United States v. Wheeler Neff

• Court: Court of Appeals for the Third Circuit
• Decided: September 6, 2019
• Docket: 18-2282
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

Nos. 18-2282 & 18-2539 _____________

UNITED STATES OF AMERICA

v.

WHEELER K. NEFF, Appellant in No. 18-2282 _____________

CHARLES M. HALLINAN, Appellant in No. 18-2539 _____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Nos. 2-16-cr-00130-001 & 2-16-cr-00130-002 District Judge: Honorable Eduardo C. Robreno

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) June 27, 2019

Before: CHAGARES, GREENAWAY, JR., and GREENBERG, Circuit Judges.

(Filed: September 6, 2019) _____________________

OPINION ∗ _____________________

CHAGARES, Circuit Judge.

Charles Hallinan and Wheeler Neff were convicted of conspiring to collect

unlawful debts in violation of the Racketeer Influenced and Corrupt Organizations Act

(RICO), federal fraud, and other crimes. Their RICO convictions are based on their

efforts to skirt state usury laws by partnering with American Indian tribes to offer

usurious payday loans. And their fraud convictions are based on their defrauding

consumers who sued one of Hallinan’s payday businesses into settling their case for a

fraction of its worth. They now appeal their convictions and sentences on numerous

grounds. We will affirm.

I.

We write for the parties and so recount only the facts necessary to our decision.

Payday loans are a form of short-term, high-interest credit, commonly due to be

repaid with the borrower’s next paycheck. The loans are not termed in interest rates, but

rather in fixed dollar amounts. The borrower is required to pay this amount — termed a

fee — in order to secure the loan and is charged this amount each time the borrower

misses the due date to pay off the loan. As a result of this cycle, the annual percentage

∗ This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.

2 rates (APR) on payday loans are exceedingly high: 400% for loans made through brick-

and-mortar shops on average, and 650% for those made through the internet. Seventeen

states outright prohibit these types of loans by capping the allowable APR on consumer

loans at 36% or less. Twenty-seven regulate these loans by imposing licensing

requirements, limiting the size of the loans or the number of renewals, or by structuring

APR limits to a cap that would not all but assure the prohibition of these loans. And only

six states permitted unlicensed payday lending to their residents during the indictment

period.

Hallinan has been partnering with Indian tribes to offer payday loans since 2003.

In 2008, after a falling out with his first tribal partner, Hallinan joined up with Randall

Ginger, a self-proclaimed “hereditary chief” of a Canadian Indian tribe. They met

through Neff, an attorney who previously worked with Ginger and a different payday

lender. In late 2008, Neff drafted contracts by which Hallinan sold one of his companies,

Apex 1 Processing, Inc., to a sole proprietorship owned by Ginger — although none of

Apex 1’s operations changed and Ginger never actually became involved in them.

In March 2010, Apex 1 was sued in a class action in Indiana for violating various

state consumer-credit laws. The plaintiffs sought over $13 million in statutory damages

($2,000 for five violations apiece against over 1,300 class members). Through Neff,

Hallinan hired an attorney to defend Apex 1.

Hallinan and Neff replaced Ginger with the Guidiville tribe, a federally recognized

Indian tribe based in the United States, in late 2010. In 2011, they also introduced the

tribe to Adrian Rubin, Hallinan’s former payday-lending business partner, and Neff

3 drafted agreements to facially transfer Rubin’s payday loan portfolio to the tribe while

Rubin continued to provide the money for the loans and the employees to collect on

them. From 2010 until 2013, Hallinan used new entities associated with this tribe to

issue and collect debt from payday loans to borrowers across the county (including

hundreds with Pennsylvania residents) all of which had three-figure interest rates.

In July 2013, soon after the class was certified in the Indiana lawsuit, Neff sent

Hallinan an email warning him that he faced personal liability of up to $10 million if the

plaintiffs could prove that he did not really sell Apex 1 to Ginger. Neff advised: “[T]o

correct the record as best we can at this stage, and present Apex 1 as owned by Ginger as

intended, it would be helpful if [your accountant] could correct your tax returns and

remove the reference to [Apex 1] on the returns and re-file those returns.” Joint

Appendix (“JA”) 6890. He continued:

Also, for settlement discussion purposes, it’s important that Apex 1 not be doing any further business other than maintaining a minimum net worth. For that reason, if there is any business being done through Apex 1, it would be very helpful to have all such activity discontinued and retroactively transferred to another one of your many operating companies for the entire 2013 year. All that will tend to confirm that Ginger owned Apex 1 and there are only a minimal amount of assets available for settlement . . . .

Id. Hallinan forwarded this email to his accountant and wrote: “Please see the seventh

paragraph down re; my tax returns. Then we can discuss this.” JA 6889.

