United States v. Najjar , 300 F.3d 466 ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
BASEM NAJJAR, a/k/a Bassem Najjar,  No. 00-4296
a/k/a Basim Najjar, a/k/a Bassim
Najjar, t/a Clinton Auto Sales,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4305
TRI-CITY AUTO OUTLET,
INCORPORATED,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
BASEM NAJJAR, a/k/a Bassem Najjar,  No. 00-4650
a/k/a Basim Najjar, a/k/a Bassim
Najjar, t/a Clinton Auto Sales,
Defendant-Appellant.

2 UNITED STATES v. NAJJAR
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4654
TRI-CITY AUTO OUTLET,
INCORPORATED,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-98-505-DKC)
Argued: January 25, 2002
Decided: August 6, 2002
Before WIDENER and GREGORY, Circuit Judges, and
Cynthia H. HALL, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Gregory and Senior Judge Hall concurred.
COUNSEL
ARGUED: Robert Charles Bonsib, MARCUS & BONSIB, Green-
belt, Maryland, for Appellant Najjar; Timothy Joseph Sullivan, SUL-
LIVAN & SULLIVAN, College Park, Maryland, for Appellant Tri-
City. Stuart A. Berman, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee. ON BRIEF: Beau Kealy, MARCUS &
BONSIB, Greenbelt, Maryland, for Appellant Najjar. Stephen M.
UNITED STATES v. NAJJAR 3
Schenning, United States Attorney, Rod J. Rosenstein, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
OPINION
WIDENER, Circuit Judge:
INTRODUCTION
Basem Najjar and Tri-City Auto Outlet, along with two others not
involved in this appeal, were indicted in a 23-count indictment on fed-
eral mail fraud, possession, transportation, and money laundering
charges arising from a theft and chop shop ring headed by Najjar. At
trial, a jury convicted Najjar of 18 of the counts in the indictment and
Tri-City of all 9 counts alleged against it. The district court ordered
Najjar to serve 132 months in prison, forfeit $2,760,000 in cash and
assets, and pay restitution of $211,166.04 and special assessment fees.
The court ordered Tri-City to pay $43,617 in restitution, special
assessments, and forfeit its interest in specified assets totaling
$2,760,000.
Najjar contends that the district court erred in denying his motions
for severance and mistrial, and suppression of evidence obtained pur-
suant to allegedly illegal searches. Tri-City takes issue with the suffi-
ciency of the evidence supporting its convictions as well as the
district court’s denial of its motion to dismiss based on prosecutorial
vindictiveness. Najjar also contends that Cleveland v. United States,
531 U.S. 12 (2000), requires reversal of his mail fraud convictions.
Both defendants challenge their RICO forfeitures, and, finally, the
district court’s failure to define reasonable doubt in its jury charge.
I. FACTS
Basem Najjar, Clinton Auto Sales, Tri-City, and numerous others
were involved in a car theft and sale ring. Their mode of business was
to steal expensive, late model cars from the Washington, D.C. area,
and strip them of parts. The cars would then be abandoned for the
police to find. The insurance companies holding the policies on the
4 UNITED STATES v. NAJJAR
cars would declare them total losses, and sell the recovered vehicles
for salvage. Najjar and his agents would then buy the salvaged cars
at insurance auctions and use them for reassembly. This scheme
involved two Maryland State Police Officers who secured certificates
of title for Najjar outside of the normal retitling process for salvaged
vehicles. This allowed Najjar to use the stolen parts in the reassembly
of the salvaged cars without having to worry about vehicle identifica-
tion number (VIN) checks that would reveal the use of stolen parts.
Indeed, sometimes stolen parts were used on the very same cars from
which they were stolen. Najjar and his cohorts would sell the reas-
sembled cars at a dealership known as Clinton Auto Sales and later
at Tri-City.
Tri-City was a corporation formed in November, 1997 after Najjar
became aware of the Maryland State Police investigations into his
operations and administrative efforts by the Maryland Motor Vehicle
Administration to revoke his used car dealer’s license. Najjar and his
family formed Tri-City Auto Outlet by Najjar selling some of Clin-
ton’s assets to his brother Saleh. The formation of Tri-City was to
protect Najjar’s assets. Tri-City employed Najjar as its general sales
and operations manager. Because Tri-City did not have a Motor Vehi-
cle Administration license, it acted through Clinton and Najjar. Najjar
sold nine fraudulently titled cars to Tri-City.
In 1995, Corporal Joseph Brown obtained search warrants for Clin-
ton Auto Sales. Pursuant to the warrants, the police seized motor
vehicles, parts, and documents, among other things. However, on
April 22, 1996, a Maryland judge suppressed the evidence as obtained
during an illegal search.
Brown and Lieutenant Steven Wright of the Maryland State Police
spoke to each other later in 1995 regarding Maryland State Police
Officer Michael White’s interference in the investigation of Najjar.
Lt. Wright began what he termed an administrative investigation
against White, receiving 20 salvage certificates, confidential law
enforcement records, and FBI National Crime Information Center
files obtained during the search of Clinton Auto Sales. These docu-
ments were printed by White at the Leonardstown State Police Bar-
racks and given to Najjar.
UNITED STATES v. NAJJAR 5
Wright continued his investigation, eventually expanding it into a
criminal investigation against Najjar. From November, 1995 to
March, 1997, Wright amassed substantial information implicating
Najjar in a car theft and chop shop ring eventually including informa-
tion on over 500 cars sold by Clinton Auto Sales. In 1997, Wright
applied for a search warrant for the Clinton premises based on this
information. The warrant issued. Later, Wright obtained warrants for
two warehouses used by Clinton Auto Sales.
In November, 1998, Wright sought search warrants for two busi-
nesses, Lee’s Autobody and Frame, located in Virginia, and Perdue’s
Used Cars, where Najjar had moved his operations. Wright’s informa-
tion led to the issuance of two federal search warrants. On the basis
of this information, a federal grand jury indicted Najjar.
In 1998, the district court entered a restraining order against Clin-
ton Auto Sales, Najjar, and Tri-City, preventing the sale of certain
vehicles. Tri-City intervened to modify or remove the restraints. The
district court ruled that its order did not apply to vehicles titled to
Clinton which had been transferred to Tri-City. This included some
$500,000 in inventory. The government sought to add Tri-City to the
criminal case, and a grand jury indicted Tri-City on nine counts. This
resulted in another restraining order which froze the previously
excluded assets. Tri-City alleges that its indictment was a result of
prosecutorial vindictiveness for Tri-City’s bona fide attempts to pro-
tect its assets. The district court denied Tri-City’s contention finding
that it had failed to establish "actual vindictiveness."
