank account at TD Bank in Illinois

on December 14, 2018. Harger further testified that Abbas sent

more funds from Sparta's U.S. Bank account in California to his

personal account in Illinois and overseas accounts on the same day

that Fessenden wired the $11,000.

The government's witnesses painted Abbas's behavior as

a pattern. Harger described how Abbas set up the accounts with

small initial deposits often a few days before the victims wired

funds; how he frequently withdrew funds for personal expenses; and

how those funds were spread out and redistributed across other

accounts -- some to accounts in Abbas's name, others for entities

he created, or to entities set up in his daughter's name -- almost

immediately after the victims wired money. Special Agent Bell

testified that this pattern was common among perpetrators of

romance scams and Business Email Compromises. She noted that the

money moves quickly because victims often recognize "that their

- 9 - money was sent elsewhere," so they notify their banks quickly to

"either freeze those funds or even pull back a wire that's

initiated." Generally, fraudsters transfer that money across

multiple accounts to prevent that from happening.

Because most of the victims suspected fraud and informed

law enforcement and their financial institutions, the banks began

investigating further. To that end, representatives from these

banks contacted Abbas about this activity and placed holds on his

accounts when he attempted to transfer these funds.

For instance, after Abbas wired $7,500 from Phoenicia in

Illinois to his personal account also in Illinois on August 25,

2017, Abbas attempted to wire money from Phoenicia that same day

to a Chinese company. PNC Bank placed a hold on this transfer,

and one of its investigators contacted Abbas. Abbas explained

that this transfer was to purchase electronics in China. PNC

Bank's investigator likewise asked Abbas about the other wires

into Phoenicia's account -- including from Linhares and

Lambert -- and Abbas explained that this money was "for selling

bonds." The bank closed the account because of suspicious

activity.

- 10 - D. Procedural History

A federal grand jury indicted Abbas on January 21, 2020.

A second superseding indictment ultimately charged him with six

counts:

• Count One: Wire Fraud, 18 U.S.C. § 1343, for the $30,427 transfer from Linhares in Massachusetts to Phoenicia in Illinois on August 22, 2017;

• Count Two: Wire Fraud, 18 U.S.C. § 1343, for the $100,000 transfer from Fessenden in Massachusetts to Sparta in California on December 12, 2018;

• Count Three: Money Laundering, 18 U.S.C. § 1956(a)(1)(B)(i), related to the $7,500 transfer from the Phoenicia PNC account in Illinois to Abbas's personal PNC account in Illinois on August 25, 2017;

• Count Four: Unlawful Monetary Transactions, 18 U.S.C. § 1957, related to the $82,500 transfer from Sparta's U.S. Bank account in California to TCL Air Conditioner in China on December 13, 2018;

• Count Five: Unlawful Monetary Transactions, 18 U.S.C. § 1957, related to one of the $39,200 transfers from Sparta's U.S. Bank account in California to Abbas's personal TD account in Illinois on December 14, 2018; and

• Count Six: Money Laundering Conspiracy, 18 U.S.C. § 1956(h), related to conspiring to commit (A) concealment money laundering, as alleged in Count Three, and (B) unlawful monetary transactions, as charged in Counts Four and Five.

Abbas first challenged venue on Counts Three through

Five at the motion-to-dismiss stage. Abbas argued that Count Three

concerned a transfer of proceeds of wire fraud between two Illinois

bank accounts, while Counts Four and Five were transfers from a

California bank account to China and Illinois, so he contended

- 11 - that venue did not lie in Massachusetts. The district court turned

to the relevant venue provision, 18 U.S.C. § 1956(i). With the

government's prompting, the district court focused on

§ 1956(i)(1)(B), which provides venue in "any district where a

prosecution for the underlying specified unlawful activity could

be brought, if the defendant participated in the transfer of the

proceeds of the specified unlawful activity from that district to

the district where the financial or monetary transaction is

conducted." Section 1956(c)(9) further defines "proceeds" as "any

property derived from or obtained or retained, directly or

indirectly, through some form of unlawful activity, including the

gross receipts of such activity."

Abbas argued that the money derived from Linhares and

Fessenden was not "proceeds" of wire fraud until within his

possession and control. The district court denied the motion

because it determined the issue of when the wired funds became

"proceeds" "raise[d] a number of questions not capable of

resolution" before trial. In doing so, the district court

considered (1) the principle that concealment-money-laundering

prosecutions not be premised on transactions that create proceeds,

but on the posterior conduct in concealing those proceeds, and

(2) how § 1956 defined "proceeds", which the district court

reasoned could permit a jury to conclude that "at the moment the

victim initiated the wire transfer in Massachusetts, the victim

- 12 - may have transformed the funds into 'property derived from' or

'gross receipts' of the specified unlawful activity, or the

defendant may have otherwise 'obtained' the funds at the moment."

During trial, Abbas sought to introduce testimony from

Jon Boudreau ("Boudreau"), an employee of the Federal Reserve Bank

of Boston. Abbas offered Boudreau to support his theory that the

wire-fraud charges lacked venue in Massachusetts and that the

transfers did not impact interstate commerce. Boudreau would have

testified that when a transferor initiates a wire transfer, an

instruction is sent from the transferor to a Federal Reserve

processing center. The processing center, upon receiving the

instruction to transfer funds, then processes the request and

debits and credits funds to the sender and recipient's respective

accounts. Boudreau would have testified that when Linhares and

Fessenden initiated the wire transfers from Massachusetts, they

really sent instructions from Massachusetts to the Federal Reserve

processing center in Texas. The Texas center then transferred the

funds to Abbas's account with PNC Bank. The district court

excluded that testimony. It reasoned that the testimony "tend[ed]

to show" that a wire originated in Massachusetts, so it was

irrelevant to Abbas's theory that venue did not lie in

Massachusetts for wire fraud.

Abbas submitted proposed jury instructions. He wanted

the jury to be instructed that it must "determine whether the

- 13 - single overall conspiracy charged in the indictment existed, or if

multiple conspiracies existed, or none at all" because this was "a

question of fact for . . . the jury, to determine in accordance

with [the district court's] instructions." Abbas also requested

that the district court instruct the jury that "[w]ired funds do

not become proceeds until credited to the account of the

beneficiary and under [the] defendant's control."

The district court instructed the jury that it could

find venue under § 1956(i)(1)(B) for Counts Three through Five if

the government proved by a preponderance of the evidence that

"Abbas participated in the transfer of this specified unlawful

activity (here, wire fraud) from Massachusetts to the district

where the financial or monetary transaction is conducted." The

district court defined "proceeds" as "any profits or gross receipts

that someone acquires or retains as a result of the commission of

the unlawful activity." Turning to conspiracy, the district court

instructed the jury that "[w]hether there was a single

conspiracy, . . . multiple conspiracies or no conspiracy at all is

a question of fact for you, the jury, to determine in accordance

with my instructions to you."

Once he heard the proposed instructions, Abbas

"specifically" objected to the district court's refusal to give

his "proposed instruction regarding venue," his "instruction

regarding good faith," and his "instruction regarding reliance on

- 14 - representations of clients." He finally objected to the district

court's refusal to give "his proposed instruction regarding when

funds become proceeds."

