United States of America v. GEORGE ATIYEH No. 03-1746 UNITED STATES OF AMERICA v. GEORGE ATIYEH

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________
Nos. 03-1472, 03-1757
_________
UNITED STATES OF AMERICA,
Appellant
v.
GEORGE ATIYEH
________
No. 03-1746
_________
UNITED STATES OF AMERICA
v.
GEORGE ATIYEH,
Appellant
________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Nos. 01-cr-00750-1, 01-cr-00750)
District Judge: Honorable Bruce W. Kauffman
________
Argued October 5, 2004
Before: SLOVITER, BECKER, and STAPLETON, Circuit
Judges.

-- 1 of 30 --

2
(Filed : March 24, 2005)
________
Paul Mansfield (Argued)
Office of United States Attorney
Philadelphia, PA l9l06
Attorney for Appellant United States in Nos. 03-1472, 03-1757
Appellee United States in No. 03-1746
Frank A. Labor, III
Office of United States Attorney
Philadelphia, PA l9l06
Attorney for Appellant United States in No. 03-1757
Appellee United States in No. 03-1746
Peter Goldberger (Argued)
Law Office of Peter Goldberger
Ardmore, PA l9003
Attorney for Appellant George Atiyeh in No. 03-1746
Appellee George Atiyeh in Nos. 03-1472, 03-1757
__________
OPINION OF THE COURT
__________
SLOVITER, Circuit Judge.
This case involves an off-shore betting operation.
Appellant George Atiyeh was convicted by a jury in the United
States District Court for the Eastern District of Pennsylvania of
conspiracy to operate a gambling business, conspiracy to utilize
wire communications to transmit information concerning bets,
money laundering, and substantive gambling offenses. In his
direct appeal, Atiyeh contends that the District Court erred by
denying his pretrial motion to dismiss certain counts of the
indictment as barred by the statute of limitations. He further

-- 2 of 30 --

3
argues that a new trial is required because the remaining counts
were tainted by the dismissed counts.
The Government cross appeals from the District Court’s
grant of Atiyeh’s post-conviction motion for acquittal on the
counts that were predicated on a violation of 18 U.S.C. § 1955
(prohibiting illegal gambling businesses). It also appeals from
the District Court’s grant of a two-level downward adjustment in
Atiyeh’s sentence for acceptance of responsibility pursuant to
U.S.S.G. § 3E1.1.
Atiyeh’s direct criminal appeal was consolidated with the
two Government appeals. The District Court had subject matter
jurisdiction under 18 U.S.C. § 3231. We have jurisdiction to
hear Atiyeh’s direct criminal appeal under 28 U.S.C. § 1291.
We have jurisdiction over the Government’s cross appeal of the
judgment of acquittal under 18 U.S.C. § 3731 and of the
sentence imposed under 18 U.S.C. § 3742.
I.
Factual and Procedural Background
At trial, the Government presented evidence that from
November 1995 through January 1997, George Atiyeh operated
an unlicensed sports-gambling business known as International
Casino (“IC”). Although IC purported to be an “off shore”
business operating solely in Antigua, substantial portions of its
operations were also located in Quebec, Canada and Allentown,
Pennsylvania.
IC was an account bookmaking operation. Customers
who wished to open a sports-wagering account to place bets on
the outcome of a wide variety of sports matches, such as the
Super Bowl, professional basketball games, and similar events,
would wire an initial deposit to a bank account in Antigua
controlled by Atiyeh. Atiyeh would then transfer those funds to
a bank account in Allentown, Pennsylvania, which he also
controlled. The accumulated funds were used to pay IC’s
business expenses and to pay the successful bettors. To make
these payouts, Atiyeh or another IC employee would cash checks

-- 3 of 30 --

18 U.S.C. § 371 provides in pertinent part:1
If two or more persons conspire either to commit any
offense against the United States, or to defraud the United
States, or any agency thereof in any manner or for any
purpose, and one or more of such persons do any act to
effect the object of the conspiracy, each shall be fined under
this title or imprisoned not more than five years, or both.
4
drawn on the Allentown bank account and purchase money
orders from banks and post offices in the Allentown area which
they would then mail to the successful bettors. Often, the
envelopes used to mail payouts bore an Antiguan return address
but a Pennsylvania postmark.
IC used several telephone lines to accept bets and provide
betting information to callers from various United States
locations. Typically, IC’s customers placed their wagers over
toll-free lines that were then forwarded to IC employees in
Quebec, Canada. On some occasions when employees in
Quebec were unavailable, calls were forwarded to and answered
by IC employees in Allentown.
In 1996, the Federal Bureau of Investigation (“FBI”)
began an undercover investigation of IC. Between September
12, 1996 and December 12, 1996, Special Agent Raymond R.
Manna, assuming the role of a bettor, opened an account with
IC, placed bets, and requested payouts. On December 17, 1996,
the Government obtained a search warrant to search the building
at 727 North Meadow Street, Allentown, Pennsylvania, where IC
operated. This search resulted in the seizure of a number of IC
documents, including banking and telephone records of the
betting operation.
A grand jury sitting in the Eastern District of
Pennsylvania returned a fifteen count sealed indictment against
Atiyeh on December 12, 2001. Count One charged that between
November 1995 and January 1997, Atiyeh conspired with
unnamed individuals, in violation of 18 U.S.C. § 371, to violate1

-- 4 of 30 --

18 U.S.C. § 1084 (a) provides:2
Whoever being engaged in the business of betting or
wagering knowingly uses a wire communication facility for
the transmission in interstate or foreign commerce of bets or
wagers or information assisting in the placing of bets or
wagers on any sporting event or contest, or for the
transmission of a wire communication which entitles the
recipient to receive money or credit as a result of bets or
wagers, or for information assisting in the placing of bets or
wagers, shall be fined under this title or imprisoned not
more than two years, or both.
18 U.S.C. § 1956(h) provides:3
Any person who conspires to commit any offense defined in
this section or section 1957 shall be subject to the same
penalties as those prescribed for the offense the commission
of which was the object of the conspiracy.
18 U.S.C. § 1956(a)(1) provides:4
5
18 U.S.C. § 1084 by using wire communication facilities in2
foreign commerce to transmit information concerning bets and
wagers on sporting events, and to violate 18 U.S.C. § 1955 by
conducting a gambling business. Count Two charged that
Atiyeh violated 18 U.S.C. § 1955 by conducting a gambling
business during the same period.
Counts Three through Seven charged Atiyeh with
violating 18 U.S.C. § 1084 based on five telephone calls made
by FBI Agent Manna to IC. Those calls were made
on September 12, October 9 and 16, November 29, and
December 12, 1996. Count Eight charged a conspiracy, also
continuing from November 1995 until January 1997, in violation
of 18 U.S.C. § 1956(h), between Atiyeh and unnamed3
individuals, to conduct financial transactions with the proceeds
of the gambling business, in violation of 18 U.S.C. §
1956(a)(1), and to transfer funds with the intent of promoting4