During trial, Najjar contended that the information obtained from
the 1997 and 1998 search warrants should be suppressed because the
information supporting probable cause in the warrant applications
derived from the 1995 illegal search. The district court examined the
affidavits, excluding all information obtained in 1995 in accordance
with Franks v. Delaware, 438 U.S. 154 (1978), and Brown v. Illinois,
422 U.S. 590 (1975), and concluded that probable cause was present.
Najjar also sought severance or mistrial based on Bruton v. United
States, 391 U.S. 123 (1968). Lt. Wright testified to out of court state-
ments made by White and Downing, Maryland State Police Officers
and co-defendants of Najjar’s, and produced a tape recording of an
6 UNITED STATES v. NAJJAR
interview with Downing. The district court redacted portions of the
statements incriminating Najjar and gave a limiting instruction to the
jury that the statements were admissible only as to Downing and
White.
Najjar and the other defendants moved for acquittal on the mail
fraud counts arguing that certificates of title did not constitute prop-
erty. The district court denied the motions and submitted the case to
the jury with a special verdict form requiring the jurors to specify
which objectives of the mail fraud scheme the government had
proven, if any. On five counts, the jury found that at least one of the
objectives was to deprive Maryland of honest services and property.
In addition to the several mail fraud counts, Najjar and Tri-City were
convicted of money laundering and RICO violations.
After the guilty verdicts had been rendered against Najjar and Tri-
City, the Supreme Court decided Cleveland v. United States, 531 U.S.
12 (2000), which held that a scheme to defraud Louisiana of gambling
licenses did not deprive the state of "property" within the meaning of
18 U.S.C. § 1341. The court reasoned that a license is purely a regula-
tory matter and therefore implicated its role as a sovereign, not its role
as a property holder. 531 U.S. at 26-27.
After trial, the district court conducted RICO forfeiture proceed-
ings. In the RICO forfeiture proceedings, the district court applied a
preponderance of the evidence standard. The defendants argue that
Apprendi v. New Jersey, 530 U.S. 466 (2000), requires a reasonable
doubt standard. Furthermore, they allege that the district court erred
when it declined to provide a definition of reasonable doubt in its jury
instructions.
II. NAJJAR’S CLAIMS
A. Severance or Mistrial
1. Inconsistent Defenses
Najjar first contends that the district court abused its discretion
when it refused to grant Najjar’s several severance and alternative
UNITED STATES v. NAJJAR 7
mistrial motions. Federal Rule of Criminal Procedure 14 provides for
joinder of defendants when they are alleged to have participated in the
same act or series of acts constituting an offense. Rule 14. There is
no doubt that Najjar was properly joined as a defendant with officers
White and Downing, and Tri-City Auto Outlet in this case. However,
Najjar maintains that the district court should have granted him sever-
ance under Federal Rule of Criminal Procedure 14 before trial, during
trial, or granted him a mistrial for failure to grant any of his several
severance motions. We review the district court’s rulings on sever-
ance and mistrial claims for abuse of discretion, United States v. West,
877 F.2d 281, 287-88 (4th Cir. 1989), and factual findings made in
conjunction with these claims for clear error, United States v. Smith,
44 F.3d 1259, 1269 (4th Cir. 1995).
The Supreme Court has indicated that "[t]here is a preference in the
federal system for joint trials of defendants who are indicted
together." Zafiro v. United States, 506 U.S. 534, 537 (1993). Accord-
ingly, severance under Rule 14 is only warranted when "there is a
serious risk that a joint trial would compromise a specific trial right
of one of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence." Zafiro, 506 U.S. at 539. The
defendant must "establish that actual prejudice would result from a
joint trial, . . . and not merely that a separate trial would offer a better
chance of acquittal." United States v. Reavis, 48 F.3d 763, 767 (4th
Cir. 1995).
Najjar contends that the district court erred when it denied his
motion to sever pre-trial. Najjar argued that the there would be evi-
dence admitted against his co-defendants that would be inadmissible
against him, and the spillover effect of the evidence would prejudice
him. The district court found that Najjar had not articulated a theory
that qualified as an irreconcilable defense sufficient to warrant sever-
ance at that time. Najjar’s contentions appeared purely speculative to
the district court and we cannot say on the basis of the record before
us that the district court abused its discretion in denying Najjar’s
motion to sever. See United States v. Becker, 585 F.2d 703, 707 (4th
Cir. 1978) ("Speculative allegations as to possible prejudice do not
meet the burden of showing an abuse of discretion in denying a
motion for severance.").
8 UNITED STATES v. NAJJAR
Najjar offers two bases for severance once the trial had com-
menced. First, Najjar states that his co-defendants pressed antagonis-
tic and irreconcilable defenses resulting in an unfair trial. Secondly,
Najjar claims that his joint trial violated his trial rights under Bruton
v. United States, 391 U.S. 123 (1968). We will address each of these
claims in turn.
Najjar points to several instances in the record where counsel for
co-defendants White and Downing attacked his credibility or other-
wise blamed the whole criminal enterprise on Najjar. These instances,
so the argument goes, demonstrate that Najjar was deprived of a fair
trial because the jury was "confronted with the dilemma of either
choosing to believe Najjar or White and Downing." For instance, Naj-
jar identifies this question posed by White’s counsel on cross-
examination of Najjar as the prime example of the conflicting
defenses: "Mr. Najjar, it serves your purpose to say that these vehicles
were not ready when the salvage certificate was signed, doesn’t it? It
would serve your purposes because you can’t explain in any legiti-
mate way how you could have a vehicle put together in three days."
There does appear to be some conflict in the presentation of
defenses. The presence of conflicting or antagonistic defenses alone
does not require severance, however. See Zafiro, 506 U.S. at 538. We
note that "[t]he mere presence of hostility among defendants . . . or
a desire of one to exculpate himself by inculpating another [are]
insufficient grounds to require separate trials." United States v.
Spitler, 800 F.2d 1267, 1271 (4th Cir. 1986) (internal quotations
marks and citation omitted). The rule requires more than finger point-
ing. There must be such a stark contrast presented by the defenses that
the jury is presented with the proposition that to believe the core of
one defense it must disbelieve the core of the other, see United States
v. Romanello, 726 F.2d 173, 177 (5th Cir. 1984), or "that the jury will
unjustifiably infer that this conflict alone demonstrates that both are
guilty." Becker, 585 F.2d at 707.