The jury convicted Abbas on Counts One through Five and

Six (B).

Abbas renewed his Rule 29 motion, including on venue

grounds, after the verdict. He again argued that the money sent

from Linhares and Fessenden did not become "proceeds" until in his

possession in Illinois and California. In opposing, the government

noted "that 'proceeds' may be derived from a completed offense or

a completed phase of an ongoing offense," so the jury could

conclude that the wired funds became proceeds once the victims

were successfully induced to part with their money -- even before

the funds arrived in Abbas's accounts by wire. The government

also pointed to § 1956(i)(3):

For purposes of this section, a transfer of funds from 1 place to another, by wire or any other means, shall constitute a single, continuing transaction. Any person who conducts (as that term is defined in subsection (c)(2)) any portion of the transaction may be charged in any district in which the transaction takes place.

18 U.S.C. § 1956(i)(3). Section 1956(c)(2) defines "conducts" to

"include[] initiating, concluding, or participating in initiating,

or concluding a transaction." By the government's reading of

§ 1956(i)(3), Abbas "conducted a portion of a single, continuing

- 15 - transaction with [the] proceeds" of wire fraud "by receiving them

into his bank account." Because "[t]hat single, continuing

transaction originated in Massachusetts," the government argued,

Abbas could be prosecuted there.

The government did not raise § 1956(i)(3) at any point

before its response in opposition to Abbas's renewed Rule 29

motion. Rather, the government submitted the very instruction on

venue that the district court adopted, which tracked

§ 1956(i)(1)(B).

The district court agreed with the government's reading

of § 1956(i)(1)(B) and denied Abbas's post-trial Rule 29 motion.

It found that "the jury could have reasonably concluded that the

funds" sent in the underlying wire-fraud charges from

Massachusetts to Illinois and California "were transformed into

'property derived from' or 'gross receipts' of unlawful activity."

Due to this conclusion, the district court refused to address the

government's alternative theory of venue under § 1956(i)(3).

The district court sentenced Abbas to 108 months'

imprisonment,3 followed by three years' supervised release, and

ordered him to pay $2,001,853.68 in restitution.

The district court imposed "108 months on each of the six 3

counts . . . to be served concurrently with each other."

- 16 - II. Discussion

Because Abbas conglomerates his sufficiency-of-the-

evidence and venue challenges, we consider them seriatim as needed.

We discuss the remaining issues afterwards.

Abbas moved for acquittal at the close of the

government's case, and he renewed this motion at the appropriate

time. Thus, our review is de novo. See United States v. Buoi, 84

F.4th 31, 37 (1st Cir. 2023). For a sufficiency challenge, "the

relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt." United States v. Falcón-Nieves, 79 F.4th

116, 123 (1st Cir. 2023) (emphasis deleted) (quoting United States

v. Woodward, 149 F.3d 46, 56 (1st Cir. 1998)); see also United

States v. Ayewoh, 627 F.3d 914, 917 (1st Cir. 2010). "We may

uphold a conviction against a sufficiency challenge on the basis

of circumstantial evidence, though we may not pursue a divide and

conquer strategy in considering whether the circumstantial

evidence [in the record] adds up" or "stack inference upon

inference in order to uphold the jury's verdict." United States

v. Ramos-Baez, 86 F.4th 28, 48 (1st Cir. 2023) (alteration in

original) (quoting United States v. Guzman-Ortiz, 975 F.3d 43, 55

(1st Cir. 2020)).

- 17 - Abbas also preserved his venue objection. The

Constitution as well as Federal Rule of Criminal Procedure 18

require the government to try Abbas in the venue "wherein the crime

[was] committed." U.S. Const. amend. VI; Fed. R. Crim. P. 18.

"If the statute under which the defendant is charged contains a

specific venue provision, that provision must be honored

(assuming, of course, that it satisfies the constitutional

minima)." United States v. Salinas, 373 F.3d 161, 164 (1st Cir.

2004); see United States v. Seward, 967 F.3d 57, 60 (1st Cir.

2020). "Where a venue determination has been made by a jury, as

happened here, 'we will uphold the verdict if a rational juror

could have found proper venue by a preponderance of the evidence.'"

United States v. Georgiadis, 819 F.3d 4, 11 (1st Cir. 2016)

(cleaned up) (quoting United States v. Joselyn, 99 F.3d 1182, 1190

(1st Cir. 1996)).

We resolve all credibility issues and draw all

reasonable inferences in the light most favorable to the verdict

for Abbas's venue and sufficiency challenges. See id.; Ramos-Baez,

86 F.4th at 48.

A. Wire Fraud (Counts One and Two)

i. Sufficiency of the Wire Fraud Evidence

For his wire fraud convictions, Abbas contends that

there was insufficient evidence of his involvement in the scheme

or intent to defraud. As he puts it, the witnesses testified that

- 18 - they never communicated with him, did not know him, and did not

know specifically who defrauded them. He argues that without

evidence to directly tie him to the fraud scheme, the jury could

not infer his intent or involvement in the scheme beyond a

reasonable doubt.

"Wire fraud has three elements: '1) a scheme to defraud

by means of false pretenses, 2) the defendant's knowing and willful

participation in the scheme with the intent to defraud, and 3) the

use of interstate wire communications in furtherance of the

scheme.'" Buoi, 84 F.4th at 38 (quoting United States v. Cassiere,

4 F.3d 1006, 1011 (1st Cir. 1993)). "[D]irect proof of

knowledge is not required. 'The government's proof may [lie]

entirely in circumstantial evidence.'" United States v. Ford, 821

F.3d 63, 75 (1st Cir. 2016) (cleaned up) (quoting United States v.

Valerio, 48 F.3d 58, 63 (1st Cir. 1995)).

Viewing the evidence in the light most favorable to the

verdict and as a whole, there was abundant evidence from which a

reasonable jury could conclude that Abbas acted with the intent to

defraud. The government introduced evidence that Abbas set up and

controlled the bank accounts that received the money. The jury

could reasonably conclude that Abbas gave his coconspirators his

account information and knew he would receive that money. See,

e.g., United States v. Pena, 910 F.3d 591, 596-97 (1st Cir. 2018)

(affirming wire-fraud conviction where the government introduced

- 19 - evidence, in part, proving that the defendant received deposits

from the victims and facilitated the transfer of those funds);

United States v. Appolon, 695 F.3d 44, 59 (1st Cir. 2012)

(affirming wire-fraud conviction where the defendant was not a

direct participant in the individual fraudulent acts but received

payments because of the fraud and was "tied" to the scheme).

The government also introduced evidence that undermined

Abbas's explanations to fraud investigators. Although Abbas told

investigators that he received the money from the sale of bonds

and to purchase electronics, the jury heard how Linhares and

Fessenden did not know Abbas; how they wired the money to Abbas's

accounts under the misconception that they were going to purchase

a house and help "James Deere," respectively; and how they

discovered that the emails were spoofed. The jury could thus

conclude that his "implausible" excuses betrayed his knowledge of

the fraudulent scheme. United States v. Gorski, 880 F.3d 27, 33

(1st Cir. 2018) (quoting United States v. Serrano, 870 F.2d 1, 7

(1st Cir. 1989)).

