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We find no abuse of discretion in the district court's disqualification of Binns. It was undisputed that Binns represented the Trust and Anderskow for purposes of responding to the grand jury subpoenas. There was also a very real possibility that Anderskow might testify at trial, thereby subjecting himself to cross-examination by Binns. We noted in Moscony that "[c]onflicts of interest arise whenever an attorney's loyalties are divided, and an attorney who cross-examines former clients inherently encounters divided loyalties." 927 F.2d at 750 (citation omitted). Since there was a strong possibility that Anderskow might face cross-examination by a former attorney, there was a serious potential for a conflict of interest which, notwithstanding Voigt's attempt to downplay it on appeal, warranted disqualification. Wheat, 486 U.S. at 153, 108 S. Ct. at 1692 (disqualification due to conflict proper despite defendant's attempts on appeal to minimize its extent).

Voigt makes much of the district court's refusal to accept Anchors' and Anderskow's proffered waiver of the attorney-client privilege in the event that Binns would have to cross-examine them at trial. Nevertheless, we find no abuse of discretion in the district court's decision. As the Wheat Court noted, at the beginning of a criminal trial, "[t]he likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict ... ." Id. at 162-63, 108 S. Ct. at 1699. Here, the district court obviously feared that if during trial the nature of Binns' relationship with Anderskow and Anchors turned out to be more significant than first thought, Anchors' and Anderskow's rights to a fair trial could be jeopardized, thereby generating potential appellate issues. We have recognized that the district court has "an institutional interest in protecting the truth-seeking function of the proceedings over which it is presiding ... [and] an independent interest in protecting a fairly rendered verdict from trial tactics that may be designed to generate issues on appeal." Moscony, 927 F.2d at 749. Accord Stewart, 870 F.2d at 856-57 ("Wheat emphasized the trial judge's duty to preserve the integrity of the justice system by assuring [all] defendants a fair trial."). We find nothing improper in the district court's refusal to accept Anchors' and Anderskow's proffered waiver.

Moreover, at least one codefendant vehemently refused to waive the attorney-client privilege. Travis was a member of the Trust during the grand jury investigation and had substantial interaction with Binns during that period. Apart from the fact that this only added to the district court's growing concern about the ability of Voigt's codefendants to receive a fair trial, Binns' prior interaction with Travis may have been sufficient, in and of itself, to warrant disqualification since Binns may have acquired confidential information about her.

In Stamler, for example, we held that a trial court had properly disqualified counsel for a corporation from serving as the criminal defense attorney to the corporation's former president despite the counsel's insistence that he had received no information about the president's criminal activities while acting as counsel to the corporation. "[I]t was not unreasonable for the [trial court] to find that [the lawyer] might have obtained information related to the criminal proceeding." 650 F.2d at 480. In United States v. Rogers, 9 F.3d 1025 (2d Cir. 1993), cert. denied, 115 S. Ct. 95 (1994), the Court of Appeals for the Second Circuit upheld the disqualification of a corporate attorney who sought to represent a corporate officer after having previously attended a deposition with one of the corporation's employees. The deposition concerned the same matter giving rise to the prosecution, and the employee was to testify against the officer during the criminal trial. The Second Circuit rejected the defendant's claim that the disqualification was improper because the attorney-client relationship allegedly giving rise to the conflict was between the corporation and the attorney: "in this case, [the witness], as an employee at [the corporation] when he was deposed, should be considered a privy of the company. As such his joinder in the motion to disqualify [the attorney] was sufficient to assert the adverse nature of his interest and the confidences he may have disclosed ... ." Id. at 1031.

Here, Travis was adamant that she had imparted confidential information to Binns, and she indicated that she would take the stand in her own defense at trial, thereby subjecting herself to potential cross-examination by Binns. The district court once again had an independent duty to safeguard Travis' right to a fair trial and to protect a potential judgment against her from attack on appeal. See Moscony, 927 F.2d at 751; Stamler, 650 F.2d at 480; see also Rogers , 9 F.3d at 1025. ¹⁴

In sum, we conclude that the district court acted prudently given the unenviable situation with which it was presented. James Binns had substantial involvement in the grand jury investigation and he had sent a letter to the government tacitly acknowledging his multiple representation of Voigt, Anderskow and the Trust. In light of the district court's obvious interest in safeguarding the codefendants' rights to a fair trial by avoiding the possibility that they would be cross-examined by Binns, we hold that the presumption in favor of Voigt's constitutional right to counsel of choice had been adequately rebutted. Accordingly, we reject Voigt's claim that the disquali-fication of Binns violated his Sixth Amendment right to counsel of choice.