We are presented with no such situation here. Co-defendant’s
counsel indeed attempted to focus the jury’s attention on Najjar dur-
ing cross-examination; however, this attention came only after Najjar
testified that White and Downing came to Clinton and signed salvage
certificates before the cars had been rebuilt. This testimony not only
UNITED STATES v. NAJJAR 9
implicated Najjar, but White and Downing on the honest services
prong of mail fraud. See 18 U.S.C. § 1341, 1346. Once Najjar elected
to testify, he was rightly subject to vigorous cross-examination by the
government and his co-defendants. As noted, "[t]he party moving for
severance must establish that actual prejudice would result from a
joint trial, . . . and not merely that a separate trial would offer a better
chance of acquittal," United States v. Reavis, 48 F.3d at 767 (citation
and internal quotation marks omitted). Perhaps Najjar would have
fared better had his co-defendants not been there to cross-examine
him. However, absent other circumstances not present here, we
decline to adopt a rule that would allow a defendant to testify and
then immunize himself from the consequences of that choice by limit-
ing the ability of his co-defendants to test the veracity of that testi-
mony, especially when that testimony implicates them.
We are of opinion that the content of the cross-examination does
not rise above mere finger pointing, which does not provide the stark
conflict necessary for relief. Counsel’s statement focused on Najjar’s
part in the criminal enterprise. It did not, however, present a situation
where Najjar’s guilt was dictated by the asserted innocence of the co-
defendants. Najjar’s testimony implicated himself on the honest ser-
vices prong of mail fraud. If, as counsel suggested, Najjar’s testimony
was self-serving, and the jury discredited Najjar’s testimony, rather
than dictate guilt, counsel’s tactic actually tended to exonerate Najjar
as to that particular count.
To the extent there was any actual prejudice suffered by Najjar by
any conflict in the defenses, we think that the district judge cured
such conflict by proper limiting instructions. See Zafiro, 506 U.S. at
540-1 (quoting Richardson v. Marsh, 481 U.S. 200, 209 (1987)
("[J]uries are presumed to follow their instructions."). Therefore, we
are of opinion that the district court did not abuse its discretion in
denying Najjar’s motions to sever or grant him a mistrial for failure
to do so.
2. Bruton
Najjar also claims that the district court abused its discretion for
failure to sever or grant a mistrial based on the admission of out of
court statements made by White and Downing that allegedly incrimi-
10 UNITED STATES v. NAJJAR
nated Najjar in violation of Bruton v. United States, 391 U.S. 123(1968). A Bruton problem exists only where a co-defendant’s state-
ment on its face implicates the defendant. United States v. Locklear,
24 F.3d 641, 646 (4th Cir. 1994). The admitted statements were
redacted by the trial judge to eliminate any facial incrimination of
Najjar. In fact, Najjar does not identify any facially incriminating
statement. Additionally, the district court told the jury that the state-
ments were admissible only as to White and Downing and not to any
other defendant. Under these circumstances, we are of opinion that
the district court did not abuse its discretion in denying Najjar’s
motion to sever or grant a mistrial based on Bruton.
3. Denial of instruction regarding Co-defendant’s
failure to testify
Najjar argues that the district court erred in not allowing Najjar to
comment on his co-defendant’s failure to testify. It is axiomatic that
a defendant’s failure to testify cannot be used to draw an inference of
guilt. Similarly, a co-defendant’s failure to testify cannot be used to
draw an inference of innocence on behalf of the complaining defen-
dant. See United States v. Marquez, 449 F.2d 89, 93 (2d Cir. 1971).
Thus, the district court did not abuse its discretion in denying Najjar’s
motion.
B. Search Warrants
Najjar’s next claim is that the district court’s denial of his motion
to exclude evidence obtained through two search warrants secured in
1997 and 1998 was error and requires reversal of his convictions. In
short, Najjar argues that much of the evidence used to obtain these
warrants derived from the execution of a 1995 warrant issued by a
Maryland court, later invalidated, and therefore, the 1997 and 1998
search warrants were illegally obtained. The nub of Najjar’s argument
is that the district court "erred in not considering and finding that the
illegally obtained evidence tended significantly to direct the investiga-
tion to the evidence in question." Appellant’s Br. at 53. We review
the district court’s findings of fact for clear error and its conclusions
of law de novo. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.
1998) (citation omitted).
UNITED STATES v. NAJJAR 11
This issue requires a recitation of the relevant facts surrounding the
application and issuance of the search warrants. In 1995, Officer
Brown of the Prince Georges County Police Department obtained two
search warrants for the premises of Clinton Auto Sales based upon a
previous warrantless entry. Upon execution of the warrants, the police
seized motor vehicles, parts, a firearm, and documents including sal-
vage certificates pertaining to cars sold by Clinton Auto Sales. Officer
Brown noticed that many of the seized salvage certificates were
signed by Maryland State Police Officer Michael White. Brown com-
plained to Maryland State Police Officer Wright that White was
impeding Brown’s investigation. To support his charge, Brown
showed Wright 20 of the salvage certificates obtained in the search
of Clinton Auto Sales. Brown also provided Wright with confidential
law enforcement records from the Maryland Interagency Law
Enforcement System and the FBI’s National Crime Information Cen-
ter, all of which were seized from Clinton Auto Sales and printed at
the Maryland State Police Leonardstown barracks by Officer White.
Brown and his supervisor eventually provided Wright with two boxes
of documents, including 70 other salvage certificates, and a Rolodex
seized from Clinton Auto Sales. Additionally, Officer Brown summa-
rized information Jessica Ellis, a former girlfriend of Najjar’s, pro-
vided to him in order to secure the 1995 search warrants. On the basis
of this information, Wright initiated "an administrative investigation"
of Officer White.
Wright began his investigation by reviewing records of White’s
activities regarding inspection and certification of Najjar’s salvaged
vehicles. Wright found that very few incident reports had been filed
for White’s inspections.1 Wright then personally interviewed Jessica
1
Under Maryland law, after a vehicle is declared salvage, the original
certificate of title is returned to the MVA, which issues a salvage certifi-
cate. Once the vehicle is returned to safe operating condition, the owner
must have the vehicle inspected by a duly trained and certified police
officer. Md. Trans. Code § 13-506.
Salvage inspections are carried on by appointment at state police bar-
racks. Officers are required to confirm the VIN at three different loca-
tions and search for evidence of theft or VIN tampering. Each inspection
requires the officer to cause the barracks where the inspection occurred
to issue a Complaint Control Card to document the inspection.
