U.S. v. Najjar
| Decision Date | 06 August 2002 |
| Docket Number | No. 00-4296.,No. 00-4654.,No. 00-4305.,No. 00-4650.,00-4296.,00-4305.,00-4650.,00-4654. |
| Citation | 300 F.3d 466 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Basem NAJJAR, a/k/a Bassem Najjar, a/k/a Basim Najjar, a/k/a Bassim Najjar, t/a Clinton Auto Sales, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Tri-City Auto Outlet, Incorporated, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Basem Najjar, a/k/a Bassem Najjar, a/k/a Basim Najjar, a/k/a Bassim Najjar, t/a Clinton Auto Sales, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Tri-City Auto Outlet, Incorporated, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Robert Charles Bonsib, Marcus & Bonsib, Greenbelt, Maryland, for Appellant Najjar; Timothy Joseph Sullivan, Sullivan & Sullivan, College Park, Maryland, for Appellant TriCity. Stuart A. Berman, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Beau Kealy, Marcus & Bonsib, Greenbelt, Maryland, for Appellant Najjar. Stephen M. Schenning, United States Attorney, Rod J. Rosenstein, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.
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.
Basem Najjar and Tri-City Auto Outlet, along with two others not involved in this appeal, were indicted in a 23-count indictment on federal 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 pursuant to allegedly illegal searches. Tri-City takes issue with the sufficiency 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, 121 S.Ct. 365, 148 L.Ed.2d 221 (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.
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 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 identification 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 reassembled 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 Clinton'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 Vehicle 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 Clinton 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 documents were printed by White at the Leonardstown State Police Barracks and given to Najjar.
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 information 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 businesses, Lee's Autobody and Frame, located in Virginia, and Perdue's Used Cars, where Najjar had moved his operations. Wright's information 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 Clinton 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 protect 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, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), and concluded that probable cause was present.
Najjar also sought severance or mistrial based on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Lt. Wright testified to out of court statements made by White and Downing, Maryland State Police Officers and co-defendants of Najjar's, and produced a tape recording of an 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 property. 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, 121 S.Ct. 365, 148 L.Ed.2d 221 (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 regulatory matter and therefore implicated its role as a sovereign, not its role as a property holder. 531 U.S. at 26-27, 121 S.Ct. 365.
After trial, the district court conducted RICO forfeiture proceedings. 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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.
Najjar first contends that the district...
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