349 F.Supp.2d 109 (2004)
Jose LOPEZ, Petitioner,
v.
COMMONWEALTH OF MASSACHUSETTS, and Page True, Warden, Sussex State Prison Respondents.
No. CIV.A.01-11207-WGY.
United States District Court, D. Massachusetts.
December 3, 2004.
*112 Benjamin D. Entine, Attorney at Law, Boston, MA, for Jose Lopez, Plaintiff.
Dean A. Mazzone, Attorney General's Office, Boston, MA, for Commonwealth of Massachusetts, Respondent.
Linda A. Wagner, Attorney General's Office, Boston, MA, for Commonwealth of Massachusetts, Respondent.

MEMORANDUM AND ORDER
YOUNG, Chief Judge.
Jose Lopez (Lopez) has filed a petition for a federal writ of habeas corpus, alleging that the Massachusetts courts violated his federal constitutional rights to due process and a fair trial, and against compelled self-incrimination, by failing to suppress certain evidence at his trial (and dismiss his indictment on those grounds) or to award him a new trial based on newly discovered evidence. Although Lopez's claims regarding evidentiary rulings at trial fail under 28 U.S.C. § 2254(d), his claims regarding his motion for a new trial have sufficient merit to warrant granting him an evidentiary hearing to determine whether the writ of habeas corpus ought issue.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
As the Court explains below, the Supreme Judicial Court's ("SJC") factual findings must be treated as correct here because the SJC's findings as to what evidence Lopez and the Commonwealth produced at trial, and the conclusions the SJC draws from that evidence, fall within the reasonable range. The Court therefore quotes verbatim the SJC's findings as to the factual background:
The background of the case is as follows. [Lopez] met the victim's mother, Maria Rodriguez, in July, 1993, and began living with her and her two sons shortly thereafter in Haverhill. Rodriguez was a habitual drug user, and [Lopez] often assisted in caring for the two boys. By April, 1994, [Lopez] and Rodriguez were experiencing conflict in their relationship, and [Lopez] threatened to "take the kids away [and] hide them ... so [she] wouldn't find them." Rodriguez obtained a protective order against [Lopez], but he persisted in coming to her apartment. Sometimes she allowed him to come in, and he slept on her couch several nights a week.
On June 28, 1994, Rodriguez was paid $1,000 to enter into a sham marriage with a man who wanted to obtain United States citizenship. Later that day, Rodriguez and [Lopez], who was very upset over the marriage, argued over whether she would move away from Haverhill with him. He left Rodriguez's apartment, but returned in the early morning hours of June 29, banging on the door, crying, and asking Rodriguez to take *113 him back. She let him in, and he slept on her couch for the rest of the night.
On the afternoon of June 29, 1994, at approximately 4 P.M., Rodriguez left [Lopez] in her living room watching television. Her son, the victim, was playing at a neighbor's home, and [Lopez] agreed to watch the victim while Rodriguez went out. [Lopez] then went to the apartment where the victim was playing and offered him money to go home to help him close a window. The victim left his friends, saying that he would be back. A neighbor saw [Lopez] and the victim get into [Lopez]'s truck and drive away. The neighbor told Rodriguez, after she returned home, that [Lopez] had taken the victim "in the truck and left."
[Lopez] returned to Rodriguez's apartment later that evening, without the victim. He told Rodriguez that he had paid the victim five dollars to help him with the window, but denied leaving with the victim in his truck. [Lopez] and Rodriguez then went to the police station and reported the boy missing.
The next day, [Lopez] gave several statements to the Haverhill police regarding his whereabouts on the previous evening. [Lopez] told the police that, on the previous day, at approximately 4:30 P.M., he went to a neighbor's house and offered the victim money to close a window at home. After the victim closed the window, he stated that he was going to return next door to play. [Lopez] then walked to a friend's house, got his truck, returned to Rodriguez's apartment and parked his truck in the driveway. [Lopez] stated that, at that time, about 5 P.M., nobody appeared to be at the apartment. [Lopez] told the police that, after doing an errand, he had gone to the home of a friend, Nancy Valle, with whom he had made an arrangement to pay fifty dollars a month to store clothes in her apartment and to stay occasionally. There, [Lopez] had changed out of the dirty clothes that he had been wearing.
On the basis of these statements, the police obtained [Lopez]'s written consent to search his pickup truck and to retrieve from Valle's apartment the clothes he had worn the previous day. Police officers subsequently recovered [Lopez]'s wet black pants from Valle's apartment and a number of items from [Lopez]'s truck, including a length of rope. Later that evening, [Lopez] was arrested on the charge of kidnapping. [Lopez]'s truck was towed to the garage of the Haverhill department of public works (DPW).
On July 8, 1994, eight days after [Lopeze]'s arrest and nine days after the victim's disappearance, workers at a salvage yard in Haverhill discovered the victim's body in the trunk of a white Chrysler Cordoba automobile marked to be destroyed by a "crusher." The body was weighted down with a one hundred pound transmission, and a rope was looped around the neck and tied to the trunk hinges.
At trial, the Commonwealth presented substantial evidence of [Lopez's] guilt. There was testimony that [Lopez] had been seen at the salvage yard about one and one-half weeks before the victim's body was found. [Lopez] had been looking for a transmission, and had been directed to an area of the yard near the automobile in which the body was found. There was a section of fence missing from that same area of the yard, and a set of fresh tire marks near the missing fence section. Paint smears taken from a screwdriver found in [Lopez's] truck matched the paint on the automobile in which the body was found. Fibers consistent with those from the victim's multicolored *114 shorts were found in [Lopez's] truck, and black fibers consistent with the truck's carpet were found on the victim's sandals. In addition, [Lopez's] black pants contained stains of iron and rust, white paint chips, and red fibers consistent with those from the victim's hooded shirt. The medical examiner testified that the victim had died approximately one week before his body was discovered, but, because of severe decomposition of, and insect infestation to, the body, it was impossible to determine whether the cause of death was strangulation, the weight of the transmission placed on the body, or the heat inside the trunk of the automobile.
The Commonwealth also presented the testimony of Angel Miranda, [Lopez's] cellmate while [Lopez] was held in a house of correction awaiting trial. Miranda testified that [Lopez] had told him that he had offered the victim ten dollars, driven him to a junkyard, strangled him with a brown towel until he was unconscious, and placed him inside the trunk of a car "marked to be crushed," with a transmission on top of him.
[Lopez], whose primary defense was alibi, presented witnesses to testify that he was with them at various times between 2 P.M. and 4:45 P.M. on the afternoon of the victim's disappearance. [Lopez] also presented witnesses to testify that he loved the victim and his brother, was often their principal care-giver, and had at one time filed neglect petitions against their mother. In addition, he attempted to impeach Miranda's testimony through the testimony of other house of correction inmates who suggested that Miranda may have fabricated [Lopez's] admission to avenge a beating. [Lopez] presented a forensic expert who criticized the Commonwealth's failure to perform certain tests on the paint and fiber samples recovered, and indicated that the tests performed by the Commonwealth were inconclusive.
[Lopez] also attempted to introduce another suspect for the murder through the testimony of John Roche, who lived on the road abutting the salvage yard. Roche testified that he made contact with the Haverhill police to report a suspicious truck he had seen on his road during the last week of June, 1994. Roche testified that he informed someone at the police department identifying himself as "Sergeant Smith" that there were three people in the truck, a woman and two men, one whom he described as "stocky, bald and Spanish." When [Lopez's] trial began two years later, and it was apparent that the police had failed to follow up on his information, Roche again made contact with the Haverhill police. A Haverhill police officer testified that the man described by Roche fit the description of a suspected area drug dealer, known as "Kojak," but that Kojak never came up as a suspect during the investigation of the victim's murder. [Lopez] did not testify in his defense.
After [Lopez] rested his case, the Commonwealth introduced the testimony of Julia Diaz. She testified that one day in October or November of 1993, a time when [Lopez] and Rodriguez were having problems in their relationship, [Lopez] told her that he was not a "sucker," and if Rodriguez left him, he would "hurt [Rodriguez] where it hurts the most." He then told Diaz a story he described as having happened in the Dominican Republic. [Lopez] stated that a couple there were "having problems," so the man took the woman's children and hid them for a few days, returning them safely only when the couple "got back together."
*115 Commonwealth v. Lopez, 433 Mass. 406, 407-10, 742 N.E.2d 1067 (2001).
The Court notes that the first time Roche saw Kojak, the latter's truck pulled into and out of the driveways on either side of Roche's house before continuing on to the salvage yard. Tr. 15:132-34. The second time Roche saw Kojak, the Sunday after the victim disappeared, Kojak was standing in the street near the Rodriguez residence. Id. at 15:135-36.

A. Lopez's Evidentiary Objections at Trial

1. Lopez's Truck
Lopez moved to have forensic evidence taken from his truck suppressed and to have the indictment against him dismissed because the Commonwealth destroyed the truck before trial. In particular, Lopez sought to suppress "paint, fibers, and rust stains taken from the truck, and all resulting scientific reports and test results, as well as photographs of the [truck's] tire prints." Lopez, 433 Mass. at 411 n. 1, 742 N.E.2d 1067. The trial court conducted a hearing and made findings of fact and conclusions of law. Id. at 411, 742 N.E.2d 1067. The trial judge determined, based on a set of stipulated facts and on testimony at an earlier hearing, that on July 21, 1994, during a search of Lopez's truck conducted pursuant to a valid warrant, the Commonwealth seized various items from the truck and took photographs of each of the truck's tires. Id. at 411 & n. 2, 742 N.E.2d 1067. All of this was made available to the defense. Id. at 411, 742 N.E.2d 1067. The State police told employees of the Haverhill Department of Public Works garage that was holding the truck to preserve it as "evidence in a pending criminal case," but the truck was "erroneously marked for destruction," and was "destroyed" on March 20, 1996, "without the knowledge or consent of the local or State police." Id. at 410-11, 742 N.E.2d 1067. The SJC apparently approved all these findings. See id. at 412, 742 N.E.2d 1067.
The trial judge held that "the Commonwealth had exercised good faith in attempting to preserve the truck, but had been negligent in allowing it to be destroyed." Id. at 411, 742 N.E.2d 1067. Lopez, however, "had failed to show any loss or destruction of reasonably possible beneficial evidence." Id. Because the samples (which were available to Lopez) were the only evidence the Commonwealth sought to use, and because Lopez had had one and a half years to examine the truck for exculpatory evidence before it was destroyed, the trial judge held that Lopez had failed to demonstrate any "discernible prejudice." The SJC upheld the trial judge's findings and conclusions. Id. at 412, 742 N.E.2d 1067.

