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[687] Garwood
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 93-2930
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOYLE MARSHALL WILLEY, SR.,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Southern District of Texas
______________________________________________
(June 27, 1995)
Before KING, GARWOOD and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
Doyle Marshall Willey (Willey) appeals his convictions on
thirty-one counts of bankruptcy fraud, conspiracy to commit
bankruptcy fraud, aiding and abetting the making of a false
statement on a loan application, aiding and abetting the
concealment of assets from the Resolution Trust Corporation (RTC)
and the Federal Deposit Insurance Corporation (FDIC), and aiding
and abetting money laundering. We affirm in part, reverse in part,
vacate the sentence, and remand for resentencing.

Facts and Proceedings Below
In January 1988, Sam Houston National Bank (Sam Houston Bank)
of Huntsville, Texas, failed. Willey, a Huntsville real estate and
timberland developer, was a director of Sam Houston Bank; Albert
Hornaday (Hornaday) was its president from August 1987 until
January 1988 and was a life-long friend of Willey's.1 While
investigating the bank's failure, the FBI uncovered potentially
fraudulent activity with respect to a piece of property in Sam
Houston Bank's real estate owned portfolio (the Richards Road
property). This information led investigators to inquire into the
activities of Willey, Hornaday, Willey's wife, Kimberly Bacon
(Bacon),2 and Shadylane Farms, Inc. (Shadylane Farms), a
corporation set up by Willey and Bacon and wholly-owned by Bacon.
This investigation revealed that Willey, who had declared personal
and corporate bankruptcy in 1990 and thereby walked away from
approximately $46 million in unsecured debt, had undertaken, with
the assistance of Bacon, Hornaday, and Shadylane Farms, to shield
the majority of his and his company's assets from creditors.
In June 1992, federal agents applied for and were granted
1
The record is unclear as to when Hornaday assumed the
presidency of Sam Houston Bank. Willey testified that Hornaday
had been hired as a computer operator with the intention of
making him president when the bank's then-current president left.
Other witnesses referred to Hornaday simply as Sam Houston Bank's
president.
2
At the time of this investigation, Bacon was actually
Willey's girlfriend and, at some later point, his fiancee. Bacon
had originally been hired by Willey as a part-time secretary in
1984; their relationship became intimate some time in 1986 during
the break-up of Willey's first marriage. Willey and Bacon were
married on June 13, 1992.
2

warrants to search both the home in which Willey and Bacon were
then living (the Sunset Lake Road house) and the Richards Road
property, which Shadylane Farms had just purchased from Hornaday
and into which Willey and Bacon were then in the processing of
moving. The voluminous documentary evidence seized during the
search revealed a labyrinthine series of financial transactions
involving numerous corporate entities with which Willey was
associated.3 Although Willey and his company, MWI Land, Inc.
(MWI), received significant amounts of money from these various
corporations and had access to and/or control over approximately
twenty corporate and personal bank accounts, Willey was not listed
as an employee in state-mandated reports for any company other than
MWI.4 In addition, although Bacon, or Willey and Bacon, were
signators on most of the accounts, none were in Willey's name; most
3
Willey was involved in or affiliated with a large number of
small corporations and unincorporated business ventures in east
Texas. The evidence showed that Willey was affiliated with the
following entities: Dizbo, Inc.; Megachips, Inc.; O.D., Inc.;
One Lake Place, Inc.; OKC Limited; MWI Land, Inc.; Marshall
Willey Investments; MWI Company; Linscomb Willey Joint Venture;
Junction Square Properties; Woodridge Motor Company; Foxhall,
Inc.; Texla Holding Company; KLB Company; Mount Pleasant Village;
and Shadylane Farms, Inc.
4
Records of the Texas Employment Commission (TEC) listing
paid employees showed that Willey was not listed as an employee
or officer for any of the companies listed in footnote 3 (other
than MWI). MWI reported to the TEC from 1986 to 1988, but
neither Shadylane Farms nor Texla ever filed an employee report
with the TEC. The only listed employee of Foxhall was H.P.
Williams. In 1990, MWI received over $10,000 in deposits from
OD, Dizbo, and Foxhall in a single day. In addition, although
the only listed employee of Megachips was Andrew Dunn, evidence
showed that Megachips filed a 1099 form with its 1990 tax return
reporting miscellaneous payments to Willey totalling $19,985.44;
Willey reported that amount as income in his personal return for
that year.
3

had been opened as "trust" accounts,5 with Willey's interest
undisclosed, by Bacon in her own name, or in a corporate name.
Based on this information, Willey, Bacon, Hornaday, and
Shadylane Farms were charged in a 32-count indictment with
bankruptcy fraud, conspiracy to commit bankruptcy fraud, aiding and
abetting the making of a false statement on a loan application,
aiding and abetting the concealment of assets from the RTC and the
FDIC, and aiding and abetting money laundering.6 The government
contended that, beginning in 1986, Willey funneled money belonging
to him and MWI through the corporate and personal accounts that he
controlled, but with which he was not conspicuously associated,
enabling him to continue to enjoy assets that should have become
part of his and MWI's bankruptcy estates. Focusing on two pools of
money totalling $400,000 that had been paid to MWI in July 1986,
the government painstakingly traced the money through a convoluted
series of transfers from the various nominee and "trustee" accounts
that Willey controlled. The evidence showed that, from 1986 to
1992, Willey and Bacon used the money in these accounts to purchase
various assets--land, cattle, a fur coat, vehicles, mineral
interests, and most importantly, the Richards Road property and
improvements thereon. We will not here recount the intricate web
of transfers and transactions by which most of these assets were
5
Although Willey set up a number of accounts that he
designated as "trust" accounts, none of these was a true trust;
Willey had actual control over the funds in the accounts.
6
Count 32, the forfeiture count, is not at issue in this
appeal.
4

shown to have come into Willey's possession. Because the
transactions related to the financing, improvement, and purchase of
the Richards Road property were central to many of the charges in
this case, however, a somewhat more detailed recounting of them is
appropriate.
The Richards Road property was a 61-acre tract of land with a
house.7 When Sam Houston Bank hired Hornaday in August 1987, it
gave him, as part of his compensation package, a lease purchase
agreement on the property under which he paid $200 a month in rent.
After Sam Houston Bank failed, the FDIC, in its capacity as
receiver, decided to advertise the property for public bids. Two
bids were submitted, one from Willey, acting as broker for D.E.
Hughes, for $200,000 and one from Sam Dominey (Dominey) for
$200,100; the appraised market value of the property was $244,000.
The FDIC accepted Dominey's bid, but Hornaday filed an affidavit in
the county property records asserting the priority of his purchase
option, and Dominey refused to close the purchase with this cloud
on the title. Thereafter, Hornaday submitted a bid on April 21,
1988,8 in the amount of $200,100, and the sale was closed May 31,
7
The property included improved and fenced pasture land, a
pond, various outbuildings, and a barn and stalls. The house had
four bedrooms and 4615 square feet of enclosed space.
8
On March 18, 1988, Willey had placed money in an escrow
account with a local title company for the FDIC auction on the
Richards Road property. On April 21, 1988, the title company
purchased a cashier's check payable to the FDIC out of the escrow
money. The title company was listed as the remitter; the check
bore the notation "for Albert B. Hornaday."
5

