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UNITED STATES v. BLACKWELL

January 21, 1997

UNITED STATES OF AMERICA, Plaintiff,
v.
DOROTHY BLACKWELL, a/k/a DOROTHY RICHARDSON BLACKWELL, a/k/a DOROTHY BLACKWELL MCNEIL, a/k/a DOROTHY RICHARDSON and CHARLES MCNEIL, Defendants.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 The Grand Jury (the "Grand Jury") returned a fifty-three count indictment (the "Indictment") on 6 December 1996 against defendants Dorothy Blackwell ("Blackwell") and Charles McNeil ("McNeil") (collectively, the "Defendants"), charging embezzlement, 18 U.S.C. § 656, fifty-one counts of money laundering, 18 U.S.C. § 1956(a)(1)(B)(i) ("Section 1956(a)(1)(B)(i)") and conspiracy to commit money laundering, 18 U.S.C. § 1956(h) ("Section 1956(h)"). The Grand Jury filed a superseding indictment (the "Superseding Indictment") on 22 May 1996 and a second superseding indictment (the "Second Superseding Indictment") on 29 May 1996. The differences among these indictments are indicated below. *fn1"

 This opinion addresses the pretrial motions filed by Blackwell *fn2" on 8 July 1996 to dismiss Count Two of the Second Superseding Indictment ("Count Two"), pursuant to Federal Rule of Criminal Procedure 12 ("Rule 12") (the "Motion to Dismiss"), *fn3" and for disclosure of grand jury transcripts pursuant to Federal Rules of Criminal Procedure 6(e)(3)(C)(ii) ("Rule 6(e)(3)(C)(ii)") (the "Disclosure Motion").

  This opinion also addresses the pretrial motion filed by McNeil *fn4" on 22 March 1996 seeking (1) disclosure of material pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) ("Brady "); (2) disclosure of material pursuant to Rule 404(b) of the Federal Rules of Evidence ("Rule 404(b)"); (3) early disclosure of information discoverable pursuant to the Jencks Act, 18 U.S.C. § 3500 (the "Jencks Act"); and (4) an order pursuant to Rule 104(a) of the Federal Rules of Evidence barring the introduction of co-conspirators' statements under Rule 801(d)(2)(E) of the Federal Rules of Evidence ("Rule 801(d)(2)(E)") and an in limine hearing on admissibility of co-conspirators statement (the "Omnibus Motion"). *fn5"

 This opinion further addresses four motions filed by the Government shortly before trial. These included: a motion to allow the use of demonstrative charts and summary witnesses at trial (the "Demonstrative Charts and Summary Witnesses Motion"); a motion to allow the introduction of an audit (the "Audit") of the National Westminster Bank, pursuant to Rule 803(6) of the Federal Rules of Evidence ("Rule 803(6)) (the "Rule 803(6) Motion"); a motion to allow the introduction of pre-marked exhibits (the "Pre-Marked Exhibit Motion"); and a motion concerning judicial notice (the "Judicial Notice Motion"). *fn6"

 Finally, this opinion addresses Blackwell's sentencing hearing (the "Sentencing Hearing"), held on 5 December 1996. At the Sentencing Hearing, objections to the Department of Probation's presentence investigation report (the "Presentence Investigation Report") were addressed.

 Facts

 A. The Second Superseding Indictment

 1. Background

 The following facts are taken from the Second Superseding Indictment. During all times relevant to the Second Superseding Indictment, Blackwell was employed as an operations clerk in the Asset-Based Lending Department at the branch office of the National Westminister Bank of New Jersey ("NatWest") located in the Cherry Hill, New Jersey (the "NatWest Cherry Hill Branch"). Second Superseding Indictment, P 2 at 1. The job responsibilities for Blackwell included accepting deposits from "asset-based lending customers" of the bank. Id., P 4 at 2. At the NatWest Cherry Hill Branch, customers gave their deposits, in the form of either cash or checks, to Blackwell who was "required to initial the deposit ticket to acknowledge receipt of the funds, return a copy of the initialed deposit ticket to the customer, and credit the customer's account." Id.