B. Diaz's Testimony
On the fourth day of the trial, the Commonwealth sought to present Julia Diaz, a late-discovered witness, "who had first made contact with the police five days earlier," and who would testify about Lopez's Dominican Republic kidnaping story. Id. at 413, 742 N.E.2d 1067. In order to afford Lopez's attorney a chance to investigate the witness, the trial judge refused to allow her to testify as part of the prosecution's case-in-chief, but stated he would consider a motion to allow her as a rebuttal witness. Id. The judge later allowed that motion, over Lopez's objection that her testimony concerned matters "too remote, and not responsive" to the case the defense had presented. Id. Although the judge treated Diaz as a rebuttal witness for evidentiary purposes,[1] the SJC held *116 that the judge "correctly stated" that "the foremost issue ... was one of timing." Id. In other words, Diaz was an appropriate witness for the case-in-chief, and was only relegated to the rebuttal stage to give Lopez an opportunity to investigate her. Id. Moreover, she was an appropriate rebuttal witness, as her testimony "contradicted testimony in [Lopez's] case about his cordial relationship with, and quasi parental affection for, Rodriguez's children." Id.
The SJC also held that the trial judge properly refused Lopez's request to present surrebuttal witnesses, on grounds that their testimony would be "cumulative and collateral in nature" and of "highly doubtful relevance." Id. at 414, 742 N.E .2d 1067.[2] In the SJC's view, the trial judge's statement to Lopez that he was free to "take the stand to rebut Diaz's testimony" (which he did not) was "appropriate to the circumstances," and not a violation of Lopez's right against compelled self-incrimination under the United States Constitution and the Massachusetts Constitution. See id. at 414 & n. 7, 742 N.E.2d 1067.

C. Lopez's Motion for a New Trial
After Lopez was convicted, he sought a new trial based on two types of newly discovered evidence. Id. at 414-15, 742 N.E.2d 1067. The first involved "Kojak," "the alternate suspect vaguely identified at trial" by Roche. Id. at 415, 742 N.E.2d 1067. Lopez alleged via affidavit that, after trial, he learned that "Kojak" was in fact Juan Garcia, a man with prior "convictions [for] distributing a controlled substance, assault and battery, and threatening to commit a crime," and who "had also been arrested and charged with numerous crimes that had been dismissed." Id. Lopez concluded that Garcia was "known to Haverhill police," and a retired Haverhill police officer has stated in an affidavit "that Kojak was known to have been involved in an `automotive business.'" Id. Based on a photograph of Garcia, Roche "identified [him] as the man he had seen in the truck." Id. Lopez identified Garcia as Rodriguez's drug dealer, and stated that Garcia had been romantically involved with Rodriguez's sister, "and had vowed to have revenge against" Lopez after the two fought on one occasion. Id. A defense investigation revealed that there was an Officer Smith working, presumably as dispatcher as he occasionally had served in the past, at the time Roche called the police, and Lopez argued that this meant that Roche's statements to the police constituted "exculpatory evidence within the knowledge and possession of the Commonwealth that had been wrongfully withheld from him." Id.
The second type of evidence was a post-trial recanting by Angel Miranda of his testimony that Lopez had "confessed" to him. Id. Miranda's affidavit asserts that he lied because he was angry at Lopez for beating him and for helping others assault him. Id. A second inmate offered an affidavit supporting Miranda's recantation. Id.
The trial judge denied the motion for a new trial without a hearing, and said:
Based on the affidavits filed [with the motion] and the fact that I was the trial *117 judge, I find that the [defendant's] `newly discovered evidence' does not create a substantial risk that, [if] the jury [were] exposed to [the Garcia Kojak] evidence, [they] would have reached a different conclusion. I [also] do not credit the recantation by the witness, Angel Miranda. His testimony under oath at the trial was ... impeached by ... defense witnesses.... Justice was done.
Id. at 415-16, 742 N.E.2d 1067 (alterations in original).
The SJC held that the trial judge's decision was justified. Id. at 416, 742 N.E.2d 1067. In particular, with regard to Garcia, the SJC stated that "[t]here is no evidence that Juan Garcia was involved in the victim's murder ... [and t]he only evidence directly connecting Garcia to [Lopez], or to the Rodriguez family, came in [Lopez's] own self-serving affidavit." Id. Moreover, "[t]he usefulness of this information is highly questionable; [Lopez] did not testify at the trial, and his claim that Garcia threatened revenge against him is impermissible hearsay." Id. Lastly, "the possibility of Garcia as an alternate suspect was presented to some extent at trial, and rejected by the jury." Id.
In a footnote, the SJC stated that, in concluding that Lopez's post-conviction affidavits did not cast doubt on the jury's verdict, it had rendered "moot [Lopez's] contentions that the alleged new information about Kojak was not previously available because the police failed to preserve it, and that [Lopez] was prejudiced thereby." Id. at 1075 n. 8. The SJC further stated: "We note, however, that these contentions have no adequately supportable basis in the record." Id.
As for Miranda's recantation, the SJC stated that "[t]he judge's finding that the recantation was not believable is final." Id. at 1075.

D. Lopez's Habeas Petition
Having preserved his federal constitutional arguments and exhausted state remedies with regard to the relevant claims, Lopez filed a petition for a federal writ of habeas corpus on August 31, 2001, and filed an amended petition, deleting non-exhausted claims, on November 5, 2002. The parties came before this Court for a hearing on October 23, 2003, and the Court took the matter under advisement.

II. DISCUSSION

A. Standard of Review
This petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, so the Court's review is governed by that statute. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
The standard of review in federal collateral challenges to state court convictions became more deferential with the passage of the AEDPA. See Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J.). State Court factual findings are presumed to be correct, unless the habeas petitioner rebuts that presumption with clear and convincing evidence of error. 28 U.S.C. § 2254(e)(1); Norton v. Spencer, 351 F.3d 1 (1st Cir.2003) (holding that this applies equally to state trial and appellate courts); see Sumner v. Mata, 455 U.S. 591, 593,102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) (same, under former statutory habeas regime). Lopez's petition can only be granted if his trial and subsequent state court proceedings "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," id. § 2254(d)(1), or "resulted in a decision that was based on *118 an unreasonable determination of the facts in light of the evidence presented in the State court proceeding[s]," id. § 2254(d)(2).
The proper interpretation of section 2254(d) was laid out in Justice O'Connor's opinion in Williams, which constituted the opinion of the court with respect to that question. A state court decision is "contrary to" Supreme Court precedent if it "applies a rule that contradicts the governing law set forth in [Supreme Court] cases," Williams, 529 U.S. at 405, 120 S.Ct. 1495 (O'Connor, J.), or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [the Supreme Court's] precedent." Id. at 406, 120 S.Ct. 1495.
Outside such circumstances, the state court's decision, though not "contrary to" Supreme Court precedent, may be an "unreasonable application" of such precedent to the facts. Such an "unreasonable application" would occur if (1) the state court identified the correct rule from the Supreme Court's cases but unreasonably applied it to the facts before it, or (2) if the state court applied the governing rule to a new situation where it should not apply or, conversely, failed to apply the governing rule in a new situation where it should apply. See id. at 407-08, 120 S.Ct. 1495 (stating that this interpretive framework, as laid out in Green v. French, 143 F.3d 865 (4th Cir.1998), was "generally correct," but leaving for another day resolution of the exact standard for over and under-extension cases). A court must refuse to grant the habeas petition if the state court's application of the governing rule to the facts, though incorrect in the court's view, was not "objectively unreasonable." Id. at 409, 120 S.Ct. 1495. At the same time, it is not the case that, in order for an application to be objectively unreasonable, the facts must be such that all reasonable jurists would apply the law differently. Id. (faulting the Green Court for applying such an overly strict standard). Thus, unreasonableness requires "some increment of incorrectness beyond error.... The increment need not necessarily be great, but it must be great enough to make the decision unreasonable in the independent and objective judgment of the federal court." McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir.2002) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (citation and internal quotation marks omitted)).

B. Lopez's Evidentiary Claims

1. Lopez's Truck
Lopez is not entitled to relief on this claim. The respondents (the "Commonwealth")[3] correctly state that, for purposes of federal habeas review, it is not enough for Lopez to establish (as he attempts to do in his petition) that admission of the forensic evidence from the truck violated his state constitutional rights: he must establish that it violated his federal constitutional rights. That he cannot do. Under Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), when the government fails "to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant," id. at 57, 109 S.Ct. 333, no violation of the federal Constitution's due process guarantees occurs "unless a criminal defendant can *119 show" that the government acted in "bad faith." Id. at 58, 109 S.Ct. 333. Lopez cites Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to urge that the Commonwealth's good faith is irrelevant, but that case applies to withholding or destruction of exculpatory evidence, not to situations covered by Youngblood. See Williams, 529 U.S. at 57, 120 S.Ct. 1114.