Moreover, the government showed that Abbas's actions

bore the hallmarks of Business Email Compromises and romance scams.

He set up the entities and accounts which received the money,

received that money shortly thereafter from the victims, and

immediately transferred that money to himself or overseas

accounts. The timing of these transactions did not do Abbas any

- 20 - favors. Cf. United States v. Agbi, 84 F.4th 702, 709 (7th Cir.

2023) (crediting the jury's inference that the defendant conspired

to commit mail fraud by romance scam based on his prompt transfer

of fraudulent funds to overseas accounts). For example, Abbas set

up Phoenicia's PNC account shortly before receiving the wire

transfers from Linhares, Lambert, and Hockerson. And the jury

heard how Abbas and his entities did not engage in ordinary

business activity, instead keeping the accounts dormant over many

months until acting only to receive and transfer the

Business-Email-Compromise-and-romance-scam funds. Thus, a

reasonable jury could conclude that Abbas actively and knowingly

participated in the fraud scheme.

That the victims did not know or communicate with Abbas

does not help him. "[T]here is no requirement under § 1343 that

a defendant know the actual identities of the victims of the

fraudulent scheme for there to be sufficient evidence that the

defendant knowingly and willfully participated in perpetrating the

scheme." Pena, 910 F.3d at 598 (citing United States v. Tum, 707

F.3d 68, 75 (1st Cir. 2013)). And, to the extent that Abbas argues

that this should have led the jury to conclude that he was not an

active participant in the scheme, "the jury was entitled to come

to whatever rational conclusion it saw fit based on the evidence"

before it. Buoi, 84 F.4th at 38 (citing United States v.

Soler-Montalvo, 44 F.4th 1, 8 (1st Cir. 2022)).

- 21 - He further argues that the government did not present

enough evidence of a causal connection between his actions and the

victims' losses. In this vein, he downplays his role and claims

that merely setting up the accounts did not prove that he induced

the victims to wire the money or that it was foreseeable that they

would do so.

Abbas misapprehends the level of participation or

foreseeability required to be guilty of wire fraud. The government

need only have proved that the use of a wire "was a reasonably

foreseeable part of the scheme in which [Abbas] participated."

Tum, 707 F.3d at 72 (quoting Woodward, 149 F.3d at 63); see United

States v. Fermín Castillo, 829 F.2d 1194, 1198-99 (1st Cir. 1987).

The jury could infer that the victims sent the money to Abbas

because he forwarded his account information to his

coconspirators, so it could conclude that Abbas, the account

holder, would foresee wires to his account. It makes no difference

that his co-conspirators "did all the heavy lifting" by sending

the emails. United States v. DiRosa, 761 F.3d 144, 151 (1st Cir.

2014) (affirming wire-fraud conviction where the defendant did not

personally induce the wire transactions but played a pivotal role

in the scheme). Abbas facilitated wire fraud by creating the

accounts that the money was wired into, so the jury could

rationally conclude that he was a knowing participant in the scheme

who could reasonably foresee the victims' wires.

- 22 - ii. Wire Fraud Venue

Abbas's venue arguments for Counts One and Two largely

track his sufficiency arguments. We note from the outset that

Abbas and the government agree that United States v. Pace, 314

F.3d 344 (9th Cir. 2002) offers the proper standard for venue in

wire-fraud prosecutions. And the district court instructed the

jury with this standard in mind. We thus assume this standard

applies for this appeal. See United States v. Capelton, 966 F.3d

1, 6-7 (1st Cir. 2020) (assuming for the purposes of the appeal

that "generic aiding and abetting liability requires a shared

intent with the principal and that knowledge alone is insufficient

to meet the mens rea requirement" because the parties "generally

agree[d]" that this standard applied). In Pace, the Ninth Circuit

determined that the proper venue for a wire-fraud prosecution is

wherever "the wire transmission at issue originated, passed

through, or was received, or from which it was orchestrated." 314

F.3d at 349 (internal quotation marks omitted). That is because

"the essential conduct prohibited by § 1343 [is] the misuse of

[the] wires." Id.

Abbas lacks a meritorious challenge to venue under this

standard. The wires here "originated" from Massachusetts because

Linhares and Fessenden sent them from their banks in Massachusetts.

And we have already explained that the jury could piece together

his knowing involvement in the scheme based on his control of the

- 23 - accounts, his flimsy justifications for why he received the money,

and how this sequence fits the pattern of Business Email

Compromises and romance scams. The jury could thus conclude that

Abbas was part of that scheme, that the scheme involved "the misuse

of [the] wires" through fraudulent wire transfers, and that these

wires "originated" in Massachusetts. Pace, 314 F.3d at 349.

Because this means that Massachusetts had a "direct" connection to

Abbas's misuse of the wires, it was an appropriate venue for his

wire-fraud charges. Id. at 350.

Accordingly, Abbas's convictions on Counts One and Two

were supported by sufficient evidence and laid in the proper venue.

B. Money Laundering and Unlawful Monetary Transactions (Counts Three through Five)

i. Money Laundering and Unlawful Monetary Transactions Venue

The parties and district court considered whether Abbas

could be tried for Counts Three through Five in Massachusetts under

§ 1956(i), so we consider whether the evidence was sufficient to

support venue under that section.4 To do so, we look to the

ordinary tools of statutory interpretation to "ascertain[] the

4Abbas framed his challenge to venue below on both statutory and constitutional grounds. Other than noting his constitutional right to be tried in the proper venue, however, he does not challenge § 1956(i) as unconstitutional before us on appeal. "[W]e deem abandoned all arguments that have not been briefed and developed on appeal." SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010) (citing United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).

- 24 - meaning of" the statute. Seward, 967 F.3d at 66; see Salinas, 373

F.3d at 164-65. "We begin, as always, with the text of the statute"

and read it "according to its 'plain meaning at the time of

enactment.'" United States v. Winczuk, 67 F.4th 11, 16 (1st Cir.

2023) (quoting Tanzin v. Tanvir, 592 U.S. 43, 48 (2020)). In doing

so, we "must read the words Congress enacted 'in their context and

with a view to their place in the overall statutory scheme.'"

Turkiye Halk Bankasi A.S. v. United States, 598 U.S. 264, 275

(2023) (quoting Davis v. Mich. Dep't of Treasury, 489 U.S. 803,

809 (1989)). "[O]ur inquiry into the meaning of [a] statute's

text ceases when the statutory language is unambiguous and the

statutory scheme is coherent and consistent." Matal v. Tam, 582

U.S. 218, 232 (2017) (internal quotation marks and citation

omitted).

a. Section 1956(i)

As a reminder, Abbas was convicted of violating 18

U.S.C. §§ 1956(a)(1)(B)(i) and 1957. Section 1956 (a)(1)(B)(i)

forbade Abbas, "knowing that the property involved in a financial

transaction represents the proceeds of some form of unlawful

activity," from "conduct[ing]" that "financial transaction

which . . . involve[d] the proceeds of specified unlawful

activity" knowing that the transaction was "designed in whole or

in part" "to conceal or disguise the nature, the location, the

source, the ownership, or the control of the proceeds" of such

- 25 - unlawful activity. See United States v. Misla-Aldarondo, 478 F.3d

52, 68 (1st Cir. 2007). Section 1957(a) prevented him from

"knowingly engag[ing] . . . in a monetary transaction in

criminally derived property" exceeding "$10,000 and . . . derived

from specified unlawful activity." "Criminally derived property"

means "any property constituting, or derived from, proceeds

obtained from a criminal offense." 18 U.S.C. §§ 1957(f)(2),

(f)(3).