 Between January 1989 and October 1990, Eastern Music Systems Corporation ("Eastern Music"), one of the NatWest's asset-based lending customers, made deposits consisting of both cash and checks with NatWest at the NatWest Cherry Hill Branch. Second Superseding Indictment, PP 5-6 at 2. During this period, Blackwell "failed to deposit at least approximately $ 470,000.00" in cash delivered by Eastern Music to NatWest (the "Embezzled Money"). Id.

 On or about 18 January 1990, McNeil obtained a loan from Hudson City of approximately $ 24,750.00 (the "Hudson City Loan"). Second Superseding Indictment, P 5 at 5. The Hudson City Loan was secured by the McNeil Hudson City Savings Account. Id. "Between in or about September 1989 through at least as late as August 1991," McNeil rented a safe deposit box at Hudson City (the "Hudson City Safe Deposit Box"). Id., P 6. In or about January 1990, Blackwell was appointed as McNeil's "deputy" with respect to the Hudson City Safe Deposit Box; she was thereby authorized access to the Hudson City Safe Deposit Box. Id.

 2. Charges

 The Second Superseding Indictment contained two counts. Count One ("Count One") charged Blackwell, "between in or about January 1989 and continuing through in or about October 1990, ... knowingly and wilfully embezzled, purloined, and misapplied moneys and funds of [NatWest]" in violation of 18 U.S.C. § 656 ("Section 656"). Second Superseding Indictment, P 7 at 3. Count one also charged Blackwell with aiding and abetting in violation of 18 U.S.C. § 2. Id. The applicable statute of limitations for a violation of Section 656 requires an "indictment be returned or the information [be] filed within 10 years after the commission of the offense." 18 U.S.C. § 3293.

 Count Two charged Defendants with conspiracy to commit money laundering in violation of 18 U.S.C. § 371 ("Section 371") (the "Conspiracy"). Count Two specifically charged:

 
Between in or about January 1989 and continuing through at least as late as April 1992, [Defendants] knowingly and willfully conspired and agreed with each other to conduct and to attempt to conduct financial transactions, that is, the deposit and withdrawal of money to and from the McNeil Accounts and the payments on the [Hudson City Loan], which financial transactions involved the proceeds of specified unlawful activity, that is, the embezzlement of NatWest's funds, knowing that the property involved in the financial transactions represented the proceeds of some form of unlawful activity, and knowing that these financial transactions were designed in whole or in part to conceal and disguise the nature, location, source, ownership, and control of the proceeds of said specified unlawful activity[.]

 Second Superseding Indictment, P 7 at 5-6.

 The Second Superseding Indictment alleged the object of the Conspiracy was to use the Embezzled Money in a manner designed to conceal Blackwell's embezzlement of the money from NatWest. Second Superseding Indictment, P 8 at 6. Defendants were charged with a series of acts taken in furtherance of the Conspiracy: (1) Defendants deposited cash into and later withdrew money from the McNeil Accounts, id., PP 9-11 at 6-7; (2) McNeil paid off the Hudson City Loan, within five months of obtaining it, "by making eight cash payments totaling $ 24,750.00," id., P 12 at 7; and (3) "in or about September 1989 and in or about August 1991," Defendants entered the Hudson City Safe Deposit Box "on at least approximately forty different days." Id., P 13. The Second Superseding Indictment alleged all of the transactions described above "involved at least some of the embezzled NatWest money." Id., P 14.

 3. Overt Acts

 The Second Superseding Indictment charged Defendants with committing five overt acts (the "Overt Acts") in furtherance of the Conspiracy:

 
1. Between in or about January 1989 and in or about April 1991, [Defendants] made and caused to be made cash deposits into the McNeil NatWest Checking Account ("Overt Act One").
 