1988.9
From the time Hornaday purchased the Richards Road property in
May 1988 until June 1989, when Shadylane Farms entered into a lease
with an option to purchase the property, Willey, through various of
his nominee accounts, advanced Hornaday money to pay the mortgage
on the property; after June 1989, Shadylane Farms made the
payments.10 Nevertheless, Hornaday continued to live on the
property until Shadylane Farms bought it outright in June 1992. In
addition, the government introduced substantial evidence that
Willey was making improvements on the Richards Road house long
before Shadylane Farms actually purchased it in June 1992.11
Payments for these improvements came from various of the accounts
to which Willey had access.12 Willey characterized the payments to
9
This is the loan that is the subject of count 2, charging
Willey with aiding and abetting the making of a false statement
on a loan application. This count is discussed in part II of the
text, infra.
10
Shadylane Farms was incorporated in June 1989. Bacon
testified that the company was set up to allow her to go into the
cattle business.
11
James Thompson (Thompson) of Thompson Custom Homes testified
that Willey called him in 1988 to do remodeling work on the
Richards Road house. Even though Hornaday was living in the
house at that time, it was Willey who negotiated for and closed
the deal on the improvements, although he did inform Thompson
that he was going to pay for the work through an improvement loan
Hornaday had received in connection with his purchase of the
property. In total, Thompson billed Willey $32,583.92 for the
improvements.
12
Payments made on December 22, 1988, and March 7, 1989, to
Thompson Custom Homes came from Foxhall. On April 6, 1989, Texla
wrote a check on its account to purchase carpet for the Richards
Road house; a check written from the same account on April 10,
1989, was paid to Thompson Custom Homes. In August and September
1989, Bacon wrote checks out of one of her personal accounts for
6

Hornaday for the mortgage and improvements on the Richards Road
property as loans, but was forced to admit that there were no
promissory notes memorializing these alleged loans and that he had
not listed the loans on his bankruptcy petition as a debt owed him.
Following ten days of testimony, a jury found Willey guilty on
all counts.13 The district court sentenced Willey to 60 months'
imprisonment on the conspiracy, bankruptcy fraud, and concealment
from federal agency counts (counts 1 and 3-24), 24 months'
imprisonment on the false statement count (count 2), and 97 months'
imprisonment on the money laundering counts (counts 25-31), all
sentences to run concurrently. In addition, the district court
imposed a 3-year term of supervised release on counts 1 and 3-31,
a 1-year term of supervised release on count 2, a fine of $15,000,
and special assessments totalling $1500.
In his timely appeal, Willey contests the sufficiency of the
evidence to support the "conceal or disguise" element of his money
laundering convictions under 18 U.S.C. � 1956(a)(1)(B)(i). In this
a refrigerator, a dinette table and eight chairs, and for
resurfacing the driveway at Richards Road; a second check for the
resurfacing work came from Shadylane Farms's account. Willey
made one payment to Thompson Custom Homes in cash. A $7000 check
to Hood Ornamental for a gate, a January 12, 1989, payment to
Thompson Custom Homes, and a payment to A.T. Scott for painting
the house were all paid for by Hornaday out of an improvement
loan he took out with Bedford Savings Association. The total
value of the improvements to the property was $79,529.09.
13
Willey, Bacon, Hornaday, and Shadylane Farms were originally
tried together, but Hornaday's case was severed on the sixth day
of trial after he became too ill to continue. Bacon, who was
also found guilty on all counts, originally filed notices of
appeal in her case and on behalf of Shadylane Farms as its
president, but withdrew them after having completed her sentence.
7

same vein, he claims that the opinion testimony of IRS Special
Agent Lana Stone respecting the conceal or disguise element was
highly prejudicial and therefore improperly admitted. He further
claims that, even if the government's evidence was sufficient to
prove money laundering, the district court erred in sentencing him
under the Sentencing Guidelines' money laundering provisions
because his conduct is not within the "heartland" of criminal
behavior that the provisions were meant to address. With respect
to the other offenses, he claims that the search of his two homes
grossly exceeded the scope of the warrant and that therefore the
fruits of the search should have been suppressed. Even if the
search was appropriate and the evidence seized was therefore
admissible, Willey challenges the sufficiency of the evidence of
intent to commit the bankruptcy fraud and transfer and concealment
crimes. He claims that the evidence was likewise insufficient to
support his conviction on the false statement count because, he
alleges, the statement at issue was neither false, material, nor
known to him. Lastly, he argues that the district court erred in
failing to resolve a factual dispute regarding the Presentence
Report's (PSR) calculation of certain moneys said to have been
laundered by him.
Discussion
I. Bankruptcy Fraud and Transfer and Concealment Counts
A person commits the crime of bankruptcy fraud when he
"transfer[s]
or
conceal[s]
property
(1)
knowingly,
(2)
fraudulently, and (3) in contemplation of a case under title 11 or
8

with intent to defeat the provisions of title 11." United States
v. West, 22 F.3d 586, 589 n.8 (5th Cir.), cert. denied, 115 S.Ct.
584 (1994); see 18 U.S.C. � 152. Under 18 U.S.C. � 1032, it is a
crime to "knowingly conceal[] or endeavor[] to conceal an asset or
property from the Federal Deposit Insurance Corporation, acting as
conservator or receiver or in the Corporation's corporate capacity
with respect to any asset acquired or liability assumed by the
Corporation . . ." 18 U.S.C. � 1032(1). This section also
criminalizes concealing assets from the RTC or any conservator
appointed by an enumerated agent of the United States. Id. This
Court has held that a transfer made with the requisite intent may
be prosecuted even though it occurred more than one year before the
debtor declared bankruptcy.14 West, 22 F.3d at 590.
Willey contests the sufficiency of the government's evidence
with respect to the intent element of both these offenses. In
reviewing a sufficiency challenge, the evidence, whether direct or
circumstantial, is reviewed in the light most favorable to the jury
verdict. United States v. Nguyen, 28 F.3d 477, 480 (5th Cir.
1994). All credibility determinations and reasonable inferences
are to be resolved in favor of the verdict. Id. The evidence is
sufficient if it could lead a rational factfinder to conclude that
the essential elements of the crime have been proved beyond a
14
Under the bankruptcy laws, a debtor may not be discharged if
he fraudulently conceals or transfers property within one year of
declaring bankruptcy. 11 U.S.C. � 727(a)(2)(A). The doctrine of
continuing concealment, however, can operate to deny the debtor a
discharge even though the actual transfer in question occurred
more than one year before the debtor declared bankruptcy. See In
re Oliver, 819 F.2d 550, 554-555 (5th Cir. 1987).
9

reasonable doubt. United States v. Villasenor, 894 F.2d 1422, 1425
(5th Cir. 1990). In making such a determination, "[i]t is not
necessary that the evidence exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except
that of guilt." United States v. Bell, 678 F.2d 547, 549 (5th Cir.
1982) (en banc), aff'd on other grounds, 103 S.Ct. 2398 (1983).
Willey argues that the government failed to adequately rebut his
contention that all the financial arrangements he made were for the
benefit of his children, whom he feared would be short-changed in
the aftermath of his acrimonious divorce from his first wife. He
contends that the government's largely circumstantial case is
insufficient to rebut his assertion of innocent intent. We
disagree.
The government's theory of this case was that Willey was
contemplating bankruptcy in 1986 and thus began to transfer assets
out of his name to various individual and corporate nominees and
"trustees." The evidence focused primarily on two checks totalling
$400,000 that MWI received in mid-July 1986. Almost immediately
upon receiving these checks, Willey transferred them to an attorney
acting as "trustee." At this same time, Willey filed a motion to
obtain a temporary restraining order in connection with his divorce
from his first wife.15 To the motion, he attached an affidavit
averring that, unless restrained, his wife would "[i]ncur massive
15
Willey and his first wife reconciled briefly some time in
early 1987, but Willey reinstated divorce proceedings in May 1987
after his wife was arrested for assaulting Bacon. The divorce
became final on December 20, 1988.
10