Section 1956(i)(1)(B) provides venue for both

§§ 1956(a)(1)(B) and 1957 where "the underlying specified unlawful

activity" could be prosecuted, "if [Abbas] participated in the

transfer of the proceeds of the specified unlawful activity from

that district to the district where the financial or monetary

transaction is conducted." It is not disputed that the "underlying

specified unlawful activity" here is wire fraud. And we have

explained why the government could prosecute the wire-fraud

charges in Massachusetts. So, whether the government could

prosecute Abbas for money laundering in Massachusetts turns

entirely on whether he "participate[d] in the transfer of the

proceeds of [wire fraud] from" Massachusetts to Illinois and

California. Id. § 1956(i)(1)(B).

There was sufficient evidence that Abbas "participated"

in the underlying scheme. "In common parlance, the word

'participation' means 'taking part with others in an activity.'"

- 26 - United States v. Patch, 9 F.4th 43, 46 (1st Cir. 2021) (quoting

Participation, Webster's Third New Int'l Dictionary (1981)); see

also Participation, Black's Law Dictionary (11th ed. 2019). The

jury could reasonably conclude that Abbas took part in the scheme

by creating the accounts that the money went into and thus

facilitating wire fraud.

That Abbas "participated" in the underlying wire

transfer, however, does not resolve when the funds that Linhares

and Fessenden transferred from Massachusetts became "proceeds" of

wire fraud. Abbas argues that this money became proceeds under

§ 1956(i)(1)(B) only when the money reached his bank accounts

within Illinois and/or California. Because he claims that he only

transferred the "proceeds" of wire fraud when he moved these funds

from Illinois and California, then he did not participate in the

transfer of proceeds from Massachusetts. That is why he contends

that there was not venue in Massachusetts for Counts Three through

Five.

Section 1956(c)(9) defines "proceeds" in the past tense,

as "any property derived from or obtained or retained" from

"unlawful activity." The ordinary meaning of "retained" means to

"keep in possession or use," Retain, Merriam-Webster's Collegiate

Dictionary (11th ed. 2020), while "property" implies ownership and

possession, Property, Merriam-Webster's Collegiate Dictionary

(11th ed. 2020); see, e.g., United States v. Piervinanzi, 23 F.3d

- 27 - 670, 677 (2d Cir. 1994) (analyzing the meaning of "criminally

derived property" in § 1957 before Congress amended the statute to

add a specific definition for "proceeds"). "Obtain" likewise means

"to gain or attain," so these terms connote acquisition and

possession.5 Obtain, Merriam-Webster's Collegiate Dictionary

(11th ed. 2020). We can infer from the ordinary meaning of these

words that a miscreant must possess or control a victim's property

before that property can be considered "proceeds." See, e.g., In

re Brown, 953 F.3d 617, 623-24 (9th Cir. 2020) (collecting cases

which hold that "to show that a defendant 'obtained' proceeds,

there must be a demonstration of possession or control").

We have grappled with this question as it relates to the

criminal conduct that may be punished as money laundering under

§ 1956(a)(1). That is relevant because § 1956(a)(1) punishes a

defendant for engaging in a financial transaction that "involves

the proceeds of specified unlawful activity" (emphasis added).

Cf. United States v. Richard, 234 F.3d 763, 769 (1st Cir. 2000)

(looking to how the money-laundering statutes use "proceeds" to

determine when "proceeds" are generated). "We presume that the

same term has the same meaning when it occurs here and there in a

5 See Obtain, Black's Law Dictionary (11th ed. 2019) ("To bring into one's possession[.]"); Property, Black's Law Dictionary (11th ed. 2019) ("[T]he rights in a valued resource . . . includ[ing] the right to possess and use[.]"); Retain, Black's Law Dictionary (11th ed. 2019) ("To hold in possession or under control[.]").

- 28 - single statute." United States v. Cruz-Rivera, 954 F.3d 410, 413

(1st Cir. 2020) (quoting Envtl. Def. v. Duke Energy Corp., 549

U.S. 561, 574 (2007)). We look then to when "proceeds" are

generated under § 1956(a) to afford "proceeds" under § 1956(i) the

same meaning. Cf. Armour Packing Co. v. United States, 209 U.S.

56, 73-75 (1908) (considering whether a venue provision

authorizing prosecution for the transportation of goods at a rate

below the applicable tariffs in any district "through which the

transportation may have been conducted" applied by first reviewing

how the statute defined the crime to ascertain the extent to which

Congress intended to punish the transportation of those goods);

United States v. Morales, 801 F.3d 1, 5-6 (1st Cir. 2015) (defining

"offense" in a manner that was consistent with how "offense" was

defined in a statute concerning the same subject).

When Congress enacted the Money Laundering Control Act

of 1986, it "intended to criminalize a broad array of transactions

designed to facilitate numerous federal crimes," United States v.

Castellini, 392 F.3d 35, 48 (1st Cir. 2004) (quoting United States

v. LeBlanc, 24 F.3d 340, 346 (1st Cir. 1994)), and thus to cover

any gaps in the law "with respect to the post-crime hiding of

ill-gotten gains," LeBlanc, 24 F.3d at 346 (quoting United States

v. Johnson, 971 F.2d 562, 569 (10th Cir. 1992)). But these

statutes "interdict only the financial transactions" that launder

the funds, "not the anterior criminal conduct that yielded the

- 29 - funds allegedly laundered." United States v. Cabrales, 524 U.S.

1, 7 (1998); see LeBlanc, 24 F.3d at 346. In other words, "money

laundering criminalizes a transaction in proceeds, not the

transaction that creates the proceeds." Richard, 234 F.3d at 769

(citing Johnson, 971 F.2d at 570); see also United States v. Huff,

641 F.3d 1228, 1233 (10th Cir. 2011).

This concept is not as rigid as it might seem.

"'Proceeds' of an illegal activity may be created before the

completion of an underlying on-going crime." Castellini, 392 F.3d

at 48 (quoting United States v. Mankarious, 151 F.3d 694, 705 (7th

Cir. 1998)). And the crime creating proceeds and the crime

transferring proceeds "need not be 'entirely separate in time.'"

Misla-Aldarondo, 478 F.3d at 68 (quoting Castellini, 392 F.3d at

48). The question is whether "[t]he transaction that created the

proceeds . . . is sufficiently distinct from the side transactions

done to hide the trail . . . even if both crimes were complete

only upon the arrival of the funds in [the defendant's] hands."

Id. (distinguishing between extortion and sending checks to aides

and relatives to hide the proceeds of extortion); see LeBlanc, 24

F.3d at 346-47 (distinguishing between the generation of illegal

gambling money and subsequent laundering of the proceeds of illegal

gambling); Mankarious, 151 F.3d at 705-06 (affirming

money-laundering conviction predicated on mail fraud because

although the defendants used the mail illegally only after the

- 30 - scheme generated proceeds, the scheme generated proceeds through

acts distinct from the laundering).