12 UNITED STATES v. NAJJAR
Ellis. Ellis described a Maryland State Police Officer who would visit
Clinton Auto Sales late at night to sign salvage certificates without
inspecting the vehicles. According to Ellis, the Officer received enve-
lopes from Najjar and had been given a vehicle to use.
Because no records or incident reports were available from the
state police barracks, Wright broadened his investigation by request-
ing vehicle records for all of Najjar’s vehicle purchases from auction
houses. These companies provided Wright with information regarding
over 500 vehicles Najjar had purchased. In addition, Wright generated
a list of insurers from the salvage certificates Brown provided him
and requested investigative files from the insurer’s special investiga-
tive units. Wright then requested certified histories for all of these
vehicles from the Maryland Motor Vehicle Administration. These
certified histories contained duplicates of all the salvage certificates
Wright previously received from Officer Brown. Wright contacted the
manufacturers of the salvaged vehicles to cross-reference part num-
bers of the specific vehicles with their unique vehicle identification
numbers. From March to June 1996, Wright reviewed photographic
surveillance conducted by Special Agent Gary Pontecorvo of the FBI,
who had been investigating Clinton Auto Sales in a separate narcotics
and money laundering investigation in 1993 and 1994. Some of the
video tapes showed Officer White visiting Clinton Auto Sales with
Najjar and Ellis present. Wright conducted his own surveillance
including inspection of ten vehicles sold by Clinton Auto Sales.
In March, 1997, based on the information recounted above, Wright
applied for a search warrant for Clinton Auto Sales premises. The
warrant issued and a search was conducted. Two more search war-
rants issued for other garage bays Najjar owned. In 1998, federal
search warrants issued for the premises of Perdue’s Auto Sales and
Lee’s Autobody and Frame based on their association with Najjar,
Clinton Auto Sales, and Tri-City. At trial, Najjar sought to suppress
Once a satisfactory inspection is complete, the officer signs the sal-
vage certificate certifying that the vehicle is restored, inspected, and that
the officer has certified the VIN. This salvage certificate allows the
owner to retitle the vehicle. Finally, the officer submits an Incident
Report describing the inspection, vehicle, and owner.
UNITED STATES v. NAJJAR 13
all of the evidence obtained from these searches. The district court,
following Franks v. Delaware, 438 U.S. 154 (1978), and Brown v.
Illinois, 422 U.S. 590 (1975), denied the motion.
The basic rule for whether evidence derived from an illegal search
should be suppressed comes from the Supreme Court’s pronounce-
ment in Wong Sun v. United States: "whether, granting establishment
of the primary illegality, the evidence to which instant objection is
made has been come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary taint."
371 U.S. 471, 487-8 (1963) (citation omitted). Najjar’s argument on
appeal is essentially that every investigative step taken by White had
its wellspring in the salvage certificates and other evidence seized
from Clinton Auto Sales in the unlawful 1995 search, and therefore,
the later searches were directly linked to the primary illegality.
Generally, evidence derived from an illegal search or arrest is
deemed fruit of the poisonous tree and is inadmissible. See Wong Sun
v. United States, 371 U.S. at 484-485. However, not all evidence con-
ceivably derived from an illegal search need be suppressed if it is
somehow attenuated enough from the violation to dissipate the taint.
In United States v. Ceccolini, 435 U.S. 268 (1978), the Supreme
Court stated:
Even in situations where the exclusionary rule is plainly
applicable, we have declined to adopt a "per se or ‘but for’
rule" that would make inadmissible any evidence, whether
tangible or live-witness testimony, which somehow came to
light through a chain of causation that began with [a Fourth
Amendment violation].
435 U.S. at 276 (citation omitted). That is to say, a direct, unbroken
chain of causation is necessary, but not sufficient to render derivative
evidence inadmissable. To determine whether the fruit is no longer
poisonous, we consider several factors, including: 1) the amount of
time between the illegal action and the acquisition of the evidence; 2)
the presence of intervening circumstances; and 3) the purpose and fla-
grancy of the official misconduct. See United States v. Seidman, 156
F.3d at 548 (citing Brown v. Illinois, 422 U.S. 590, 603-4 (1975)).
What suffices to dissipate the taint from derivative evidence depends
14 UNITED STATES v. NAJJAR
on the specific facts and circumstances of each case, cf. Schneckloth
v. Bustamonte, 412 U.S. 218, 248-9 (1973), and therefore, is particu-
larly amenable to resolution by the district court.
We begin with the physical evidence. The original illegality
occurred in 1995 when the Prince George’s County Police Depart-
ment sought "a search warrant based upon information gained during
warrantless entries." JA 629. Applying the first Brown factor, the dis-
trict court stated, "[t]he search warrant in this case is two years . . .
later . . . a significant period of time in Fourth Amendment lore, I sug-
gest." JA 629.
The first factor, time elapsed between the initial illegality and
acquisition of evidence, cannot be evaluated in isolation of the other
factors, at least with respect to physical evidence. The temporal prox-
imity of the primary illegality to the second search does not, after
some identifiable point on a time line, magically dissipate the taint on
subsequently obtained physical evidence. In other words, the mere
passage of time cannot serve to make tainted physical evidence admissi-
ble.2 Rather, the temporal aspect can inform the attenuation analysis,
for instance, by providing a context to the government’s further inves-
tigations.
2
Brown involved an illegal arrest and subsequent confession after the
giving of a Miranda warning. In posing the issue to be addressed, the
Court made it clear that the focus of the inquiry was directed at determin-
ing whether the accused himself had purged that taint by acting of his
own accord:
In order for the causal chain, between the illegal arrest and the
statements made subsequent thereto, to be broken, Wong Sun
requires not merely that the statement meet the Fifth Amendment
standard of voluntariness but that it be sufficiently an act of free
will to purge the primary taint.
Brown, 422 U.S. at 602 (internal quotation marks and citation omitted).
Thus, the temporal factor in Brown served as evidence of the exercise of
free will on the part of the accused in giving a confession subsequent to
an illegal arrest. See also Oregon v. Elstad, 470 U.S. 298, 310-11 (1985);
United States v. Ceccolini, 435 U.S. 268, 279 (1978).
UNITED STATES v. NAJJAR 15
Here, we must recognize that very little time elapsed between the
primary illegality and Wright’s new investigation, perhaps a period of
weeks. Wright began to use this material immediately and worked
diligently to amass more information on White’s role in Najjar’s
enterprise. However, Wright’s investigation continued for more than
two years; this amount of time was necessitated by the fact that White
had not filed incident reports or other documents normally completed
for salvage certificates. This absence of records at the State Police
barracks, in effect, ended the initial paper trail manifesting Officer
White’s potential involvement in the criminal enterprise. In this con-
nection, the district court found:
It is correct [that] Lieutenant Wright had specific cars and
salvage certificates at hand and in mind when he made the
original requests to the barracks, both with the original 20
and later 70. What happened, though, I find as a matter of
fact, ended any direct use of those salvage certificates and
those identifiable cars because the information that came
back was that there were no [Complaint Control] log records
or [Complaint Control] cards or incident reports so that it
was not possible to trace from the salvage certificates them-
selves the activities of the person under investigation, that
is, Officer White.