-- 5 of 30 --

Whoever, knowing that the property involved in a financial
transaction represents the proceeds of some form of
unlawful activity, conducts or attempts to conduct such a
financial transaction which in fact involves the proceeds of
specified unlawful activity--
(A) (i) with the intent to promote the carrying on of
specified unlawful activity; or
(ii) with intent to engage in conduct constituting a
violation of section 7201 or 7206 of the Internal
Revenue Code of 1986; or
(B) knowing that the transaction is designed in whole or in
part–
(i) to conceal or disguise the nature, the location, the
source, the ownership, or the control of the proceeds
of specified unlawful activity; or
(ii) to avoid a transaction reporting requirement
under State or Federal law,
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.
18 U.S.C. § 1956(a)(2) provides:5
Whoever transports, transmits, or transfers, or
attempts to transport, transmit, or transfer a monetary
instrument or funds from a place in the United States
to or through a place outside the United States or to
a place in the United States from or through a place
outside the United States--
(A) with the intent to promote the carrying on of
specified unlawful activity; or
(B) knowing that the monetary instrument or funds
6
the gambling business, in violation of 18 U.S.C. § 1956(a)(2).5

-- 6 of 30 --

involved in the transportation, transmission, or
transfer represent the proceeds of some form of
unlawful activity and knowing that such
transportation, transmission, or transfer is designed
in whole or in part–
(i) to conceal or disguise the nature, the
location, the source, the ownership, or the
control of the proceeds of specified unlawful
activity; or
(ii) to avoid a transaction reporting
requirement under State or Federal law,
shall be [guilty of an offense].
7
Counts Nine through Fifteen charged substantive crimes
of money laundering in violation of 18 U.S.C. § 1956(a)(2)
based on the transmission of funds from a bank in Antigua to an
account in Allentown, Pennsylvania, on various dates from
October 25, 1996 through November 29, 1996. Finally the
indictment contained a notice of money laundering forfeiture
pursuant to 18 U.S.C. § 982.
Atiyeh was arrested on the indictment on December 19,
2001, and released on bail. Thereafter, he filed a pretrial motion
to dismiss Counts Three through Six and Counts Nine through
Fifteen, as barred by the five-year statute of limitations set forth
in 18 U.S.C. § 3282. Each count charged conduct that had
occurred more than five years prior to the return of the
indictment. The District Court judge denied the motion in an
order dated May 30, 2002. The trial was held from September 9
to September 19, 2002, and Atiyeh was convicted by the jury on
all fifteen counts. Thereafter, the District Court granted Atiyeh’s
motion for judgment of acquittal under Federal Rule of Criminal
Procedure 29(c) as to Counts Two (operating an illegal gambling
business), Eight through Fifteen (money laundering), and Count
One, to the extent that it charged a conspiracy to conduct a
gambling business.

-- 7 of 30 --

Counts Three through Six charged violations of 18 U.S.C.6
§ 1084 based on conduct which occurred on September 12, October
9 and 16, and November 29, 1996. Counts Nine through Fifteen
charged violations of § 1956(a)(2) based on conduct which
allegedly occurred on October 25 and 29, and November 12, 18,
19, 27, and 29.
18 U.S.C. § 3282(a) provides:7
Except as otherwise expressly provided by law, no
person shall be prosecuted, tried, or punished for any
offense, not capital, unless the indictment is found or
the information is instituted within five years next
after such offense shall have been committed.
To avoid confusion, we use the term “Grand Jury8
Supervising Judge” to refer to the judge before whom the grand
jury was impaneled, and the term “District Court Judge” or
“District Court” to refer to the trial court.
8
At the sentencing hearing on the remaining counts (the
remainder of Count One and Counts Three through Seven), the
District Court awarded Atiyeh a two-level downward adjustment
for acceptance of responsibility. Atiyeh was sentenced to fifteen
months imprisonment, supervised release for two years, a $4,000
fine, and $600 in special assessments. This timely appeal
followed.
II.
Statute of Limitations
It is evident that the indictment, returned by the grand
jury on December 12, 2001, charged conduct in Counts Three
through Six and Nine through Fifteen that occurred outside the6
five-year statute of limitations period prescribed by 18 U.S.C. §
3282. Atiyeh filed a motion asking the District Court to7
dismiss these counts as time-barred. In its response to the
motion, the Government revealed that on October 5, 2001, it had
filed an ex parte application under 18 U.S.C. § 3292 with the
Grand Jury Supervising Judge, who entered the requested order8

-- 8 of 30 --

9
ex parte on the same day. That order suspended the statute of
limitations for several periods of time on the ground that
evidence was sought from foreign countries.
In pertinent part the statute pursuant to which the judge
entered the order provides that:
(a)(1) Upon application of the United States, filed
before return of an indictment, indicating that
evidence of an offense is in a foreign country, the
district court before which a grand jury is
impaneled to investigate the offense shall suspend
the running of the statute of limitations for the
offense if the court finds by a preponderance of the
evidence that an official request has been made for
such evidence and that it reasonably appears, or
reasonably appeared at the time the request was
made, that such evidence is, or was, in such
foreign country.
(2) The court shall rule upon such application not
later than thirty days after the filing of the
application.
(b) Except as provided in subsection (c) of this
section, a period of suspension under this section
shall begin on the date on which the official
request is made and end on the date on which the
foreign court or authority takes final action on the
request.
(c) The total of all periods of suspension under this
section with respect to an offense --
(1) shall not exceed three years; and
(2) shall not extend a period within which a
criminal case must be initiated for more than six
months if all foreign authorities take final action
before such period would expire without regard to