debts as she did when she recently filed suit in this county
seeking a divorce from me." He went on:
"Because of present economic conditions, I am and have
been for some time, in extreme financial difficulty. I
have been forced to consider relief through the Federal
Bankruptcy Court."
This affidavit was signed July 21, 1986, the same day Willey
transferred the first check to his putative "trustee."
Starting in 1988, Willey's financial fortunes took a decided
turn for the worse. He lost more than $1.2 million in the collapse
of Sam Houston Bank and an additional $286,242 in the demise of
Spindletop Savings. In addition, corporate loans Willey had
personally guaranteed began to fall through, and judgments against
him started to accumulate. Although Willey testified at trial that
he was not considering bankruptcy at that time, he admitted that he
was in dire financial straits. A letter found among his personal
files, dated March 13, 1989, referred Willey to a San Antonio
bankruptcy attorney who the writer claimed was "`the best
bankruptcy attorney I have ever visited. Super smart and tough.
In addition, he is the alternate trustee for bankruptcy filings,
thus no hassle on your plan, etc. Give me a call.'"
On July 20, 1989, Willey gave a deposition in connection with
the collection of a judgment against him and MWI on a loan
guarantee; portions of that deposition were read into the record.
In the deposition, Willey averred that he had "shut down all
operations" of MWI in mid-1986, that the company was "defunct" and
held no assets, and that he had been living on money borrowed from
his family. He testified that he owned no real estate other than
11

his home and that his children owned no real estate; he later
testified that MWI held no real estate or leasehold interests. He
also testified that he did not own a vehicle, that he had borrowed
Bacon's car to come to the deposition, and that she did not hold
any property that belonged to him. He affirmed that no one else
was holding any property on his behalf and that MWI had not
transferred any assets to other persons. He testified that he
owned no jewelry, except for a $350 Bulova watch, no weapons, no
commodities, securities, or mutual funds, and no equipment. Under
the evidence, the jury could find that this testimony was false and
then known to be so by Willey.
Willey declared personal bankruptcy under Chapter 7 on August
23, 1990. The total amount of unsecured debt reflected in his
petition was in excess of $26 million, largely as a result of
personal guarantees he had signed on corporate loans. On his
bankruptcy schedules, Willey declared that no one was holding
anything of value in which he had an interest. He listed his
Sunset Lake Road home but no other real property or leasehold
interests. Willey further declared that he owned personal property
(clothing and a watch) with a total value of $1000, had $45 cash on
hand at the time he filed the bankruptcy petition, and otherwise
owned no jewelry, firearms, automobiles, livestock, or farming
equipment. MWI's Chapter 7 bankruptcy petition, filed September
25, 1990, showed a similar dearth of assets and listed
$20,942,806.63 in unsecured debt. Accordingly, both bankruptcy
trustees filed reports of no distribution in their respective
12

cases. Willey was discharged on February 6, 1991, and his personal
bankruptcy was closed on June 27, 1991; MWI's bankruptcy was closed
on December 11, 1990.
The evidence showed that, despite these sworn statements,
Willey and MWI had substantial assets that were being held by
various nominees, most significantly Bacon, Hornaday, and Shadylane
Farms. Each of the bankruptcy fraud and concealment counts was
keyed to a specific asset or group of assets; each of these assets
was ultimately traced back to Willey or MWI.16 Although most of
these assets were not titled in Willey's or MWI's name, the
evidence adequately showed that these were mere nominee
arrangements, that Willey or MWI had actually financed the
purchases, and that Willey continued to derive benefit from the
assets and used or dealt with them as his own property; those that
had not been transferred out of Willey's name, such as various
firearms and a $3750 designer watch, were simply not declared on
either bankruptcy petition.
Having reviewed the entire record in this case, we conclude
that the government's evidence of culpable intent was more than
sufficient to support the jury's verdicts on these counts. At
base, Willey's challenge to the sufficiency of the evidence on
16
Specifically, the assets charged to have been concealed in
Willey's personal bankruptcy were the Richards Road property, a
1985 Chevrolet truck, a tractor, a livestock trailer, twelve
firearms, twenty-eight head of cattle, jewelry, and a large
screen television. Assets alleged to have been concealed in
MWI's bankruptcy were $200,000 in cash (part of the $400,000 MWI
received in July 1, 1986), 61 acres of land in Houston County,
Texas, three lots of land located in Walker County, Texas, and
mineral rights on land located in Sabine County, Texas.
13

these charges is that the government's largely circumstantial case
is insufficient to rebut his direct testimony that he concealed the
money with the intent only to benefit his children. He cites
precedent from this Court stating that, "[i]f the `evidence viewed
in the light most favorable to the prosecution gives equal or
nearly equal circumstantial support to a theory of guilt and a
theory of innocence of the crime charged,' this Court must reverse
the convictions." United States v. Menesses, 962 F.2d 420, 426
(5th Cir. 1992) (citation omitted). This, however, is not the case
here. The government's circumstantial case on the bankruptcy fraud
and transfer and concealment counts was overwhelming. Willey's
only substantial evidence of his professed contrary intent was his
own testimony and that of Bacon and another of Willey's nominees,
which the jury was free to give whatever weight it chose.17 The
bankruptcy fraud and transfer and concealment convictions are
affirmed.
II. Fraudulent Statement Count
Count 2 of the indictment charged Willey with aiding and
abetting the making of a false statement on a loan application in
violation of 18 U.S.C. � 1014. The evidence supporting this count
involves Hornaday's application for a $250,000 loan from Bedford
17
Indeed, given that the "Willey Children's Trust" was only a
bank account that never had more than $9000 in it, that a
substantial amount of money was transferred from the children's
account to Shadylane Farms, and that both Bacon and Willey
admitted on cross-examination that none of the arrangements they
had made would protect the children's purported interest in the
property held in Bacon's and Shadylane Farms's names, the jury
had ample evidence to discredit Willey's professed intent to
benefit his children.
14

Savings Association (Bedford Savings) to fund both the purchase of
the Richards Road property and various improvements to the house
there. According to the government's allegations, it was actually
Willey who intended to and did in fact, through Bacon and later
Shadylane Farms, make payments on the Richards Road property.
Given this arrangement, the government alleged that Hornaday's
statement on the loan application that he would be solely
responsible for repayment of the loan was fraudulent. To prove a
violation of section 1014, the government was required to show that
Hornaday knowingly made a false statement on the application, that
Willey authorized or directed Hornaday to do so, and that the
statement was material. United States v. Thompson, 811 F.2d 841,
844 (5th Cir. 1987). Willey contests the sufficiency of the
evidence as to all three elements of the offense.

Hornaday's loan application was admitted into evidence. The
financial statement attached to the application, dated August 17,
1987, listed total assets of $1,065,607 and net income of $102,500;
on May 31, 1988, Hornaday affirmed that his financial condition had
not changed, even though he had been unemployed since Sam Houston
Bank failed in January 1988. Marilyn Crosson (Crosson) of Bedford
Savings, who served as a liaison between the president and Bedford
Savings borrowers, testified that she dealt with Willey during the
loan negotiations; a letter requesting a draw on the loan, written
on MWI letterhead and signed by Willey, also was introduced into
evidence.
As noted above, the government showed that, after Hornaday
15

secured the loan, Shadylane Farms made the payments on the Richards
Road property. In 1989, the year Hornaday purchased the Richards
Road property, he and his wife showed a combined wage income of
$37,973.29; they claimed mortgage interest deductions of
$25,996.07. In 1990, the Hornadays reported $41,301.57 in wage
income and $27,260.75 in mortgage interest. The government's
expert testified that, in each instance, the reported wage income
would generally be insufficient to make the mortgage payments and
also cover normal living expenses. That same year, Shadylane Farms
reported rent payments of $22,951.60 for a pasture lease; Hornaday,
however, reported no rental income for that tax year.