V.

THE MONEY LAUNDERING CONVICTIONS

Voigt alleges that his convictions on two counts of money laundering in violation of 18 U.S.C. §1956(a)(1)(A)(i) ¹⁵ are legally insufficient because the government failed to prove beyond a reasonable doubt that the financial transactions forming the basis of the laundering convictions "in fact involve[d] the proceeds of specified unlawful activity." Id. We review sufficiency of the evidence claims under a deferential standard. "It is not for us to weigh the evidence or to determine the credibility of the witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." United States v. Schoolcraft, 879 F.2d 64, 69 (3d Cir.) (internal citations and quotation marks omitted), cert. denied, 493 U.S. 995, 110 S. Ct. 546 (1989). If "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979), then the verdict of the jury must be sustained.

A.

In this case, Voigt was convicted of depositing the proceeds of a certain transaction known as the "Neville Price transaction" into an account in the First Fidelity Bank in violation of 18 U.S.C. §1956(a)(1)(A)(i). The evidence adduced at trial demonstrated that on October 1, 1991, a $500,000 advance fee from the "Neville Price" transaction was deposited into codefendant Ralph Anderskow's escrow account, which at the time contained over $600,000 from other sources. On October 4, 1991, two wire transfers were made from Anderskow's account to Voigt's First Fidelity account, one for $90,000 and the other for $32,000. These deposits formed the basis of the two money-laundering convictions that Voigt now challenges. Voigt contends that because only $500,000 out of the $1.1 million in Anderskow's account was "tainted," the government failed to prove beyond a reasonable doubt that the two wire transfers, which totaled $122,000, "involve[d] the proceeds of specified unlawful activity." Id.

B.

Voigt concedes that not all of the money involved in a financial transaction that is the subject of a money laundering charge must derive from the proceeds of money laundering activity. Rather, he contends that because Congress required that the financial transaction "in fact involve[]" the "proceeds of specified unlawful activity," id. (emphasis added), the government must prove that at least one dollar (or, even, one penny) is traceable to the proceeds of unlawful activity--a mathematical impossibility in cases such as this where (1) the wire transfers came from an account in which tainted funds had been commingled with untainted funds, and (2) the amount of the transfer was less than the amount of untainted funds in the account. Both the government and Voigt characterize the issue as one involving "which side should bear the uncertainty when tracing becomes an impossibility." Government's Br. at 46.

While the trend in our sister circuits has been to reject the sort of legal sufficiency challenge raised by Voigt as a matter of statutory construction, see United States v. Cancelliere, 69 F.3d 1116, 1120 (11th Cir. 1995), we need not decide this issue, because we conclude that Voigt's claim fails on the facts. While the flow-chart that the government relied on to establish the source of the $122,000 deposit does not reveal the source of the other funds in Anderskow's account, Anderskow himself conceded on cross-examination that all but $26,000 of the funds deposited into his Continental Bank account between 1990 and 1993 were advance fees paid by borrowers of and investors in the Trust. As there was uncontroverted evidence at trial that no borrower or investor ever received any funds from the Trust, and as the jury found that the Trust was the engine of a scheme to defraud, we conclude that a rational trier of fact could easily have concluded that virtually all of the funds in Anderskow's account at the time of the $122,000 transfer represented the fruits of specified illegal activity.

VI.

THE FORFEITURE ORDER

In connection with the four money laundering counts charged in the superseding indictment, the government brought separate criminal forfeiture allegations under 18 U.S.C. §982 seeking forfeiture of certain vehicles and pieces of jewelry either as "involved in" or "traceable to" Voigt's money laundering activity, id. §982(a)(1) , ¹⁶ or as substitute assets under 21 U.S.C. §853(p)(5), ¹⁷ the CCE criminal forfeiture provision, which is incorporated in 18 U.S.C. §982(b)(1) . ¹⁸ At a nonjury proceeding conducted prior to sentencing, the district court determined that Voigt's money laundering convictions rendered him liable to the government for $1,661,960 in criminal forfeiture. In satisfaction of that amount, the court ordered forfeiture of, inter alia, two pieces of jewelry, finding "by a preponderance of the evidence" that they were "items personal property ... traceable to the money involved in the [money-laundering] violations. App. at 1246. The jewelry had been purchased with funds from an account in which money laundering proceeds had been commingled with other funds--numerous deposits and withdrawals having intervened between the deposit of the laundered funds and the purchase of the jewelry.