2. Between in or about October 1989 and at least as late as April 1992, [Defendants] made and caused to be made cash deposits into the McNeil First Fidelity Checking Account ("Overt Act Two").
 
3. On or about January 18, 1990, [McNeil] obtained the Hudson City Loan ("Overt Act Three").
 
4. On or About August 23, 1991, [Defendants] entered the Hudson City Safe Deposit Box ("Overt Act Four").
 
5. On or about August 23, 1991, [Defendants] surrendered the Hudson City Safe Deposit Box ("Overt Act Five").

 Second Superseding Indictment at 8-9 (emphasis added).

 B. The Indictment and the Superseding Indictment

 As indicated, the Indictment charged Blackwell with embezzlement and Defendants with fifty-one counts of money laundering in violation of Section 1956(a)(1)(B)(i) and one count of conspiracy to commit money laundering in violation of Section 1956(h). Count Fifty-Three of the Indictment charged:

 
Between in or about January 1989 and continuing through in or about October 1990... Defendants ... knowing that the property involved in the financial transactions as described above, represented the proceeds of some form of unlawful activity, and knowing that each of these financial transactions was designed in whole or in part to conceal and disguise the nature, location, source, ownership, and control of the proceeds of specified unlawful, that is, the embezzlement of NatWest's funds, knowingly and willfully conspired and agreed with each other and others to conduct and to attempt to conduct each of these financial transactions, which in fact involved the proceeds of said specified unlawful activity, contrary to Title 18, United States Code, Section 1956(a)(1)(B)(i).... All in violation of Title 18, United States Code, Section 1956(h).

 Indictment, P 2 at 9 & p. 10 (emphasis added).

 The Superseding Indictment contained two counts. Count One charged Blackwell with embezzlement in violation of Section 656. Count Two charged Defendants with conspiracy to engage in money laundering in violation of Section 1956(h). Count Two charged:

 
Between in or about January 1989 and continuing through at least as late as April 1992... Defendants ... knowingly and willfully conspired and agreed with each other to conduct and to attempt to conduct financial transactions ... knowing that the money involved ... represented the proceeds of some form of unlawful activity, and knowing that these financial transactions were designed in whole and in part to conceal and disguise the nature, location, source, ownership, and control of the proceeds of said specified unlawful activity, contrary to [Section 1956(a)(1)(B)(i) ].... All in violation of Title 18, United States Code, Section 1956(h).

 Superseding Indictment, P 7 at 5-6 & p. 8 (emphasis added).

 C. Comparison of the Indictments

 The charge against Blackwell for embezzlement under Section 656 remained undisturbed in all three indictments. The two superseding indictments, however, eliminated the fifty-one counts of money laundering under Section 1956(a)(1)(B)(i) contained in the Indictment.

 The most important differences among the indictments for the purposes of the Motion to Dismiss, however, were the changes made in the Conspiracy charge. As indicated, the Indictment charged Defendants with conspiracy to commit money laundering under Section 1956(h). The Conspiracy, as charged in the Indictment, was alleged to have occurred "between in or about January 1989 ... [and] in or about October 1990" and only concerned transactions made at the McNeil NatWest Checking Account.

 The Second Superseding Indictment changed the statutory basis for the Conspiracy charge; instead of charging the Conspiracy under Section 1956(h), it charged the Conspiracy under Section 371. Second Superseding Indictment at 9. As indicated, the Second Superseding Indictment also alleged five specific Overt Acts taken by Defendants in furtherance of the Conspiracy. Id. at 8-9.

 Discussion

 A. Statute of Limitations

 1. Rule 12(b)

 Under Rule 12(b), *fn7" defenses which are "capable of determination without trial of the general issue may be raised before trial by motion." Id. The 1944 Advisory Committee Note on Rule 12(b)(1) and (2) sheds considerable light on the Rule's interpretation. As the Advisory Committee observed, subdivisions (1) and (2) of the rule classify into two groups all objections and defenses to be interposed by motion pursuant to Rule 12(b):

 
In one group are defenses and objections which must be raised by motion, failure to do so constituting a waiver. In the other group are defenses and objections which at the defendant's option may be raised by motion, failure to do so, however, not constituting a waiver....
 