The evidence was sufficient to show that the statement on the
loan application was false. Viewing all the evidence in the light
most favorable to the verdict, a rational jury could conclude
beyond a reasonable doubt that Hornaday would not be solely
responsible for repayment of the loan.
Viewed in the light most favorable to the verdict, the
circumstantial evidence is also sufficient to establish that Willey
directed or authorized Hornaday to make the fraudulent statement.
Crosson testified that it was Willey who was her contact during the
loan negotiations and who forwarded appropriate records and data to
Bedford Savings. Willey and Hornaday were long-time friends, and
Willey was the person who directed Hornaday to Bedford Savings,
where Willey had borrowed before. Willey's previous association
with Bedford Savings, and his having borrowed money there, also
support the inference that he knew the loan application contained
16

this averment. In addition, Willey himself admitted that he was
familiar with the banking business generally, which was also shown
by other evidence. Finally, the evidence amply demonstrated that
Willey actually made the mortgage payments on the Richards Road
property.
The question remains, however, whether the statement was
material. In the context of this statute, "[a] false statement is
material if it is shown to be capable of influencing a decision of
the institution to which it was made." United States v. Williams,
12 F.3d 452, 456 (5th Cir. 1994) (footnote omitted). To prove
materiality, however, it is not necessary to show that the
statement "actually influence[d] a decision[,] provided that it is
capable of doing so. Reliance is irrelevant." Id. at 456 n.14.
The government argues that the statement was material in that
Willey could not get a loan from Bedford Savings himself because he
was a previous Bedford Savings borrower and would have exceeded the
bank's loans-to-one-borrower limits. However, no evidence was
introduced showing what Bedford Savings's loans-to-one-borrower
limits were or the amount of Willey's loan indebtedness to Bedford
Savings in May 1988. Without this information, it is impossible to
say whether Willey's being considered a borrower on this loan would
have resulted in a loans-to-one-borrower violation.
Nevertheless, the test is not whether the bank could not or
would not have made the loan but for the false statement, but
whether the statement was properly "capable of influencing" the
bank's decision to grant the loan. Thus, regardless whether a loan
17

to Willey would have breached the bank's loans-to-one-borrower
limits, we cannot say that his involvement in the loan would not
have been a factor properly "capable of influencing" the decision
to make the loan. The evidence showed that Hornaday was likely not
capable of making the mortgage payments on the Richards Road
property himself and that he was no more than a nominee borrower
for Willey. We think that the jury could reasonably infer that
Bedford Savings would properly want to know the party to whom it
was making this loan and that the party's identity itself would be
capable of properly influencing its decision to make the loan.
The fraudulent statement conviction is affirmed.
III. Money Laundering Counts
Counts 25 through 31 charged Willey with aiding and abetting
money laundering contrary to 18 U.S.C. � 1956(a)(1)(B)(i). A
person violates section 1956(a)(1)(B)(i) if he conducts or attempts
to conduct a financial transaction knowing that the property
involved is the proceeds of unlawful activity and knowing that the
transaction was designed "to conceal or disguise the nature, the
location, the source, the ownership, or the control of the proceeds
of specified unlawful activity." To prove that a defendant aided
and abetted money laundering, the government must show that the
defendant "associated himself with the unlawful financial
manipulations, that he participated in them as something he wished
to bring about, and that he sought, by his actions, to make the
effort succeed." United States v. Termini, 992 F.2d 879, 881 (8th
Cir. 1993). Each money laundering count of the indictment alleged
18

a different specific transaction with a different particular check
made out by either Bacon, Hornaday, or Shadylane Farms, the funds
for which the government's evidence adequately showed were the
proceeds of Willey's bankruptcy fraud. Willey argues, however,
that there is insufficient evidence that the financial transactions
charged as money laundering in this case were designed to conceal
or disguise their source or origin.
Willey relies principally on the Tenth Circuit's decision in
United States v. Garcia-Emmanuel, 14 F.3d 1469 (10th Cir. 1994).
In Garcia-Emmanuel, the defendant was indicted on 17 counts of
money laundering in violation of section 1956(a)(1)(B)(i). The
defendant and his wife had used the proceeds of the defendant's
criminal enterprise to pay their mortgage, buy land, vehicles, and
horses, and make various investments. Id. at 1472. All the
transactions involved payment by cash or personal or cashier's
check and were conducted in the defendant's own name or that of his
wife or his restaurant. Id. A jury found the defendant guilty of
all seventeen money laundering counts. The district court,
however, granted the defendant's post-verdict motion for judgment
of acquittal as to all these counts, reasoning that, because the
transactions did not conceal the defendant's identity as the person
providing the illegal proceeds, the government had failed to meet
its burden of proving that the transaction was one that was
designed to conceal.18 Id. at 1473.
18
The district court held that the defendant was so closely
associated with his restaurant that dealings in its name did not
conceal the defendant's personal involvement. Garcia-Emmanuel,
19

The Tenth Circuit disagreed with the district court's
reasoning, but upheld its finding of insufficient evidence of the
design requirement as to twelve of the seventeen counts. Id.
Citing a report of the President's Commission on Organized Crime,
the court defined money laundering schemes as those that "`seek to
change large amounts of cash . . . into an ostensibly legitimate
form, such as business profits or loans, before using those funds
for personal benefit. . . .'" Id. at 1474 (citations omitted;
emphasis in Garcia-Emmanuel). Thus, the court concluded,
"Merely engaging in a transaction with money whose nature
has been concealed through other means is not in itself
a crime. In other words, the government must prove that
the specific transactions in question were designed, at
least in part, to launder money, not that the
transactions involved money that was previously laundered
through other means. If transactions are engaged in for
present personal benefit, and not to create the
appearance of legitimate wealth, they do not violate the
money laundering statute." Id.
The design requirement separates the crime of money laundering from
the innocent act of mere money spending. Id. at 1474. In one
sense, the acquisition of any asset with the proceeds of illegal
activity conceals those proceeds by converting them into a
different and more legitimate-appearing form. Id. But the
requirement that the transaction be designed to conceal implies
that more than this trivial motivation to conceal must be proved.
Id. The court thus held that substantial proof of a design to
conceal was required; behavior that is merely suspicious but does
not evince a design to conceal, as well as "the mere accumulation
14 F.3d at 1473.
20

of non-concealing behavior," is not sufficient to sustain a
conviction for money laundering. Id. at 1476.
Reviewing the money laundering counts under these standards,
the Garcia-Emmanuel court affirmed the judgment of acquittal as to
those counts involving cashier's checks on which the defendant
himself was noted as remitter. Id. at 1476-78. Likewise, as to
those counts involving purchases with cash in which the defendant's
name appeared on the contract of sale and those counts involving
purchases by personal check in which the defendant's name appeared
on the check, the court upheld the judgment of acquittal. Id. at
1478. However, as to count 11, which charged the defendant with
causing the issuance of a cashier's check, on which his restaurant
was noted as remitter, to purchase some land, the court reversed
the judgment of acquittal and reinstated the conviction for money
laundering:
"The transaction not only creates the false impression
that the restaurant was his source of wealth, but it
creates documentary evidence in support of that deception
that could mislead an investigator. This furthers a
launderer's goal of `plac[ing] illicit bulk cash in an
economy, [so] it becomes increasingly difficult to
uncover their money laundering operation.'" Id. at 1476-
77 (citation omitted; alterations in Garcia-Emmanuel).
Using a similar rationale, the court found insufficient evidence to
support count 14, involving the use of $15,000 cash as partial
payment for a horse, in part because,
[u]nlike count 11, Defendant did not transfer money to
his restaurant, use his restaurant as a remitter, involve
his restaurant as a named party in any kind of
transaction, or design a paper trail that would lead an
investigator to believe that the money for the horse came
21