So Hallinan called Ginger and said, “I’ll pay you ten grand a month if you will

step up to the plate and say that you were the owner of Apex One Processing, and upon

the successful conclusion of the lawsuit, I’ll give you fifty grand.” JA 6391. Hallinan

also falsely testified in a deposition that: Apex 1 went out of business around 2010, he

4 sold Apex 1 to Ginger in November 2008, he became vice president after the sale and

only made $10,000 a month, he resigned from Apex 1 in 2009 and stopped receiving

payments, and he did not pay Apex 1’s legal fees. As Neff wrote in a later email, the

goal was “to avoid any potential questioning . . . as to any deep pockets or responsible

party associated with Apex 1.” JA 7066. In April 2014, the plaintiffs settled the Indiana

lawsuit for $260,000, which Hallinan paid through one of his payday-lending companies.

Later in 2014, the Government empaneled a grand jury to investigate Hallinan and

Neff’s payday-lending scheme, as well as their conduct in the Indiana class action (and

Ginger’s as well). As part of the investigation, the Government served subpoenas for

documents on Apex 1’s attorneys in the Indiana case. They produced some documents

but withheld or redacted others as privileged communications with their client, Apex 1.

When the grand-jury judge held that any privilege was held by Apex 1, not Ginger,

Ginger and Hallinan hired attorney Lisa A. Mathewson to represent Apex 1 and assert its

privilege. Ginger signed Mathewson’s engagement letter as Apex 1’s “authorized

representative,” while Hallinan signed an agreement to pay Mathewson for her

representation. Over the course of two years, Hallinan paid Mathewson over $400,000 to

represent Apex 1 in the grand-jury investigation.

The Government also served document subpoenas on Hallinan’s accountant.

Among other documents, he produced the July 2013 email from Neff that Hallinan had

forwarded to him. The Government moved to present this email to the grand jury. The

district court concluded that the email was protected attorney work product but allowed it

to be presented to the grand jury under the crime-fraud exception. Hallinan filed an

5 interlocutory appeal to this Court. We held that the crime-fraud exception did not apply

since no actual act to further the fraud had been performed. In re Grand Jury Matter #3,

847 F.3d 157 (3d Cir. 2017).

The grand jury indicted Neff and Hallinan and later returned a seventeen-count

superseding indictment. The first two counts charged them with RICO conspiracy to

collect unlawful debt in violation of 18 U.S.C. § 1962(d). Counts three through eight

charged them with defrauding and conspiring to defraud the Indiana plaintiffs, in

violation of 18 U.S.C. §§ 371, 1341, 1343. Counts nine through seventeen charged

Hallinan with money laundering in violation of 18 U.S.C. § 1956(a)(2)(A).

Before trial, the Government moved in limine to admit the July 2013 email. The

Government’s motion was based on the argument that the July 2013 email had furthered

certain tax crimes, not the fraud that this Court considered, and so it was admissible

under the crime-fraud exception despite this Court’s earlier decision. After a hearing at

which Hallinan’s accountant testified, the District Court agreed and granted the motion.

Trial took place in the fall of 2017 over ten weeks. Neff testified extensively over

the course of four days, including about the sources he consulted regarding the legality of

tribal payday lending. The District Court did not permit him to testify about the details of

those sources or to introduce them into evidence, however. Hallinan and Neff were

convicted on all counts in November 2017.

In 2018, after a bench trial, the District Court ordered forfeiture of certain assets of

both defendants. Hallinan was ordered to forfeit over $64 million in proceeds of the

RICO enterprise as well as the funds in eighteen bank accounts and three cars as a part of

6 his interest in the RICO enterprise. Neff was ordered to forfeit his legal fees obtained

from his participation in the RICO enterprise and a portion of his interest in his residence

that corresponded with the home office in which he facilitated the conspiracies.

Then the District Court sentenced the defendants. As to Hallinan, the court

calculated his total offense level to be 36, resulting in a Guidelines range of 188–235

months of imprisonment, which included a two-level enhancement for obstruction of

justice. That enhancement was due to Hallinan’s hiring of Mathewson to make privilege

assertions on behalf of Apex 1 in the grand jury investigation. The court then granted a

two-level downward departure based on Hallinan’s age and poor health, and varied down

one more level under 18 U.S.C. § 3553(a), resulting in a final offense level of 33 and a

Guidelines range of 135–168 months of imprisonment. The court sentenced Hallinan to

168 months of imprisonment followed by three years of supervised release.

As to Neff, the Presentence Report set his offense level for the fraud charges at

level 39, which included a 20-level upward adjustment for an intended loss amount

exceeding $9.5 million. See U.S.S.G. § 2B1.1(b)(1)(K). That adjustment was based on

his July 2013 email to Hallinan that set the risk of the Indiana lawsuit at $10 million. But

the court instead applied a loss amount of $557,200, the amount of a settlement offer

extended to the Indiana plaintiffs in December 2013. The court then varied downward

from the Guidelines range of 121–151 and sentenced Neff to 96 months of imprisonment

followed by three years of supervised release.

This timely appeal followed.