Voigt raises two assignments of error. First, he contends that the district court applied the wrong burden of persuasion. He maintains that our decision in United States v. Pelullo, 14 F.3d 881 (3d Cir. 1994), requires the government to prove its forfeiture allegations beyond a reasonable doubt. Second, Voigt asserts that the government failed to prove that the jewelry it sought was "traceable to" the proceeds of his money laundering activity, since it had been purchased with commingled funds from an account subject to numerous intervening deposits and withdrawals after the original deposit of the laundered funds.

Both of these contentions raise issues of first impression in this circuit. With respect to the burden-of-proof issue, we conclude, as did the district court, that the preponderance standard applies. We agree with Voigt, however, that the numerous intervening deposits and withdrawals into his account subsequent to the deposit of the tainted funds make it impossible to say that the two items of jewelry are "traceable to" property "involved in" the money laundering offense. Accordingly, we will vacate the forfeiture order that was incorporated into the judgment and remand for further proceedings.

A.

The forfeiture provision upon which the court's order was based, 18 U.S.C. §982 , provides that a district court sentencing a person convicted of, inter alia, money laundering in violation of 18 U.S.C. §1956, "shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property." 18 U.S.C. §982(a)(1) . Voigt first contends that the government's burden of persuasion for criminal forfeiture under 18 U.S.C. §982(a)(1) is proof beyond a reasonable doubt. We have not yet had occasion to address the burden-of-proof issue with respect to §982(a)(1) , and to date only one other court of appeals has considered it, concluding that preponderance-of-the-evidence standard applies. United States v. Myers, 21 F.2d 826, 829 (8th Cir. 1994), cert. denied, 115 S. Ct. 742 (1995). We have, however, addressed this issue twice previously in the context of other criminal forfeiture provisions. Pelullo, 14 F.3d at 881 (RICO; reasonable doubt); United States v. Sandini, 816 F.2d 869 (3d Cir. 1987) (CCE; preponderance). A description of the Sandini, Pelullo and Myers decisions is in order.

1.

In Sandini, 816 F.2d at 869, we addressed the appropriate burden of persuasion under 21 U.S.C. §853 , the CCE criminal forfeiture provision. The defendant there argued that §853(d) 's inclusion of a rebuttable presumption of forfeitability if the government could demonstrate two factors by a preponderance of the evidence was unconstitutional to the extent it failed to require proof beyond a reasonable doubt. After discussing the history of and distinction between civil in rem and criminal in personam forfeiture, we concluded that criminal forfeiture under CCE constitutes punishment for a crime, and not a separate element of the offense, notwithstanding FED. R. CRIM. P. 7(c)(2) (requiring the indictment to specify the extent or interest of the property subject to forfeiture) and FED R. CRIM. P. 31(e) (requiring the jury to return a special verdict on same). Sandini, 816 F.2d at 875 & n.7 ("assumption" in Rule 31(e) that forfeiture is element of the offense to be tried and proved is akin to nonbinding legislative history). Because other federal statutes providing for enhanced penalties have established the government's burden of proof as a preponderance of the evidence, we concluded that §853(d) withstands constitutional scrutiny as long as the forfeiture proceeding follows a conviction by proof beyond a reasonable doubt.

Seven years later we confronted the same question in the context of 18 U.S.C. §1963, the RICO statute's criminal forfeiture provision. Pelullo, 14 F.3d at 881. We held that the beyond-a-reasonable-doubt standard governs such forfeitures. Our conclusion was premised mainly on Congress' simultaneous amendments to the RICO and CCE forfeiture statutes in 1984, and its decision not to add a rebuttable presumption provision to §1963(a) when it added such a provision to the CCE statute. See 21 U.S.C. §853(d) (discussed in Sandini, 816 F.2d at 874-75). We concluded that the omission was deliberate and, hence, dispositive: "This indicates that Congress intended the higher beyond a reasonable doubt standard to control in a §1963(a) proceeding. If Congress wanted a preponderance standard for §1963(a), it would have so stated as it specifically did for CCE." Pelullo, 14 F.3d at 905. See id. at 903 ("Most important, the CCE rebuttable presumption ... does not exist in the RICO forfeiture provisions.") (citations omitted). We distinguished our decision in Sandini on the basis that it pertained only to CCE and could not bind a future panel of this court considering a different forfeiture provision. See id. ("Sandini does not decide the issue in this case because the statute at issue there was CCE, not RICO.").