What happened was that Lieutenant Wright stepped back,
regrouped and started again with the auction houses, with
the insurance companies and then with the MVA to track the
activities of Clinton Auto Sales that obviously broadened his
investigation . . . . [The salvage certificates] are records that
exist in . . . several different locations at the same time. . . .
The ones that are being used here were come about by an
independent mechanism, one that was available to the police
and would have been, regardless of what happened at Clin-
ton Auto Sales in January of 1995.
These conclusions of fact are not clearly erroneous. The absence of
records at the barracks obviously caused considerable difficulty to
Wright’s investigation, at least in part evidenced by the two-year
duration of the investigation. In short, Wright’s investigation was not
a simple matter of looking at salvage certificates obtained in the 1995
16 UNITED STATES v. NAJJAR
search and obtaining new evidence from their use, rather it was a sub-
stantial investigative effort unconnected to the seized documents
themselves once Wright encountered the impediment at the Maryland
State Police Barracks. The result of this investigation was that the
public records seized from Clinton Auto Sales were rediscovered
from independent sources. Because the documents subsequently came
into Wright’s possession independently, they cannot be the result of
the primary illegality. Najjar argues that the district court’s conclusion
here is wrong because "the illegally obtained evidence tended signifi-
cantly to direct the investigation to the evidence in question." How-
ever, it is not enough that the original certificates may have triggered
Wright’s suspicion or gave "impetus or direction toward what is to be
focused on by the government." United States v. Smith, 155 F.3d
1051, 1061 (9th Cir. 1998) (citation omitted). Even if the original ille-
gal search in some slight way was a but-for cause of the later
searches, Wright’s two-year investigation and the intervening circum-
stances were sufficient to break the causal link between any primary
illegality and later obtained evidence. Therefore, we are of opinion
that the first and second factors weigh in favor of the government.
Finally, we note that the purpose of the misconduct was to obtain
information to apply for a later, ostensibly legal search warrant. While
a warrantless search used to justify a later warranted search, a viola-
tion that goes to the core of the Fourth Amendment, should be viewed
with somewhat heightened suspicion, there is no reason to suppress
the information gained here. As the district court concluded, and we
agree, "there was no intent to deceive the judge who issued that first
search warrant. All the information was given to that judge. . . . [I]t
was not so flagrant and purposeful misconduct by Prince George’s
County Police to require any extra vigilance by this Court." J.A. 634-
35.
Because the relevant factors identified in Brown v. Illinois favor
the government, we are of opinion that Najjar’s suppression motions
as to the physical evidence were properly denied by the district court.
We now turn briefly to suppression of the statements of Jessica
Ellis. The standards for suppression of witness testimony are stricter
than for physical evidence: "[S]ince the cost of excluding live-witness
testimony often will be greater, a closer, more direct link between the
UNITED STATES v. NAJJAR 17
illegality and that kind of testimony is required." United States v. Cec-
colini, 435 U.S. at 278. No such link exists here. The district court
found that Jessica Ellis contacted the authorities herself, and as this
contact was a product of her own free will, it cannot be tainted.
Therefore, there is no basis to suppress her testimony.
C. Probable Cause
Najjar claims that the 1997 and 1998 search warrants were not sup-
ported by probable cause. Probable cause exists if the facts presented
would "‘warrant a man of reasonable caution’ to believe that evidence
of a crime will be found." United States v. Williams, 974 F.3d 480,
481 (4th Cir. 1992). As the discussion above demonstrates, Wright
developed extensive evidence of the commission of crimes by Najjar.
Therefore, we are of opinion that the issuing magistrate had "a sub-
stantial basis . . . for conclud[ing] that a search would uncover evi-
dence of wrongdoing" and thus the warrants were supported by
probable cause. Illinois v. Gates, 462 U.S. 213, 236 (1983) (internal
quotation marks and citation omitted).
D. Mail Fraud
Najjar next contends that four of his mail fraud convictions must
be reversed because his actions do not fit the statutory definition of
the crime. Specifically, Najjar was found guilty of defrauding the
Maryland Motor Vehicle Administration of property under 18 U.S.C.
§ 1341, and Najjar claims that motor vehicle titles do not qualify as
property under the statute after Cleveland v. United States, 531 U.S.
12 (2000). Najjar states that this case requires the reversal of its con-
victions for mail fraud where the jury specified the deprivation of
property as an object of the scheme.
The jury, by special verdict found Najjar guilty on six mail fraud
counts.3 On the first, unchallenged here, it found the sole objective
3
A general verdict in a multiple object conspiracy should "be set aside
in cases where the verdict is supportable on one ground, but not another,
and it is impossible to tell which ground the jury selected." Yates v.
United States, 354 U.S. 298, 312 (1957). Special verdicts obviate this
problem by allowing a court to determine upon what factual and legal
basis the jury decided a given question. Because the district court
employed special verdict forms, no Yates problem presents itself.
18 UNITED STATES v. NAJJAR
was to defraud customers. On counts two through four, the jury con-
cluded that all three charged objectives were proven: defrauding cus-
tomers, defrauding the State of property in the form of licenses, and
depriving the State of honest services. Finally, on counts five and 10,
the jury found proven the objective of depriving the State of honest
services. Assuming, without deciding, that Cleveland removes certifi-
cates of title as a species of property cognizable under the mail fraud
statute, we nevertheless affirm Najjar’s mail fraud convictions
because they rest on at least one valid theory of liability specifically
found by the jury and thus any error was harmless.4
III. TRI-CITY’S CLAIMS
A. Prosecutorial Vindictiveness
Tri-City argues that the sole reason it was added to the indictment
was in retaliation for the exercise of its right to protect its assets dur-
ing pre-trial forfeiture proceedings against Clinton Auto Sales and
Najjar and thus stemmed from prosecutorial vindictiveness. The dis-
trict court found that Tri-City did not establish a presumption of vin-
dictiveness and that it also failed to show actual vindictiveness. We
review the district court’s decision for abuse of discretion and find no
error. See United States v. Fiel, 35 F.3d 997, 1007 (4th Cir. 1994).