7 II. 1

Hallinan and Neff challenge their convictions and sentences on nine distinct

grounds. Both defendants challenge (A) the admission of the July 2013 email at trial;

(B) the mens rea jury instruction; (C) the limit on Neff’s testimony; and (D) whether they

defrauded the Indiana plaintiffs of “property” under the mail and wire fraud statutes.

Neff alone challenges (E) the tribal-immunity jury instruction; (F) the sufficiency of the

evidence against him; and (G) the loss calculation at his sentencing. Hallinan alone

challenges (H) his obstruction-of-justice enhancement and (I) his forfeiture and money

judgment. We address these issues in turn.

A.

We begin with the admission of the July 2013 email at trial. The District Court

admitted this email under the crime-fraud exception to attorney work-product privilege.

The crime-fraud exception applies when “there is a reasonable basis to suspect (1) that

the privilege holder was committing or intending to commit a crime or fraud, and (2) that

the attorney-client communication or attorney work product was used in furtherance of

that alleged crime or fraud.” In re Grand Jury, 705 F.3d 133, 155 (3d Cir. 2012). The

District Court determined that “there is a reasonable basis to suspect that (1) the

defendants were committing or intended to commit tax crimes, and (2) the email was

used in furtherance of those crimes,” and that this Court’s earlier decision did not

“foreclose the possibility that the email was used in furtherance of a different crime or

1 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 8 fraud.” U.S. Supp. App. 129. “We review the District Court’s determination that there is

sufficient evidence for the crime-fraud exception to apply for an abuse of discretion.” In

re Grand Jury Subpoena, 745 F.3d 681, 691 (3d Cir. 2014).

This determination was not an abuse of discretion. The evidence suggested that

Hallinan’s sale of Apex 1 to Ginger was a sham and that Hallinan continued to own and

operate the company. After the July 2013 email, however, Hallinan ceased declaring this

ownership on his taxes and ceased having his accountant file tax returns for Apex 1. This

is the “actual act to further the [crime]” that we found lacking before. In re Grand Jury

Matter #3, 847 F.3d at 160; see 26 U.S.C. § 7203 (prohibiting willfully failing to file a

return); id. § 7206(1) (prohibiting willfully filing a return that the taxpayer “does not

believe to be true and correct as to every material matter”). There is reason to suspect

that the July 2013 email precipitated those acts, since it instructs Hallinan to “present

Apex 1 as owned by Ginger.” JA 6890. Although Hallinan took a different tack than

Neff recommended, he nonetheless “used [this advice] to shape the contours of conduct

intended to escape the reaches of the law.” In re Grand Jury Subpoena, 745 F.3d at 693;

see also In re Grand Jury, 705 F.3d at 157 (“All that is necessary is that the client misuse

or intend to misuse the attorney’s advice in furtherance of an improper purpose.”).

The law-of-the-case doctrine does not compel a different result. Even if we

conclude that the doctrine applies — that is, that this issue was either expressly or by

implication decided in a prior appeal, In re City of Phila. Litig., 158 F.3d 711, 718 (3d

Cir. 1998) — any error is harmless. Far from the “lynchpin” of the Government’s case,

all this email showed was that Hallinan and Neff acknowledged the risk the Indiana

9 lawsuit posed and were motivated to mitigate it. The substantial sums that Hallinan paid

to carry out the mitigation effort alone suffice as other evidence from which this fact

could be gleaned.

B.

We turn next to the District Court’s mens rea jury instruction. Both Neff and

Hallinan argue that the District Court should have instructed the jury that their conduct

must have been willful, not merely knowing. The difference is that the term “knowing”

requires “only that the act be voluntary and intentional and not that a person knows that

he is breaking the law,” United States v. Zehrbach, 47 F.3d 1252, 1261 (3d Cir. 1995),

while “willful” requires that the defendant knew that his conduct was unlawful, see, e.g.,

United States v. Starnes, 583 F.3d 196, 210–11 (3d Cir. 2009). Since the defendants

raised this objection at trial, our review is plenary. United States v. Waller, 654 F.3d 430,

434 (3d Cir. 2011).

“The RICO statute itself is silent on the issue of mens rea . . . .” Genty v.

Resolution Tr. Corp., 937 F.2d 899, 908 (3d Cir. 1991). “When interpreting federal

criminal statutes that are silent on the required mental state, we read into the statute only

that mens rea which is necessary to separate wrongful conduct from otherwise innocent

conduct.” Elonis v. United States, 135 S. Ct. 2001, 2010 (2015) (quotation marks

omitted). Some statutes require a mens rea of willfulness to separate wrongful from

innocent conduct, but for others, “a general requirement that a defendant act knowingly is

itself an adequate safeguard.” Id. Compare, e.g., Liporata v. United States, 471 U.S.