-- 9 of 30 --

Evidence had been sought from Antigua on or about July9
9, 1999, and compliance had been received by the Government on
or about August 31, 2000. Further evidence was sought from
Antigua on March 12, 2001, and provided on or about April 22,
2001. The first request to Canada for evidence is dated December
10, 1998. An additional request was made February 9, 2000.
Canadian authorities complied with both requests on May 10, 2000.
A supplemental request to Canada is dated April 2, 2001.
Canadian authorities complied with this request on July 31, 2001.
10
this section.
18 U.S.C. § 3292 (emphasis added).
In its application for suspension of the statute of
limitations, the Government also revealed that it had received all
the requested foreign evidence from Canadian and Antiguan
authorities at least two months prior to its application, and in
some instances as much as sixteen months before the application
was made.9
As a result of this revelation, Atiyeh argued in his pretrial
motion before the District Court that the statute of limitations
should not have been suspended because the Government’s
application for suspension failed to comply with the plain
language of 18 U.S.C. § 3292. Specifically, he claimed that at
the time the Government made its application to the Grand Jury
Supervising Judge to suspend the statute of limitations, the
Government could not meet the statutory requirement that it
“indicat[e] that evidence of an offense is in a foreign country. . .
.” 18 U.S.C. § 3292(a)(1).
The District Court reluctantly denied Atiyeh’s motion to
dismiss, stating that “I don’t like this statute, but . . . I think that
the intent of Congress is clear and we have to go with it.” Supp.
App. at 315. The District Court issued a written order on May
29, 2002, denying Atiyeh’s motion “for the reasons stated by the
Court during oral argument and by the United States Court of
Appeals for the Ninth Circuit in United States v. Miller, 830

-- 10 of 30 --

11
F.2d 1073, 1076 (9th Cir. 1987).” Supp. App. at 87.
On appeal, Atiyeh reasserts his argument that the
Government’s application for suspension of the statute of
limitations was facially invalid because it failed to comply with
the literal language of § 3292(a)(1). He further argues that the
findings of the Grand Jury Supervising Judge set forth in the
order of October 5, 2001 were clearly erroneous as they were not
supported by a preponderance of the evidence before him.
Finally, Atiyeh contends that the counts that were not time-
barred were prejudicially tainted by the evidence admitted with
regard to the time-barred counts.
The Government contests each of these arguments, and
asserts that even if the District Court erred in denying Atiyeh’s
pretrial motion to dismiss, the doctrine of equitable tolling
should save the time-barred counts because the Government
relied in good faith on the suspension order entered by the Grand
Jury Supervising Judge.
A.
Interpretation of 18 U.S.C. § 3292
The issue before us is whether a district court may issue
an order, under 18 U.S.C. § 3292, suspending the five-year
statute of limitations in 18 U.S.C. § 3282, when the
Government’s application for suspension is filed after it has
received all requested foreign evidence from foreign authorities,
(referred to in 18 U.S.C. § 3292(a)(2)(b) as the “final action”).
Our review of a district court’s legal determinations and its
application of legal precepts to facts is plenary. See Epstein
Family P’ship v. Kmart Corp., 13 F.3d 762, 766 (3d Cir. 1994);
see also Jones v. Morton, 195 F.3d 153, 156 (3d Cir. 1999);
United States v. Conley, 4 F.3d 1200, 1204 (3d Cir. 1993). We
have found only two reported decisions on the issue presented
here, both from the same court. United States v. DeGeorge, 380
F.3d 1203 (9th Cir. 2004); United States v. Miller, 830 F.2d
1073 (9th Cir. 1987).
We conclude that the District Court’s interpretation of §

-- 11 of 30 --

MLATs provide for a broad range of cooperation10
between the United States and foreign countries in criminal
matters, including (1) the taking of testimony or statements of
witnesses; (2) the provision of documents, records, and evidence;
(3) the service of legal documents; (4) the location or identification
of persons; (5) the execution of requests for searches and seizures;
and (6) the provision of assistance in proceedings relating to the
forfeiture of the proceeds of crime and the collection of fines
imposed as a sentence in a criminal prosecution. See United
Kingdom v. United States, 238 F.3d 1312, 1316-17 (11th Cir.
2001) (citing Letter of Transmittal from the President of the United
States to the Senate, Jan. 23, 1995).
12
3292 was erroneous as a matter of law. Because that error
underlays the District Court’s denial of Atiyeh’s motion to
dismiss Counts Three through Six and Nine through Fifteen of
the indictment as time- barred, we will reverse.
There are three distinct events contemplated by § 3292
with regard to an order suspending the statute of limitations.
Sequentially they are: (1) the Government’s request to a foreign
country for evidence located in that country (made under a
Mutual Legal Assistance Treaty (“MLAT”) or similar10
international agreement); (2) the Government’s application to
the Grand Jury Supervising Judge to suspend the statute of
limitations, which must be made “before [the] return of an
indictment”; and (3) the Supervising Judge’s action on the
Government’s application. 18 U.S.C. § 3292(a)(1).
Of significance to the issue before us, the Government
must “indicat[e]” in its application to the Grand Jury Supervising
Judge that as of the time the application is made, “evidence of an
offense is in a foreign country” and that “an official request has
been made for such evidence.” Id. (emphasis added).
Thereafter, the Grand Jury Supervising Judge must determine
that it “reasonably appears” that evidence continues to be in a
foreign country or that, at the time the Government made its
application for suspension of the statute of limitations, evidence
was in a foreign country. Id. The judge is authorized to order

-- 12 of 30 --

While we agree with the Government that use of the term11
“indicat[e]” manifests a legislative intent that the Government’s
application need make only a minimal showing, see Rowland v.
Cal. Men’s Colony, 506 U.S. 194, 200 (1993) (stating that term
“‘indicates’ certainly imposes less of a burden than . . . ‘requires’
13
the suspension of the statute of limitations only if all the above
conditions are satisfied.
The Government concedes that its application to the
District Court to suspend the statutory period “did not precisely
state that evidence of offenses ‘is in a foreign country.’” Gov.
Br. at 41. Nonetheless, it agrees with the District Court’s ruling
that under § 3292(a)(1) the Government’s application for
suspension under § 3292 need not aver that evidence “is” in a
foreign country at the time the application for suspension is
made, but it need only aver that evidence “was” in a foreign
country at some time in the past.
The District Court’s interpretation was based on the fact
that there are two references in § 3292(a)(1) to time. The
Government, focusing on the phrase “is, or was” in the latter
portion of § 3292(a)(1), argues that this creates an inconsistency
in the statute. A careful reading makes apparent that there is no
inconsistency. The “is” language in the beginning portion of the
subsection refers solely to the averment the Government must
make in its application to suspend the statute of limitations. The
“is, or was” language in the latter portion of the subsection
pertains not to the application by the Government to suspend the
statute of limitations, but rather solely to the findings that must
be made by the Grand Jury Supervising Judge after reviewing
the Government’s application and any response the foreign
authorities chose to make. The plain language of the statute is
clear and we must adhere to it. United States v. One “Piper”
Aztec . . . Aircraft, 321 F.3d 355, 359 (3d Cir. 2003) (“‘Our task
is to give effect to the will of Congress, and where its will has
been expressed in reasonably plain terms, the language must
ordinarily be regarded as conclusive.’”) (quoting Negonsott v.
Samuels, 507 U.S. 99, 104 (1993)).11