In the ... group of objections and defenses, which the defendant at his [or her] option may raise by motion before trial, are included all defenses and objections which are capable of determination without a trial of the general issue. They include such matters as former jeopardy, former conviction, former acquittal, statute of limitations, immunity, lack of jurisdiction, failure of indictment or information to state an offense, etc.

 Rule 12(b)(1), (2) Advisory Committee Note (citations omitted, emphasis added).

 As the Advisory Committee Note makes clear, the statute of limitations defense is a defense "which the defendant at his [or her] option may raise by motion before trial." Rule 12(b)(1), (2) Advisory Committee Note. Rule 12(e) further provides "[a] motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after verdict." Id.

 If the defense is "substantially founded upon and intertwined with" evidence concerning the alleged offense, the motion falls within the province of the ultimate finder of fact and should be deferred until trial. United States v. Williams, 644 F.2d 950, 952-53 (2d Cir. 1981); see Fed.R.Crim.P. 12(b); United States v. Doe, 63 F.3d 121, 125 (2d Cir. 1995); United States v. Wilson, 307 U.S. App. D.C. 1, 26 F.3d 142, 159 (D.C. Cir. 1994), cert. denied, U.S. , 131 L. Ed. 2d 311, 115 S. Ct. 1430 (1995); United States v. Shortt Accountancy, 785 F.2d 1448, 1452 (9th Cir.), cert. denied, 478 U.S. 1007, 92 L. Ed. 2d 715, 106 S. Ct. 3301 (1986); United States v. Conley, 859 F. Supp. 909, 927-28 (W.D.Pa. 1994) ("'A defense is ... "capable of determination" if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.'") (quoting United States v. Covington, 395 U.S. 57, 60, 23 L. Ed. 2d 94, 89 S. Ct. 1559 (1969)). A motion to dismiss the indictment should consider only those objections that are "capable of determination without the trial of the general issue;" evidentiary questions should not be determined at that stage. United States v. Knox, 396 U.S. 77, 83 n.7, 24 L. Ed. 2d 275, 90 S. Ct. 363 (1969).

 "The crucial question in determining whether the statute of limitations has run is the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy." Grunewald v. United States, 353 U.S. 391, 397, 1 L. Ed. 2d 931, 77 S. Ct. 963 (1957). In such cases it is often difficult to separate the limitations claim from the facts of the case and issues of guilt and innocence to be established at trial. Id. ; United States v. Cannistraro, 800 F. Supp. 30, 78 (D.N.J. 1992) (the ultimate question of whether acts are in furtherance of conspiracy depends on objective of conspiracy, a question of fact for the jury); see e.g., United States v. McLaughlin, 910 F. Supp. 1054, 1063 (E.D.Pa. 1995).

 The sufficiency of an indictment may not be properly challenged by a pretrial motion on the ground that it is not supported by adequate evidence. Knox, 396 U.S. at 83 n.7; United States v. Donsky, 825 F.2d 746, 751 (3d Cir. 1987); United States v. Gunter, 631 F.2d 583, 586 (8th Cir. 1980); United States v. Gallagher, 602 F.2d 1139, 1142 (3d Cir. 1979), cert. denied, 444 U.S. 1043, 62 L. Ed. 2d 728, 100 S. Ct. 729 (1980); United States v. Galati, 853 F. Supp. 152, 154 (E.D.Pa. 1994).