2. Diaz's Testimony and Lopez's Proposed Surrebuttal
Lopez does not make any effort to find cases that suggest that allowing the late-disclosed Diaz to testify violated his federal constitutional rights, nor could he. Cf. United States v. Quesada-Bonilla, 952 F.2d 597, 602-603 (1st Cir.1991) (holding that the district court did not abuse its discretion in allowing the government's late-disclosed witness to testify). The SJC was within bounds, factually and legally, in its February 22, 2001 decision, in holding that Diaz's testimony would be admissible whether regarded as rebuttal or as case-in-chief evidence, and that the trial judge acted within his discretion in allowing her testimony.
Lopez has a slightly stronger argument that the trial court's refusal to allow his surrebuttal evidence violated his Sixth Amendment[4] rights to a fair trial, but this claim fails as well. The SJC reasonably applied Blaikie v. Callahan, 691 F.2d 64, 68 (1st Cir.1982), which this Court must treat as correctly interpreting the Supreme Court's Sixth Amendment precedents.
The Sixth Amendment protects the right of criminal defendants to call witnesses in their defense, Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), but that protection is not unlimited, United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) ("[A] defendant's right to present relevant evidence is ... subject to reasonable restrictions"). A defendant's interest in presenting relevant evidence "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). "[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused's right to present a defense so long as they are not `arbitrary' or `disproportionate to the purposes they are designed to serve.'" Scheffer, 523 U.S. at 308, 118 S.Ct. 1261 (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)). It is an interesting question whether Lopez's proposed surrebuttal should be treated as part of his case-in-chief, rather than as rebuttal, given that the trial judge in many ways regarded Diaz as a case-in-chief witness displaced in time. Even taking that approach, however, this Court cannot hold that the trial court's evidentiary rulings were objectively unreasonable, much less that the SJC's finding that no prejudice resulted was erroneous.

3. Failure To Preserve or Disclose Notes Taken During Roche's First Interview with the Haverhill Police Department, and Other Information Relating to "Kojak"
Under Brady, the evidence regarding "Kojak" is sufficient to justify holding an evidentiary hearing. Unlike *120 the evidence of destruction of the truck, the Commonwealth's failure to preserve or disclose notes taken during Roche's first interview with the police, as well as other information in the police department's possession regarding Garcia, must be evaluated under Brady, not Youngblood, because such evidence is unquestionably favorable to Lopez. Under Brady, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. 1194. The duty to disclose applies even if the accused has made no request. See United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The Brady rule also encompasses evidence "known only to police investigators and not to the prosecutor." Kyles v. Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
A "true Brady violation" has three components: "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Lopez must therefore demonstrate that "the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Id. at 281, 119 S.Ct. 1936; see Bagley, 473 U.S. at 682, 105 S.Ct. 3375 (defining evidence as "material" if there is a "reasonable probability" that disclosure would have led to a different "result" in the proceeding). Under the "reasonable probability" standard, "[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles, 514 U.S. at 434, 115 S.Ct. 1555.
This is not an inquiry into the sufficiency of the evidence. The dissent in Kyles urged that habeas relief should not have been granted, because even if the exculpatory evidence had been admitted, there still would have been sufficient evidence to support a conviction. Kyles, 514 U.S. at 460-71, 115 S.Ct. 1555 (Scalia, J., dissenting). The majority explicitly rejected this analysis. Id. at 434-35 & n. 8, 115 S.Ct. 1555 (Souter, J.). Moreover, courts must analyze the "cumulative effect" of undisclosed evidence in determining whether a "reasonable probability" exists that the nondisclosure would have produced a different verdict, rather than evaluating each piece of evidence individually for materiality. Id. at 436, 115 S.Ct. 1555.
The information regarding Roche's first interview with the police should have been disclosed to Lopez. Although it is true that, under Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), there is "no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case,"[5] if Kojak and Garcia were the same person, and if Lopez's claims about Garcia's grudge against him and relationship with Rodriguez and her *121 sister are true, then the Roche interview information may well be material under Bagley.
The Commonwealth argues (as the state courts did), that there was insufficient evidence to make Garcia a plausible suspect. The Commonwealth cites Kiley v. United States, 260 F.Supp.2d 248, 273 (D.Mass. 2003) (Freedman, S.J.), which gathered cases holding that "some plausible nexus linking the other suspect to the crime" must exist before nondisclosure of police investigative records regarding an alternative suspect can rise to the level of a Brady violation. An analysis of those same cases suggests that a "plausible nexus" exists in this case, at least to the extent Lopez's claims regarding Garcia are true.
First, an examination of the leading Supreme Court case where no "substantial nexus" existed suggests that Lopez's case is distinguishable. In Moore, the Supreme Court held that there was no Brady violation when the undisclosed information regarding another suspect was an early lead, later abandoned when eyewitnesses established that he had been mistakenly identified. 408 U.S. at 795, 92 S.Ct. 2562. Assuming for the moment that Moore is still good law,[6] it is distinguishable from this case. There were strong positive identifications of the defendant as the murderer, and the alternate suspect, "Slick," was a person who, at a later date, boasted about having engaged in similar conduct. Id. at 788-93, 92 S.Ct. 2562. Although the prosecution failed to disclose evidence that some witnesses did not think "Slick" and the defendant were the same person, a clear demonstration that they were different people would neither have exonerated the defendant nor in any way have suggested that "Slick" was the real culprit. Id. at 795-97, 92 S.Ct. 2562 (concluding the evidence was "not material to the issue of guilt"). Here, Lopez provides evidence that Garcia had method, opportunity, and motive, in a case where the murderer's identity could only be established through circumstantial evidence.
Second, Lopez's case is roughly as strong as many cases where a "substantial nexus" has been found, to the extent that the Court credits his claims regarding Garcia. For example, in Smith v. Secretary of New Mexico Dept. of Corrections, 50 F.3d 801, 829-30 (10th Cir.1995), a police report was held to be material for Brady purposes when it revealed that an alternative homicide suspect was "near the vicinity of the bodies on two separate occasions" and that bloody women's clothes were found in his truck during a traffic stop. Garcia was likewise seen in the vicinity where the victim's body was found on occasions shortly before and after the victim was killed, and his relationships with Lopez, Rodriguez, and her sister constitute additional probative evidence that Garcia might have been the killer, just as the bloody clothes in Smith provided additional evidence. Similarly, in Bowen v. Maynard, 799 F.2d 593, 612-13 (10th Cir. 1986), a Brady violation was found when prosecutors failed to reveal evidence relating to an alternative suspect who was linked to organized crime and had more motive than the defendant. Although in this instance Lopez (taking state court findings as time) had a stronger motive than that alleged for Garcia, Garcia has, like the Bowen suspect, an extensive relevant *122 criminal history and was twice placed near the crime scene, whereas the Bowen suspect was never placed near the crime scene.[7]United States v. Stifel, II, 594 F.Supp. 1525, 1541 (N.D.Ohio 1984), held that "the defendant should have been apprised of evidence showing that someone other than himself had equal motive, access to [bomb-making] materials, and other surrounding circumstances implicating him as the guilty party." Garcia similarly had motive (although perhaps not "equal"), opportunity, and surrounding circumstances (namely, the relationship with the Rodriguezes and Lopez, and sightings near the crime scene). See also Jamison v. Collins, 100 F.Supp.2d 647, 692 (S.D.Ohio 2000) (finding a Brady violation where undisclosed eyewitness statements gave a physical description of the perpetrator that differed substantially from defendant's physical appearance).
In order to obtain habeas relief for a Brady violation here, Lopez must establish that the state courts were "objectively unreasonable" in determining that the Haverhill police's information on Garcia was not material (the SJC was presumably applying the Brady analysis, see Lopez, 433 Mass. at 415, 742 N.E.2d 1067). This inquiry is most appropriately considered as whether the SJC reached a decision that was an "unreasonable application of clearly established federal law, although it arguably could be "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding^]." The level of objective unreasonableness required is essentially the same in either inquiry. See Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000).
The SJC stated that there was no "adequately supportable basis in the record" either for Lopez's contentions that the information that Kojak and Garcia were the same person was not previously available, or that Lopez was prejudiced by any failure of the Commonwealth to disclose what the police knew about Kojak's identity. It is not entirely clear what the SJC meant, as it provides no further explanation, and the Commonwealth has not discussed this passage in its brief. The SJC could mean that there is insufficient evidence: (1) that the police had any information about Kojak; (2) that the police failed to disclose any information about Kojak; or (3) that any information the police had about Kojak was undiscoverable by other means. The SJC might also simply have been assigning another level of significance to its conclusion that the information about Garcia was not relevant to the caseif the evidence was not material, then there could be no prejudice. If the SJC meant one of the first two, either finding would be clearly erroneous. Testimony by Roche and members of the Haverhill Police Department and affidavits submitted with Lopez's motion for a new trial indicate that the police had information about Kojak that was not disclosed to Lopez, and there is no evidence to the contrary. Likewise, the Court effectively addresses the fourth interpretation below by establishing that the undisclosed information could well be material if Lopez's contentions about Garcia are true.
The SJC may have meant, then, that Lopez had not provided sufficient evidence that he could not, through reasonable diligence, have acquired substantially the same information that the police possessed about Kojak. As such, because Lopez *123 should have discovered this information on his own, the Commonwealth's failure to disclose did not prejudice his case. If the SJC meant this, it presents a more difficult question. Lopez has alleged that his attorney "interviewed Roche before his testimony, but had no opportunity to conduct any investigation into the facts observed and disclosed for the first time by this surprise witness." Pet.'s Mem. at 7. Lopez's counsel had much with which to deal at the time, given the destruction of evidence and the late disclosure of Diaz. In light of Lopez's claim of limited opportunity to investigate, the special difficulties he confronted as he approached trial, and the absence of any evidence that Lopez could have discovered Kojak's true identity before trial, this Court would hold that Lopez had established the possibility of prejudice, were it ruling on the matter in the first instance. The mere fact that this Court disagrees with the SJC's findings, however, does not make them clearly erroneous. A reasonable jurist could find that Lopez had enough information to connect the dots without any further disclosure by the Commonwealth.
Given the ambiguous and cursory nature of this passage in the SJC's opinion, the Court cannot interpret it to establish a lack of prejudice. Rather, the Court holds that the Commonwealth's failure to disclose what the police knew about Garcia prevented Lopez from fully presenting an alternative suspect. If Lopez can establish a reasonable probability that full presentation would have led to a failure in confidence in the verdict, then he is eligible for habeas relief.
If what Lopez claims about Garcia is true, it would be objectively unreasonable to suggest that there was no "reasonable probability" that a full exploration of Garcia's potential role in the murder could have undermined confidence in the verdict, even assuming that the SJC's findings with regard to the record evidence in the trial were correct.
The case against Lopez was based entirely on circumstantial evidence. If Lopez's claims about Garcia are true, the circumstantial evidence pointing to Garcia as the murderer is significant, and a presentation of all the facts about him might undermine confidence in the verdict. It is undisputed that Garcia has a substantial and violent criminal history. According to Lopez, Garcia was the victim's mother's drug dealer and was romantically involved with the victim's maternal aunt. It may well be that, in addition to his alleged vendetta against Lopez, he had other motives for murder arising out of those relationships. He was seen near the crime scene shortly before and shortly after the murder (on which occasion he was also near the victim's house), suggesting an opportunity to commit the murder, and was involved in an "automotive business," suggesting possible familiarity with the salvage yard and the equipment there.
The trial judge reached his decision on Lopez's motion for a new trial without holding a hearing. In post-conviction proceedings in Massachusetts state courts, it is within the judge's discretion to rule on the issues presented "on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits." Mass. R.Crim. P. 30(c)(3).[8]
It is unclear whether the trial judge was holding that a full exploration of Garcia's potential role in the murder would not likely have undermined the verdict, or that Lopez's affidavits, standing alone, were unlikely to impact the verdict. The SJC *124 appears to have taken this latter approach, stating that "[t]he only evidence directly connecting Garcia to the defendant, or to the Rodriguez family, came in the defendant's own self-serving affidavit. The usefulness of this information is highly questionable; the defendant did not testify at trial, and his claim that Garcia threatened revenge against him is impermissible hearsay." Lopez, 433 Mass. at 416, 742 N.E.2d 1067. The SJC continued: "Merely introducing another possible suspect, without substantial admissible evidence that this person, and not the defendant, may have committed the crimes, does not warrant a new trial.... The little additional and generalized information contained in the defendant's affidavits casts no real doubt on the validity of the jury's verdicts." Id. (footnote omitted).
It appears, then, that the state courts' conclusions were based on the probative value of Lopez's affidavits, rather than on the significance that his claims might have if they were true. This Court, however, respectfully disagrees with this approach. Were Lopez to have a new trial, he would be able to examine Garcia and cross-examine Rodriguez and her sister, and possibly others, regarding all the claims in his affidavits. The reason that Lopez could only base his new trial motion on his affidavits was that he was not given any kind of evidentiary hearing, at which he could use compulsory process to elicit testimony from witnesses with personal knowledge. Nor was he given any opportunity to conduct discovery. Without compulsory process, Lopez could not be expected to get, for example, supporting affidavits from the victim's mother and aunt, and from the man he wishes to accuse of committing the murder.
If Lopez can demonstrate to this Court that he can provide more compelling evidence supporting his claims about Garcia, then he would likely be eligible for habeas relief. The question is whether this Court has any power to grant Lopez an evidentiary hearing, after appropriate discovery and with compulsory process.