We relied on this principle in United States v. Richard,

234 F.3d 763 (1st Cir. 2000) to reject a defendant's argument that

he could not be prosecuted for money laundering because his

bankruptcy fraud was not "complete" and therefore did not yet

generate "proceeds." Id. at 769-70. Although "the laundering of

funds cannot occur in the same transaction through which those

funds first became tainted by crime," id. at 769 (quoting United

States v. Butler, 211 F.3d 826, 830 (4th Cir. 2000)), we determined

that the bankruptcy fraud reached a "completed phase" and produced

"proceeds" when the defendant possessed the property at issue, so

the acts of laundering were distinct from the offense that

generated the proceeds. Id. at 770.

We distinguished that defendant's situation from the one

presented in United States v. Johnson, 971 F.2d 562 (10th Cir.

1992), which Abbas relies upon here. In Johnson, the government

prosecuted the defendant for money laundering where the predicate

wire fraud transfers were the same transfers that allegedly

involved "proceeds" of wire fraud. Id. at 564-65, 569. The Tenth

Circuit agreed with the defendant that he could not have engaged

in a criminally-derived-property transaction because he did not

possess these proceeds until after the wire transfer. Id. at

569-70. The wire fraud and alleged laundering were one and the

- 31 - same, so there was no transfer of "proceeds" because the wirings

of the funds were simply the transactions to obtain those proceeds.

Id. We noted in Richard that what matters in this context was

"that the predicate offense has produced proceeds in transactions

distinct from those transactions allegedly constituting money

laundering." Richard, 234 F.3d at 770 (quoting Mankarious, 151

F.3d at 706); see United States v. Morelli, 169 F.3d 798, 807 n.10

(3d Cir. 1999) (determining that the first set of fraudulent wire

transfers in a scheme could not be prosecuted as money laundering

because these transfers did not yet create proceeds of wire fraud).

And wire fraud "usually create[s] proceeds only on execution of

the first scheme," unlike other offenses. Castellini, 392 F.3d at

48; see Mankarious, 151 F.3d at 705 ("Wire fraud often does not

give rise to proceeds until after a wire transfer."); cf. United

States v. Foley, 783 F.3d 7, 16 (1st Cir. 2015) ("The crime of

wire fraud was complete upon Foley's receipt of the mortgage loan

funds.").

This framework leads us to two conclusions that guide

our reading of § 1956(i)(1)(B) and aid in resolving whether Abbas

participated in the transfer of "proceeds" from Massachusetts.

One, the victims' wire transfers from Massachusetts to

Illinois or California could not be the predicate for venue for

Abbas's money-laundering convictions because "[a] money launderer

must obtain proceeds before laundering can take place."

- 32 - Castellini, 392 F.3d at 47 (quoting Mankarious, 151 F.3d at 704).

The evidence in the record shows only that the initial wire

transfers from Linhares and Fessenden were transfers to obtain

proceeds, not transfers of proceeds. Indeed, the government

charged Abbas for the $7,500, $82,500, and $39,200 wire transfers

that occurred after the money reached Abbas's accounts in Illinois

and California because these were "sufficiently distinct" from the

wires that generated proceeds. Misla-Aldarondo, 478 F.3d at 68.

Just as the wires from Linhares and Fessenden could not warrant a

money-laundering conviction because they were not transactions in

"proceeds" of wire fraud, we cannot say that they were evidence

that Abbas participated in the transfer of "proceeds" of wire fraud

from Massachusetts. Cf. Johnson, 971 F.2d at 569-70.

Two, the record does not show that Abbas controlled the

wired funds until after Linhares and Fessenden transferred them

out of Massachusetts. Section 1956's use of "proceeds" requires

that there be evidence that the funds are in the defendant's

possession or at his disposal. While this does not require

physical possession, it implies at least some constructive control

over funds before they can be considered "proceeds" of crime. See

In re Brown, 953 F.3d at 624 (defendant obtained "proceeds" of

bankruptcy fraud where he transferred the money to a close family

member because the funds were in his constructive control).

Nothing in the record shows that Abbas could use or exercise

- 33 - control over the funds here before Linhares and Fessenden sent

them out of Massachusetts. To the contrary, Special Agent Bell

testified that victims of romance scams or Business Email

Compromises can "even pull back a wire that's initiated,"

suggesting that the funds from Linhares and Fessenden were not

within Abbas's control and therefore not proceeds until the

transfer was completed. Cf. Piervinanzi, 23 F.3d at 677 (vacating

money-laundering conviction based on a $24 million wire transfer

even though the funds were transferred because the money "never

came into the possession or under the control of the

conspirators").

Reviewing the record in the light most favorable to the

jury's venue finding, we find that a rational jury, instructed as

this jury was under § 1956(i)(1)(B), could not conclude that venue

was proper in Massachusetts on Counts Three through Five. The

evidence demonstrates that, at the earliest, Abbas acquired

"proceeds" of wire fraud when the funds entered his bank accounts

in Illinois and California. By that point, his subsequent

transactions to hide those funds -- which took place entirely

outside of Massachusetts -- were sufficiently distinct from the

wire transfers that created the funds, and Abbas exercised

sufficient control over the funds as evidenced by his ability to

access and transfer them. So, that was the earliest point in which

the funds could be deemed "proceeds" under § 1956. Thus, the jury

- 34 - could not have reasonably concluded that he participated in the

transfer of proceeds from Massachusetts.

Abbas did not "participate in the transfer of proceeds"

of wire fraud when he facilitated the transfers from Massachusetts

because those "were not transactions in proceeds of the wire

fraud -- they were transactions to obtain those proceeds." Huff,

641 F.3d at 1232. And although the district court correctly

recognized that a defendant may obtain "proceeds" before a crime

is completed, nothing in the record shows that Abbas controlled

the money until after it passed outside of Massachusetts. Rather,

the only evidence of his control is his subsequent actions to move

the money from Illinois and California.

The government's arguments otherwise do not persuade us.6

First, the government implies that Abbas does not wrestle with

§ 1956(c)(9)'s express definition of "proceeds" and depicts

Abbas's argument as an attempt to impose the substantive law of

money laundering onto a venue provision. But the government does

not illustrate why "proceeds" should mean one thing in §§ 1956(a)

and another in (i), even though the usual presumption is that

6 The government posits that Abbas "failed to address, and thus waived, any objection to the district court's conclusion that wires from the Massachusetts victims could be deemed property derived from some form of unlawful activity" (cleaned up). But Abbas's proposed instruction would have clarified that the wired funds could not be "proceeds" until they reached his account and were under his control. And he objected on this point numerous times below and does so here, hence he did not waive his argument.

- 35 - "identical words used in different parts of the same act are

intended to have the same meaning." Morales, 801 F.3d at 5

(quoting Dep't of Revenue of Or. v. ACF Indus., Inc., 510 U.S.

332, 342 (1994)). Nor does the government engage with the text of

§ 1956(c)(9) and, specifically, its definition of "proceeds" as

"property derived from or obtained or retained," verbs which seem

to imply a prior act through which the property came to be in the

defendant's possession or control. 18 U.S.C. § 1956(c)(9)

(emphasis added). We, instead, heed § 1956's textual cues as we

have explained above.