from some source other than Defendant."19 Id. at 1477.
The rule that emerges from the Tenth Circuit's analysis is
that, while a showing of simply spending money in one's own name
will generally not support a money laundering conviction, using a
third party, for example, a business entity or a relative, to
purchase goods on one's behalf or from which one will benefit
usually constitutes sufficient proof of a design to conceal.20 If
19
The court noted that the defendant had made an oral
misrepresentation to the seller concerning the source of the
cash, representing that it was profits from his restaurant
business, but "only after a paper trail had already been created
that clearly connected Defendant to the cash." Garcia-Emmanuel,
14 F.3d at 1477.
20
This interpretation also accords with the Tenth Circuit's
decision in United States v. Sanders, 928 F.2d 940 (10th Cir.),
cert. denied, 112 S.Ct. 142 (1991), in which the court overturned
the defendant's convictions for money laundering in connection
with the purchase of two cars. Although the defendant titled the
cars in his wife's and daughter's names, the court found that his
conspicuous involvement in the purchase negotiations and
subsequent conspicuous use of the cars undercut the argument that
the transactions were designed to conceal defendant's association
with them. According to the court, "[T]he purpose of the money
laundering statute is to reach commercial transactions intended
(at least in part) to disguise the relationship of the item
purchased with the person providing the proceeds." Id. at 946.
Thus, the transactions in Sanders "differ[ed] from what could be
described as a `typical money laundering transaction' in the
Sanderses' failure to use a third party to make the car purchases
and thereby conceal the buyers' identities." Id. (citation
omitted). The Tenth Circuit reiterated this interpretation of
Sanders in United States v. Edgmon, 952 F.2d 1206 (10th Cir.
1991), cert. denied, 112 S.Ct. 3037 (1992), in which the court
upheld the defendant's conviction for money laundering when the
evidence showed that, although the defendant provided the money
to finance the transactions, it was his father who negotiated and
paid for the assets, which were then used as collateral for a
loan that was ultimately remitted to the defendant. Id. at 1210-
11. Distinguishing Sanders, the court stated, "[I]n holding that
the defendants in Sanders did not violate � 1956, we emphasized
that no third parties were involved and no effort was made to
conceal the identity of the defendants as the purchasers." Id.
at 1210 (citation omitted).
22

this were a typical case, the involvement of the third parties
would clearly support the money laundering convictions. The
difference in the present case is that the scheme was much more
complex than that in Garcia-Emmanuel. The transactions alleged to
constitute money laundering here are not the initial transfers to
Bacon, Hornaday, and Shadylane Farms but certain intermediate
transactions that the third parties conducted with the money.
Although Garcia-Emmanuel does state that "the specific
transactions in question were designed, at least in part, to
launder money," id. at 1474 (emphasis added), we do not understand
this statement to mean that each transaction must be analyzed in
isolation from the alleged scheme in its entirety. Garcia-Emmanuel
itself noted that a design to conceal in a particular transaction
may be imputed to a subsequent transaction, although the inference
may be weaker than if the concealing transaction itself were
charged. Id. at 1478. More importantly, the court also noted that
other types of evidence, including "depositing illegal profits in
the bank account of a legitimate business" and "a series of unusual
financial moves cumulating [sic] in the transaction," had been
found to support an inference of an intent to conceal. Id. at 1476
(footnotes omitted).
Evidence that the defendant commingled illegal proceeds with
legitimate business funds has been held to be sufficient to support
the design element. United States v. Jackson, 935 F.2d 832, 842
(7th Cir. 1991) (evidence that defendant "treated the [illegal]
funds [commingled] in [legitimate church] accounts as his own," and
23

that he would often "remove[] himself still further from the funds
in the church accounts by using the church secretary to present
Development Corporation checks made out to cash," was sufficient to
support finding of design to conceal); see also Termini, 992 F.2d
at 881 (commingling of illegal gambling proceeds in legitimate
corporate bank accounts sufficient to establish a design to
conceal).21 Moving money through a large number of accounts has,
in the light of other evidence, also been found to support the
design element of this offense, even when all the accounts to which
the defendant transferred the money and from which he withdrew it
were in his own name. United States v. Lovett, 964 F.2d 1029, 1036
(10th Cir. 1992) ("[T]he purchase of the house was directly
facilitated by the defendant's convoluted series of financial
transactions, combined with his numerous misleading statements
regarding the nature and source of the proceeds."), cert. denied,
113 S.Ct. 169 (1992), and cert. denied, 114 S.Ct. 576 (1993);22 see
also United States v. Beddow, 957 F.2d 1330, 1335 (6th Cir. 1992)
(together with evidence tending to show that the defendant used
21
In Termini, however, the court reversed the defendant's
conviction for aiding and abetting money laundering because the
government's evidence was insufficient to show that the
defendant, a route driver who merely collected the funds for the
defendants who actually masterminded the illegal gambling scheme,
had the requisite intent to aid and abet the illegal scheme.
Termini, 879 F.2d at 881-82.
22
In Lovett, however, the court reversed the defendant's
convictions with respect to two counts charging him with money
laundering in connection with the purchase of a car and a ring
using the illegal proceeds; the court found that as to these two
transactions the government had shown no more than mere money
spending. Id. at 1036-37.
24

another person as a "front man" to disguise his ownership of
gemstones purchased with illegal drug proceeds, "the evidence of
[the defendant's] convoluted financial dealings with his banks and
his charter boat business further support a conclusion that he
intended to disguise the illegal source of his money").
These cases demonstrate that in order to establish the design
element of money laundering, it is not necessary to prove with
regard to any single transaction that the defendant removed all
trace of his involvement with the money or that the particular
transaction charged is itself highly unusual,23 although either of
these elements might be sufficient to support a money laundering
conviction. See, e.g., United States v. Campbell, 977 F.2d 854,
858 n.4 (4th Cir. 1992) (evidence was sufficient to establish
design to conceal when government demonstrated that the contract
for sale of house was altered to reflect a reduction in price of
$60,000 after purchaser suggested the change and agreed to give the
sellers $60,000 under the table), cert. denied, 113 S.Ct. 1331
(1993). That is, it is not necessary that a transaction be
examined wholly in isolation if the evidence tends to show that it
is part of a larger scheme that is designed to conceal illegal
proceeds.24 With these standards in mind, we now turn to the money
23
Indeed, viewed in isolation, many transactions charged as
money laundering could not be classified as "unusual" financial
transactions. Those who would launder illegal proceeds
frequently use cash, personal checks, or cashier's checks to pay
for the assets or make the transfers that are charged as money
laundering.
24
We thus reject Willey's implicit argument that there could
be no design to conceal because each check charged in the money
25

laundering charges in this case.
Count 25 involved a $6000 check written by Hornaday on his
personal account at First American Bank in Bryan, Texas. The
check was cashed. The source of these funds was two $9000 checks
issued March 14, 1990, from Bacon's brokerage account. Hornaday
deposited this money into his account, less $600 cash, on March 21.
As noted above, a design to conceal in a prior transaction can be
imputed to a subsequent one, although the inference is weaker than
if the initial transaction itself were charged. See Garcia-
Emmanuel, 14 F.3d at 1478. Thus, in count 25, although the
specific conduct alleged, the issuance of a check by Hornaday from
his personal account, is not in itself concealing, it was tied to
a transfer from Bacon; the funds in Bacon's accounts were all
traced back to Willey. In the context of this case, a transfer
from one third party to another supports a reasonable inference of
a design to conceal because it moves the money further away from
the defendant than it was before the transfer. Although we note
that there is no evidence of what Hornaday did with the money once
he cashed the check, there was more than sufficient evidence of the
relationship between Willey and Hornaday to support the reasonable
inference that Hornaday was acting as a shill for Willey with
respect to the Richards Road property. This is sufficient for a
laundering counts listed its true remitter or clearly indicated
the account from which it came. Obviously, with respect to the
immediate source of the money, this is true, but that is not what
the government was seeking to prove. Its argument was that, with
respect to each transaction, the ultimate source of the funds,
i.e., Willey, was concealed.
26

reasonable jury to infer that the transaction ultimately inured to
Willey's benefit. See id. at 1474. The conviction on count 25 is
affirmed.
Counts 27 and 28 were keyed to two $2900 checks issued from a
Shadylane Farms account to Hornaday, one dated November 5, 1990,
the other dated December 5, 1990, to pay the mortgage on the
Richards Road property. Under a reasonable view of the evidence,
this is a classic money laundering transaction; the transfer from
one third party to another of illegal proceeds in partial payment
for an asset that created the appearance of legitimate wealth in
the defendant. A rational jury could infer that such a transaction
was designed to conceal Willey's relationship to the proceeds, his
involvement in the transaction, and his interest in the property.
The convictions on counts 27 and 28 are affirmed.