A defendant ". . . may not be punished for exercising a protected
statutory or constitutional right." United States v. Goodwin, 457 U.S.
368, 372 (1982). Although the Court has presumed an improper vin-
dictive motive on the part of a prosecutor where the detrimental
action was taken against the defendant immediately following the
exercise of that right, such a presumption applies "only in cases in
which a reasonable likelihood of vindictiveness exists." Goodwin, 457
U.S. at 372 (1982). Tri-City’s participation in the pre-trial forfeiture
proceedings alerted the prosecutors to the possibility that forfeitable
assets could be dissipated through Tri-City. Furthermore, Najjar’s role
in Tri-City made Tri-City itself a legitimate target for prosecution.
4
In McNally v. United States, 483 US. 350 (1987), the Supreme Court
held that depriving a State of intangible rights did not meet the require-
ments of 18 U.S.C. § 1341. However, Congress amended § 1341 to pro-
tect "the intangible right of honest services." 18 U.S.C. § 1346.
UNITED STATES v. NAJJAR 19
We have said that "[a] prosecutor is not bound by his initial assess-
ment of the case embodied in the original charges. . . . Prosecutors are
free to reexamine the appropriate level of prosecution before trial
. . . ." United States v. Williams, 47 F.3d 658, 664-5 (4th Cir. 1995).
That the new information resulting in the superceding indictment
came from Tri-City’s attempt to protect assets is immaterial. Accord-
ingly, there is no reasonable likelihood of vindictiveness and no pre-
sumption arises. Furthermore, Tri-City has made no competent
showing of actual vindictiveness.
B. Sufficiency of the Evidence
Tri-City was convicted of money laundering, possession of motor
vehicle parts with obliterated vehicle identification numbers, remov-
ing identification for motor vehicles, obstruction of justice, owning,
operating, maintaining, or controlling a chop shop, and a RICO
offense. Tri-City argues that its convictions are not supported by suf-
ficient evidence and this requires reversal. The verdict of a jury, how-
ever, must be sustained if there is substantial evidence, taking the
view most favorable to the government to support it. Glasser v.
United States, 315 U.S. 60, 80 (1942).
We will begin our analysis with Tri-City’s money laundering con-
viction.
1. Count 15: Money Laundering
Tri-City was indicted for knowingly engaging in a monetary trans-
action in excess of $10,000 in property derived from Najjar’s fraudu-
lent activity. The indictment alleged that the laundering stemmed
from Najjar’s sale of fraudulently titled automobiles to Tri-City. Tri-
City argues that "[t]he deficiency in the government’s case on this
Count is that there is no evidence that anyone acting on behalf of the
corporation knowingly participated in a money laundering scheme
under § 1957." (emphasis in original).
Money laundering under 18 U.S.C. § 1957 is "a monetary transac-
tion in criminally derived property that is . . . derived from specified
unlawful activity." 18 U.S.C. § 1957(a). Title 18 U.S.C. § 1957(f)(2)
20 UNITED STATES v. NAJJAR
defines "criminally derived property" as "any property constituting, or
derived from, proceeds obtained from a criminal offense." In order to
support a conviction for money laundering, there must be proof
beyond a reasonable doubt that the defendant knowingly participated
in a monetary transaction involving criminally derived proceeds. With
respect to the knowledge element, which we understand to be Tri-
City’s real challenge to its conviction, the case was presented to the
jury as follows:
[T]he Government must prove beyond a reasonable doubt
. . . that the defendant knew that the property involved in the
financial transaction was the proceeds of some form of
unlawful activity. I instruct you that this element refers to a
requirement that the defendant knew the property involved
in the transaction represented proceeds from some form,
though not necessarily which form, of activity that consti-
tutes a criminal offense under state or federal law. I instruct
you as a matter of law that mail fraud is a criminal offense.
As I stated earlier, you may infer that the defendant had
knowledge from circumstantial evidence or from evidence
showing willful blindness by a defendant.
. . . [T]he Government must prove beyond a reasonable
doubt . . . that the defendant knowingly engaged in an
unlawful monetary transaction . . . . [T]he Government is
not required to prove that the defendant knew the particular
offense from which the criminally derived property was
derived. However, the Government must prove beyond a
reasonable doubt that the defendant knew that the transac-
tion involved criminally derived property, which I remind
you means any property constituting or derived from pro-
ceeds obtained from a criminal offense. If you find that the
Government has established beyond a reasonable doubt that
the defendant knew that the transaction involved property
derived from criminal offense, then this element is satisfied.
The defendants did not object to this instruction.
There is substantial evidence in the record that principals of Tri-
City knew that the vehicles they purchased from Najjar were proceeds
UNITED STATES v. NAJJAR 21
of criminal activity. For example, the evidence established that Firyal
Najjar, Tri-City’s president, was also an employee of Clinton Auto
Sales. Firyal Najjar worked at a desk directly across from Basem Naj-
jar in an office filled with stolen car parts throughout the period of
investigation. Additionally, the Purchase and Sale Agreement trans-
ferring the vehicles to Tri-City noted "the investigation by law
enforcement officers dealings with the acquisition of certain parts and
components of vehicles Maryland State Police investigation, currently
pending." This agreement was signed by Firyal Najjar. Firyal Najjar
was present during conversations between Jimmy Lee and Basem
Najjar about the need to buy and strip a red Acura to create a legiti-
mate excuse for their possession of another red Acura and its parts.
During this conversation, Basem Najjar asked Lee to backdate
receipts for other vehicle parts so that Najjar could forward them to
his attorney. From this, and voluminous other evidence, a reasonable
jury could have concluded that Tri-City knowingly participated in a
money laundering transaction. Accordingly, we affirm Tri-City’s con-
viction on this count.
We especially note that no issue as to the use of the mails is made
here or was made at trial.
2. Counts 16, 17, 18
The brief of Najjar and Tri-City tacitly admits the sufficiency of
evidence to sustain the conviction of Najjar, with which admission we
agree. The brief provides, p.78:
While Basem Najjar, with the knowledge he was aware of
and by his individual acts, may have taken steps to possess
motor vehicle parts with obliterated serial numbers (18
U.S.C. § 2321), transport from Maryland to Virginia stolen
property (18 U.S.C. § 2314), and/or remove identification
from a motor vehicle (18 U.S.C. § 511(a)(1), the evidence
is insufficient that Tri-City knew or should have known
what Basem Najjar was doing and/or that Basem Najjar was
acting within the scope of his employment and to somehow
benefit Tri-City. The evidence to convict Tri-City on these
three counts is insufficient.