-- 13 of 30 --

or ‘necessitates’”), this minimal showing---that evidence “is in” a
foreign country at the time the Government files its application for
suspension to the district court--must nonetheless be made.
We note that the “is, or was” language in § 3292(a)(1) is12
not superfluous. It provides for the possibility that the foreign
14
Congress knew how to use the past tense. It used the past
tense twice in § 3292 when referring to the findings that the
Grand Jury Supervising Judge must make: first to state the
requirement that “an official request has been made” for foreign
evidence (a requirement not in dispute in the present case), and
second to state the requirement that “it reasonably appears, or
reasonably appeared at the time the request was made, that such
evidence is, or was in such foreign country.”
Our interpretation of § 3292(a)(1) not only accords with
the plain language of the statute, but is also clearly supported by
the legislative history. The House Report accompanying the
statute contains the following explanation:
Subsection (a)(1) of new section 3292 authorizes a
Federal court, upon application of a Federal prosecutor
that it made before the return of an indictment and that
indicates that evidence of an offense is located in a
foreign country, to suspend the running of the applicable
statute of limitation. If the court finds by a
preponderance of the evidence that (1) an official
request has been made for the evidence and (2) it
appears (or reasonably appeared at the time the official
request was made) that the evidence is (or was) in that
country, the court must order such suspension.
H.R. Rep. No. 98-907, at 7 (1984), reprinted in 1984 U.S.C.C.A.N. 3578,
3584 (emphasis added). The use of parenthesis in the second sentence of the
above quotation demonstrates that the “or was” language in the statute refers
only to the finding that the Grand Jury Supervising Judge must make, i.e.,
that evidence was in a foreign country “at the time the official request was
made.” Id.12

-- 14 of 30 --

authorities may provide the requested evidence before the Grand
Jury Supervising Judge issues an order suspending the statute of
limitations. See 18 U.S.C. § 3292(a)(2) (providing thirty days for
grand jury judge to render final order on Government’s
application). In other words, by the time the Grand Jury
Supervising Judge is ready to rule on the Government’s
application, it may be that a preponderance of evidence shows that
foreign evidence “was” in a foreign country at the time the
Government made its request to the foreign authorities, even
though evidence “is” no longer in that country, as “final action” has
already been taken by the foreign authorities. The Government is
still entitled to an order suspending the statute of limitations, even
after the requested foreign evidence has been produced, but only if
the Government’s application for suspension was filed before the
foreign evidence was produced.
Under “Purpose,” the House Report states in full:13
The purpose of the legislation is to make foreign-
kept business records more readily admissible into
evidence in criminal trials in United States courts
and to extend statute of limitation [sic] and Speedy
Trial Act deadlines when evidence located in foreign
countries must be obtained.
H.R. Rep. No. 98-907, at 2 (1984), reprinted in 1984 U.S.C.C.A.N.
3578, 3578 (emphasis added). In the discussion of “Background
and Need for the Legislation,” the House Report continues:
15
The Government argues that it needs additional time to sift through
and examine the foreign evidence. There is no provision in the statute giving
the Government extra time. To the contrary, 18 U.S.C. § 3292(b) is explicit
in providing that the “period of suspension . . . end on the date on which the
foreign court or authority takes final action on the request.” 18 U.S.C. §
3292(b). The legislative history confirms that Congress was concerned only
with the prejudice the Government suffers when it must obtain foreign
evidence; it was not concerned with the delays attendant to sifting through
such evidence. The Government prosecutors have, in each case, as long to13

-- 15 of 30 --

The procedures that must be undertaken in other
countries in order to obtain the records generally
take a considerable period of time to complete. . . .
The delays attendant in obtaining the records from
other countries create both statute of limitations and
Speedy Trial Act problems. If the records are
essential to the bringing of charges, the delay in
getting the records might prevent filing an
information or returning an indictment within the
time period specified by the relevant statute of
limitation.
H.R. Rep. No. 98-907, at 2-3 (1984), reprinted in 1984
U.S.C.C.A.N. 3578, 3578-79 (emphasis added). Thus,“the bill . .
. permits a Federal court, upon application of the prosecutor, to
suspend the running of the statute of limitations for such time as is
necessary (up to 3 years) to obtain evidence from a foreign country
. . . .” H.R. Rep. No. 98-907, at 4 (1984), reprinted in 1984
U.S.C.C.A.N. 3578, 3580 (emphasis added).
16
review the evidence, consider its ramifications, and persuade the grand jury
to indict, if appropriate, as was left on the statute of limitations when the
suspension began.
Congress has balanced the Government’s need to obtain evidence
from abroad, and the delays this may entail, against the defendant’s interest
in repose if charges are not brought with reasonable promptness. See
Toussie v. United States, 397 U.S. 112, 115 (1970) (“[c]riminal limitations
statutes are to be liberally interpreted in favor of repose.”) (internal
quotations and citations omitted); United States v. Levine, 658 F.2d 113, 119
(3d Cir. 1981); United States v. DiSantillo, 615 F.2d 128, 134 (3d Cir. 1980).
Although the United States Court of Appeals for the Ninth Circuit has
interpreted § 3292 differently than we do, see United States v. Miller, 830
F.2d 1073, 1076 (9th Cir. 1987) (stating that “[t]he statute makes better sense
if it is read . . . to let the government file the application after it has sifted the
foreign evidence sought”); see also United States v. DeGeorge, 380 F.3d
1203, 1213 (9th Cir. 2004), we are not persuaded by its analysis. The Miller