419, 425 (1985) (holding that a statute prohibiting the unauthorized possession or use of

10 food stamps required the defendant to know that his conduct was unauthorized), with

Carter v. United States, 530 U.S. 255, 269 (2000) (holding that a statute prohibiting

taking items from a bank “by force and violence” does not require willfulness because

“the concerns underlying the presumption in favor of scienter are fully satisfied” by proof

of a taking at least by force), and United States v. Int’l Minerals & Chem. Corp., 402 U.S.

558, 564–65 (1971) (concluding that a statute that criminalized the violation of a

regulation regarding transportation of corrosive liquids only required a showing of

knowledge and not willfulness in part because a company that is engaged in business

involving significant risks to the public should know of the regulations applying to its

business).

A conviction for conspiring to collect unlawful debt does not require willfulness to

distinguish innocent from guilty conduct. Collecting an unlawful debt, like “a forceful

taking,” necessarily “falls outside the realm of the ‘otherwise innocent.’” Id. at 270.

Reasonable people would know that collecting unlawful debt is unlawful. Moreover,

those engaged in the business of debt collection, whose risks to the public are all too

familiar, should be aware of the laws that apply to them, particularly laws determining an

aspect as essential as how much interest they can charge. The Government therefore

need prove only that a defendant knew that the debt collected “had the characteristics that

brought it within the statutory definition of” an unlawful debt. Staples v. United States,

511 U.S. 600, 602 (1994). The District Court did not err by declining to give a

willfulness instruction.

11 C.

Next we consider the defendants’ challenge to the limit that the District Court

imposed on Neff’s testimony. The District Court permitted Neff to testify about the legal

sources he consulted concerning the legality of tribal lending, but not to testify about the

details of those sources or to introduce them into evidence. “We review the District

Court’s decisions as to the admissibility of evidence for abuse of discretion.” United

States v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000).

This limitation was not an abuse of discretion. Testimony about what Neff

reviewed goes to his good-faith defense — whether he honestly believed that the debt

was lawful because of tribal sovereign immunity. But Neff wanted to prove more — that

tribal immunity did make the debts lawful — and thus to refute the District Court’s

instruction to the contrary. Such efforts to convince the jury that the court had the law

wrong “would usurp the District Court’s pivotal role in explaining the law to the jury.”

Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006). The District Court

rightly limited Neff’s efforts to contest its legal explanations before the factfinder.

Basically conceding that the District Court’s ruling was not an abuse of discretion,

Neff and Hallinan claim instead that their constitutional right to “a meaningful

opportunity to present a complete defense . . . must take precedence over an otherwise

applicable evidentiary rule.” Neff Br. 37; see Hallinan Br. 44–52. The Constitution

guarantees criminal defendants “a meaningful opportunity to present a complete

defense.” California v. Trombetta, 467 U.S. 479, 485 (1984). “This right is abridged by

evidence rules that infringe upon a weighty interest of the accused and are arbitrary or

12 disproportionate to the purposes they are designed to serve.” Holmes v. South Carolina,

547 U.S. 319, 324 (2006) (quotation marks and brackets omitted). But the Constitution

permits courts “to exclude evidence that . . . poses an undue risk of ‘harassment,

prejudice, [or] confusion of the issues.’” Crane v. Kentucky, 476 U.S. 683, 689–90

(1986) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)); see also Holmes,

547 U.S. at 314 (“[W]ell-established rules of evidence permit trial judges to exclude

evidence if its probative value is outweighed by certain other factors such as unfair

prejudice, confusion of the issues, or potential to mislead the jury.”). The District Court’s

limitation was not irrational or arbitrary, but was justified by the risk that Neff’s

testimony would confuse or mislead the jury about the law, which the District Court is

tasked with explaining.

D.

We turn to Neff and Hallinan’s last joint argument: that an unvested cause of

action is not a property right protected by the federal fraud statutes. Since they failed to

raise this point before the District Court, we review it only for plain error. See United

States v. Gonzalez, 905 F.3d 165, 182 (3d Cir. 2018). “Under plain error review, we

require the defendants to show that there is: (1) an error; (2) that is ‘clear or obvious’;

and (3) that ‘affected the appellants’ substantial rights.’” Id. at 182–83 (quoting United

States v. Stinson, 734 F.3d 180, 184 (3d Cir. 2013)). “If those three prongs are satisfied,

we have ‘the discretion to remedy the error — discretion which ought to be exercised

only if the error seriously affect[s] the fairness, integrity, or public reputation of judicial

13 proceedings.’” Stinson, 734 F.3d at 184 (quoting Puckett v. United States, 556 U.S. 129,

135 (2009)).

The federal mail and wire fraud statutes require that an individual intended to

defraud someone of “money or property.” 18 U.S.C. §§ 1341, 1343. The Supreme Court

has held that these statutes are “limited in scope to the protection of property rights.”

McNally v. United States, 483 U.S. 350, 360 (1987). “[T]o determine whether a

particular interest is property for purposes of the fraud statutes, we look to whether the

law traditionally has recognized and enforced it as a property right.” United States v.

Henry, 29 F.3d 112, 115 (3d Cir. 1994).