 B. Money Laundering Under Section 1956(a)(1)(B)(i)

 As indicated, Count Two charged Defendants with the Conspiracy, the object of which was "to conceal and disguise the proceeds of ... unlawful activity, contrary to [Section 1956(a)(1)(B)(i)]." Second Superseding Indictment, P 7 at 5-6. Section 1956(a)(1)(B)(i) provides:

 
Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct ... a financial transaction which in fact involves the proceeds of specified unlawful activity -- knowing the transaction is designed in whole or in part -- to conceal or disguise the nature, the location, the source, the ownership or the control of the proceeds of specified unlawful activity .... shall be sentenced to a fine of not more than $ 500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both.

 Id.

 To establish a violation of Section 1956(a)(1)(B)(i), the Government must prove (1) a defendant took part in a financial transaction involving the proceeds of a specified unlawful activity, (2) the defendant knew the property involved was the proceeds of a specified unlawful activity, and (3) the defendant knew the transaction was designed in whole or in part to conceal or disguise the proceeds. 18 U.S.C. § 1956(a)(1)(B)(i); United States v. Reynolds, 64 F.3d 292, 297 (7th Cir. 1995), cert. denied, U.S. , 133 L. Ed. 2d 890, 116 S. Ct. 969 (1996); United States v. Garza, 42 F.3d 251, 253 (5th Cir. 1994), cert. denied, U.S. , 132 L. Ed. 2d 268, 115 S. Ct. 2263 (1995); United States v. West, 22 F.3d 586, 590-91 (5th Cir.), cert. denied, 513 U.S. 1020,130 L. Ed. 2d 498, 115 S. Ct. 584 (1994); United States v. Paramo, 998 F.2d 1212, 1216-17 (3d Cir. 1993), cert. denied, 510 U.S. 1121, 127 L. Ed. 2d 393, 114 S. Ct. 1076 (1994); see United States v. Carr, 25 F.3d 1194, 1206 (3d Cir. 1994) (interpreting the analogous subsection, 18 U.S.C. § 1956(a)(2)(B)(i), which prohibits the transportation of the "proceeds of ... unlawful activity" from the United States in order to conceal the "source, the ownership or the control of the proceeds"), cert. denied, 513 U.S. 1086, 130 L. Ed. 2d 643, 115 S. Ct. 742 (1995); United States v. Campbell, 977 F.2d 854, 857 (4th Cir. 1992), cert. denied, 507 U.S. 938, 122 L. Ed. 2d 716, 113 S. Ct. 1331 (1993); United States v. Massac, 867 F.2d 174, 177-78 (3d Cir. 1989).

 A "financial transaction" is:

 18 U.S.C. § 1956(c)(4). Examples of financial transactions include

 
a purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition, and with respect to a financial institution includes a deposit, withdrawal, transfer between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument, use of safety deposit box, or any other payment, transfer, or delivery by, through, or to a financial institution, by whatever means effected[.]

 18 U.S.C. § 1956(c)(3) (emphasis added).

 Congress added the "use of a safe deposit box" to the definition of transaction in 1992. Pub.L. 102-550, § 1527(a)(2). The effective date of the 1992 amendments was 25 October 1992. See 19 U.S.C.A. § 1956 -- Historical and Statutory Notes at 70. Accordingly, at the time Defendants allegedly committed Overt Acts Four and Five, involving the Hudson City Safe Deposit Box, the use of a safe deposit box was not included in the statutory definition of a "financial transaction." See id. ; United States v. Bell, 936 F.2d 337, 341-42 (7th Cir. 1991).

 As indicated, in order to convict a defendant of a violation of Section 1956(a)(1)(B)(i), the Government must prove the defendant knowingly conducted a financial transaction involving the proceeds of a specified unlawful activity in order to conceal or disguise the proceeds. Reynolds, 64 F.3d at 297. "Conducting" a financial transaction includes "initiating, concluding, or participating in the initiating, or concluding of a transaction." 18 U.S.C. § 1956(c)(2) (emphasis added). There is no requirement a transaction be both initiated and concluded; accordingly, a violation of Section 1956(a)(1)(B)(i) occurs and the statute of limitations begins running when a deposit is initiated. United States v. Li, 55 F.3d 325, 330 (7th Cir. 1995).