-- 16 of 30 --

17
court included only a one paragraph explanation stating that:
The statute itself specifies the only relevant time the
application must be made: “before return of an indictment.”. . .
The statute then goes on to say that the district court shall grant
the application if “it reasonably appears, or reasonably
appeared at the time the request was made, that such evidence
is, or was, in such foreign country.” . . . The “was” here plainly
indicates that Congress set no store upon the evidence still
being abroad as a precondition for granting the application.
Nor would it make sense of the statute to read in such a
requirement. The statute makes better sense if it is read . . . to
let the government file the application after it has sifted the
foreign evidence sought.
Miller, 830 F.2d at 1076 (quoting 18 U.S.C. § 3292).
The Miller opinion fails to recognize that the Government’s
application for suspension must be made after the Government has made its
request for evidence to the foreign authorities. More importantly however,
the Miller court has completely read out of the statute the requirement that
the Government’s application for a suspension indicate that the evidence “is”
in the foreign country. We need not repeat our prior analysis. Because the
proper reading of a statute must take account of words in the context of the
entire statute, Ratzlaf v. United States, 510 U.S. 135, 141 (1994), we decline
to follow the Ninth Circuit’s approach.
The Government argues in the alternative that even if § 3292(a)(1) is
construed as we have set forth, its application to the Grand Jury Supervising
Judge could nonetheless meet the statutory requirements of the subsection
because only copies of requested evidence were provided by foreign
authorities and therefore, the original source documents remained in the
foreign country. We find this argument unconvincing.
The continued presence of original documents in a foreign country is
irrelevant. Section 3292 was passed as part of the Comprehensive Crime
Control Act of 1984. One of its several purposes was to make evidence
obtained from foreign countries “more readily admissible into evidence in
criminal trials in United States Courts.” H.R. Rep. No. 98-907, at 2 (1984),
reprinted in 1984 U.S.C.C.A.N. 3578, 3578. Accordingly, the Act includes

-- 17 of 30 --

That statute provides in pertinent part that:14
(a)(1) In a criminal proceeding in a court of the
United States, a foreign record of regularly
conducted activity, or a copy of such record, shall
not be excluded as evidence by the hearsay rule if a
foreign certification attests that–
(A) such record was made, at or near the time
of the occurrence of the matters set forth, by (or from
information transmitted by) a person with knowledge
of those matters;
(B) such record was kept in the course of a regularly
conducted business activity;
(C) the business activity made such a record
as a regular practice; and
(D) if such record is not the original, such
record is a duplicate of the original;
unless the source of information or the method or
circumstances of preparation indicate lack of
trustworthiness.
(2) A foreign certification under this section shall
authenticate such record or duplicate.
18 U.S.C. § 3505 (emphasis added).
18
provisions that relax hearsay and authentication requirements for foreign
evidence, and it provides mechanisms that ease the taking of depositions
from foreign witnesses. See, e.g., 18 U.S.C. § 3505 ; see also 18 U.S.C. §14
3507 (providing that district court may appoint special master to carry out
depositions in foreign country).
Therefore, despite the fact that only copies of requested records were
obtained from foreign authorities, nothing prevents the Government from
introducing this evidence at trial. Interpreting § 3292 in the manner
advocated by the Government would eviscerate the plain intent of Congress.
B.
Equitable Tolling

-- 18 of 30 --

19
The Government, as a fallback to its unpersuasive statutory
interpretation argument, argues that because it relied in good faith on the
order of the Grand Jury Supervising Judge suspending the statute of
limitations, we should apply equitable tolling to save the untimely counts in
the indictment. Although we have never foreclosed the possibility that
equitable tolling applies to criminal statutes of limitations, see United States
v. Midgley, 142 F.3d 174, 178 (3d Cir. 1998) (observing “that criminal
statutes of limitations are subject to tolling, suspension, and waiver”), we
may invoke the doctrine “only sparingly,” and under very narrow
circumstances. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990).
“Absent a showing of intentional inducement or trickery by the defendant, a
statute of limitations should be tolled only in the ‘rare situation where
equitable tolling is demanded by sound legal principles as well as the interest
of justice.’” Midgley, 142 F.3d at 179 (quoting Alvarez-Machain v. United
States, 96 F.3d 1246, 1251 (9th Cir. 1996)).
In Midgley we rejected the Government’s contention that a good faith
exception should be made to equitable tolling in the criminal context, stating:
we must not forget that criminal limitation statutes are to be
liberally interpreted in favor of repose . . . . However tempting
it may be to create equitable exceptions to bright line rules . . .
the very existence of a statute of limitations entails the prospect
that wrongdoers will benefit . . . . Ultimately, the clear and
unambiguous rule afforded by the criminal statute of
limitations is preferable to a shifting standard based on the
perceived equity of the [the particular case] . . . . While
Congress and the courts may continue to weigh competing
policy interests concerning the administration of justice, the
unqualified limitation period of § 3282 reflects a balance that
has already been struck.
Midgley, 142 F.3d at 180 (internal quotations and citations omitted).
In the present case, Atiyeh did not “induce” the Government’s current
situation, and principles of justice do not demand that the statute of
limitations be tolled under the current circumstances. This court has never
applied equitable tolling to rescue a Government indictment filed after the
statute of limitations has lapsed, and we see no convincing rationale to do so

-- 19 of 30 --

Given our interpretation of § 3292, it is unnecessary to15
address Atiyeh’s additional argument that the findings of the Grand
Jury Supervising Judge were not supported by a preponderance of
the evidence before him.
20
here.15
C.
Conclusion
For the above reasons we hold that the District Court erred by denying
Atiyeh’s pretrial motion to dismiss Counts Three through Six and Nine
through Fifteen of the indictment as time-barred.
III.
Acquittal of Gambling Offenses
As noted earlier, the Government filed two cross appeals. One
challenges the order of the District Court granting Atiyeh’s post-trial motion
for judgments of acquittal under Fed. R. Crim. P. 29(c) as to Counts Two,
Eight through Fifteen, and Count One (to the extent it was based on a
violation of 18 U.S.C. § 1955). Count Eight charged conspiracy to commit
money laundering. Counts Nine through Fifteen charged separate money
laundering violations under 18 U.S.C. § 1956(a)(2). Under 18 U.S.C. §
1956(a)(2)(A), it is a crime to transfer funds to or from the United States
“with the intent to promote the carrying on of a specified unlawful activity,”
in this case illegal gambling activity in violation of 18 U.S.C. § 1955.
Section 1955 provides, in pertinent part:
(a)Whoever conducts, finances, manages, supervises, directs,
or owns all or part of an illegal gambling business [is guilty of
this offense].
(b) As used in this section —
(1) “illegal gambling business” means a gambling business
which –
(i) is a violation of the law of a State . . . in which it is

-- 20 of 30 --

21
conducted;
(ii) involves five or more persons who conduct, finance,
manage, supervise, direct, or own all or part of such
business; and
(iii) has been or remains in substantially
continuous operation for a period in excess of thirty days or has
a gross revenue of $2,000 in any single day.
(2) “gambling” includes but is not limited to pool-selling,
bookmaking, maintaining slot machines, roulette wheels or dice
tables, and conducting lotteries, policy, bolita or number
games, or selling chances therein.
Relevant here is the requirement of a finding that the defendant
conducted an illegal “gambling business,” as defined by state law. The
Pennsylvania statute that is the predicate of the § 1955 charge is 18 Pa. Cons.
Stat. § 5514. That statute provides:
A person is guilty of a misdemeanor of the first degree if he:
(1) engages in pool selling or bookmaking;
(2) occupies any place for the purpose of receiving, recording
or registering bets or wagers, or of selling pools;
(3) receives, records, registers, forwards, or purports or
pretends to forward, to another, any bet or wager upon the
result of any political nomination, appointment or election, or
upon any contest of any nature;
(4) becomes the custodian or depository, for gain or [re]ward,
of any property staked, wagered or pledged, or to be staked,
wagered, or pledged upon any such result; or
(5) being the owner, lessee, or occupant of any premises,
knowingly permits or suffers the same, to be used or occupied
for any such purposes.
18 Pa. Cons. Stat. § 5514 (emphasis added).