Second, the government argues that the jury could

conclude that the wired funds became "proceeds" while "in transit"

in Massachusetts. The jury instructions did not permit such a

conclusion. The jury was instructed to determine whether a

preponderance of the evidence showed that Abbas "participated in

the transfer of the proceeds of . . . wire fraud[] from

Massachusetts" (emphasis added). The victims' wire transfers from

bank accounts in Massachusetts to bank accounts in Illinois or

California were not transactions in proceeds under our caselaw.

See Castellini, 392 F.3d at 48-49; Richard, 234 F.3d at 769-70;

see also Johnson, 971 F.2d at 569-70.

Finally, the government urges us to rely on § 1956(i)(3)

to affirm the jury's venue determination on Counts Three through

Five. As we stated above, the government reasons that Abbas

- 36 - conducted part of the underlying wire fraud in Massachusetts, so

he can be prosecuted there. We reject the government's argument

that a different statutory venue provision on which the jury was

not instructed could provide venue.

Ordinarily, "[a]n appellate court may not lawfully

sustain a conviction on a theory entirely different from the theory

upon which the jury was charged." United States v. Gomes, 969

F.2d 1290, 1295 (1st Cir. 1992) (first citing Chiarella v. United

States, 445 U.S. 222, 236 (1980); then citing United States v.

Angiulo, 897 F.2d 1169, 1197 (1st Cir. 1990); and then citing

United States v. Hill, 835 F.2d 759, 764 n.7 (10th Cir. 1987)).

Here, the jury was only instructed on § 1956(i)(1)(B). While the

government had ample opportunities to request that the jury be

also or alternatively instructed under § 1956(i)(3), it chose not

to invoke this provision until after the jury returned its verdict.

Nor was § 1956(i)(3) discussed at any point before the verdict,

including at the hearing on Abbas's motion to dismiss or the final

jury-charging conference. Rather, at both hearings, the

government either argued for venue on § 1956(i)(1)(B) alone or

acquiesced to its being the only part of the statute at issue.

The record thus does not offer a single instance in which the

government attempted to present this theory to the jury. Under

these unique circumstances, "we will not speculate upon whether"

- 37 - venue was appropriate under § 1956(i)(3). Chiarella, 445 U.S. at

236; cf. Percoco v. United States, 598 U.S. 319, 331-33 (2023).

We thus vacate and remand Abbas's convictions on Counts

Three through Five and instruct the district court to dismiss these

Counts without prejudice for lack of venue. See Salinas, 373 F.3d

at 170. We note that this does not trigger the Double Jeopardy

Clause, so Abbas may be retried on these Counts in any appropriate

venue. See Smith v. United States, 599 U.S. 236, 253-54 (2023).

Because we vacate and remand these convictions, we will not opine

on Abbas's remaining challenges relevant thereto, including his

sufficiency challenges for those Counts, and whether the jury was

properly instructed on venue under 18 U.S.C. § 1956(i)(3) and on

the meaning of "proceeds."

Our ruling today is a narrow one. Venue did not lie in

Massachusetts under § 1956(i)(1)(B) here because the jury could

not conclude from the evidence presented that the wire transfers

from Massachusetts were transactions in "proceeds." And we may

not consider § 1956(i)(3) because it was not presented to the jury.

Accordingly, Abbas's convictions on Counts Three through Five are

vacated and remanded.

- 38 - C. Conspiracy to Commit Money Laundering (Count Six (B))7

i. Sufficiency of the Conspiracy Evidence

Abbas notes that, to prove his intent to conspire, the

government needed to show that he "knew that the property involved"

for the transactions charged in Counts Four and Five "had been

derived from some form of criminal activity." United States v.

Carucci, 364 F.3d 339, 343 (1st Cir. 2004). He thus argues that

the government did not prove this knowledge.

However, the jury could infer that Abbas "had general

knowledge" of the money's "criminal nature." United States v.

Rivera-Izquierdo, 850 F.3d 38, 49 (1st Cir. 2017) (quoting Richard,

234 F.3d at 769). Consider, for instance, how a bank investigator

informed Abbas about the suspicious nature of the $7,500 wire from

Phoenicia and closed his account because of this. Abbas heard

this in August of 2017, and yet received fraudulent funds through

7 Count Six (B) charged Abbas with conspiring to commit Counts Four and Five. Although we vacate Counts Four and Five for lack of venue, that does not affect Abbas's conviction under Count Six (B) because that Count raises distinct venue and sufficiency-of-the-evidence questions. Cf. United States v. Márquez-Figueroa, 187 F. App'x 18, 21 (1st Cir. 2006) (per curiam) (citing United States v. Powell, 469 U.S. 57, 66 (1984)) ("[A]cquittal on one count does not preclude conviction on another count based upon the same evidence, as long as that evidence is legally sufficient to support a finding of guilt on the count of conviction."). "Even if we were to view this as an inconsistency," that does not warrant "overturning a conviction that is sufficiently supported by the evidence" and laid in the proper venue. United States v. Angulo-Hernández, 565 F.3d 2, 7 (1st Cir. 2009) (citing United States v. DeCologero, 530 F.3d 36, 69 (1st Cir. 2008)).

- 39 - identical circumstances from Fessenden on December 12 and 14,

2018, evidence that greatly undermines his claim that he was

unaware that these funds were illegally obtained. This, along

with the evidence showing that Abbas owned the accounts and engaged

in multiple suspicious transactions, demonstrated his knowledge

that the $82,500 and $39,200 wires included money derived from

fraud. See Rivera-Izquierdo, 850 F.3d at 49 (finding that the

jury could infer intent to commit unlawful monetary transactions

where "the government presented wide-ranging evidence of [the

defendant's] participation in the fraud scheme").

Abbas also contends that the evidence was insufficient

to establish that the laundered proceeds "were derived from illegal

activity." To him, these proceeds included money from sources

that did not underlie the counts of conviction, and evidence in

the record suggested that the amount that he allegedly laundered

exceeded the amount that he received from the victims.

But we have remarked that the government need not prove

that all the money laundered through illegal transactions

"constituted the proceeds of . . . fraud." United States v.

McGauley, 279 F.3d 62, 71 (1st Cir. 2002). That would "eviscerate"

§ 1957, "permitting one to avoid its reach simply by commingling

proceeds of unlawful activity with legitimate funds." Id. On

this basis, we upheld a money-laundering conviction where the jury

could have found that the laundering transactions "included

- 40 - proceeds" of fraud. Id.; see also United States v. George, 761

F.3d 42, 53-54 (1st Cir. 2014); Rivera-Izquierdo, 850 F.3d at 45

("[T]he government needed to prove only that the

money . . . constituted property 'derived from' the fraud's

'proceeds.'").

