United States v. Najjar

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.