Count 29 involved the deposit on January 10, 1992, by Bacon
into a personal checking account in her name of a $64,988.41
cashier's check from the Lillie Mae Smith Trust, of which Willey
was trustee.25 The check represented payment for the purchase of
municipal unit trusts owned by Bacon's brokerage account. The
unusualness of this transaction supports a reasonable inference of
a design to conceal. In a typical brokerage account transaction,
the purchaser pays the broker, and the account holder receives her
25
The Lillie Mae Smith Trust was a testamentary trust, set up
by an elderly couple, who asked Willey to serve as trustee.
Willey had used the same brokerage firm at which Bacon had her
account in his capacity as trustee for the Lillie Mae Smith Trust
since its inception in 1983. The record does not reveal for
whose benefit the trust was established.
27

remuneration through the brokerage account; the brokerage account
statement reflects the transaction. In this transaction, however,
the check was issued directly to Bacon by the trust as purchaser;
the money was not actually passed through the brokerage account and
there thus would have been no record at all of the brokerage
account ever having sold anything to the Lillie Mae Smith Trust.
The transaction thus allowed Willey to get money out of Bacon's
brokerage account without creating any record of his involvement in
the transaction. We conclude that such a highly unusual financial
transaction, especially one that makes it very difficult to trace
the defendant's involvement, supports a reasonable inference of a
design to conceal. The conviction on count 29 is affirmed.
The item referenced in Count 30 was a cashier's check for
$309,371 that Shadylane Farms purchased on May 7, 1992. That
check, which was intended for the purchase of a tract of land, was
redeposited into various bank accounts the next day after the deal
fell through.26 Count 31 involved a $200,000 cashier's check
purchased by Shadylane Farms on June 5, 1992, for the purchase of
the Richards Road property. The government's expert witness traced
both these checks back to the $400,000 MWI originally received in
1986. These two transactions evince a combination of the factors,
discussed above, that courts have found probative of a design to
conceal: a purchase in a third party's name; a series of
26
Although the sale contemplated in count 30 was not
consummated, this factor is not relevant to our analysis of the
design element. The charged transaction is the purchase of the
cashier's check, and the relevant inquiry concerns the
defendant's state of mind at the time he purchased the check.
28

convoluted financial maneuvers leading up to the purchase; and the
commingling of illegitimate funds in the accounts of an ostensibly
legitimate business. The inference is admittedly more tenuous
because the transfers that plausibly constitute money laundering
are those going into Shadylane Farms's account prior to the
issuance of the cashier's checks. In Garcia-Emmanuel, however,
when the evidence showed only one of the probative factors, the
court held that, despite the weaker nature of the evidence, this
was sufficient to evince a design to conceal.27 Id. at 1478. The
convictions on counts 30 and 31 are affirmed.
However, we are constrained to reverse the conviction on count
26. Count 26 involved a $4500 check issued to Bacon from her
brokerage account and deposited by her into one of her personal
checking accounts on October 12, 1990. The money in the brokerage
account was traced back to Willey. This was the only evidence,
other than the government expert's opinion that the transaction did
27
In Garcia-Emmanuel, the charged conduct was the purchase of
a horse by the defendant's wife, but in the defendant's own name,
with a cashier's check drawn on the defendant and his wife's
joint checking account. Garcia-Emmanuel, 14 F.3d at 1478. The
evidence showed that, prior to the issuance of the cashier's
check, $23,000 in currency had been deposited to the account in
amounts small enough to avoid triggering the bank's duty to
report currency deposits of more than $10,000. Id. The court
noted that this attempt to avoid a transaction reporting
requirement was prosecutable under 18 U.S.C. � 1956(a)(1)(B)(2),
but the government had not proceeded under this more
straightforward theory. Id. Nevertheless, although "[t]he
inference under this theory [that the conduct constituted money
laundering in violation of � 1956(a)(1)(B)(i)], that the design
to conceal in the first transaction (the purchase of the
cashier's check) can be imputed to the second (the purchase of
the horse), is considerably weaker," the court found that "this
is evidence of a design to conceal" and reinstated the
conviction. Id.
29

in fact conceal the source of the proceeds, presented as to this
count. In other words, all the government proved was that Bacon
had transferred money from one account in her name to another in
her name. This clearly is insufficient to support an inference
that the particular transaction charged in count 26 was designed to
conceal within the meaning of the statute.28 We thus reverse
Willey's conviction on count 26.
IV. Admissibility of Expert Testimony
As part of its case against Willey, the government put on Lana
Stone (Stone), a special agent for the IRS Criminal Investigation
Division, to show that the particular checks specified in counts 25
to 31 represented laundered monies. Stone was asked to describe
each transaction, the source of the funds, and then to state
whether, in her opinion, the transaction concealed the true source,
28
We recognize that the court in United States v. Peery, 977
F.2d 1230 (8th Cir. 1992), cert. denied, 113 S.Ct. 1354 (1993),
affirmed the defendant's conviction for money laundering when he
had merely moved the illegal proceeds through accounts titled in
his own name. We find that case distinguishable, however. The
Peery court seems to have been willing to infer that the design
to conceal in the initial transfer to the defendant's personal
account of money that rightfully belonged to the defendant's
employer carried through to the subsequent transfer between the
defendant's own accounts. See id. at 1234 & n.3. Moreover, the
evidence in Peery showed that, having made the transfers between
his personal accounts, the defendant then purchased cashier's
checks from the account to make car payments and put a down
payment on a house. Id. at 1234. The court found that this
showed that the defendant "did more than merely transfer funds
from one personal account to another personal account." Id. In
contrast, the transfer charged here was much more attenuated from
the original illegality and so far removed from any subsequent
potentially concealing act that we must conclude that this was no
more than a transfer between two personal accounts in the same
name, a situation that Peery itself implicitly recognizes is
insufficient to support an inference of a design to conceal. Id.
30

nature, ownership, or control of the funds. Willey made a timely
objection to this last part of Stone's testimony as improper
opinion testimony each time it was elicited; he was overruled each
time. Willey argues that, even if there is sufficient evidence of
a design to conceal, Stone's testimony as to the money laundering
charges was so prejudicial as to require a new trial, not only as
to the money laundering charges, but also as to all the charges
except count 2.
The decision to admit expert testimony lies within the
district court's sound discretion and will not be overturned unless
manifestly erroneous. United States v. Townsend, 31 F.3d 262, 270
(5th Cir. 1994), cert. denied, 115 S.Ct. 773 (1995). To be
admissible, an expert's opinion must be helpful to the trier of
fact. Fed.R.Evid. 702. Willey argues that Stone's testimony
violated the helpfulness requirement of Rule 702, relying on the
Seventh Circuit case of United States v. Benson, 941 F.2d 598 (7th
Cir. 1991), amended, 957 F.2d 301 (7th Cir. 1992). In Benson, the
court held that the testimony of the IRS agent was improperly
admitted because the agent testified outside his area of expertise;
his testimony therefore violated the helpfulness requirement of
Rule 702. Id. at 604-05. Willey, however, does not attack Stone's
qualifications as an expert; instead, he argues that Stone's
opinion testimony was objectionable because Stone's specialized
knowledge was not necessary to help the jury understand whether the
transaction was concealing. In other words, Willey argues that
Stone was no more qualified than the jury to conclude that the
31