In Myers, 21 F.3d at 826, the Court of Appeals for the Eighth Circuit concluded that the government's burden of proof under §982(a)(1) was the preponderance standard. Noting that it had decided in a different case handed down the same day that the preponderance standard governed forfeitures under CCE, the court reasoned that

[t]he language of the money laundering forfeiture statute is very similar to the language of section 853(a) . By stating that "the court, in imposing sentence on a person convicted" of a money laundering offense, shall forfeit property involved in the offense, Congress indicates that forfeiture under the money laundering provision is also a sentencing sanction, not an offense or element of an offense.

Id. at 829 (alteration omitted).

2.

While Sandini and Pelullo are useful guides, we begin by observing that prior decisions of this court interpreting different criminal forfeiture provisions do not constitute binding precedent on the issue before us. Similarly, the reasoning underlying those decisions is not binding, although to the extent that the statutes are analogous it may be persuasive. We must begin the task afresh and determine which burden of proof Congress intended to apply to §982(a)(1) .

Perhaps the most striking feature of the forfeiture provision is that it requires the district court to order forfeiture "in imposing sentence on a person [already] convicted of an offense in violation of ... section 1957 ... of this title ... . " 18 U.S.C. §982(a)(1) (emphasis added). As the Myers court observed, the plain language of the statute reveals that forfeiture is a form of sentence enhancement that follows a previous finding of personal guilt. Myers, 21 F.3d at 829. As a result, we conclude that the preponderance, not the reasonable doubt, standard governs forfeiture under §982(a)(1) .

Voigt's most forceful argument to the contrary is that when Congress enacted the money laundering forfeiture statute, it specifically incorporated in §982(b)(1) , the statute's procedural component, virtually all of the subsections of 21 U.S.C. §853 , the procedural provisions of the CCE forfeiture statute, yet it omitted §853(d) , the rebuttable presumption provision we found dispositive in Sandini. Relying on Pelullo, where we attached much significance to Congress' failure to add a provision like §853(d) to RICO's forfeiture provision, Voigt argues that Congress' decision not to include §853(d) as one of the subsections incorporated via §982(b)(1) evinces an intent to require application of the reasonable doubt standard. We think Voigt's argument proves too much. At most, Congress may have decided it did not want the rebuttable presumption to apply in money laundering cases. But that by no means compels us to conclude that the reasonable doubt standard should apply in such cases.

Furthermore, acknowledging that the burden of proof is simply a means of expressing our tolerance for erroneous outcomes, there are good reasons for employing the reasonable doubt standard in the RICO context but not in the money laundering context. The RICO forfeiture provision is by far the most far reaching, requiring the district court to order forfeiture of "any interest the person has acquired or maintained in violation of section 1962," 18 U.S.C. §1963(a)(1), as well as any "interest in," "security of," "claim against," or "property or contractual right of any kind affording a source of influence over[] any enterprise which the person has established, operated, controlled, conducted, or participated in the conduct of in violation of section 1962." Id. §1963(a)(2). The statute further requires forfeiture of "any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity ... in violation of section 1962." Id. §1963(a)(3). Section 1963(a)'s coverage, to say the least, is extremely broad and sweeping. See Rusello v. United States, 464 U.S. 16, 26, 104 S. Ct. 296, 302 (1983) ("The legislative history clearly demonstrates that the RICO statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots."); Craig W. Palm, RICO Forfeiture and the Eighth Amendment: When is Everything Too Much?, 53 U. Pitt. L. Rev. 1, 27 (1991) ("The most striking aspect of RICO's forfeiture provisions is their unprecedented nature and breadth. The language of the forfeiture provisions is extremely broad and comprehensive ... ."). Indeed, §1963(a) sweeps far more broadly than the elements of the substantive RICO offense itself. See 18 U.S.C. §1962. Accordingly, since the identity and extent of property subject to forfeiture will not have been addressed in the course of proving the substantive RICO charge, a reasonable doubt burden of persuasion ensures greater accuracy in determining the scope of property subject to forfeiture.