22 UNITED STATES v. NAJJAR
So the contention here is that while "[a]n agent may be acting for
himself and a corporation at the same time," it may not "criminally
bind the corporation. It is precisely this evidence that is missing in
this case." Br. p.78.
Tri-City’s arguments fail, however, because Tri-City’s convictions
do not rest on Najjar’s crimes committed prior to its incorporation.
Najjar continued his criminal activities while employed at Tri-City
and, due to the broad grant of authority in the employment agreement
coupled with the overwhelming evidence, the jury could easily have
found beyond a reasonable doubt that Najjar’s conduct comprising
criminal activity was within the scope of his authority as general sales
manager and taken for the benefit of Tri-City.
Tri-City hired Najjar to be its general sales and operations manager
"with responsibility for managing, directing and overseeing the daily
sales operations of the Company, and all matters related to said opera-
tions." The agreement provided that "Najjar shall work exclusively
for the Company and shall not engage in any professional or business
activity which is not for the benefit of the Company." As part of his
duties for Tri-City, Najjar bought and sold vehicles using his Motor
Vehicle Administration used vehicle dealer’s license. The jury was
presented with evidence that no principal in Tri-City reprimanded
Najjar or placed limits on his authority to act for Tri-City. Tri-City’s
conviction on count 16 was for possessing motor vehicle parts with
obliterated identification numbers. Count 17 involved the interstate
transportation of stolen vehicle parts. Count 18 involved removing the
VIN from an automobile. Tri-City’s convictions on counts 16-18 all
deal with motor vehicle salvage and repair and thus the jury could
have reasonably concluded that Najjar was acting within the scope of
his authority as defined in the broad employment agreement when he
undertook his actions.
3. Counts 19, 20, 21
These counts deal with the obstruction of justice under 18 U.S.C.
§§ 1503(a), 1512(b)(3) and 1523(b)(2)(B). They deal with the with-
holding of information, or presentation of false information, or con-
cealment of information from law enforcement authorities or the
grand jury.
UNITED STATES v. NAJJAR 23
Najjar does not contest the sufficiency of evidence to the finding
of guilty on these counts. The claim of error is that "[t]he government
failed to prove that Basem Najjar was acting for the benefit of the cor-
poration and not solely in his sole interest."
The government points out, however, that corporations have fre-
quently been convicted of obstruction of justice offenses and that
there was ample evidence form which "the jury could conclude that
as Najjar sought to protect himself, he also intended to protect Tri-
City by concealing crimes he committed as Tri-City’s manager and
license holder." We agree with the position of the government and
hold that although it may not have been proven that Najjar acted
"solely in his sole interest," the fact that the record shows he was act-
ing both in the interest of himself and the corporation is sufficient to
support the conviction of Tri-City on these counts.
4. Count 22: The Chop Shop Count
On the chop shop count, the jury was presented with ample evi-
dence of Tri-City’s involvement through Najjar. Tri-City’s premises
were the same as Clinton Auto Sales’ and they shared employees.
There was testimony from George Perdue that he visited Tri-City
numerous times in 1998 and it was "full of cars and parts . . . a lot
of high dollar parts and cars . . . so much stuff lying around." Further,
there was testimony establishing that Tri-City’s premises were used
for the storage, stripping, and rebuilding of stolen cars. For example,
Roger Baylor testified that he and Najjar picked up the front clip from
a red sports car and transported it back to Tri-City. Wright’s search
of Perdue’s uncovered the front clip from a stolen red Acura NSX,
which was being installed on a yellow Acura NSX salvage vehicle.
After the search of Perdue’s, Najjar arranged for Baylor to move
stolen parts from the red NSX stored at Tri-City and his home to
Lee’s. A conversation between Jimmy Lee and Najjar recorded in
November 1998 detailed Najjar’s plan to buy an additional red Acura
NSX, cut it up, remove its VIN, and create backdated receipts to
cover for the government’s discovery of the stolen parts. Najjar
intended to forward these receipts to his attorney who would then for-
ward them on to the government. This conversation took place at Tri-
City Auto Outlet. From this evidence, and that contained in the volu-
24 UNITED STATES v. NAJJAR
minous record, the jury could easily have found Tri-City guilty of
running a chop shop.
5. Count 23: RICO
The government charged Tri-City and Najjar with a violation of
RICO in the indictment as follows:
At all times material to this Indictment, defendant BASEM
NAJJAR, CLINTON AUTO SALES (a sole proprietorship
which employed numerous individuals other than defendant
BASEM NAJJAR), defendant TRI-CITY and other persons
known and unknown and to the Grand Jury, were an associ-
ation in fact and constituted an enterprise as that term is
defined in Title 18, United States Code, Section 1961(4),
that is, a group of individuals and entities associated in fact,
which was engaged in and the activities of which affected
interstate and foreign commerce.
Tri-City, however, attacks the RICO5 conviction by arguing that the
government failed to prove the existence of an "enterprise" and a
"pattern of racketeering activity." On the latter element, Tri-City
argues that there was no common purpose between Najjar and Tri-
City, and further that there was no structure to the enterprise, only
Najjar’s separate interests. Specifically, Tri-City complains that it is
improper to put "two hats" on Najjar, one as an employee of Tri-City,
and the other as an individual, in order to show an enterprise and
common purpose. We find Tri-City’s arguments here to be without
merit and affirm the conviction.
First, principles of corporate liability apply in the RICO context.
5
18 U.S.C. § 1962 provides:
It shall be unlawful for any person employed by or associated
with any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, directly
or indirectly, in the conduct of such enterprise’s affairs through
a pattern of racketeering activity or collection of unlawful debt.
18 U.S.C. § 1962(c).
UNITED STATES v. NAJJAR 25
An enterprise in the context of RICO "includes any individual, part-
nership, corporation, association, or other legal entity, and any union
or group of individuals associated in fact although not a legal entity."
18 U.S.C. § 1961(4); cf. Cedric Kushner Promotions, Ltd. v. King,
533 U.S. 158 (2001). The Supreme Court has stated in this context,
"[w]hether the Act seeks to prevent a person from victimizing, say,
a small business . . . or to prevent a person from using a corporation
for criminal purposes . . . the person and the victim, or the person and
the tool, are different entities, not the same." Cedric Kushner Promo-
tions, 533 U.S. at 162. A certain degree of "distinctness" is required
for RICO liability; however, where a corporate employee "acting
within the scope of his authority . . . conducts the corporation’s affairs
in a RICO-forbidden way," the only "separateness" required is that
the corporate owner/employee be a natural person and so legally dis-
tinct from the corporation itself. Cedric Kushner, 533 U.S. at 163.