transaction was concealing, and her testimony therefore did no more
than tell the jury what conclusion to reach.
An expert may properly offer an opinion "[i]f scientific,
technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue."
Fed.R.Evid. 702. The rule thus allows experts to suggest an
appropriate inference to be drawn from the facts in evidence if the
expert's specialized knowledge is helpful in understanding the
facts. The rule has been interpreted to "permit expert opinion
even if the matter is within the competence of the jurors if
specialized knowledge will be helpful, as it may be in particular
situations." 1 McCormick on Evidence � 13 at 54 (1992) (footnote
omitted).
Although we do not recommend the present case as a model for
eliciting expert testimony, on balance we tend to believe that the
district court did not abuse its discretion by admitting this
testimony. Certainly, the admission was most damaging with respect
to count 26 because there was no evidence other than Stone's
testimony supporting the inference of a design to conceal with
respect to that count, but we have reversed the conviction on that
count. As to the remaining money laundering counts, we conclude
that, even if error occurred, it was undoubtedly harmless. Stone
clearly stated the bases for her conclusions, and those conclusions
were supported by the overwhelming evidence.29 In these
29
The government points out that this Court distinguished
Benson in United States v. Moore, 997 F.2d 55 (5th Cir. 1993).
The Court noted that the testimony in Benson was objectionable,
32

circumstances, we do not think there was a significant risk that
Stone's testimony "supplant[ed the] jury's independent exercise of
common sense." Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055
(4th Cir. 1986).
V. Legality of the Search
On June 11, 1992, state and federal agents, acting pursuant to
a search warrant and a civil forfeiture in rem warrant, searched
Willey's Sunset Lake Road home and the Richards Road property. The
search warrant listed the items to be seized as a variety of
documentary evidence as well as "any other fruits, proceeds,
evidence, and instrumentalities of the delineated violations." In
executing the search, agents seized not only documentary evidence,
but also jewelry, vehicles, cattle, firearms, a big screen
television, and other items not specifically described in the
at least in part, because the IRS agent had testified as to the
defendant's state of mind, which is prohibited by Rule 704. Id.
at 58; see Benson, 941 F.2d at 604 ("Nothing in the record
indicates Cantzler had any particular knowledge of Social
Security law, or any other expertise that would give him any
special insight into the mind of a person trying to cheat the
Social Security Administration."). The Court went on:
"The more pertinent authority is United States v.
Dotson, 817 F.2d 1127 (5th Cir.), aff'd in pertinent
part on reh'g, 821 F.2d 1034 (1987). In Dotson, we
held that it was permissible for the IRS expert to
summarize and analyze the facts indicating willful tax
evasion so long as he did not `directly embrace the
ultimate question of whether [the defendant] did in
fact intend to evade income taxes.' Id. at 1132."
Moore, 997 F.2d at 58-59 (alteration in Moore).
Stone's testimony did not violate the limitation of Rule 704(b).
Her testimony was that the transactions "concealed" the source of
the funds, not that they were "designed to conceal," which is the
ultimate issue in this case.
33

warrant. Willey sought to suppress the evidence on Fourth
Amendment grounds, but the district court denied the motion.30
Willey argues that the items seized that were not described
with particularity in the warrant (e.g., the firearms, jewelry,
cattle, etc.) should be suppressed because they were outside the
valid scope of the warrant.31 "[U]nder the `severability' doctrine,
items that are illegally seized during the execution of a valid
warrant do not affect the admissibility of evidence legally
obtained while executing the warrant." United States v. Hamilton,
931 F.2d 1046, 1053-54 (5th Cir. 1991). Nevertheless, Willey
argues that a new trial is necessary because the admission of the
allegedly illegally seized items was not harmless.
Of course, the severability doctrine assumes that the items in
question were in fact illegally seized, that is, that they were
30
In the district court below and now on appeal, the
government contends that Willey does not have standing to contest
the search of the Richards Road property because he did not enjoy
a legitimate expectation of privacy in the property. This seems
a curious argument for the government to make, given that in
every other aspect of the case, the government argues that Willey
did have a real and substantial interest in the Richards Road
property. The district court did not err in finding that Willey
had standing. Shadylane Farms had purchased the property only a
week before, and on the day of the search, Willey and Bacon were
in the process of moving their belongings from the Sunset Lake
Road house to Richards Road. This is more than sufficient to
give Willey a legitimate expectation of privacy in the Richards
Road property.
31
In the alternative, Willey contends that the agents
exhibited a "flagrant disregard" for the scope of the warrant and
that therefore all the evidence recovered from the search should
be suppressed. This Court has not adopted the flagrant disregard
exception to severability. United States v. Khalid, No. 93-2345
(5th Cir. Nov. 14, 1994) (unpublished) at 9 n.10. In any event,
the evidence does not compel the conclusion that there was a
flagrant disregard.
34

outside the valid scope of the warrant. The items at issue in this
case, however, fell within the scope of the warrant. The warrant
in this case allowed the agents to seize "other fruits, proceeds,
evidence, and instrumentalities of the delineated violations."
This language is similar to that contained in the warrant approved
of in Andresen v. Maryland, 96 S.Ct. 2737, 2748 (1976). In
Andresen, the Supreme Court held that, read in context, the
language was sufficient to limit the warrant to a search only for
fruits of the particular crimes the defendant was alleged to have
committed. Id. at 2748-49. The fact that some of the evidence
seized led to charges against the defendant for a different crime
was not relevant because the agents had probable cause to seize the
evidence in connection with the offense named in the warrant. Id.
at 2749-50. That probable cause arose from the agents' knowledge,
not set forth in the warrant, that the defendant had been involved
in a number of other fraudulent transactions, as well as the
agents' familiarity with the defendant's method of operations, did
not invalidate the warrant. Id. at 2750.
In the present case, the "other fruits" language in the
warrant does not even need to be read in context; the sentence
itself describes the evidence sought as that relating to the
"delineated violations," which were specifically enumerated in the
warrant. Willey nevertheless argues that, because the items were
not specified in the warrant, they should be suppressed, implying
that, because the items seized were tangible physical property, not
the type of documentary evidence specifically referenced in the
35

warrant, they were outside its scope. As a theory, there may be
some validity to this argument. "`The requirement that warrants
shall particularly describe the things to be seized makes general
searches under them impossible and prevents the seizure of one
thing under a warrant describing another.'" Stanford v. Texas, 85
S.Ct. 506, 512 (1965) (quoting Marron v. United States, 48 S.Ct.
74, 76 (1927)). When detailed particularization is not
practicable,
however,
"generic
language
suffices
if
it
particularizes the types of items to be seized." United States v.
Webster, 734 F.2d 1048, 1055 (5th Cir.), cert. denied, 105 S.Ct.
565 (1984).
Nevertheless, given the facts of this case, the district court
did not err in admitting the "other fruits" that were seized during
the search, even though they were not documentary evidence. The
affidavit of Agent John Mabry, which was attached to the warrant
and incorporated in it by reference, stated that agents had
observed Willey arrive at the Richards Road property in a truck and
that they had seen cattle on the property, which further
investigation revealed to belong to Willey. Agents had seen copies
of Willey's and MWI's bankruptcy petitions and knew that both had
claimed no assets. This, coupled with the nature of the alleged
scheme, was sufficient to give the agents probable cause to seize
these other items. Willey is simply mistaken in thinking that
there was "nothing about his possession of, for example, a
television set, or a gold bracelet, or a wallet containing $204 in
cash, to give the agents probable cause to believe they are
36