C. Standards for an Evidentiary Hearing
In determining whether to grant Lopez an evidentiary hearing, the Court must begin with 28 U.S.C. § 2254(e)(2), which provides:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that
(A) the claim relies on
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
If Lopez was subject to the terms of this provision, he would not be eligible for an evidentiary hearing. There is sufficient evidence of his guilt such that, even if he established all his allegations regarding Garcia, a reasonable fact finder could still find Lopez guilty under section 2254(e)(2)(B). Fortunately for Lopez, his claim is not governed by this provision.
Section 2254(e)(2) only applies to an applicant who "has failed to develop the factual basis of a claim in State court proceedings." Lopez has in fact developed *125 the factual basis of his claim in state courthe presented the state courts with affidavits laying out the relevant facts. Even were the Court to hold that the other evidence that Lopez would want to present in a new trialsuch as testimony by Rodriguez, her sister, and Garciawas not presented to the state courts, it cannot be said that Lopez "failed" to present such evidence. "Failure" in this context requires some lack of diligence, Williams v. Taylor, 529 U.S. 420, 430, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000),[9] and Lopez did everything reasonably possible to get the relevant facts before the state courts. He therefore falls outside the restrictions of section 2254(e)(2). See id. at 437, 120 S.Ct. 1479 ("If there has been no lack of diligence at the relevant stages in the state proceedings, the prisoner has not `failed to develop' the facts under § 2254(e)(2)'s opening clause, and he will be excused from showing compliance with the balance of the subsection's requirements.").
This means that the Court must make its determination based on pre-AEDPA law governing evidentiary hearings, or other relevant sources. In particular, Toumsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), as modified by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992),[10] provides the relevant standard. Under Townsend:
Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.
Martineau v. Perrin, 601 F.2d 1201, 1207 (1st Cir.1979) (citing Townsend, 372 U.S. at 312-13, 83 S.Ct. 745). Townsend mandates a hearing
If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.
Townsend, 372 U.S. at 313, 83 S.Ct. 745. "In all other cases ..., the holding of such a hearing is in the discretion of the district judge." Id. at 318, 83 S.Ct. 745; accord Rule 8(a), Rules Governing Section 2254 Cases; Lonchar v. Thomas, 517 U.S. 314, 326, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1997).
Lopez has never had a full and fair hearing to demonstrate whether he can corroborate his claims regarding Garcia. It is unlikely that he could ever obtain corroborating evidence without discovery and compulsory process. The "fact-finding *126 procedure employed by the state court was not adequate" in this particular case, given the unique difficulties Lopez faced and the fact that there was "a substantial allegation of newly discovered evidence." Townsend, 372 U.S. at 313, 83 S.Ct. 745.
Lopez thus meets the Townsend standard. Even if he did not, the Court would, in the exercise of its discretion, hold an evidentiary hearing, given the substantial nature of the claims raised. The Court emphasizes, however, that it does not fault the procedures employed in the courts of the Commonwealth generally; rather, on the facts of this particular case, more is needed to ensure fulfillment of the commitment to justice that the Commonwealth and the federal government both share.

III. CONCLUSION
The Court therefore orders that Lopez submit a proposed timeline for the hearing and any discovery within four weeks from the date of this order. If he does not wish to have an evidentiary hearing, then he must so inform the Court within that time. The Commonwealth shall have two weeks thereafter to respond. Obviously, it would be preferable if Lopez and the Commonwealth could agree on the schedule and simply file a joint submission. Although Lopez "is not entitled to discovery as a matter of ordinary course," Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997), discovery may well be appropriate in this case, and Lopez may make an appropriate request under Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts. See Bracy, 520 U.S. at 904, 117 S.Ct. 1793. The hearing and any related discovery shall focus solely on facts surrounding Garcia and his possible role in the murder, and on facts surrounding the government's possession and handling of information relating to Garcia.
SO ORDERED.
NOTES
[1]  The judge properly instructed the jury that Diaz's testimony should only be considered in relation to Lopez's "knowledge, intent, motive, or method." Lopez, 433 Mass. at 414 n. 4, 742 N.E.2d 1067.
[2]  Lopez sought to present a State trooper to testify that Rodriguez told him that her problems with Lopez did not begin until a few months before the victim's disappearance (well after Lopez allegedly told his story to Diaz), and a defense expert to testify that Diaz had told him that Rodriguez had a "`party attitude' after the victim's death." Id. at 414, 742 N.E.2d 1067.
[3]  Both the Commonwealth and Page True, Warden of the Sussex State Prison, are named respondents. The Commonwealth has not raised any issue regarding the proper respondent, so the Court does not address whether the Commonwealth should remain in the case. In this case, the question obviously is a purely technical one and of no moment.
[4]  Reference to the Fifth and Sixth Amendments is for the sake of convenience; obviously the rights implicated come under the Fourteenth Amendment's incorporation of those amendments as against state governments.
[5]  See also Bagley, 473 U.S. at 675, 105 S.Ct. 3375 (due process does not require the prosecutor "to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial") (citations omitted).
[6]  The law in this area has become more defendant-friendly since Moore was decided. Moore required a specific request from the defense for a Brady violation to occur, 408 U.S. at 794-95, 92 S.Ct. 2562, whereas under Bagley, the defense need not make any request to trigger a prosecutor's affirmative duty to disclose exculpatory evidence, 473 U.S. at 682, 105 S.Ct. 3375.
[7]  In Mendez v. Artuz, No. 98 Civ. 2652, 2000 WL 722613, at *13 (S.D.N.Y. June 6, 2000), the court concluded there was a Brady violation where the undisclosed suspect had equal opportunity and stronger motive than the defendant.
[8]  The judge may also authorize discovery. Mass. R.Crim. P. 30(c)(4).
[9]  The Supreme Court decided two cases titled Williams v. Taylor in 2000, involving different petitioners, the other one of which, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)(discussed supra), addressed the proper interpretation of 28 U.S.C. § 2254(d).
[10]  Keeney overruled Townsend to the extent that the latter called for a "deliberate bypass" standard for excusing procedural default in state courts, rather than a "cause and prejudice" standard. Keeney, 504 U.S. at 5-6, 112 S.Ct. 1715. That distinction is not relevant here.


                             NOT FOR PUBLICATION                         FILED
                    UNITED STATES COURT OF APPEALS                        JAN 25 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

In re: LOUIS C. NEMETH,                         No. 17-60019

             Debtor.                            BAP No. 16-1230
______________________________

LOUIS C. NEMETH,                                MEMORANDUM*

                Appellant,

 v.

AMRANE COHEN, Chapter 13 Trustee;
WELLS FARGO BANK, N.A.,

                Appellees.

                         Appeal from the Ninth Circuit
                          Bankruptcy Appellate Panel
           Taylor, Novack, and Lafferty, Bankruptcy Judges, Presiding

                             Submitted January 16, 2018**

Before:      REINHARDT, TROTT, and HURWITZ, Circuit Judges.