We do not see a plain error with applying the fraud statutes here. The Supreme

Court has upheld fraud convictions based on schemes to defraud victims of “[t]he right to

be paid money,” which “has long been thought to be a species of property.” Pasquantino

v. United States, 544 U.S. 349, 356 (2005). In Pasquantino, the Court held that a

country’s “right to uncollected excise taxes” is “an entitlement to collect money,” the

possession of which is “property” within the meaning of the wire fraud statute. Id. at

355–56. Along those lines, we recently held that the right to the uncollected fines and

costs associated with unadjudicated traffic tickets — claims that a motor-vehicle-code

violation has taken place — constituted “a property interest.” United States v. Hird, 913

F.3d 332, 339–45 (3d Cir. 2019). An unadjudicated civil cause of action is sufficiently

similar under plain-error review. Black’s Law Dictionary defines “cause of action” as “a

factual situation that entitles one person to obtain a remedy in court from another

person.” Black’s Law Dictionary (11th ed. 2019). An entitlement to a remedy is like an

14 entitlement to money (the most common remedy). In addition, the Supreme Court has

held that “a cause of action is a species of property protected by the Fourteenth

Amendment’s Due Process Clause.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 428

(1982); see also Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950).

While Neff argues that “[t]hese cases speak of ‘property’ in the unique context of the

14th Amendment,” Neff Reply 22–23, he never explains why they do not still illuminate

“whether the law traditionally has recognized and enforced [a cause of action] as a

property right,” Henry, 29 F.3d at 115. This caselaw suggests that it was not an error —

at a minimum, not a clear and obvious plain error — to consider a cause of action to be

property protected by the fraud statutes.

Neff and Hallinan’s other responses are similarly unpersuasive. They cite cases

“in other contexts [that have] concluded that there are no vested property interests in a

cause of action before final judgment,” Hallinan Br. 41, but they cite no authority

suggesting that property rights must be vested for the fraud statutes to protect them. They

also make a policy argument: that this theory transfigures “misstatements during civil

litigation into a felony,” Hallinan Br. 40, which “would have enormous ramifications in

both the civil and criminal contexts,” Neff Reply 24 n.9. But the fraud statutes are

concerned with fraud — “false representations, suppression of the truth, or deliberate

disregard for the truth.” Third Circuit Model Jury Instructions § 6.18.1341-1. We reject

the suggestion that “every civil litigant” commits fraud in the regular course of litigation.

Hallinan Reply 16. Finally, the rule of lenity does not require a different conclusion: it

controls “only if, after seizing everything from which aid can be derived, we can make no

15 more than a guess as to what Congress intended.” Muscarello v. United States, 524 U.S.

125, 138 (1998) (alterations and quotation marks omitted). There is no such “grievous

ambiguity or uncertainty” here. Huddleston v. United States, 415 U.S. 814, 831 (1974).

Instead, “[v]aluable entitlements like these are ‘property’ as that term ordinarily is

employed.” Pasquantino, 544 U.S. at 356 (citing Leocal v. Ashcroft, 543 U.S. 1, 9

(2004) (“When interpreting a statute, we must give words their ordinary or natural

meaning.”), and Black’s Law Dictionary 1382 (4th ed. 1951) (defining “property” as

“extend[ing] to every species of valuable right and interest”)). So, it was not a plain error

to consider a cause of action to be “property” protected by the fraud statutes.

E.

Turning now to the defendants’ individual arguments, Neff alone challenges the

court’s tribal-immunity instruction. The District Court told the jury that tribal sovereign

immunity “protects federally recognized Indian tribes from being sued” such that

“individual states do not have the authority to apply their laws to Indian tribes,” but that it

“does not provide a tribe or its members with any rights to violate the laws of any states”

or “with any immunity from criminal prosecution.” JA 5985–86. Neff argues that this

instruction foreclosed a debatable question: whether an Indian tribe that lends money at

usurious rates has engaged in the “collection of an unlawful debt” under RICO. Since he

did not object on this basis in the trial court, we review only for plain error.

We see no plain error with respect to this instruction. RICO defines an unlawful

debt as an unenforceable usurious one, and it looks to state or federal law to distinguish

between enforceable and unenforceable interest rates. See 18 U.S.C. § 1961(6).

16 Sovereign immunity, on the other hand, is simply a “common-law immunity from suit

traditionally enjoyed by sovereign powers.” Santa Clara Pueblo v. Martinez, 436 U.S.

49, 58 (1978). Tribal sovereign immunity thus limits how states can enforce their laws

against tribes or arms of tribes, but, contrary to Neff’s understanding, it does not

transfigure debts that are otherwise unlawful under RICO into lawful ones. See, e.g.,

Neff Br. 16 (“Tribal Sovereign immunity made those loans lawful.”). A debt can be

“unlawful” for RICO purposes even if tribal sovereign immunity might stymie a state

civil enforcement action or consumer suit (or even a state usury prosecution, although

tribal sovereign immunity does not impede a state from “resort[ing] to its criminal law”

and “prosecuting” offenders, Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 796

(2014)). The possibility of a successful state lawsuit is not an element of a RICO offense.