-- 21 of 30 --

The relevant interrogatories and jury answers were:16
Jury Interrogatories Number Three through Seven - Count
Two (Illegal Gambling Business)
3. Do you unanimously agree, by proof beyond a
reasonable doubt, that the business was an illegal
gambling business because it was engaged in
bookmaking?
Yes X No
4. Do you unanimously agree, by proof beyond a
reasonable doubt, that the business was an illegal
gambling business because it occupied 727-51 North
Meadow Street, Allentown, Pennsylvania, for the
purpose of receiving, recording or registering bets or
wagers?
Yes X No
5. Do you unanimously agree, by proof beyond a
reasonable doubt, that the business was an illegal
gambling business based upon becoming a custodian
of funds that were wagered or to be wagered?
X Yes No
6. Do you unanimously agree, by proof beyond a
reasonable doubt, that the business was an illegal
gambling business based upon occupying property
and knowingly permitting it to be used for
bookmaking, or for receiving, recording or
registering bets or wagers, or for the purpose of
becoming a custodian of funds that were wagered or
to be wagered?
Yes X No
22
In finding Atiyeh guilty on all counts of the indictment, the jury
answered a series of interrogatories based on the requirements of the
Pennsylvania statute. The jury found that Atiyeh had violated Pennsylvania16

-- 22 of 30 --

Supp. App. at 102-03.
23
state gambling law by becoming “a custodian of funds that were wagered or
to be wagered,” an offense under 18 Pa. Cons. Stat. § 5514(4). At the same
time, the jury found that Atiyeh did not violate any other provision of the
Pennsylvania gambling statute.
Atiyeh moved for judgment of acquittal which the District Court
granted because it concluded that “a conviction under 18 U.S.C. § 1955,
predicated on a violation of [18 Pa. Cons. Stat. § 5514], would require a
finding that the gambling operation in which the Defendant is involved
include[ ] some pool selling or bookmaking conducted in Pennsylvania. . . .”
Supp. App. at 13a. According to the District Court, the Pennsylvania
legislature expressed no interest in prohibiting the banking of funds inside
Pennsylvania which were received, recorded, or registered for gambling
purposes outside of Pennsylvania.
A.
18 Pa. Cons. Stat. § 5514
We must decide as a matter of law whether the District Court’s
construction of 18 Pa. Cons. Stat. § 5514 was correct. This question is
subject to plenary review by this court. See United States v. Randolph, 364
F.3d 118, 121 (3d Cir. 2004). Because we are interpreting a state statute, we
must determine how the Pennsylvania Supreme Court would rule if presented
with this case. Repola v. Morbark Indus., Inc., 934 F.2d 483, 489 (3d Cir.
1991); Prudential Prop. & Cas. Ins. Co., v. Pendleton, 858 F.2d 930, 934 (3d
Cir. 1988).
The parties agree that § 5514(4) has never been authoritatively
construed by the Pennsylvania Supreme Court nor any other Pennsylvania
court. Yet we do not proceed without some guidance. Several Pennsylvania
state courts, including the Pennsylvania Superior Court, have definitively
held that the subsections of § 5514 should be read disjunctively. See
Commonwealth v. Piperta, 257 A.2d 277 (Pa. Super. Ct. 1969) (examining
predecessor statute of § 5514 and holding that, “the statute . . . covers many
alternative illegal acts or practices . . . in addition to the recording and

-- 23 of 30 --

There is no substantive difference between 18 Pa. Cons.17
Stat.§ 5514 and its predecessor, 18 Pa. Cons. Stat. § 4607.
24
registering of [bets] and the giving of receipts for bets”). Commonwealth17
v. Frey, 89 Dauph. 1, 1-2 (Pa. Quar. Sess. 1968) (discussing precursor statute
to § 5514 and noting “[w]hile this section bears the heading of pool-selling
and bookmaking, it makes unlawful not only the activities of taking bets or
chances but a host of other activities concerned with these acts”);
Commonwealth v. Johnson, 51 Lanc. L.R. 333, 67 Pa. D. & C. 588, 589-90
(Pa. Quar. Sess. 1949) (“The statutory law of Pennsylvania relating to
bookmaking is comprehensive and specific . . . . [It] is applicable not only to
bookmaking where bets are entered in a book or on sheets of paper, but it
covers in the alternative many other illegal acts or practices pertaining to
bookmaking . . . .”).
On its face, § 5514 prohibits five separate and distinct gambling
related activities. Each provision is separated by a semicolon, and the word
“or” appears between subsections four and five. Thus, each subsection
within § 5514 should be given independent effect. “When the words of a
statute are clear and free from all ambiguity,” its provisions must be read in
accordance with their plain meaning and common usage. 1 Pa. Cons. Stat. §
1921(b); Commonwealth v. Lassiter, 722 A.2d 657, 660 (Pa. 1998).
A determination that the statute should be read disjunctively does not
end our inquiry. “When interpreting a statute, the court will not look merely
to a particular clause in which general words may be used, but will take in
connection with it the whole statute . . . and the objects and policy of the law,
as indicated by its various provisions. . . .” Kokoszka v. Belford, 417 U.S.
642, 650 (1974) (internal quotations and citation omitted); see also
Hernandez v. Kalinowski, 146 F.3d 196, 200 (3d Cir. 1988).
Atiyeh argues that several of the separate subsections of § 5514
explicitly require that illegal pool selling or bookmaking activity occur within
the state of Pennsylvania. The District Court accepted that argument, noting
that § 5514(1) “must refer to bookmaking in Pennsylvania, since the
Pennsylvania legislature would not presume to prohibit such activity outside
its borders.” Supp. App. at 11a. The Court continued that
likewise, § 5514(2)’s prohibition on “occup[ying] any place for the purpose
of receiving, recording or registering bets or wagers . . .” and § 5514(5)’s