      Louis C. Nemeth appeals pro se from the Bankruptcy Appellate Panel’s

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). To the extent that Nemeth
requests oral argument in his opening brief, the request is denied.
(“BAP”) judgment affirming the bankruptcy court’s order dismissing Nemeth’s

Chapter 13 bankruptcy petition. We have jurisdiction under 28 U.S.C. § 158(d).

We review de novo BAP decisions, and apply the same standard of review that the

BAP applied to the bankruptcy court’s ruling. Boyajian v. New Falls Corp. (In re

Boyajian), 564 F.3d 1088, 1090 (9th Cir. 2009). We affirm.

      The bankruptcy court did not abuse its discretion by dismissing Nemeth’s

petition because Nemeth failed to make plan payments or post-petition mortgage

payments. See 11 U.S.C. § 1307(c)(4) (permitting dismissal for failure to make

payments under the proposed payment plan); Bankr. C.D. Cal. R. 3015-1(m)(2),

(7) (permitting dismissal for failure to make post-petition mortgage payments).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      We reject as without merit Nemeth’s contention that his due process rights

were violated and that the 180-day bar to refiling was improper.

      AFFIRMED.

                                          2                                       17-60019


                              In the

    United States Court of Appeals
                 For the Seventh Circuit

Nos. 06-3029, 06-3040 and 06-3438

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                  v.

K ENNETH L EE AND M YUNG O. L EE,

                                            Defendants-Appellants.

               Appeals from the United States District Court
          for the Northern District of Illinois, Western Division.
     Nos. 05 CR 50007 and 05 CR 50010—Philip G. Reinhard, Judge.

       A RGUED JANUARY 9, 2008—D ECIDED M ARCH 11, 2009

    Before W OOD , S YKES, and T INDER, Circuit Judges.
  T INDER, Circuit Judge.    This case involves                   two
defendants, Myung Ok Lee and Kenneth Lee.1 The                   Lees
are unrelated and were tried in separate cases                   con-
solidated here on appeal. While separate cases,                  they
involve similar facts and overlapping legal issues.              Both

1
  To avoid confusion we will refer to Myung Ok Lee as “Ms.
Lee” and Kenneth Lee as “Mr. Lee.”
2                        Nos. 06-3029, 06-3040 and 06-3438

defendants were involved with “spas” which were fronts
for prostitution businesses in the Rockford, Illinois area.
Both were charged, in separate but similar two-count
superceding indictments, with conspiracy to use inter-
state facilities in violation of 18 U.S.C. §§ 371 and 1952(a)
as Count One and conspiracy to commit money
laundering in violation of 18 U.S.C. § 1956(h) as Count
Two. They were convicted, following jury trials, on both
Counts, and they now appeal. The Lees make a joint
argument concerning “proceeds” in challenging the
money laundering conspiracy convictions, and they
argue that identical errors occurred in both of their sen-
tencing calculations. Mr. Lee independently argues that
there was insufficient evidence with respect to his mem-
bership in the conspiracies in both Counts, and Ms. Lee
contests the admission of witness Anna Kim’s allegedly
“unfairly prejudicial” testimony in her trial.

                      I. Background
  The spas and prostitution businesses with which the
Lees were involved were all operated in the same manner.
Upon arrival, customers would pay the receptionist an
entrance fee for a massage. This would be recorded in the
spa’s “books.” After making special arrangements in the
individual “massage” rooms, customers could then pay
an additional fee directly to a “masseuse” for sex acts. The
masseuses would record these exchanges in the books but
with a missing zero—thus, an additional $200 was re-
corded as $20. Some customers would pay these extra
fees and/or the entrance fees with credit cards. The cards
Nos. 06-3029, 06-3040 and 06-3438                         3

were swiped through credit card machines connected
to interstate telephone facilities to receive payment autho-
rization. These funds were deposited into business check-
ing accounts. The masseuses split the prostitution profits
with the owners/operators 50/50, with the masseuses’
portion usually taken out of the available cash. The
funds deposited in the business accounts were used to
pay for various business and promotional expenses,
including utilities, rent, and advertising.
  Mr. Lee was involved in two spas—the Pine Tree Spa
and the Paradise Health Spa. Young Ja Hwang was in
charge of both businesses, Pine Tree between June 2002
and October 2003, and Paradise between January 2004 and
February 2005. Eun Sook Choi, Hwang’s sister-in-law,
served as a front for the business, signing the building
leases and serving as the signatory on the Paradise bank
account. Mr. Lee, who was romantically involved with
Hwang, assisted in the operation of these massage par-
lors. He often translated for her and other employees who
spoke Korean. He also did construction work and mainte-
nance on the businesses’ premises and was involved with
obtaining licenses and massage permits for the spa. Mr.
Lee would also frequently send postal money orders on
behalf of the masseuses. More details of his involvement
are discussed below.
  Ms. Lee owned and operated the Tokyo Oriental Health
Spa as a front for a prostitution business between Decem-
ber 2002 and February 2005. She ran the day-to-day
operations including paying the bills, arranging advertis-
ing, hiring masseuses, and so forth. Ms. Lee’s co-defendant,
4                           Nos. 06-3029, 06-3040 and 06-3438

Mia Deboer, did the cooking and cleaning and collected
money from the masseuses when Ms. Lee was out of town.
  In both cases the use of the credit card machines and
interstate telephone facilities to promote the prostitution
businesses served as the basis for the convictions under
18 U.S.C. §§ 371 and 1952. The payments out of the busi-
ness checking accounts were used to establish the
money laundering violations.

                         II. “Proceeds”
  Both Ms. Lee and Mr. Lee challenge their convictions
under the money laundering statute. They argue that
under the term “proceeds”—meaning “net” rather than
“gross” as outlined in our circuit cases Scialabba and Santos
and recently affirmed by the Supreme Court 2 —there was
insufficient evidence for conspiracy to commit money
laundering. In reviewing for sufficiency of the evidence,
we consider the evidence in the light most favorable to
the government, drawing all reasonable inferences in the
government’s favor. United States v. Morris, 498 F.3d 634,
637 (7th Cir. 2007). We will reverse only if a rational trier
of fact could not have found the essential elements of the
crime beyond a reasonable doubt. United States v. Malone,
484 F.3d 916, 920 (7th Cir. 2007).
  The evidence used by the government at both trials to
establish the money laundering violations focused on

2
   United States v. Scialabba, 282 F.3d 475 (7th Cir. 2002); Santos
v. United States, 461 F.3d 886 (7th Cir. 2006), aff’d, United States
v. Santos, 128 S. Ct. 2020 (2008).
Nos. 06-3029, 06-3040 and 06-3438                             5

expenditures made out of the business checking account
for each spa. Records were also introduced from the
publications in which the spas advertised. At both trials,
Mr. Murray, an IRS accountant, testified regarding the
checking accounts and provided a summary of the with-
drawal activity. The funds in these accounts consisted,
in large part, of the deposits from the credit card payments
by massage parlor customers. From the summaries, it
appears that a substantial portion of the funds in the
business checking accounts was spent on advertising,
and in Mr. Lee’s case there was also evidence that Mr. Lee
told FBI Agent David Childre in a recorded conversation
that they spent about $18,000 a month on advertising.
Other payments out of the accounts included rent, phone
bills, and some wages.
  The relevant language from the money laundering
statute is as follows:
    (a)(1) Whoever, knowing that the property in-
    volved in a financial transaction represents the
    proceeds of some form of unlawful activity, con-
    ducts 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 (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 speci-
    fied unlawful activity . . . shall be sentenced . . . .
18 U.S.C. § 1956(a)(1). Here the defendants were prose-
cuted under subpart (a)(1)(A) for promotion, rather than
6                          Nos. 06-3029, 06-3040 and 06-3438

under (B) for concealment. Accordingly, to make its case,
the government had to show that the defendants were
in fact part of the conspiracy to launder money,3 and that
the defendants “(1) conducted a financial transaction
with the proceeds of an illegal activity; (2) knew the
property represented illegal proceeds; and (3) conducted
the transaction with the intent to promote the carrying on
of the unlawful activity.” Malone, 484 F.3d at 920 (quoting
United States v. Febus, 218 F.3d 784, 789 (7th Cir. 2000)).
   Under the first prong, the payments out of the business
checking accounts clearly meet the definition of “financial
transaction.” It is also clear, since the credit card prostitu-
tion fees were deposited into the accounts, that the
money was from an “illegal activity.” (No one contests
that the “extras” offered by the masseuses amounted to
illegal prostitution under Illinois law.) It is equally obvi-
ous, under the third prong, that the advertising pur-
chases promoted the carrying on of the use of interstate
telephone facilities in aid of the commission of illegal
prostitution operations. “[T]he promotion element can be
met by ‘transactions that promote the continued pros-
perity of the underlying offense’ . . . .” Malone, 484 F.3d
at 921 (quoting Febus, 218 F.3d at 790); see also Santos v.
United States, 461 F.3d 886, 893 (7th Cir. 2006) (explaining
that reinvesting net income to promote the carrying on
of the criminal operation constitutes money laundering)