In the money laundering context, by contrast, the forfeiture provision makes clear that the government is entitled only to property "involved in" or "traceable to" money laundering activity. See generally United States v. $448,342.85, 969 F.2d 474, 476 (7th Cir. 1992) (government entitled only to "funds" used in offense, not whole account into which such funds had been deposited). Furthermore, "property involved in a financial transaction" is part of an element of the money laundering offense, see 18 U.S.C. §1956(a)(1), and the term "transaction" is defined in the statute. See id. §1956(c)(3). Unlike the RICO context, we have no reason to doubt that the amount of the transaction that forms the basis of a substantive money laundering offense will be identified in the indictment and, thus, that its connection to money laundering activity will have been proved beyond a reasonable doubt at trial. As the government has observed, in many cases the only factual issues left for resolution after trial will be whether particular items bought with tainted funds are "traceable to" money laundering activity. Applying a beyond-a-reasonable-doubt standard to that issue appears unnecessary. Accordingly, we agree with the Eighth Circuit's decision in Myers that the government's burden for forfeiture under §982(a)(1) is the preponderance standard.

B.

Voigt next argues that the government failed to prove that the money used to purchase the jewelry in question was "traceable to" money laundering proceeds, as required by 18 U.S.C. §982(a)(1) . His argument is based on the fact that the jewelry was purchased with funds drawn from an account in which money laundering proceeds had been commingled with other funds, and that those funds were further "diluted" by numerous intervening deposits and withdrawals. Voigt asserts that if the jewelry was subject to forfeiture, it was under 21 U.S.C. §853(p)(5), the CCE substitute asset provision incorporated into the money laundering forfeiture scheme via 18 U.S.C. §982(b)(1) . The government counters by observing that criminal forfeiture is an in personam punishment, which obviates the need for strict tracing, especially where tainted and untainted funds are commingled in a bank account, making tracing a virtual impossibility.

1.

The government's observation concerning the in personam nature of criminal forfeiture is helpful to a certain extent: the amount of forfeiture to which the government is entitled under 18 U.S.C. §982 is not dictated by whether the government can prove that certain of the defendant's property is in fact property "traceable to" money laundering activity. When a defendant has been convicted of committing $1.6 million in money laundering offenses (as Voigt was here), the government has proved beyond a reasonable doubt that it is entitled to $1.6 million in criminal forfeiture; that amount represents property "involved in" money laundering activity for purposes of §982(a)(1) . What is at issue here is the question of how the government may go about seizing property in satisfaction of that $1.6 million amount. ¹⁹

The government's principal contention is that money is fungible, making it impossible to differentiate between "tainted" and "untainted" dollars in a bank account. The government also advances what is clearly a policy argument, contending that interpreting the term "traceable to" to require even some tracing "would perversely permit money launderers to escape with all of their proceeds intact simply by commingling such tainted proceeds with untainted sums--a result Congress could not have intended." Government's Br. at 53.

To support its arguments, the Government has cited a number of cases dealing with the tracing issue in the context of 18 U.S.C. §1963(a), the RICO statute's criminal forfeiture provision. See generally United States v. Rob ilotto, 828 F.2d 940, 949 (2d Cir. 1987), cert. denied, 484 U.S. 1011, 108 S. Ct. 711 (1988); United States v. Ginsburg, 773 F.2d 798, 802-03 (7th Cir. 1985) (en banc), cert. denied, 475 U.S. 1011, 106 S. Ct. 1186 (1986); United States v. Conner, 752 F.2d 566, 576 (11th Cir.), cert. denied 474 U.S. 821, 106 S. Ct. 72 (1985). These cases hold that where crime proceeds have been commingled in a bank account with untainted funds, tracing is not required. The reasoning supporting those holdings is (1) the in personam nature of criminal forfeiture, and (2) the courts' conclusion that when Congress used the term "traceable to," it could not have intended to require the government to demonstrate some nexus between the criminal activity and the property sought--at least not where cash has been deposited into a bank account.

Regardless of whether these cases were correct on their merits, however, they were decided before the President signed into law the Anti-Drug Abuse Act of 1988. Pub. L. No. 100-690, 102 Stat. 4374-75 (1988). With that act Congress added subsection (b) to §982 , which incorporates the CCE forfeiture statute's "substitute asset" provision:

[i]f any of the property described in subsection (a) of this section, as a result of any act or omission of the defendant ... has been commingled with other property which cannot be divided without difficulty; the court shall order the forfeiture of any other property of the defendant up to the value of any property described in paragraph[] ... (5).