-- 24 of 30 --

25
prohibition on “being the owner, lessee, or occupant of any premises . . . to
be used or occupied for any of such purposes” must refer to places and
premises within Pennsylvania where pool selling or bookmaking activity
occur. Supp. App. at 11a-13a (citing 18 Pa. Cons. Stat § 5514).
Atiyeh further contends that many of the individual subsections in the
statute cannot be properly understood when read in isolation. Section
5514(4), for instance, makes it a crime in Pennsylvania to “become[] the
custodian or depository, for gain or [re]ward, of any property staked, wagered
or pledged . . . upon any such result,” 18 Pa. Cons. Stat.§ 5514(4); the term
“such result” necessarily refers to “the result of any political nomination,
appointment or election, or upon any contest of any nature” as described in §
5514(3).
Accordingly, Atiyeh argues that the District Court’s construction of §
5514(4) is supported by an examination of the statute as a whole, and the
implications drawn therein. We do not agree. None of the subsections
attempt to govern extra-territorial activity, and there is no reason to construe
subsection (4) to do so. Section 5514(4) merely proscribes “becom[ing] the
custodian or depository” of wagered funds, or funds to be wagered, when
such custodianship takes place inside the Commonwealth of Pennsylvania,
action the jury found Atiyeh committed. See 18 Pa. Cons. Stat. § 102.
Furthermore, we see no support for the contention that § 5514(4) must be
read to require some pool selling or bookmaking in the state of Pennsylvania.
The internal reference in subsection (4) to subsection (3) cannot be construed
so expansively to include the separate and independent offenses outlined in
subsection (1) and (2). Even if there are internal references in the
subsections to each other, the fact that the jury convicted Atiyeh of
subsection (4) and not of subsection (1) (proscribing pool selling or
bookmaking) is irrelevant. His conviction of subsection (4) is independent of
the activities proscribed by the other subsections.
It was not unreasonable for the Pennsylvania legislature to proscribe
the custodianship in the state of Pennsylvania of gambling-related funds,
even if the actual pool selling or bookmaking attendant to such custodianship
occurred outside the state. In United States v. $ 734,578.82 in United States
Currency, 286 F.3d 641 (3d Cir. 2002), we affirmed the Government’s civil
forfeiture pursuant to 18 U.S.C. § 1955(d) of proceeds from an international
gambling business held by a New Jersey company on the ground that the
New Jersey statute proscribing conduct which materially aids any form of

-- 25 of 30 --

26
gambling activity had been violated. We so held notwithstanding that all
betting involved took place in England where it was legal and the New Jersey
corporation, whose funds were forfeited, merely acted as an intermediary to
the English gambling house.
In United States v. Truesdale, 152 F.3d 443 (5th Cir. 1998),
defendants operated a sports-wagering business, where bets were accepted in
the Carribean but the majority of the financial transactions took place in
Texas. Although the Court of Appeals overturned the conviction under 18
U.S.C. § 1955 because the Government had failed to prove that the defendant
had engaged in bookmaking in the State of Texas, the court noted that it
would have sustained the conviction had the Government charged the
defendant with violating the subsection of the Texas statute that prohibited an
individual from becoming a custodian of anything of value bet or offered to
be bet. 152 F.3d at 449.
We recognize that both the New Jersey state statute in $ 734,578.82 in
United States Currency, and the Texas statute in Truesdale include the term
“promoting gambling” in their respective titles whereas 18 Pa. Cons. Stat. §
5514 is merely entitled “Pool selling and bookmaking.” However, the
Supreme Court has stated that “the title of a statute . . . cannot limit the plain
meaning of the text. For interpretive purposes, [the title] is of use only when
it sheds light on some ambiguous word or phrase.” Pa. Dep’t. of Corr. v.
Yeskey, 524 U.S. 206, 212 (1998) (internal quotation and citations omitted).
Because we find no ambiguity in the text of the statute, and because
the Pennsylvania legislature was proscribing activity clearly within the scope
of its legislative authority, we hold that the District Court’s interpretation of
§ 5514 was erroneous.
B.
Atiyeh’s arguments in the Alternative
Atiyeh makes a number of additional alternative arguments. First, he
contends that the Government failed to establish that the alleged “illegal
gambling business . . . involve[d] five or more persons who conduct[ed],
finance[d], manage[d], supervise[d], direct[ed], or own[ed] all or part of such
business,” as required by 18 U.S.C. § 1955(b)(ii). The District Court did not
reach this argument.

-- 26 of 30 --

We have held that “[w]hile a party may not seek more18
extensive relief on appeal than it received in district court without
filing a cross-appeal, an appellee may proffer alternative arguments
to support the district court’s decision without filing a cross-
appeal.” United States v. Lieberman, 971 F.2d 989, 996 n.5 (3d
Cir. 1992); see also United States v. American Ry. Express Co.,
265 U.S. 425, 435-36 (1924); New Castle County v. Hartford
Accident & Indem. Co., 933 F.2d 1162, 1205 (3d Cir.1991).
27
The jury based its finding that IC was a gambling business because it
was the custodian of gambling related funds. See 18 Pa. Cons. Stat. §
5514(4). Therefore, Atiyeh contends, the Government had the burden of
proving that five or more persons conducted the custodial aspect of the
business. We do not agree.
The jury found that Atiyeh, acting through IC, operated an illegal
gambling business. Therefore the relevant inquiry was whether IC, as an
entity, involved five or more persons who conducted, financed, managed,
supervised, or directed all or parts of the business—not whether there were
five of more persons associated with the custodial aspect of the business.
The statutory concept of “conducting” is very broad. It “proscribes any
degree of participation in an illegal gambling business, except participation
as a mere bettor.” Sanabria v. United States, 437 U.S. 54, 70 n.26 (1978)
(citing, inter alia, United States v. Ceraso, 467 F.2d 653, 656 (3d Cir. 1972)).
The Government produced ample evidence to support a finding by a rational
trier of fact (and Atiyeh does not dispute) that five or more persons were
associated with IC, as an entity.
Atiyeh makes two additional arguments, neither of which was
presented to the District Court. First, he contends that he was never paid to18
act as a custodian of wagered funds, and therefore did not become the
custodian of such funds for “gain or [re]ward.” 18 Pa. Cons. Stat. § 5514(4).
This argument is without merit. A person who owns a bookmaking operation
clearly gains or is rewarded by holding property that is staked, wagered, or
pledged as part of that bookmaking operation. Atiyeh’s construction of the
statute to exclude the owner of the bookmaking operation from the scope of §
5514(4) is odd, and finds no support in the statutory text.
Finally, Atiyeh argues that the conduct for which he was convicted,