3
   The conspiracy issue is discussed separately in the next sec-
tion regarding Mr. Lee. Ms. Lee did not put forth any argu-
ment challenging the conspiracy aspect of this charge.
Nos. 06-3029, 06-3040 and 06-3438                            7

aff’d, United States v. Santos, 128 S. Ct. 2020 (2008). Pur-
chasing advertising inherently promoted the prosperity
of the underlying offense. The government also alleges that
the “future rent” payments out of the account also
amounted to money laundering. Those payments clearly
satisfy the requirement that the transactions were made
with the intent to promote the carrying on of the underly-
ing illegal operation as well. See Malone, 484 F.3d at 921
(“[A]t least some activities that are part and parcel of the
underlying offense can be considered to promote the
carrying on of the unlawful activity.”); see also Febus,
219 F.3d at 790.
   The more difficult issue before us is whether the gov-
ernment established that the transactions involved
illegal “proceeds.” We spoke at great length on the mean-
ing of the statutory term “proceeds” in Scialabba and Santos.
In Scialabba the underlying business enterprise was an
illegal coin gambling business. Scialabba, 282 F.3d at
475-76. Participants put coins into gaming machines and
then received onscreen credits if they won. They could
continue to play with these credits or redeem them at
retail outlets for cash. Id. The acts in question, for launder-
ing purposes, were giving some of the money in the
coin boxes to the outlets’ owners and spending some of the
money to meet business expenses like leasing the video
machines and obtaining licenses. Id. We found, relying
on the rule of lenity, that “at least when the crime entails
voluntary, business-like operations, ‘proceeds’ must be
net income; otherwise the predicate crime merges into
money laundering (for no business can be carried on
without expenses) and the word ‘proceeds’ loses opera-
8                          Nos. 06-3029, 06-3040 and 06-3438

tional significance.” Id. at 475, 477. We found that these
were not “proceeds” because they did not amount to
profit. The money laundering convictions were vacated.
   We viewed Santos essentially as a head-on re-litigation
of Scialabba and declined to overrule Scialabba. Santos, 461
F.3d at 888-89. In Santos the defendant operated an
illegal lottery—a “bolita.” Gamblers would place bets with
bolita runners, who turned the money over to collectors,
who, in turn, gave the money to Santos. The runners, the
collectors, and the winners all were paid out of the total
amount collected. Id. at 888. The district court vacated
the convictions following Scialabba. On appeal we
found that these transactions were “conceptually indistin-
guishable” from those in Scialabba. Id. at 891. We acknowl-
edged that the First, Third, and Eighth Circuits had
concluded differently. Id. at 891-92. We also recognized
the legitimacy of the government’s contention that there
would be evidentiary problems in reading “proceeds” to
mean net income as well as disparities in the sentences
for the underlying offense and the money laundering. Id.
at 893. But none of these concerns warranted overturning
Scialabba. Id. at 893-94. We did clarify and confirm that
the statute does indeed prohibit both concealment of net
proceeds and the reinvestment of net proceeds to
promote the illicit activity; Scialabba had not suggested
otherwise. Id. at 892-93; see also 18 U.S.C. § 1956(a)(1)(A)(i),
(B)(i).
  In affirming our decision in Santos, the Supreme Court
agreed that an illegal lottery’s payments to winners and
employees are not “proceeds” within the meaning of
Nos. 06-3029, 06-3040 and 06-3438                           9

§ 1956(a)(1). 128 S. Ct. at 2031. A plurality of four Justices
also adopted Scialabba’s definition of proceeds as a busi-
ness’ net “profits,” rather than its gross “receipts.” Id. at
2025 (plurality opinion). However, in his controlling
concurrence, Justice Stevens declined to “pick a single
definition of ‘proceeds’ applicable to every unlawful
activity.” Id. at 2032 (Stevens, J., concurring). For Justice
Stevens, the meaning of “proceeds” should turn on
whether legislative history indicates that Congress in-
tended to reach the gross revenues of a specified crime.
Id. at 2032.
  Finally, in an opinion released today, United States v.
Hodge, Nos. 06-3458 & 06-3052 (7th Cir. Mar. 11, 2009), we
examine the application of § 1956(a)(1) to prostitution
businesses similar to the spas operated by the Lees. The
government in Hodge obtained a jury conviction of
money laundering after introducing evidence of the
businesses’ rent, utilities, and advertising expenses.
Hodge, slip op. at 3. We conclude that the evidence of
rent and utilities is insufficient to support the convic-
tion. These costs are essential operating expenses, which,
under both Scialabba and Santos, do not count as “pro-
ceeds” within the meaning of § 1956(a)(1). Id. at 3-4.
  We also note in Hodge that the question of whether the
businesses’ advertising expenses may qualify as proceeds
is more difficult. Although ordinary advertising costs
would not fall within Scialabba’s net-profits definition of
proceeds, treating these costs as proceeds may be consis-
tent with Justice Stevens’ crime-specific interpretation of
§ 1956(a)(1). Id. at 4-6. Nonetheless, we do not decide
10                         Nos. 06-3029, 06-3040 and 06-3438

whether the advertising expenses in Hodge count as
proceeds because of a problem with the jury’s general
verdict. The jury instructions did not distinguish
between advertising and other expenses. Thus, the jury
may have convicted based on evidence of the businesses’
rent and utilities—expenses that, as a matter of law, do
not constitute proceeds under § 1956(a)(1). Id. at 8.
Because it is impossible to tell whether the jury relied
on the legally insufficient evidence of rent and utilities
or the possibly legally sufficient evidence of advertising
costs, we conclude that the general verdict in Hodge cannot
stand. Id. (citing Yates v. United States, 354 U.S. 298 (1957)).
  With this backdrop, the issue now before the court in the
instant case is whether there was sufficient evidence of
financial transactions involving proceeds upon which to
convict the Lees. In these massage parlor operations, the
masseuses’ take of the prostitution money was paid to
them primarily out of the spas’ cash. The cash was also
used to buy “supplies.” The credit card income and some
cash were deposited in the businesses’ accounts. Various
bills were paid out of the accounts. These payments
appear to include bills, some wages, rent, and advertising
expenses, according to the checking account summaries
submitted by the government.
  As in Hodge, we find that the evidence in these two
cases of the spas’ rent, utilities, and wages is insufficient
to support a conviction of money laundering. Because
these costs are regular expenses that are essential to
the spas’ operation, they are not “proceeds” within the
meaning of § 1956(a)(1).
Nos. 06-3029, 06-3040 and 06-3438                       11

  The government argues that the evidence showed that
future rent payments came out of net rather than gross
proceeds because they represented reinvestment transac-
tions, rather than past operational expenses. Under
this view, net proceeds include all of the revenues left
after the spas paid the prostitutes’ salaries and bills for
past expenses.
  This temporal approach for distinguishing between net
and gross proceeds is inconsistent with Scialabba’s and
Santos’ focus on net profits. An ordinary and necessary
business expense does not come out of net profits merely
because it relates to a future event. And paying rent for
a physical location to house a business is rightly con-
sidered an ordinary and necessary expense. It is not
logical or persuasive to say, as the government asserts,
that simply because rent is paid for the upcoming
month, before use, and utilities are paid at the end of the
month, for the amount used, that one is paid for with
gross income and one paid for with net. The issue is
whether the payments were reinvestment of net proceeds
to promote the carrying on of the operation or the act of
paying the operation’s expenses out of gross income.
  We also note that this is not an instance where rent
was paid months in advance as some sort of capital
investment, or where an operation expanded and rented
new space, or even where a business had a month-
to-month tenancy with each month the decision being
made anew whether to invest their profits into another
month of business or to cash out (all cases in which, at
least arguably, rent might be properly considered paid
12                       Nos. 06-3029, 06-3040 and 06-3438

out of net income). Rather, the government’s account
summaries simply show regular, approximately monthly,
payments. This is how rent is typically paid under a
lease, each month in advance.
  Although the spas’ rent clearly does not qualify as
“proceeds,” the question of whether the spas’ advertising
expenses qualify is more difficult in light of the Supreme
Court’s decision in Santos. As we explain in Hodge, treating
the advertising costs of certain illegal operations as
“proceeds” may be consistent with Justice Stevens’
crime-specific interpretation of § 1956(a)(1). Hodge, slip
op. at 6-8. And even under the Santos plurality’s net-
profits definition of proceeds, there may be some situa-
tions where advertising could be paid for out of “net”
income. For example, if a business decides to expand
into a new market—that initial expenditure on new
advertising might be a “reinvestment of net proceeds.” Cf.
Santos, 128 S. Ct. at 2029 n.7 (“[I]t will be up to the Gov-
ernment to select that period of time for which it can
most readily establish the necessary elements of the
charged offenses, including (if money laundering is one
of them) profitability.”); id. at 2029 (“[T]he Government
will have to prove the profitability of just three offenses,
selecting (again) those for which profitability is clearest.
And of course a prosecutor will often be able to charge
the underlying crimes instead of the overarching enter-
prise crime.”).
  In the Lees’ cases, however, it is unnecessary to decide
whether the spas’ advertising expenses may qualify as
proceeds because, as in Hodge, we encounter a problem
Nos. 06-3029, 06-3040 and 06-3438                       13

with the juries’ general verdicts. The jury instructions in
these cases did not distinguish between advertising
expenses and other regular business expenses. It is im-
possible to tell whether the juries based their verdicts
on the legally insufficient ground that rent and utilities
are net proceeds, or the possibly legally sufficient ground
that advertising costs are net proceeds. Thus, the juries’
general verdicts cannot stand. See Yates v. United States,
354 U.S. 298, 311-12 (1957).
  The government points out that the jury instructions
in the Lees’ cases correctly defined “proceeds” as “net
rather than gross proceeds.” While that is a notable
distinction from the instructions in Hodge, see Hodge,
slip op. at 8, the instructions were not specific enough
to tell the juries that ordinary rent and utilities do not
count as net proceeds. So if the government’s theory at
trial was that evidence of rent and utilities could support
a conviction of money laundering, the instructions do not
permit us to assume that the juries did not rely on that
theory to convict the Lees. Cf. United States v. Van Allen,
524 F.3d 815, 824 (7th Cir. 2008) (rejecting the argument
that a conviction for concealment of assets was based on
a legally insufficient theory, where the government
did not argue that theory to the jury); United States v.
Watson, 525 F.3d 583, 590 (7th Cir. 2008) (concluding that
a line in the government’s indictment that contained a
legally insufficient theory of jurisdiction did not
invalidate a Hobbs Act conviction, where the govern-
ment “never even mentioned” that theory to the jury).
  The prosecution in these cases introduced evidence of
the spas’ advertising expenses alongside evidence of
14                      Nos. 06-3029, 06-3040 and 06-3438

rent and utilities, and no argument that advertising in
particular was paid for out of net rather than gross
income was ever presented to the juries. (In fact the
account summaries submitted by the government in
both cases included utility payments—which the govern-
ment now concedes on appeal were payments out of
gross income—right along with rent payments and ad-
vertising payments. At no point did the prosecution
argue which of these items were paid for with net or
which with gross.) On these facts, the government’s
theory of its money laundering case was that all of the
spas’ business expenses could be “proceeds” within the
meaning of § 1956(a)(1). And the jury instructions, while
correctly referring to “net proceeds,” were not specific
enough to tell the juries which of the government’s evi-
dence they could rely on. Because the juries may have
based their general verdicts on the legally insufficient
theory that rents and utilities count as proceeds, Yates
requires that these verdicts be set aside.