 Each money laundering transaction constitutes a separate violation of Section 1956(a)(1)(B)(i). United States v. Martin, 933 F.2d 609, 611 (8th Cir. 1991). The Senate Report on the 1986 money laundering statute expresses the intent of Congress to make each money laundering transaction a separate offense:

 
Section 1956(c)(3) defines the term "transaction to include various activities involving financial institutions such as a deposit, an exchange of funds, a transfer between accounts, and the purchase of stock or certificates of deposit.... It should be noted that each transaction involving "dirty money" is intended to be a separate offense. For example, a drug dealer who takes [one] million [dollars] in cash from a drug sale and divides the money into smaller lots and deposits it in 10 different banks has committed 10 distinct violations of the new statute. If he then withdraws some of the money and uses it to purchase a boat or condominium, he will have committed two more violations, one for the withdrawal and one for the purchase.

 S. Rep. No. 433, 99th Cong., 2d Sess. 13 (1986); accord Martin, 933 F.2d at 611; United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990) (the deposit of money in a bank and the subsequent use of that money to purchase a house equal two separate transactions).

 In Martin, for example, the defendant conducted two transactions involving the payment of cash for stock. 933 F.2d at 611. The court held that each transaction constituted a separate financial transaction as that word is defined under 18 U.S.C. § 1956(c)(4). Id. The Martin court observed different evidence was necessary to prove each count; the transactions at issue "occurred on different dates and in different locations, and involved different amounts of money." Id. at 611.

 In Martin, the defendant argued that counts III and IV of the indictment, both of which charged him with money laundering, were "multiplicious." 933 F.2d at 611. He argued the transactions involved were of an ongoing nature and, therefore, "constituted a single continuous transaction which could not form the basis of two separate criminal offenses." Id.

 The court characterized the defendant's argument as an assertion that "once he had engaged in one act of money laundering, he could continue to engage in subsequent acts of money laundering with impunity." Martin, 933 F.2d at 611. The court rejected this argument, concluding: "It is the individual acts of money laundering which are prohibited under Section 1956(a)(1)(B)(i), and not the course of action which those individual acts may constitute.... The activities charged in ... the indictment were not multiplicious." Id.

 2. Conspiracy under Section 371

 In order to prove conspiracy to commit money laundering under Section 371, the Government must establish (1) a conspiracy to commit money laundering was formed, (2) during the life of the conspiracy, a conspirator committed an overt act in furtherance of the conspiracy, and (3) during the life of the conspiracy, the defendant knowingly joined the conspiracy. *fn8" United States v. Conley, 37 F.3d 970, 976 (3d Cir. 1994); Carr, 25 F.3d at 1201 (citing United States v. McGlory, 968 F.2d 309, 321 (3d Cir.), cert. denied, 507 U.S. 962, 122 L. Ed. 2d 763, 113 S. Ct. 1388, (1992)); United States v. Rankin, 870 F.2d 109, 113 (3d Cir. 1989) (citing United States v. Shoup, 608 F.2d 950, 956 (3d Cir. 1979)).

 A conspirator "remains a participant in the [conspiracy] unless and until he [or she] communicates or otherwise objectively manifests a decision to renounce the agreement." United States v. Rosa, 891 F.2d 1063, 1069 (3d Cir. 1989). The Government, moreover, is not required to prove every defendant had "knowledge of all the particular aspects, goals, and participants of a conspiracy ... to sustain a conviction." United States v. Adams, 759 F.2d 1099, 1114 (3d Cir.) (citing Blumenthal v. United States, 332 U.S. 539, 558, 92 L. Ed. 154, 68 S. Ct. 248 (1947)), cert. denied, 474 U.S. 971, 88 L. Ed. 2d 321, 106 S. Ct. 336 (1985); United States v. Giampa, 904 F. Supp. 235, 330 n.106 (D.N.J. 1995).