-- 27 of 30 --

“Gambling” as defined in § 1955(b)(2), “includes but is19
not limited to pool-selling, bookmaking, maintaining slot machines,
roulette wheels or dice tables, and conducting lotteries, policy,
bolita or numbers games, or selling chances therein.”
We also note that Count Three of the indictment, which20
charged a violation of 18 U.S.C. § 1084 (use of wire
communications transmitting information concerning bets), was
predicated on a September 12, 1996 phone conversation between
FBI Agent Manna and an IC operator. The natural expiration date
of the count was September 12, 2001, five years after the
conversation. See 18 U.S.C. § 3282. Because the Government did
28
becoming a custodian of funds that were wagered or to be wagered, does not
come within the limited definition of what constitutes “gambling” under 18
U.S.C. § 1955(b)(2). This argument is flawed. The relevant definition for19
our purposes is that of an “illegal gambling business,” provided for in 18
U.S.C. § 1955(b)(1), not the definition of “gambling” provided for in §
1955(b)(2). The jury found that Atiyeh violated 18 Pa. Cons. Stat.§ 5514(4),
and therefore operated an “illegal gambling business” as defined by 18
U.S.C. § 1955(b)(1). We have held that the mere custodianship of gambling-
related funds is sufficient to constitute a violation of 18 U.S.C. § 1955,
because such custodianship is considered to be “gambling” under state law
even though it may not appear to fit within “gambling” as defined in §
1955(b)(2). See $ 734,578.82 in United States Currency, 286 F.3d at 660;
see also Truesdale, 152 F.3d at 446-47.
C.
Conclusion
For the above reasons we hold that the District Court erred by granting
Atiyeh’s post-verdict Fed. R. Crim. P. 29(c) motion for acquittal as to Counts
Two, Eight through Fifteen, and One (to the extent it charged a conspiracy to
violate 18 U.S.C. § 1955).
IV.
Prejudicial Taints
In summary, we have concluded that the District Court erred in
denying Atiyeh’s pretrial motion to dismiss Counts Three through Six and20

-- 28 of 30 --

not submit its application to suspend the statute of limitations until
October 5, 2001, more than three weeks after the statute of
limitations had run, it conceded at oral argument that Count Three
is time-barred.
29
Nine through Fifteen as time-barred. However, we have further concluded
that the District Court erred by granting Atiyeh’s post-verdict Fed. R. Crim.
P. 29(c) motion for acquittal as to Counts Two, Eight through Fifteen, and
One (to the extent Count One alleged a violation of 18 U.S.C. § 1955)
because the jury’s answers to the special interrogatories support a finding
that Atiyeh violated Pennsylvania’s gambling law, the predicate to 18 U.S.C.
§ 1955. Of course, because Counts Nine through Fifteen were in fact time-
barred, the District Court’s erroneous Fed. R. Crim. P. 29(c) order pertaining
to those counts was harmless. We must therefore consider whether Atiyeh’s
conviction on the remaining counts should be reinstated.
Atiyeh contends that Counts One, Two, Seven, and Eight, which
remain, were tainted because of the erroneous submission of Counts Three
through Six and Nine through Fifteen to the jury. He argues that in these
circumstances, he is entitled to a new trial on Counts One, Two, Seven, and
Eight. We are not persuaded.
The crucial inquiry, when considering a claim of prejudicial taint, is
“‘whether the presence of the [invalidated] count[s] had any spillover effect
sufficiently prejudicial to call for reversal’ of the remaining counts.” United
States v. Murphy, 323 F.3d 102, 118 (3d Cir. 2003) (quoting United States v.
Pelullo, 14 F.3d 881, 897-98 (3d Cir. 1994)).
In making this inquiry, we must first determine whether any evidence
was admitted to support the time-barred counts that would have been
inadmissible to support the remaining counts. Murphy, 323 F.3d at 118.
Only then need we “consider whether the verdict on the remaining count[s]
was affected adversely by the evidence that would have been inadmissible at
a trial limited to th[ose] count[s].” United States v. Cross, 308 F.3d 308, 318
(3d Cir. 2002). We must consider whether (1) the charges are “intertwined
with each other”; (2) the evidence for the remaining counts is “sufficiently
distinct to support the verdict” on these counts; (3) the elimination of the
invalid count “significantly changed the strategy of the trial”; and (4) the
prosecution used language “of the sort to arouse a jury.” Murphy, 323 F.3d

-- 29 of 30 --

The Government also appeals from the order of the21
District Court granting a two-level downward adjustment for
acceptance of responsibility on some of the charges. The
Government argues that the District Court abused its discretion in
determining, based on his attorney’s statements, that Atiyeh would
have pled guilty to violating 18 U.S.C. § 1084 had that charge been
brought alone. The Government argues that Atiyeh himself never
accepted responsibility but went to trial on those counts, presented
factual defenses, and even after conviction, failed to voice any
acceptance of responsibility. The Government’s argument is
colorable but may be moot in light of our rulings. We leave the
arguments on this issue to the District Court in the first instance.
30
at 118 (quoting Pelullo, 14 F.3d at 898-99).
Atiyeh has pointed to no evidence that was admitted to support Counts
Three through Six or Nine through Fifteen that would have been inadmissible
to support Counts One, Two, Seven, or Eight. Count Two charged that
Atiyeh conducted a gambling business in violation of 18 U.S.C. § 1955 from
November 1995 until January 1997. Consequently, evidence of undercover
phone calls made by FBI Agent Manna to IC between September 12 and
November 29, 1996 (charged as separate offenses in Counts Three through
Six) and evidence of specific wire transactions made by Atiyeh between
October 25 and November 29, 1996 (charged as separate offenses in Counts
Nine through Fifteen), would be admissible to support the substantive
gambling charge in Count Two. Accordingly, we find no prejudicial taint in
the instant case. Murphy, 323 F.3d at 118. We therefore reject Atiyeh’s
argument that a new trial on the remaining counts is necessary.
V.
Conclusion
For the reasons set forth above, we will reverse the judgment of
conviction as to Counts Three through Six. On the other hand, we will direct
the District Court to reinstate the jury’s verdict on Counts One, Two, Seven,
and Eight. We will therefore remand to the District Court for sentencing on
the reinstated counts and for further proceedings consistent with this21
opinion.

-- 30 of 30 --