DEFENDANTS WANT THE COURT TO THROW OUT THE COMPLAINT FILED BY COMPASS MARKETING!
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BY KEN ROSSIGNOL
THE CHESAPEAKE TODAY
LEONARDTOWN, MD –
As the deadline for filing for candidates in Maryland passed on Friday, April 15th – the same day the Titanic sunk in 1912 – the name of Michael White still appeared alongside the names of three others offering their services to the voters of St. Mary’s County for the three Orphans Court Judgeships.
Basem Najjar, the owner of Clinton Auto Sales, let Sgt. White and Sgt. Downing use a Chevrolet Corvette, according to the 23-count indictment. Mr. Najjar paid Sgt. White for security work and gave Sgt. Downing cash, federal officials said.WASHINGTON TIMES
The deadline for withdrawing won’t be over for some time and should the Maryland Court of Appeals take action on any sitting judge prior to the election and remove a sitting judge as they did in the case of Judge Amy Nickerson who was removed from the Orphans Court in Kent County for various conduct.
DWI HIT PARADE: Convicted Boozing Judge Amy Nickerson Booted From Bench for Failing to Act Like A Judge!
The story of the Judge Michael White’s indictment by a Federal Grand Jury on multiple counts of criminal actions involved with a chop shop in Clinton, Maryland, his suspension by the Maryland State Police, his subsequent exoneration by a jury, and his failed attempt to hold an investigator liable for false prosecution, imprisonment and defaming his character is best told by court records.
MICHAEL WHITE LOST APPEAL OF ATTEMPT TO HOLD INVESTIGATOR LIABLE AFTER BEING FOUND NOT GUILTY IN CHOP-SHOP RICO CONSPIRACY
Following his indictment on multiple criminal counts by a Federal Grand Jury, then Maryland State Police Sgt. Michael White was found not guilty by a jury even though his coconspirator was found guilty and sentenced to prison. Basem Najjar was sentenced to 11 years in prison, forfeited nearly three million dollars, and ordered to pay over two hundred thousand in restitution. Michael White was suspended by the Maryland State Police following his indictment, who didn’t want him back and in 2003, Ehrlich Administration Budget Direct James C. DiPaula Jr. sealed the deal on a payment of $100,000 to Michael White for earned but unpaid salary.
Appeals Court tosses suit brought by Michael White against investigator in Chop-Shop Federal Case
The Fourth Circuit United States Court of Appeals provides this narrative on the appeal of Michael White’s codefendant’s conviction:
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 471 assets totaling $2,760,000. *471 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 TriCity 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 Leonardtown 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 *472 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. 472 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 TriCity, preventing the sale of certain vehicles. TriCity 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 TriCity’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 codefendants 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, 121 473 S.Ct. 365. *473
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.
II. NAJJAR’S CLAIMS
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 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 severance 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 severance 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, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993).
Accordingly, 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, 113 S.Ct. 933.
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 there would be evidence 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 severance 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.”).
Najjar offers two bases for severance once the trial had commenced. First, Najjar states that his codefendants pressed antagonistic 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, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
We will address each of these claims in turn.
*474 Najjar points to several instances in the record where counsel for co-defendants White and Downing attacked his credibility or otherwise 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, Najjar 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 legitimate 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, 113 S.Ct. 933. 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-pointing. 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.
Codefendant’s counsel indeed attempted to focus the jury’s attention on Najjar during 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 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 limiting the ability of his codefendants to test the veracity of that testimony, 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 services prong of mail fraud.
The defendants’ convictions and forfeiture
judgments are accordingly