         III. Mr. Lee’s Conspiracy Challenges
  Mr. Lee makes two other sufficiency-of-the-evidence
arguments. Here, too, in reviewing for sufficiency of the
evidence, we consider the evidence in the light most
favorable to the government, drawing all reasonable
inferences in the government’s favor, Morris, 498 F.3d at
637, reversing only if a rational trier of fact could not
have found the essential elements of the crime beyond a
reasonable doubt, Malone, 484 F.3d at 920. Mr. Lee
argues that there was insufficient evidence to convict
Nos. 06-3029, 06-3040 and 06-3438                         15

him of the money laundering conspiracy at all (regard-
less and apart from the net versus gross argument, dis-
cussed above), and that there was insufficient evidence to
convict him of the conspiracy to use interstate facilities.
Basic to both claims, he argues the evidence was insuffi-
cient to establish that he knowingly joined the con-
spiracies in question. We need not consider his argument
with respect to the money laundering claim, due to our
discussion supra in which we determined that conviction
could not stand. We disagree, however, with Mr. Lee’s
argument with respect to the conspiracy to use interstate
facilities, finding ample evidence on which a jury could
conclude he knowingly joined and participated in the
charged conspiracies.
  In order to prove Mr. Lee guilty of conspiracy, the
government had to show (1) that the conspiracy charged
in the superceding indictment existed; (2) that Mr. Lee
knowingly became a member of the conspiracy with
an intention to further the conspiracy; and (3) that an
overt act was committed by at least one conspirator in
furtherance of the conspiracy. E.g., United States v. Hickok,
77 F.3d 992, 1004-05 (7th Cir. 1996). Mr. Lee disputes the
second element. He argues that he was merely a handy-
man and a translator and that he did not agree to use
interstate facilities. To the contrary, however, the gov-
ernment showed that Mr. Lee was intimately involved
in the entire massage parlor enterprise.
  Mr. Lee was frequently at the spas and contributed in
many ways. There was testimony at trial that he did
construction and remodeling for the spas. Mr. Lee dealt
16                       Nos. 06-3029, 06-3040 and 06-3438

with the Rockford City Zoning Division on zoning and
licensing issues for the spas. He helped the masseuses by
sending postal money orders for them, usually charging
1%. He would pick the masseuses up at the airport. Co-
defendant Mi Ran Park testified that Mr. Lee helped
her learn to use the credit card machine and placed news-
paper ads when Park later began managing the spa
under a different owner. His number was also posted
next to the phones/credit card machine along with
Hwang’s, from which it could be inferred that he was
someone the employees could call for assistance or to
report problems. A detective recovered $77,000 in cash,
some Mr. Lee’s and some Hwang’s, from a safe deposit
box in Mr. Lee’s name; Mr. Lee told FBI Agent Randall
Sealby these funds derived from the Pine Tree Spa.
During meetings with undercover FBI Agent David
Childre, Mr. Lee described the business in detail, fre-
quently using the term “we” and specifically explaining
that they do a lot of credit card business and that they
spend close to $18,000 a month on advertising. Mr. Lee
also participated by translating for Hwang and other
employees and attended meetings with Hwang.
  This was enough for a jury to reasonably conclude he
joined the interstate facilities conspiracy with full knowl-
edge and intent that the prostitution business would be
advanced with the usage of the credit card machine.
Importantly, the government did not have to prove that
Mr. Lee himself used the credit card machine. It is well
established that circumstantial evidence is sufficient to
establish membership in the conspiracy. See, e.g., United
States v. Miller, 405 F.3d 551, 555 (7th Cir. 2005) (“The
Nos. 06-3029, 06-3040 and 06-3438                         17

government may establish these elements through ‘cir-
cumstantial evidence and the reasonable inferences
therein concerning the parties’ relationships, their overt
acts, and their overall conduct.’ ” (quoting United States v.
Navarrete, 125 F.3d 559, 562 (7th Cir. 1997))). One could
easily infer based on his statements and evidence of his
extensive involvement that Mr. Lee knowingly agreed to
and furthered the conspiracy to use the credit card ma-
chines in carrying on the prostitution business. Particu-
larly, his statements alone about using credit cards and
the testimony about him teaching someone to use the
machine were sufficient evidence from which the jury
could infer he knowingly became a member of that con-
spiracy.
  Given the defendant’s very heavy burden here on
appeal and the amount of evidence showing that he was
involved in the entire massage parlor business, he
simply cannot prevail on this argument.

    IV. Admissibility of Rule 404(b) Evidence as to
                       Ms. Lee

  Ms. Lee challenges certain evidence admitted under
Federal Rule of Evidence 404(b). At Ms. Lee’s trial, the
government called Insika “Anna” Kim to testify. Anna
Kim had been a “masseuse” at the Tokyo Spa in
Rockford and at the Rainbow Spa that Ms. Lee purportedly
operated in Toledo, Ohio, from 1999-2000. Ms. Lee filed a
pretrial motion in limine to keep out Kim’s testimony
regarding the Rainbow Spa. Ms. Lee’s objection was to
18                      Nos. 06-3029, 06-3040 and 06-3438

the pattern/propensity nature of the testimony, arguing
that it was prejudicial when Ms. Lee was charged only
in connection with the Tokyo Spa in Rockford. The gov-
ernment asserted that the evidence was admissible
under Rule 404(b). Ms. Lee’s defense was going to
include an argument that she was unaware of the prostitu-
tion at the Tokyo Spa. Therefore, the government argued
to the district judge, Ms. Lee’s prior experience became
relevant and Kim’s testimony should be admitted for
that limited purpose of demonstrating knowledge. The
district judge decided that the evidence would be ad-
missible under Rule 404(b) with a limiting instruction.
  Ms. Lee did make such a defense as early as opening
statements, and Kim did testify. The judge gave the jury
a limiting instruction, tracking the familiar Seventh
Circuit pattern criminal instruction 3.04, both at the time
of the testimony and again following closing statements.
Kim testified about the operations of both the Toledo
and Rockford spas, explaining the bookkeeping system
at both spas, how condoms were obtained and disposed
of at the Rockford spa, and so forth. Kim’s testimony,
both on direct and cross-examination, also included
references to “forced sex.” She mentioned during her
direct examination that she was pushed into a room on
her first day at the Rainbow Spa in Toledo to observe
and then on subsequent days to perform sexual acts. On
cross-examination, she elaborated further, even stating
she was put in metal chains.
  Ms. Lee now argues on appeal that Kim’s “forced sex”
testimony should have been excluded pursuant to Rules
Nos. 06-3029, 06-3040 and 06-3438                          19

403 and 404(b), and that given the “shocking and devastat-
ing” nature of the testimony, the limiting instruction
was not enough to counter the prejudice. The district
court admitted Kim’s Rainbow Spa testimony under
Rule 404(b). We review for abuse of discretion. United
States v. Ross, 510 F.3d 702, 713 (7th Cir. 2007). Admissibil-
ity under Federal Rule of Evidence 404(b) is governed by
a four-part test: Whether,
    (1) the evidence is directed toward establishing a
    matter in issue other than the defendant’s propen-
    sity to commit the crime charged;
    (2) the evidence shows that the other act is similar
    enough and close enough in time to be relevant to
    the matter in issue;
    (3) the evidence is sufficient to support a jury
    finding that the defendant committed the similar
    act; and
    (4) the probative value of the evidence is not
    substantially outweighed by the danger of unfair
    prejudice.
Id.; United States v. Zapata, 871 F.2d 616, 620-21 (7th Cir.
1989). Under all four prongs, the district judge’s conclu-
sion to admit Kim’s Rainbow Spa testimony in general
was correct. The evidence went directly to Ms. Lee’s
knowledge—an issue other than the defendant’s pro-
pensity to commit the crime charged. Ms. Lee herself
made knowledge an issue by arguing she was unaware of
the prostitution. Thus, under the first prong, Kim’s testi-
mony was properly admitted to prove knowledge and
20                        Nos. 06-3029, 06-3040 and 06-3438

lack of mistake or accident. The second prong was also
met; the Toledo spa operation was practically identical
in operation to the Rockford spa at issue in the present
case. The time frame was within two years, close enough
to be relevant to the matter in issue. See, e.g., United States
v. Best, 250 F.3d 1084, 1092 (7th Cir. 2001) (finding a
prior identical cocaine offense two years earlier was
sufficiently similar); United States v. Tringali, 71 F.3d
1375, 1379 (7th Cir. 1995) (concluding evidence within
ten years was admissible to show present knowledge).
Kim’s first-hand testimony was sufficient to satisfy prong
three, and Ms. Lee did not argue otherwise. The fourth
prong is the most contentious.
  Ms. Lee argues that Kim’s testimony was overly prejudi-
cial. The district court judge concluded that it was not. He
acknowledged that some people may not like that kind of
operation, but that the probative value was not substan-
tially outweighed by the danger of unfair prejudice. We
agree with that determination. Admitting testimony
regarding Ms. Lee’s business at the Rainbow Spa did not
present unfair prejudice—it was essentially the very
same behavior she was charged with in connection
with the Rockford spa operation. Eliciting testimony
about her previous experience in an identical operation
to show her knowledge is not such that its probative
value would be substantially outweighed by the danger of
unfair prejudice. Therefore, as to Kim’s testimony about
the Rainbow Spa generally, the district court’s Rule 404(b)
determination was correct.
  In her brief, Ms. Lee focuses on the prejudice of the
“forced sex” testimony in particular. The fourth prong
Nos. 06-3029, 06-3040 and 06-3438                                21

of the Rule 404(b) test excludes evidence only when the
danger of unfair prejudice substantially outweighs the
probative value. The fact that Kim said she was pushed
into a room to watch and/or engage in sexual acts in the
Rainbow Spa is probative, establishing Ms. Lee’s knowl-
edge of the spa prostitution, as we already discussed.
Arguably the forced aspect of it is more prejudicial than
prostitution generally as it could be construed as rape.
Furthermore, that specific testimony added little new
probative evidence, since Kim’s other testimony re-
garding the Rainbow Spa had already established
Ms. Lee’s knowledge. However, given the circumstances,
which we discuss further in the following paragraphs,
there was simply no true “danger of unfair prejudice” that
would induce the jury to decide the case on some
improper basis. Admitting the testimony was not plain
error.4 Morever, even if we were to conclude that the