 "[A] conviction for conspiracy does not require that every element of the crime be proven with direct evidence." Carr, 25 F.3d at 1201; McGlory, 968 F.2d at 321; United States v. Wexler, 838 F.2d 88, 90-91 (3d Cir. 1988). In fact, the Government may rely entirely on circumstantial evidence to "prove that an alleged conspirator had the knowledge and intent necessary to commit the crime." United States v. Anderskow, 88 F.3d 245, 253 (3d Cir.), cert. denied, U.S. , 136 L. Ed. 2d 537, 117 S. Ct. 613c (1996); United States v. Schramm, 75 F.3d 156, 159 (3d Cir. 1996); Carr, 25 F.3d at 1201; United States v. Iafelice, 978 F.2d 92, 96-98 (3d Cir. 1992); McGlory, 968 F.2d at 321. As the Circuit observed in Iafelice, "it is not unusual that the government will not have direct evidence. Knowledge is often proven by circumstances." 978 F.2d at 98. "When the Government relies entirely on circumstantial evidence, however, 'the inferences drawn must have a logical and convincing connection to the facts established.'" Carr, 25 F.3d at 1201 (quoting United States v. Casper, 956 F.2d 416, 422 (3d Cir. 1992)); see United States v. McNeill, 887 F.2d 448, 450 (3d Cir. 1989) (circumstantial evidence is no less probative than direct evidence) (citing United States v. Bycer, 593 F.2d 549, 551 (3d Cir. 1979)), cert. denied, 493 U.S. 1087, 107 L. Ed. 2d 1055, 110 S. Ct. 1152 (1990).

 a. Overt Acts

 Section 371 contains an explicit requirement that a conspirator perform an "act to effect the object of the conspiracy." 18 U.S.C. § 371; see also United States v. Small, 472 F.2d 818, 819-20 (3d Cir. 1972) ("Commission of an overt act by one of the conspirators is an essential element of the crime of conspiracy."). An overt act is an act knowingly committed by one of the conspirators when an effort is made to effect, achieve or accomplish some object or purpose of the conspiracy. Conley, 37 F.3d at 976; Rankin, 870 F.2d at 113.

 The Government is not limited in its proof at trial to those overt acts alleged in the indictment. United States v. Adamo, 534 F.2d 31, 38 (3d Cir.), cert. denied, 429 U.S. 841, 50 L. Ed. 2d 110, 97 S. Ct. 116 (1976). Moreover, the Government is under no obligation to prove every overt act alleged. Id. Reliance by the Government at trial on overt acts not included in the indictment is not fatal to a conspiracy charge absent a showing of prejudice to the defendant. Id. at 38-39; see United States v. Schurr, 794 F.2d 903, 907 n.4 (3d Cir. 1986) ("It is well settled that the government can prove overt acts not listed in the indictment, so long as there is no prejudice to the defendants thereby."); see also United States v. McDade, 28 F.3d 283, 301 (3d Cir. 1994) ("The absence of ... overt acts from the indictment [does] not in itself preclude the prosecution from proving them or from relying on such proof to satisfy the overt act requirement contained in [Section] 371"), cert. denied, U.S. , 131 L. Ed. 2d 194, 115 S. Ct. 1312 (1995); United States v. DiPasquale, 740 F.2d 1282, 1294 (3d Cir. 1984) ("variance is permissible unless it deprives the defendant of fair notice or places him [or her] in danger of double jeopardy"), cert. denied, 469 U.S. 1228, 84 L. Ed. 2d 364, 105 S. Ct. 1226, 105 S. Ct. 1227 (1985); United States v. U.S. Gypsum Company, 600 F.2d 414, 419 (3d Cir.), cert. denied, 444 U.S. 884, 62 L. Ed. 2d 114, 100 S. Ct. 175 (1979).