And so the tribal-immunity instruction was not plain error.

F.

Neff also challenges the sufficiency of the Government’s evidence against him.

When assessing challenges to the sufficiency of the evidence, we ask only whether some

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt when viewing the evidence in the light most favorable to the

prosecution. See, e.g., United States v. Shaw, 891 F.3d 441, 452 (3d Cir. 2018). The

answer here is yes. For example, when Hallinan partnered with a new tribe in 2010, it

was Neff who emailed the tribe to advise them that their payday-lending ordinance’s cap

on interest at a legally enforceable rate “would render the loan program unfeasible from

the outset,” U.S. Supp. App. 775, and would be “a deal killer, which would require us to

17 immediately move on to another tribe,” JA 2979. And it was Neff who suggested

rewriting the faux contracts to nominally grant the tribe the majority of payday-lending

revenues to make the “optics” of them “much better” without changing the actual

negligible percentage the tribe received, but warned that assigning the tribe the lion’s

share of the revenue “would seem bogus on its face,” would “invite a further inquiry into

the details,” and “would be very suspicious to people.” JA 3091, 3094–95. A rational

factfinder could have concluded that Neff knowingly conspired to collect unlawful debts.

G.

Neff’s final challenge is to the District Court’s loss calculation at his sentencing.

The District Court found that the intended loss of Neff’s fraud on the Indiana class-action

plaintiffs was $10 million — but, finding this amount overstated the offense’s

seriousness, keyed the loss for purposes of the Guidelines to the $557,200 settlement

offer instead. Neff argues that the Indiana plaintiffs did not actually lose $10 million, but

that argument ignores that the District Court concluded “that the intended loss” — not the

actual loss — “was $10 million,” JA 7898, and that under the Guidelines the relevant

“loss is the greater of actual loss or intended loss,” U.S.S.G. § 2B1.1 note 3(A). And we

see no clear error with the District Court’s factual finding about the amount of loss Neff

intended, which finds support in the record based on Neff’s assertion in the June 2013

email about a possible $10 million award to the Indiana plaintiffs. See United States v.

Napier, 273 F.3d 276, 278 (3d Cir. 2001). An error would have been harmless anyway,

since the District Court used the settlement offer despite its intended-loss finding. See,

e.g., United States v. Jimenez, 513 F.3d 62, 87 (3d Cir. 2008).

18 We also reject Neff’s contention that he intended no “loss” at all as that term is

used in the Guidelines. He relies on our decision in United States v. Free, 839 F.3d 308,

323 (3d Cir. 2016), but there we merely rejected the “view that the concept of ‘loss’

under the Guidelines is broad enough to cover injuries like abstract harm to the

judiciary.” The “narrower meaning” of loss that we endorsed — “i.e., pecuniary harm

suffered by or intended to be suffered by victims,” id. — encompasses the loss in this

case. So we will affirm the District Court’s loss calculation.

H.

We now turn to Hallinan’s individual challenges. He first contests the

obstruction-of-justice enhancement applied at sentencing. See U.S.S.G. § 3C1.1. The

District Court found that this enhancement applied to Hallinan due to the hiring of

Mathewson (whom Hallinan paid) to assert privilege on behalf of Apex 1 — in the

court’s view, a defunct company that Hallinan claimed not to own, which would not have

asserted privilege but for Hallinan’s machinations — and his attempts to influence

Mathewson after hiring her. This arrangement, the court concluded, amounted to “a

sham organized to protect Hallinan, and to prevent the effective prosecution of this case.”

JA 8163. We review the factual finding that Hallinan willfully obstructed or attempted to

obstruct justice for clear error. Napier, 273 F.3d at 278.

We are not left with the definite and firm conviction that a mistake has been made

based on the facts and the reasonable inferences from them. See, e.g., United States v.

Grier, 475 F.3d 556, 570 (3d Cir. 2007). The trial evidence laid bare Hallinan’s

relationship with Apex 1. His own testimony in the Indiana case was that he sold the

19 company to Ginger in 2008, he stopped being involved with it in 2009, and the company

ceased doing business in 2010. Yet he funded and orchestrated its litigation defense in

that case for years afterward, before eventually paying Ginger $10,000 a month to “step

up to the plate” and assert ownership. JA 6391. It is a reasonable inference that Hallinan

controlled Apex 1 through Ginger and that it was his decision to hire Mathewson to assert

Apex 1’s privilege in an attempt to impede the grand-jury investigation. Or, as the

District Court put it at the August 2017 motions hearing, it was “abundantly clear that

Apex’s reason for its existence is only to assert this privilege.” JA 326. Regardless of

the validity of Apex 1’s privilege assertions, the evidence is sufficient to conclude that

the District Court’s factual finding that Hallinan willfully obstructed or attempted to

obstruct justice was not clearly erroneous.