4
   It appears that Ms. Lee really did not preserve her objection to
the “forced sex” testimony. As admitted at oral argument, no
objection was raised during trial when the forced-sex testimony
came out. Ms. Lee argues that the issue was preserved via her
pretrial motion in limine to preclude Kim’s Rainbow Spa
testimony altogether. This, however, was insufficient because
with that objection came no indication that there would be any
testimony about forced sex—Ms. Lee simply objected to the
pattern/propensity aspect of the testimony. See United States v.
Swan, 486 F.3d 260, 264 (7th Cir. 2007); Wilson v. Williams,
182 F.3d 562 (7th Cir. 1999); Fed. R. of Evid. 103 (requiring a
party to state a “specific ground” of the objection). The ramifica-
tions of failing to preserve the issue for appeal is to downgrade
                                                      (continued...)
22                         Nos. 06-3029, 06-3040 and 06-3438

forced-sex aspect of the testimony was admitted in error
under Rule 404(b), that admission, at its worst, would
most certainly be harmless, for the following reasons.
  First, the majority of the forced-sex details came out
during cross-examination (notably not by the govern-
ment during direct) in an attempt by the defense to dis-
credit Kim. And this attempt to discredit was rather
successful in providing plenty for the defense to argue
to the jury about Kim’s credibility.5 Given the unusual

4
  (...continued)
the standard of review from abuse of discretion to plain
error. United States v. Blount, 502 F.3d 674, 677-78 (7th Cir.
2007). Discussing this in more detail, however, is not worth-
while. Ms. Lee’s claim here is not meritorious, for the reasons
explained infra, regardless of what standard applies.
5
  Kim’s testimony during cross was rather unusual at times as
she discussed her life and employment history. In addition to
elaborating on her “forced sex” testimony, she testified that she
had worked previously as a partner in a Tampa restaurant
business; was owner of a major medical health insurance
business in Houston; became a partner on a shrimp boat in
Biloxi; owned an apartment building; worked as a dental
technician, walking some 35 miles each way to and from
work daily; and became a contractor by reading a library book,
to name only a few of her accomplishments. Kim also testified
that she tried to sell one of her kidneys for $26,000 at a market
in Houston. She described how she came to work at the
Toledo spa, explaining that a woman in a Mississippi hair
salon gave her a phone number. After calling that number, she
took a bus to Flint, Michigan. Apparently she was not their
                                                    (continued...)
Nos. 06-3029, 06-3040 and 06-3438                            23

nature of her testimony, any prejudicial impact or imper-
missible emotional pull of the forced-sex allegations
seems negligible. After hearing Kim discuss her life, any
reasonable juror was likely to carefully consider what
weight to give her testimony.
   More importantly, the forced-sex testimony elicited on
direct and cross comprised only a mere handful of sen-
tences out of Kim’s half-day-long testimony in a four-day
trial. There was also an abundance of other evidence
on which the jury could pin Ms. Lee’s guilt. Additionally,
the government did not argue the forced sex in its sum-
mation—there was absolutely no pull on the jurors’
emotions asking them to convict her because she in
some way was affiliated with rape. The government
asked the jury to convict her on the evidence, of which
there was plenty. See United States v. Dennis, 497 F.3d 765,
770 (7th Cir. 2007) (mentioning the “overwhelming evi-
dence of [the defendant’s] guilt” apart from evidence
admitted under Rule 404(b) in determining that any
Rule 404(b) error would have been harmless); United States
v. Mallett, 496 F.3d 798, 802 (7th Cir. 2007) (mentioning the
“overwhelming evidence of [the defendant’s] guilt” apart
from evidence admitted under Rule 404(b)); United States
v. Best, 250 F.3d 1084, 1093-94 (7th Cir. 2001) (discussing the
importance of other “compelling” evidence on which to
convict the defendant, aside from Rule 404(b) testimony).

5
  (...continued)
“type,” so, after another call, she went to the Rainbow Spa in
Toledo. The details she described of her life were truly nothing
short of odd.
24                      Nos. 06-3029, 06-3040 and 06-3438

  There are also the limiting instructions to consider.
Perhaps Ms. Lee has a point—that in some extreme in-
stances a limiting instruction may be insufficient to
quell the prejudice and the pull to convict on an impermis-
sible emotional basis. However, if such a case exists, this
is certainly not it; the mention of forced sex in Kim’s
testimony in context appears neither “shocking” nor
“devastating” despite how Ms. Lee attempts to spin it in
her briefs. The judge gave a limiting instruction before
Kim’s Rainbow Spa testimony instructing the jury that it
was only to be considered for the limited purpose of
establishing Ms. Lee’s knowledge. At the conclusion of
the Rainbow Spa testimony and before Kim began her
testimony regarding the Rockford Spa, the judge again
emphasized the limitation on the Rainbow Spa testimony.
The limiting instruction was also given again at the end
of closing arguments. “Absent any showing that the jury
could not follow the court’s limiting instruction, we
presume that the jury limited its consideration of the
testimony in accordance with the court’s instruction.”
Mallett, 496 F.3d at 802. The extensive instruction was
more than sufficient to fully counter the slim chance
that Kim’s testimony had a prejudicial effect. See, e.g.,
Dennis, 497 F.3d at 769 (mentioning the mitigating impact
of limiting instructions on any risk of prejudicial impact
on the jury); Best, 250 F.3d at 1094 (mentioning the
limiting instruction).
  Therefore, there does not appear to be any danger of
prejudice from the forced-sex testimony (let alone
unfair prejudice). Nevertheless, even if there was, it was
harmless error. “Error in admitting Rule 404(b) evidence
Nos. 06-3029, 06-3040 and 06-3438                               25

may be deemed harmless if we are convinced that the
error did not influence the jury, or had but very slight
effect, and can say with fair assurance . . . that the judg-
ment was not substantially swayed by the error.”
Dennis, 497 F.3d at 769-70 (internal quotations omitted).
Given the circumstances, the forced-sex testimony had
no noticeable impact on Ms. Lee’s conviction.6

6
  Ms. Lee also appeals the admission of “finger cot testimony”
from FBI Agent Richman and the reference in FBI Agent Sealby’s
testimony to a newspaper article. These two arguments barely
warrant discussion. The newspaper article itself was never
shown to the jury. Instead an agent simply testified that an
article in the Rockford Register Star instigated the investiga-
tions. This one minor mention was certainly harmless, and the
jury was of course instructed not to look at any outside materi-
als.
  The finger cot testimony is also insignificant. After telling the
jury where she seized finger cots at the spa, Agent Richman
described that they were “basically condoms, tiny little
condoms that go over one’s finger, and are used to insert in
someone’s anus to stimulate the prostate gland. . . .” Ms. Lee
then objected for lack of foundation and hearsay. Following
the objection, the testimony was stricken from the record. Later,
in the jury’s absence, Ms. Lee moved for a mistrial, which
the district judge denied. Considering that Ms. Lee was charged
in connection with running a brothel, and since finger cots
were mentioned, permissibly, to the jury as items found at the
spa, explaining what a finger cot is to the jury was not
unfairly prejudicial. The testimony was stricken and that
sufficiently dealt with any problem the testimony could have
presented.
26                      Nos. 06-3029, 06-3040 and 06-3438

                  V. Sentencing Issues
  We review the application of sentencing guidelines de
novo. United States v. Acosta, 474 F.3d 999, 1001 (7th Cir.
2007). Mr. Lee was convicted on both counts of the
superceding indictment—the conspiracy to use interstate
facilities and the conspiracy to commit money launder-
ing—on March 20, 2006. On July 17, 2006, he was sen-
tenced to 51 months of imprisonment on both counts to
run concurrently, three years’ supervised release, a
$250 fine, and a $200 special assessment. Ms. Lee was also
convicted of both counts, on March 30, 2006. She was
sentenced, on July 20, 2006, to 63 months of imprison-
ment on both counts to run concurrently, plus three
years of supervised release, a $500 fine, and a $200
special assessment.
   Both defendants’ base offense levels for Count Two, the
money laundering count, were calculated under U.S.S.G.
§ 2S1.1(a)(2), with cross-reference to U.S.S.G. § 2B1.1 to
determine how many levels should be added. Following
the sentencings, however, the trial judge determined
that this calculation in Mr. Lee’s case was erroneous and
expressed this in a proceeding on August 24, 2006. The
same error occurred in Ms. Lee’s case. The government in
its brief concedes that this calculation was erroneous,
explaining that the base offense levels should have been
calculated under U.S.S.G. § 2S1.1(a)(1). All parties seem
to agree with this point, and because a sentence must
be based on an accurate guideline calculation, United
States v. Garrett, 528 F.3d 525, 527 (7th Cir. 2008), the
sentences must be vacated with the cases remanded
Nos. 06-3029, 06-3040 and 06-3438                     27

for resentencing. Accordingly, all other arguments ad-
vanced with respect to sentencing are moot.
  Moreover, given our conclusions above, overturning the
convictions with respect to the money laundering counts,
the Lees must be resentenced anyway, in light of that,
upon remand.

                    VI. Conclusion
  We A FFIRM the convictions on the interstate facilities
conspiracy claim and R EVERSE the convictions for the
money laundering conspiracy. With respect to the Lees’
sentences, we V ACATE and R EMAND for resentencing.

                         3-11-09