Thus, there were two distinct entities in this case sufficient for liabil-
ity under 18 U.S.C. § 1962(c): (1) a person, Basem Najjar, and (2) a
corporation, Tri-City Auto Outlet, Inc.
For the same reason, Tri-City’s argument, that the common pur-
pose prong was not proven, fails. Najjar, as we have discussed above,
was not acting solely on his own behalf, but on behalf of, and with
and intent to benefit, Tri-City Auto Outlet. Both Najjar and Tri-City,
through Najjar’s agency, sought to further the illegal scheme and so
had the requisite common purpose. Furthermore, there was evidence
that tended to show at least one other member of Najjar’s family, the
President of Tri-City, Firyal Najjar, Basem’s mother, had knowledge
of Najjar’s illicit activities and did not seek to halt it. Accordingly, we
are of opinion that the jury could reasonably have concluded that Tri-
City was guilty of a RICO violation beyond a reasonable doubt.
IV. JOINT CLAIMS
A. Forfeiture
Tri-City and Najjar were required to forfeit their interests in more
than $2.7 million and this amount represented all of Tri-City’s assets.
RICO requires the forfeiture of all ill-gotten gains derived from racke-
teering activities and the $2.7 million forfeiture judgment was based
on the fact that all of Tri-City’s activities taken through Najjar were
26 UNITED STATES v. NAJJAR
tainted by the charged illegality.6 See 18 U.S.C. § 1963(a).7 The
defendants challenge the district court’s forfeiture decision on two
grounds. First, the defendants argue that Apprendi v. New Jersey, 530
U.S. 466 (2000), requires a court to use a reasonable doubt standard
in a forfeiture proceeding. Had the district court applied this standard,
so the argument goes, the evidence presented would not have been
sufficient for a reasonable trier of fact to conclude that forfeiture was
warranted. Second, the defendants allege that the forfeiture imposed
an unconstitutionally excessive fine in violation of the Eighth Amend-
ment.
In United States v. Alexander, the Supreme Court found that forfei-
ture under RICO is a part of the punishment for the substantive
offense of racketeering. 509 U.S. 544, 558 (1993) ("The in personam
criminal forfeiture at issue here is clearly a form of monetary punish-
ment. . . ."). Furthermore, the Supreme Court has stated that district
6
The district court’s findings as to Najjar were incorporated in its judg-
ment against Tri-City.
7
The RICO penalty provisions require the convicted to forfeit to the
United States any property or interest of any kind in
(1) any interest the person has acquired or maintained in viola-
tion of section 1962;
(2) any -
(A) interest in;
(B) security of;
(C) claim against; or
(D) property or contractual right of any kind affording a
source of influence over;
any enterprise which the person established operated, controlled,
conducted, or participated in the conduct of, in violation of sec-
tion 1962; and
(3) any property constituting, or derived from, any proceeds
which the person obtained, directly, or indirectly, from racke-
teering activity or unlawful debt collection in violation of section
1962.
18 U.S.C. § 1963(a).
UNITED STATES v. NAJJAR 27
courts may make factual determinations bearing on punishment by a
preponderance of the evidence. See United States v. Watts, 519 U.S.
148, 156 (1997) (citing McMillan v. Pennsylvania, 477 U.S. 79, 91-
92 (1986)). Nothing in Apprendi overrules Alexander or Watts, and
until the Court does so, we follow them. Furthermore, because RICO
forfeitures are part of the punishment, and thus part of the sentencing
determination, there was no fact passed on by the trial judge but not
charged in the indictment that would have increased the penalty the
defendants faced beyond the statutory maximum penalty. See
Apprendi v. New Jersey, 530 U.S. at 490. Therefore, the district court
did not err in applying a preponderance of the evidence standard.
Moreover, upon our independent review of the record, we are satis-
fied that that standard was amply met here.
As for Tri-City’s excessive fines argument, we are similarly unim-
pressed. In United States v. Bajakajian, the Supreme Court held that
a fine is excessive if "it is grossly disproportional to the gravity of the
defendant’s offense." United States v. Bajakajian, 524 U.S. 321, 334
(1998). There, the defendant had failed to report the export of
$357,144. 524 U.S. at 337. Punishment under 18 U.S.C. § 982(a)(1)
required forfeiture of the entire amount involved in the offense. The
Supreme Court found that such a forfeiture was excessive because the
defendant’s crime was "solely a reporting offense," "and his violation
was unrelated to any other unlawful activities." 524 U.S. at 337-38.
Furthermore, although the statutory maximum sentence was five
years or a $250,000 fine, either or both, under the Sentencing Guide-
lines, the defendant was subject to only six months in prison and a
$5000 fine. 524 U.S. at 338.
The instant situation is clearly distinguishable. The district court
stated that "by far the wealth of the work that passed through Clinton
Auto Sales and Tri-City constituted the fruits of the mail fraud," and
"that huge numbers of automobiles were restored to salable conditions
by use of the fruits of theft." Furthermore, the district court found that
"all of the property becomes tainted by [the] racketeering activity
once it got well underway." From our review of the record, these find-
ings are sound and are not clearly erroneous.
It also appears that the crimes for which Tri-City was convicted
were much more serious than those in Bajakajian. Tri-City was
28 UNITED STATES v. NAJJAR
exposed to a $500,000 fine under the statute and what has been called
a death penalty fine under § 8C1.1 of the Sentencing Guidelines. See
United States Sentencing Guidelines § 8C1.1. It is clear that Tri-City
was conceived in crime and performed little or no legitimate business
activity, and as such, the forfeiture of all of its assets is not excessive
under Bajakajian’s "grossly disproportional" standard.
B. Instruction
Lastly, the defendants state that the district court erred in not giving
a jury instruction defining reasonable doubt. We have held that it is
improper for a district court to define reasonable doubt for a jury
unless the jury itself requests a definition. See United States v.
Oriakhi, 57 F.3d 1290, 1300 (4th Cir. 1995). There was no jury
request here, and so, there is no basis to grant Tri-City or Najjar relief
on this account.8
The defendants’ convictions and forfeiture judgments are accord-
ingly
AFFIRMED.
8
Tri-City and Najjar request that we reconsider the holding in United
States v. Oriakhi. However, it is not within the power of a panel of this
Court to overrule or reconsider a precedent set by another panel. See
Mentavlos v. Anderson, 249 F.3d 301, 312 n.4 (4th Cir. 2001). Therefore,
we decline Tri-City and Najjar’s invitation.