With that in mind, recall that Fessenden wired $111,000

to Sparta's account on December 12 and 14, 2018. Abbas then wired

$82,500 and $39,200 from Sparta's U.S. Bank account to TCL Air

Conditioner and Abbas's personal TD bank account, respectively, on

December 13 and 14. Because of Abbas's rapid transfers and this

suspicious timing, the jury could conclude that these transfers at

least "included" the proceeds of fraud. McGauley, 279 F.3d at 71;

see Rivera-Izquierdo, 850 F.3d at 45.

ii. Conspiracy Venue

Abbas challenges venue in Massachusetts on the Count

Six (B) charge that he conspired to commit the monetary

transactions and laundering offenses charged in Counts Four and

Five. He contends that the respective transfers of $82,500 and

$39,200 "took place solely where the funds resided at the time of

the unlawful monetary transactions," in Sparta's bank account in

California.

Another portion of § 1956(i), however, insulates Count

Six (B). Section 1956(i)(2) provides for venue in

money-laundering-conspiracy prosecutions "in the district where

- 41 - venue would lie for the completed offense . . . or in any other

district where an act in furtherance of the attempt or conspiracy

took place." See Georgiadis, 819 F.3d at 10-11. Venue is thus

proper where "an overt act in furtherance of the conspiracy was

committed, even where an overt act is not a required element of

the conspiracy offense." Whitfield v. United States, 543 U.S.

209, 218 (2005). The district court instructed the jury to decide

whether a preponderance of evidence showed "that at least part of

the conspiracy . . . took place in Massachusetts," reflecting this

standard.

We affirm the jury's reasonable conclusion under this

standard based on the evidence presented. The government presented

significant evidence that Abbas's unknown coconspirators sent

emails into Massachusetts to induce Fessenden to wire $111,000 on

December 12 and 14, 2018. These emails were overt acts that

furthered the conspiracy because the steps a conspirator takes to

produce the proceeds subsequently laundered furthers a

money-laundering conspiracy. See United States v. Day, 700 F.3d

713, 727 (4th Cir. 2012) (venue was proper under § 1956(i)(2) in

the district into which the defendant's coconspirators sent emails

to the victimized agency's personnel); United States v. Green, 599

F.3d 360, 372, 374 (4th Cir. 2010) (venue was proper under

§ 1956(i)(2) in the district where "acts aimed at obtaining the

proceeds from trafficking in illegal narcotics" took place,

- 42 - including where the drugs were sold); United States v. Myers, 854

F.3d 341, 354 (6th Cir. 2017) (venue was proper under § 1956(i)(2)

in the district where the defendant stole motor homes, the sales

of which generated proceeds that were laundered in other

districts). And Fessenden responded to these emails in

Massachusetts, where she lived. See, e.g., United States v.

Iossifov, 45 F.4th 899, 911 (6th Cir. 2022) (considering, in part,

that "various victims were located" within the venue district

before affirming the jury's venue determination under

§ 1956(i)(2)). Because this at least amounted to a preponderance

of the evidence that "act[s] in furtherance of" the conspiracy to

launder money took place in Massachusetts, the jury could have

reasonably found that venue was proper for Count Six (B). 18

U.S.C. § 1956(i)(2).

D. Evidentiary Challenges

Abbas raises two preserved evidentiary challenges. "We

review preserved objections to evidentiary rulings for abuse of

discretion, reversing only if any abused discretion caused more

than harmless error." United States v. Galíndez, 999 F.3d 60, 64

(1st Cir. 2021) (citing United States v. Taylor, 848 F.3d 476, 484

(1st Cir. 2017)). The government bears the burden to show that an

error was harmless, meaning "that it is highly probable that the

error did not contribute to the verdict." Id. (quoting Taylor,

848 F.3d at 484). For errors "of constitutional dimension," the

- 43 - government must "prove beyond a reasonable doubt" that the

allegedly harmless error "did not influence the verdict." United

States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012) (first citing

Chapman v. California, 386 U.S. 18, 23-24 (1967); and then citing

United States v. Argentine, 814 F.2d 783, 789 (1st Cir. 1987)).

i. Rule 404(b) Challenge as to Wire-Fraud Counts

Abbas moved to exclude, under Federal Rules of Evidence

403 and 404(b), evidence concerning fraud victims who were not the

direct basis for the charges in the indictment, i.e., not Linhares

or Fessenden. The district court determined that this evidence

was either "intrinsic" to the fraud charged in the indictment or,

in the alternative, relevant and not unfairly prejudicial. Abbas

posits that the evidence was "not intrinsic" to the crimes he was

charged with, but was propensity evidence inadmissible under Rule

404(b). He further contends that whatever relevance this evidence

had was substantially outweighed by unfair prejudice because this

conduct was totally separate from the specific charged conduct in

the indictment.

The district court's ruling that the evidence was

intrinsic was correct. "Evidence of bad acts that are 'part of

the charged crime' is admissible as 'intrinsic' evidence" and not

subject to Rule 404(b). United States v. Ramirez-Frechel, 23 F.4th

69, 76 (1st Cir. 2022) (quoting United States v. Rodríguez-Soler,

773 F.3d 289, 297-98 (1st Cir. 2014)). This includes evidence

- 44 - proving a defendant's involvement in the underlying wire-fraud

scheme. See McGauley, 279 F.3d at 72; United States v. Santagata,

924 F.2d 391, 393-94 (1st Cir. 1991). Evidence that Abbas helped

defraud others besides Linhares and Fessenden by providing his

account information to facilitate wire fraud was evidence

pertaining to the overall scheme to defraud, so it was admissible

notwithstanding Rule 404(b). See, e.g., McGauley, 279 F.3d at 72

(affirming admission of 217 fraudulent checks that were not charged

in the indictment); United States v. DeSimone, 699 F.3d 113, 124

(1st Cir. 2012).

This evidence was also relevant.8 Evidence is relevant

if it tends "to make a fact more or less probable than it would be

without the evidence" and that fact "is of consequence in

determining the action." Fed. R. Evid. 401. "'[R]elevancy is a

very low threshold' that only requires the tendered evidence to

'move the inquiry forward to some degree.'" United States v.

Rathbun, 98 F.4th 40, 51 (1st Cir. 2024) (quoting United States v.

Cruz-Ramos, 987 F.3d 27, 42 (1st Cir. 2021)). Evidence that Abbas

received money through the same pattern of suspicious conduct on

several occasions cleared this threshold. It undermined Abbas's

8 Abbas clarifies in his reply brief that he believes the evidence was irrelevant because it lacked any connection to him, but he admits that the transfers from Gatto, Lambert, Hockerson, Paulson-Cheek, and Conquest went into "an account held by Phoenicia, Katchi, or Midamines." He set up those entities and their bank accounts, so the evidence was probative of his actions.

- 45 - argument that he was innocent and helped prove the scheme to

defraud. See Santagata, 924 F.2d at 394 (admitting allegedly

repetitive evidence proving a fraud scheme because that

"repetition . . . was itself distinctly probative" of the scheme)

(quoting United States v. Rodriguez-Estrada, 877 F.2d 153, 156

(1st Cir. 1989)). And it demonstrated the modus operandi Abbas

and his coconspirators employed: use spoofed emails to induce

victims to send money to accounts Abbas controlled and quickly

whisk that money away. See DeSimone, 699 F.3d at 125.