`fruits' of bankruptcy fraud." For one thing, the warrant
specifically referenced currency. Moreover, the very nature of
bankruptcy fraud suggests that the defendant is hiding assets, and
money laundering suggests, at least to some extent, the conversion
of liquid assets into apparently legitimate tangible property. It
is therefore wholly reasonable to suspect that expensive assets in
the defendant's possession may be tied to that scheme, either
because they were not disclosed on the bankruptcy petition or
because they were purchased with funds wrongfully withheld from
creditors.
At all events, assuming arguendo that the items complained of
were outside the scope of the warrant, their seizure would
nevertheless have been appropriate under the plain view doctrine.
See United States v. Hill, 19 F.3d 984, 989 (5th Cir.) (seizure of
items in plain view is appropriate if officer has probable cause to
believe that the items are "either contraband or will be useful in
establishing that a crime has been committed"), cert. denied, 115
S.Ct. 320 (1994). The district court did not err in denying the
motion to suppress.
VII. Sentencing
Willey challenges his sentence in two respects. First, he
contends that, even if his convictions for money laundering are
upheld, his sentence under the money laundering sections of the
Sentencing Guidelines should be reversed because his conduct does
not fall within the "heartland" of criminal activity the statute
was meant to punish. The Sentencing Guidelines contemplate that
"the sentencing courts [will] treat each guideline as
37

carving out a `heartland,' a set of typical cases
embodying the conduct that each guideline describes.
When a court finds an atypical case, one to which a
particular guideline linguistically applies but where
conduct significantly differs from the norm, the court
may consider whether a departure is warranted." U.S.S.G.
ch. 1, pt. A, cmt. 4(b).
A district court's refusal to grant a downward departure
provides no basis for appeal.32 United States v. Miro, 29 F.3d 194,
198 (5th Cir. 1994). Moreover, Willey offers no evidentiary
support for the argument that his behavior is not typical of money
laundering schemes. His objections to the PSR indicate that he
argued before the district court that his conduct did not come
within the normal range of conduct contemplated by the money
laundering guidelines because the money laundering transactions
were only a relatively small fraction of the criminal conduct of
which he was convicted. This is not what the "heartland"
requirement contemplates, however; rather it focuses on the type of
conduct for which the defendant is convicted, not the amount of the
conduct relative to other criminal acts. See U.S.S.G. ch. 1, pt.
32
Willey directs this court to the Second Circuit opinion in
United States v. Skinner, 946 F.2d 176 (2d Cir. 1991), in which
the court remanded a sentence imposed for violations of 18 U.S.C.
� 1956(a)(1)(A)(i) for reconsideration when the charged conduct,
although falling within the proscription of the statute, was so
de minimis as to be outside the contemplation of the Sentencing
Commission in fashioning the money laundering guidelines. Id. at
179-80. In subsequent cases, however, the Second Circuit has
clarified that Skinner represents an exception to the general
rule that a refusal to depart downward is not subject to
appellate review and only applies "when a sentencing court
mistakenly concludes that it lacks the legal authority to grant a
downward departure." United States v. Piervinanzi, 23 F.3d 670,
685 (2d Cir.), cert. denied, 115 S.Ct. 259, and cert. denied, 115
S.Ct. 267 (1994). Willey does not suggest and the record does
not reflect that the district court felt itself legally
constrained to deny his request for a downward departure.
38

A, cmt. 4(b) (describing the "heartland" as "a set of typical cases
embodying the conduct that each guideline describes," and an
"atypical case" as "one to which a particular guideline
linguistically applies but where conduct significantly differs from
the norm") (emphases added). The district court did not err in
applying the money laundering guidelines.
Willey claims that the district court further erred at
sentencing in failing to make specific factual findings as to two
disputed amounts used to calculate the total value of funds
attributable to the crime, as required by Fed.R.Crim.P.
32(c)(3)(D). "[W]here there are disputed facts material to the
sentencing decision, the district court must cause the record to
reflect its resolution thereof, particularly when the dispute is
called to the court's attention." United States v. Warters, 885
F.2d 1266, 1272 (5th Cir. 1989). On the other hand, "[the]
adoption of the [PSR's] findings indicates that the court, `at
least implicitly, weighed the positions of the probation department
and the defense and credited the probation department's
determination of the facts.'" United States v. Ramirez, 963 F.2d
693, 706 (5th Cir.), cert. denied, 113 S.Ct. 388 (1992) (citation
omitted).
The district court in this case specifically adopted the
findings of the PSR. The PSR characterized the two disputed
amounts as "monies laundered." Both the disputed amounts were
commissions Willey earned approximately a year after he was
discharged in bankruptcy that he had directed be paid directly to
39

Shadylane Farms. At sentencing, the government contended that
these amounts were part of Willey's continuing effort to defraud
creditors by using Shadylane Farms to hide assets that really
belonged to him and MWI.
In United States v. Moody, 923 F.2d 341 (5th Cir.), cert.
denied, 112 S.Ct. 80 (1991), this Court held that the bankruptcy
fraud statute was broad enough to encompass both pre- and post-
petition transfers. Id. at 346-47. The broad coverage of the
statute, however, stems from a concern for minimizing "the level of
interference with the administration of the debtor's bankruptcy
estate that might arise from unregulated transfers." 1 Collier on
Bankruptcy � 7A.02[7][a][v] at 88. Discharge of the debtor at
least partially alleviates this concern.33 In any event, even if
it were true that Willey titled these commissions in Shadylane
Farms's name to avoid detection of the earlier bankruptcy fraud,
there is nothing to suggest that these commissions were part or
proceeds of or attributable to bankruptcy fraud as they were earned
after Willey was discharged. Nor, without more substantial proof
that Willey agreed with the other defendants at the outset to
33
Of course, it is a ground to deny a discharge in the first
instance if the debtor is shown to have concealed property,
either before or after bankruptcy, with the intent to hinder,
delay, or defraud creditors. 11 U.S.C. � 727(a)(2). In
addition, a discharge may be revoked if it is proved that the
debtor obtained the discharge through fraud and the creditor or
trustee did not learn about the fraud until after the discharge
had been granted. Id. � 727(d)(1). The request for revocation,
however, must be made within one year after the date the
discharge is granted. Id. � 727(e)(1). There is no evidence in
the record indicating that such a revocation was either sought or
granted in this case.
40

conceal the bankruptcy fraud, can the government bring these monies
within the conspiracy count. See Grunewald v. United States, 77
S.Ct. 963, 974 (1957) ("But a vital distinction must be made
between acts of concealment done in furtherance of the main
criminal objectives of the conspiracy, and acts of concealment done
after these central objectives have been attained, for the purpose
only of covering up after the crime. . . . In the latter case, as
here, the acts of covering up can by themselves indicate nothing
more than that the conspirators do not wish to be apprehendedSQa
concomitant, certainly of every crime since Cain attempted to
conceal the murder of Abel from the Lord.").34
The district court therefore could not have properly included
these amounts in the calculation of the total funds attributable to
the money laudering crimes. Nor was this error harmless; if these
two amounts had not been included, the total amount of funds
attributable to those crimes would have been less than $1,000,000,
and the increase in Willey's base offense level would have been
only 4, rather than 5. See U.S.S.G. � 2S1.1(b)(2)(E). We must
therefore vacate the sentence and remand the case to the district
court for resentencing.
Conclusion
For the foregoing reasons, Willey's conviction on count 26 is
REVERSED and his convictions on all other counts are AFFIRMED.
34
The government argued at sentencing that, in having the
commissions paid over to Shadylane Farms rather than himself,
Willey avoided significant tax consequences. Willey was not
charged with tax evasion or filing false tax returns, however.
41

Willey's sentence is VACATED and the cause REMANDED to the district
court for resentencing due to the reversal of count 26 and because
of the erroneous inclusion of funds earned post-bankruptcy in the
total amount of funds attributable to the money-laundering counts.
AFFIRMED in part; REVERSED in part; VACATED in part
and REMANDED for resentencing.
42