Finally, we turn to Hallinan’s challenges to the District Court’s forfeiture order

and calculation of the money judgment against him. Under 18 U.S.C. § 1963, RICO

convictions carry mandatory forfeiture. The Government must prove the relationship

between the property interest to be forfeited and the RICO violations beyond a reasonable

doubt. United States v. Pelullo, 14 F.3d 881, 906 (3d Cir. 1994). Since the District Court

conducted a bench trial on forfeiture after Hallinan waived his right to a jury trial, “we

review [its] findings of facts for clear error and exercise plenary review over conclusions

of law.” Norfolk S. Ry. Co. v. Pittsburgh & W. Va. R.R., 870 F.3d 244, 253 (3d Cir.

2017). Hallinan contests the forfeiture order and money judgment on three grounds.

None is persuasive.

20 1.

First, Hallinan challenges the forfeiture of the funds in five bank accounts in his

own name (identified as Properties 14–18 in the forfeiture order). The District Court

found that “[t]he evidence at trial and at the forfeiture hearing establishes that the specific

property listed as Properties 14 through 18 are funds received in bank accounts from

Hallinan Capital Corp., which is part of the [RICO enterprise],” and so the properties “are

forfeitable pursuant to 18 U.S.C. § 1963(a)(2)(A).” U.S. Supp. App. 622. Section

1963(a)(2)(A) provides: “Whoever violates any provision of section 1962 of this chapter

. . . shall forfeit to the United States . . . any . . . interest in . . . any enterprise which the

person has established, operated, controlled, conducted, or participated in the conduct of,

in violation of section 1962.”

We see no clear error with the District Court’s finding that the money in these

accounts was a part of Hallinan’s interest in the RICO enterprise. The Government

offered the affidavit and testimony of a financial analyst to support this finding. That

evidence showed deposits from accounts owned by Hallinan Capital Corporation (HCC)

into each of these accounts. The court found the lowest balance in each account after the

HCC deposits to be forfeitable enterprise funds. This finding is therefore supported by

the record.

Hallinan does not dispute this evidence, but argues only that identifying his

interest in the enterprise in this way contravenes our decision in United States v. Voigt,

89 F.3d 1050 (3d Cir. 1996). He is incorrect. In Voigt, we considered how to identify

“property traceable to [tainted] property” under 18 U.S.C. § 982, not the “interest in . . .

21 any enterprise” under § 1963(a)(2)(A) or the meaning of “cannot be divided without

difficulty” as used in substitute-asset provisions more broadly. While the RICO statute

also requires that the Government proceed by way of the substitute-asset provision where

property “has been commingled with other property which cannot be divided without

difficulty,” 18 U.S.C. § 1963(m)(5), the term “traceable to” appears nowhere in the

statute. Rather, as we acknowledged in Voigt, “[t]he RICO forfeiture provision is by far

the most far reaching” of the criminal-forfeiture provisions because it “is extremely broad

and sweeping,” encompassing forfeiture of “any interest the person has acquired or

maintained in violation of [§] 1962, . . . any interest in, security of, claim against, or

property or contractual right of any kind affording a source of influence over . . . any

enterprise which the person has established, operated, controlled, conducted, or

participated in the conduct of in violation of [§] 1962[,] . . . [and] any property

constituting, or derived from, any proceeds which the person obtained, directly or

indirectly, from racketeering activity . . . in violation of section 1962.” Voigt, 89 F.3d at

1083–84 (quotation marks omitted) (quoting 18 U.S.C. § 1963(a)(1)–(3)). The District

Court’s determination of Hallinan’s interest in the RICO enterprise under § 1963

therefore did not run afoul of our decision in Voigt. 2

2 We acknowledge that the case on which the District Court relied also dealt with a different forfeiture provision with a different standard of proof. See United States v. Banco Cafetero Panama, 797 F.2d 1154 (2d Cir. 1986). But even if we were to conclude that the District Court erred, the error would probably be harmless, since the Government had the authority to seek forfeiture under the substitute-asset provision and provided Hallinan ample notice it would do so, and the District Court had already found that substitute assets would be proper. See United States v. Hallinan, No. 16-130-01, 2018 WL 3141533, at *5, *12–13 (E.D. Pa. June 27, 2018). 22 2.

Hallinan next argues that the District Court did not sufficiently exclude proceeds

from the six states where payday lending is legal. This too is a factual finding that we

review only for clear error. See Norfolk S. Ry. Co., 870 F.3d at 253.

To account for those states, the District Court excluded 4.79% of Hallinan’s gross

proceeds, which was the percentage of “leads” (or payday-loan candidates identified with

online data) that came from those states. Hallinan concedes that “the government can use

reasonable extrapolations to calculate illegal proceeds.” Hallinan Br. 60. And he gives

no reason to think that the percentage of legal leads is not a reasonable approximation of

the percentage of legal loans. He does not show, for example, that a lead from Delaware

was meaningfully more likely to become a loan than a lead from California. With no

evidence disrupting the reasonable inference that lead states correlate to loan states, we

cannot conclude that the District Court’s factual finding was clearly erroneous.