 The same overt acts charged in a conspiracy count may also be charged and proved as substantive offenses, "'for the agreement to do the act is distinct from the act itself.'" United States v. Felix, 503 U.S. 378, 389, 118 L. Ed. 2d 25, 112 S. Ct. 1377 (1992) (quoting United States v. Bayer, 331 U.S. 532, 542, 91 L. Ed. 1654, 67 S. Ct. 1394 (1947) and citing Pinkerton v. United States, 328 U.S. 640, 643, 90 L. Ed. 1489, 66 S. Ct. 1180 (1946) ("The commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses.)); see also Garrett v. United States, 471 U.S. 773, 778, 85 L. Ed. 2d 764, 105 S. Ct. 2407 (1985) ("Conspiracy is a distinct offense from the completed object of the conspiracy."); Iannelli v. United States, 420 U.S. 770, 777-79, 43 L. Ed. 2d 616, 95 S. Ct. 1284 (1975).

 An overt act itself, however, need not be criminal in nature if considered apart from the conspiracy. Braverman v. United States, 317 U.S. 49, 53, 87 L. Ed. 23, 63 S. Ct. 99 (1942) (Overt act need not be a crime and need only be that of a single conspirator.); United States v. Medina, 761 F.2d 12, 15 (1st Cir. 1985) (citing Yates v. United States, 354 U.S. 298, 334, 1 L. Ed. 2d 1356, 77 S. Ct. 1064 (1957)). As long as the act follows and tends toward the accomplishment of the plan or scheme and is knowingly done in furtherance of some object or purpose of the conspiracy charged in the indictment, it satisfies the overt act requirement. United States v. Palmeri, 630 F.2d 192, 200-01 (3d Cir. 1980), cert. denied, 450 U.S. 967, 67 L. Ed. 2d 616, 101 S. Ct. 1484 (1981); Adamo, 534 F.2d at 38; see United States v. Barone, 458 F.2d 1027, 1029 (3d Cir. 1972) (introduction by defendant of conspirator to a prospective participant in conspiracy deemed an overt act in furtherance of conspiracy).

 b. Section 3282

 In addition to proving the elements of the Conspiracy, the Government must also satisfy the requirements of the statute of limitations, which requires the Conspiracy charge be brought within five years of the date of the offense. 18 U.S.C. § 3282 ("Section 3282"). *fn9" The Second Superseding Indictment was returned on 29 May 1996. It is therefore incumbent on the Government to prove the Conspiracy was still in existence on 29 May 1991 and that at least one Overt Act was performed on or after that date. 18 U.S.C. § 3282; Grunewald, 353 U.S. at 396; see United States v. Roshko, 969 F.2d 1, 6-7 (2d Cir. 1992). *fn10" "For where substantiation of a conspiracy charge requires proof of an overt act, it must be shown both that the conspiracy still subsisted within the [five years] prior to the return of the indictment, and that at least one overt act in furtherance of the conspiratorial agreement was performed within that period." Grunewald, 353 U.S. at 397. As indicated, "the crucial question in determining whether the statute of limitations has run is the scope of the conspiratorial agreement...." Id.

 c. The Defense Arguments

 As indicated, Defendants argued Count Two should have been dismissed because the statute of limitations had run. Dismissal Brief at 15. Defendants specifically argued:

 
(1) The first and second superseding indictments are beyond the statute of limitations ....
 
(2) With respect to computation of the limits of the statute of limitations, May 22, 1996, the date the first superseding indictment was made public, is the operative date; *fn11"
 
(3) The overt acts/uncharged conduct numbered one (1) to five (5) are beyond the statute of limitations and are, therefore, untimely;
 
(4) The overt acts/uncharged conduct numbers four (4) and five (5) designated as "safe deposit box transactions" were not criminally sanctioned at the time of their occurrence and, as a result, have no probative value. As such each is subject to being stricken from the true bill;
 
(5) The inference upon inference that the government asks the Court to embrace as circumstantial evidence of culpability premised on the overt acts enumerated have no "logical or convincing connection to the facts established" and are, accordingly, ...

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