Abbas contends that this evidence comprised the

government's entire case, so it was unfairly prejudicial. Rule

403 permits the district court to exclude otherwise "relevant

evidence if its probative value is substantially outweighed" by

"unfair prejudice," among other things. Cf. Rathbun, 98 F.4th at

51 ("[T]here is no debate that the trial court judge possesses

considerable latitude in Rule 403 rulings.") (internal quotation

marks omitted). But the record belies Abbas's argument for why

this evidence was unfairly prejudicial. Ample evidence connected

Abbas to the charged transfers from Linhares and Fessenden,

including that he controlled the accounts that the funds were sent

to, so this evidence concerning other victims of the same scheme

was "hardly inflammatory." United States v. Robles-Alvarez, 874

F.3d 46, 51 (1st Cir. 2017); cf. United States v. Santana, 342

F.3d 60, 67 (1st Cir. 2003) (finding that evidence of similar acts

- 46 - was not unfairly prejudicial, in part, where the government

introduced other evidence of the defendant's involvement in a

conspiracy). We thus affirm the district court's decision to admit

this probative evidence.

ii. Exclusion of Witness Testimony as to Wire-Fraud Counts

Before us, Abbas claims that excluding Boudreau's

testimony about how a wire transfer takes place violated his

constitutional right to defend himself. He contends that this

evidence was relevant for disproving venue on the wire-fraud

charges9 and to show that no interstate nexus existed for those

charges.

We affirm the district court's ruling because the

testimony did not tend to prove that venue was improper in

Massachusetts for wire fraud. Abbas assumes that venue on the

wire-fraud charges included where a wire originates, see Pace, 314

F.3d at 349-50, and Boudreau would have testified that the

instruction for the wire transfers originated in Massachusetts.

Boudreau's testimony, if anything, would have emphasized why venue

was proper in Massachusetts by specifying that Linhares and

Fessenden sent the wire-transfer instructions from Massachusetts.

The difference between saying that Linhares and Fessenden sent

Because we vacate and remand on Counts Three through Five, 9

we need not speculate on whether Boudreau's testimony was relevant to those Counts.

- 47 - instructions to wire funds from Massachusetts and saying that they

sent a "wire" from Massachusetts is semantical because, either

way, the wire originated in Massachusetts.

And this testimony was irrelevant to Abbas's theory

about the interstate-nexus element. This element of wire fraud

requires "the use of interstate or foreign 'wire communications'

to further that scheme." United States v. Valdés-Ayala, 900 F.3d

20, 33 (1st Cir. 2021) (quoting DiRosa, 761 F.3d at 150-51)

(finding this element met where the defendant sent emails that

would have crossed state lines). Boudreau would have testified

that "the electronic transferring of funds involved banks" in other

states, even if it is more accurate to say that Linhares and

Fessenden sent an instruction, from Massachusetts to Texas, to

transfer funds. Tum, 707 F.3d at 73. Thus, whether the transfers

from Massachusetts were described as "instructions" or "wires"

makes no difference because the overall sequence involved the use

of an interstate wire. Cf. id. at 70, 73 (finding interstate nexus

where the defendant initiated a wire transfer in Maine which

(1) sent information to a South Carolina server, (2) then was

processed in Florida, and (3) then led to electronic transfers

involving banks in Ohio and Illinois).

This spells the end for Abbas's constitutional claim. A

defendant "does not have an unfettered right to offer testimony

that is . . . inadmissible under standard rules of evidence."

- 48 - Taylor v. Illinois, 484 U.S. 400, 410 (1988). Boudreau's testimony

was "properly ruled irrelevant," so Abbas's constitutional right

to defend himself was not impaired. United States v. Brown, 669

F.3d 10, 20 (1st Cir. 2012) (quoting United States v.

Vázquez-Botet, 532 F.3d 37, 51 (1st Cir. 2008)) (citing United

States v. Maxwell, 254 F.3d 21, 26 (1st Cir. 2001)).

E. Jury Instructions

i. Instruction on "Conspiracy"

We turn next to Abbas's argument about the district

court's conspiracy instruction. "[W]e review challenges to the

propriety of jury instructions de novo. However, where, as here,

a defendant fails to properly preserve an objection at trial, we

review the record under the plain-error standard." United States

v. Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014) (citations

omitted); see United States v. Andino-Rodríguez, 79 F.4th 7, 28-29

(1st Cir. 2023). Abbas objected only to the district court's

refusal to give his good-faith, venue, attorney-representations,

and proceeds instructions -- not the conspiracy instruction. That

means plain error applies. And because Abbas does not address the

plain-error standard in his briefing here, he waives this

challenge. See United States v. Colón-De Jesús, 85 F.4th 15, 25

(1st Cir. 2023); Cruz-Ramos, 987 F.3d at 40 (defendant's failure

to advance a specific argument about why a jury instruction was

- 49 - incorrect, coupled with his failure to show plain error, meant

that he waived that argument).10

F. Sentencing and Restitution

Abbas's remaining challenges concern his sentence and

restitution. The presentence investigation report grouped the six

counts of conviction together under U.S.S.G. § 3B1.1. Finding

that the Guidelines provisions for wire fraud shepherded its

analysis, the district court imposed Abbas's sentence and

restitution based on the monetary losses that he caused the

victims.

Our standard practice when we vacate some but not every

conviction under a multicount indictment "is to remand for

resentencing on the other (non-vacated) counts." United States v.

Tkhilaishvili, 926 F.3d 1, 21 (1st Cir. 2019) (quoting United

States v. García-Ortiz, 657 F.3d 25, 31 (1st Cir. 2011)). We often

do this because our ruling "may implicate the trial judge's

comprehensive, interdependent imposition of a penalty and thus

require resentencing on all counts." United States v. Francois,

10 Even were we to overlook Abbas's waiver, we discern no error. The district court's instruction "substantially covered the key point that the requested instruction would have made": that the jury consider whether one, multiple, or no conspiracy existed. United States v. Bedini, 861 F.3d 10, 18 (1st Cir. 2017). Moreover, contrary to his perfunctory arguments, the district court relayed to the jury that it must find "an agreement . . . to commit money laundering" based on "the elements of the underlying offenses" and appropriately narrowed the jury's scope to the conspiracy as charged in Count Six.

- 50 - 715 F.3d 21, 34 (1st Cir. 2013) (quoting United States v. Melvin,

27 F.3d 710, 712 (1st Cir. 1994)); see also United States v.

Pimienta–Redondo, 874 F.2d 9, 14 (1st Cir. 1989) (en banc) (noting

that, in this scenario, "common sense dictates that the judge

should be free to review the efficacy of what remains in light of

the original plan, and to reconstruct the sentencing architecture

upon remand").

We need not consider Abbas's remaining challenges.

Because we vacate and remand on Counts Three through Five for lack

of venue, we vacate Abbas's sentence and the restitution order

imposed on Counts One, Two, and Six (B) and remand for further

proceedings. See Tkhilaishvili, 926 F.3d at 20-21.

III. Conclusion

We affirm Abbas's convictions on Counts One, Two, and

Six (B). We vacate and remand Abbas's convictions on Counts Three

through Five. Upon remand, we instruct the district court to

dismiss these Counts without prejudice for lack of venue. We also

vacate Abbas's sentence and the district court's restitution order

and remand so that the district court may reconfigure its approach

on both issues in the wake of our opinion.

- 51 -