Hallinan’s counterarguments rest on the fact that very few leads became loans —

only .15%. From this, he asserts that “it was over 99% certain that there was no

correlation between leads and loans.” Hallinan Br. 61. But the fact that few leads

became loans says nothing about whether the distribution of leads among the states

correlates with that of the loans. Hallinan also contends that “the small sample size of the

leads also make[s] any correlation statistically insignificant.” Id. But the Government

analyzed all the leads and then offered the reasonable inference that the distribution

among states would be the same for the loans, which Hallinan has not rebutted. It did not

rely on a sample of leads at all. So there was no clear error.

23 3.

Third, and finally, Hallinan contests the District Court’s interpretation of what

constitutes forfeitable RICO “proceeds” under 18 U.S.C. § 1963(a)(3). When

determining Hallinan’s RICO “proceeds,” the District Court excluded “the costs the

unlawful enterprise incurs as a result of performing the contracts” — that is, “the

principal extended to borrowers” — but not the enterprise’s “regular business expenses.”

U.S. Supp. App. 616–17 (emphasis omitted). Hallinan concedes that his “overhead such

as office space, supplies, or taxes” is not deductible. Hallinan Br. 63. And the

Government does not challenge on appeal the deduction of the principal of the loans

(although it did before the District Court). See Gov. Br. 150 & n.53. The issue on appeal

is a narrow one: whether the District Court was wrong not to deduct certain operational

expenses — for example, “marketing, credit fees, and salaries,” Hallinan Br. 63 — when

determining the RICO “proceeds” to be forfeited under § 1963(a)(3). Whether the term

“proceeds” in § 1963(a)(3) excludes these expenses is a question of law over which we

exercise plenary review. See Norfolk S. Ry. Co., 870 F.3d at 253.

The District Court relied on the reasoning of the Court of Appeals for the Second

Circuit in United States v. Lizza Industries, Inc., 775 F.2d 492 (2d Cir. 1985). There, the

court endorsed “deducting from the money received on the illegal contracts only the

direct costs incurred in performing those contracts.” Id. at 498. It explained:

Forfeiture under RICO is a punitive, not restitutive, measure. Often proof of overhead expenses and the like is subject to bookkeeping conjecture and is therefore speculative. RICO does not require the prosecution to prove or the trial court to resolve complex computations, so as to ensure that a convicted racketeer is not deprived of a single farthing more than his criminal acts

24 produced. RICO’s object is to prevent the practice of racketeering, not to make the punishment so slight that the economic risk of being caught is worth the potential gain. Using net profits as the measure for forfeiture could tip such business decisions in favor of illegal conduct.

Id. at 498–99. In other words, the court interpreted “proceeds” in the RICO statute to

mean gross profits — total revenues minus marginal costs, but not fixed costs.

The District Court did not err by adopting this reasoning to refuse to deduct the

operational expenses such as marketing, credit processing, and collection fees from

Hallinan’s forfeitable RICO “proceeds.” Our Court has not interpreted the meaning of

“proceeds” in § 1963(a)(3), but many other Courts of Appeals have interpreted it to mean

gross receipts — a broader definition than that adopted by the court in Lizza Industries

and the District Court here. See, e.g., United States v. Christensen, 828 F.3d 763, 822

(9th Cir. 2015) (“We agree with the view that ‘proceeds’ in the RICO forfeiture statute

refers to gross receipts rather than net profits.”); United States v. Simmons, 154 F.3d 765,

770–71 (8th Cir. 1998); United States v. McHan, 101 F.3d 1027, 1041–43 (4th Cir.

1996); United States v. Hurley, 63 F.3d 1, 21 (1st Cir. 1995); cf. United States v. DeFries,

129 F.3d 1293, 1315 (D.C. Cir. 1997) (concluding that taxes paid on illegal profits should

not be deducted from the calculation of RICO “proceeds”). Only the Court of Appeals

for the Seventh Circuit has interpreted “proceeds” in § 1963(a)(3) more narrowly than the

District Court to mean net profits. See United States v. Genova, 333 F.3d 750, 761 (7th

Cir. 2003) (explaining that proceeds in § 1963(a)(3) means “profits net of the costs of the

criminal business”); United States v. Masters, 924 F.2d 1362, 1369–70 (7th Cir. 1991).

The District Court did not err by taking a more conservative view than that adopted by

25 the majority of the Courts of Appeals. Since the District Court excluded the principal of

the loans and Hallinan does not contest the inclusion of his overhead and taxes, we need

not and do not decide whether “proceeds” means, more broadly, gross receipts.

III.

For these reasons, we will affirm Neff’s and Hallinan’s judgments of conviction

and sentence.