21 U.S.C. §853(p)(5). The inclusion of the substitute asset provision in the money laundering forfeiture scheme represents Congress' express recognition that property subject to criminal forfeiture can be commingled with "untainted" property. It may also be an acknowledgement by Congress that its earlier-enacted criminal forfeiture provisions, such as RICO and CCE, were unartfully drafted to the extent that they failed to address the problem posed by commingled property.

In our view the specific inclusion in §982 of a substitute asset provision precludes us from interpreting the term "traceable to," as did the courts in the RICO context, to avoid a perceived bad policy result. See United States v. Ripinsky, 20 F.3d 359, 365 n.8 (9th Cir. 1994) ("§982 ... defines forfeitable assets to be only those associated with the underlying offense or traceable to the offense and distinguishes between 'forfeitable' and 'substitute' assets."). Because Congress has made the determination not to "perversely permit money launderers to escape with all of their proceeds intact simply by commingling such tainted proceeds with untainted sums. ...," Government's Br. at 53, we should not be in the business of overlooking the plain terms of a statute in order to implement what we, as federal judges, believe might be better policy. ²⁰Accordingly, the government's policy arguments, along with the cases supporting them, are inapposite.

Seeking to avoid our conclusion that cases decided prior to the enactment of the money laundering forfeiture statute are not controlling, the government observes that in 1986 Congress added a substitute asset provision to RICO's forfeiture scheme. Relying on In re Billman, 915 F.2d 916, 920 (4th Cir. 1990), cert. denied, 500 U.S. 952, 111 S. Ct. 2258 (1991), the government contends that the addition of a substitute asset provision to the RICO statute could not affirmatively undo the settled judicial determination that the words "traceable to" in the RICO forfeiture statute do not require tracing of commingled funds. The government therefore suggests that in the money laundering forfeiture context it can seek forfeiture of items purchased with commingled funds either as "traceable to" or as substitute assets. We disagree.

As the Ninth Circuit's decision in Ripinsky makes clear, the government's position is internally inconsistent. The substitute asset provision comes into play only when forfeitable property cannot be identified as directly "involved in" or "traceable to" money laundering activity. Clearly, if funds commingled in a bank account are sufficiently identifiable as to be considered "traceable to" money laundering activity, then the substitute asset provision should have no applicability whatsoever. Accordingly, the government's contention that the "traceable to" and substitute asset theories merely create alternative paths to forfeiture, which the government may choose at its option, is illogical.

We also do not understand why an amendment to a statute cannot affirmatively reverse, or at least cast substantial doubt on, prior court decisions interpreting earlier versions of that statute. This is especially true where, in undertaking to discern the plain meaning, those decisions essentially held (for policy reasons) that Congress simply could not have meant what it said. Indeed, if the legitimacy of the courts' interpretation of the RICO statute had been beyond doubt, then the addition of a substitute asset provision to the RICO, CCE and money laundering criminal forfeiture schemes would seem superfluous.

Furthermore, we think the government's interpretation of Billman proves too much. In Billman the Fourth Circuit cited to the prior case law holding that the in personam nature of criminal forfeiture makes tracing under the RICO statute's forfeiture provision unnecessary. It then made the unremarkable observation, which the government apparently finds significant, that "[t]hese principles are embodied in an amendment to the act, which makes provision for the forfeiture of substitute assets." 915 F.2d at 920. Contrary to the government's interpretation, however, that observation may signal the Fourth Circuit's view (which we expressed above) that Congress recognized its unartfulness in using the term "traceable to" in its forfeiture statutes. Moreover, the Fourth Circuit may have recognized that in amending forfeiture statutes to include a substitute asset provision, Congress may have appreciated that courts had been stretching to avoid the result of applying the plain meaning of the term "traceable to" to commingled property. ²¹

Even if Billman can be read to suggest that the addition of a substitute asset provision to RICO's criminal forfeiture scheme cannot undo prior judicial interpretations of the words "traceable to" in the RICO context, we simply cannot ignore the plain fact that the money laundering criminal forfeiture provision contains a substitute asset provision that appears to be addressed directly to the situation confronting us in this case. We are unaware of any decision that has imported the restrictive definition of "traceable to" prevalent in the RICO context into the money laundering forfeiture scheme.

In sum, to accept the government's argument that "traceable to" does not mean what it says for purposes of commingled property, in effect would render the substitute asset provision a nullity, in contravention of a well-settled canon of statutory construction that "courts should disfavor interpretations of statutes that render language superfluous." Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253, 112 S. Ct. 1146, 1149 (1992).

2.