                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4714


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

LEE BENTLEY FARKAS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:10−cr−00200−LMB−1)


Argued:   May 16, 2012                    Decided:   June 20, 2012


Before MOTZ, DAVIS, and WYNN, Circuit Judges.


Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Motz and Judge Wynn joined.


ARGUED: David M. Coorssen, DAVID M. COORSSEN, ATTORNEY AT LAW,
Louisville, Kentucky, for Appellant.   Kirby Ann Heller, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON   BRIEF:  Stuart  A.  Scherer,   Louisville,  Kentucky,  for
Appellant. Neil H. MacBride, United States Attorney, Charles F.
Connolly, Paul J. Nathanson, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia;
Lanny A. Breuer, Assistant Attorney General, John D. Buretta,
Acting Assistant Attorney General, Patrick F. Stokes, Deputy
Chief, Robert A. Zink, Trial Attorney, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
DAVIS, Circuit Judge:

        Appellant Lee Bentley Farkas challenges his convictions for

bank, wire and securities fraud, and conspiracy to commit the

same, arising      from    a    multibillion       dollar   scheme      to   hide    the

financial     difficulties       of     Taylor,    Bean,    &    Whitaker    Mortgage

Corp. (“TBW”) during his tenure as chairman and principal owner

of TBW. Farkas contends that the district court violated his

Sixth Amendment rights in four distinct ways: (1) denying his

motion to transfer venue; (2) denying his fourth motion for a

continuance; (3) appointing counsel to represent him; and (4)

limiting his right to cross-examine a Government witness. In

addition, Farkas contends that the district court violated his

Fifth      Amendment   rights      when     it    (1)   declined        to   give    an

instruction      defining       “beyond     a     reasonable      doubt”     and    (2)

instructed the jury that its “sole interest is to seek the truth

from the evidence,” J.A. 2042. Finally, apart from the challenge

to   his    convictions,       Farkas    contends    that       the   district     court

committed clear error in adjudicating the Government’s motion

for an order of forfeiture. Having carefully considered Farkas’s

contentions in light of the record presented to us, we discern

no reversible error. Accordingly, for the reasons that follow,

we affirm the judgment.




                                           3
                                           I.

                                           A.

      The    Government        presented     evidence       at     trial      that    amply

justified the jury in finding the following facts. Farkas and

his   co-conspirators          engaged     in     a     multi-stage         fraud     scheme

between 2002 and 2009, while Farkas was chairman and principal

owner of TBW, a mortgage lending company based in Ocala, Florida

and with offices in seven states. TBW originated and serviced

residential mortgage loans and sold them, either individually,

pooled, or as part of a mortgage-backed security, to third-party

investors and commercial financial institutions in the secondary

mortgage market. To fund the loans it originated, TBW relied on

advances from various warehouse banks and purchase facilities,

which were to be repaid from the proceeds of TBW’s sales to

investors.       TBW     received       short-term,        secured          funding    from

Colonial Bank, a subsidiary of Alabama-based Colonial BancGroup,

and   in    particular      Colonial     Bank’s       Mortgage     Warehouse         Lending

Division (“MWLD”).

      Between        2002   and    2003,    Farkas       and     his    co-conspirators

engaged     in   a    scheme      to   disguise       overdrafts       of   TBW’s     master

advance account held at Colonial Bank by “sweeping” funds from

TBW’s investor funding account, which was also held at Colonial

Bank and represented proceeds from sales of loans to investors

in the secondary market, into and out of the master advance

                                            4
account. As a result of this sweeping scheme, Colonial Bank’s

daily    reports     did    not     show         the    overdrafts.         Farkas’s      co-

conspirators    included         Ray    Bowman,         president      of    TBW,    Cathie

Kissick, head of the MWLD at Colonial Bank, and Teresa Kelly, a

MWLD operations supervisor.

       As the deficit in TBW’s assets with Colonial Bank grew to

well over $100 million, Farkas and his co-conspirators initiated

more sophisticated schemes, including “Plan B.” Under Plan B,

they caused TBW to sell sham mortgage loans and pools of loans

to Colonial Bank. These loans and pools of loans either did not

exist or had already been sold to investors; accordingly, they

were    worthless    or    had    significantly          impaired      value.       Colonial

Bank held approximately $250 million in Plan B individual loans

on its books by mid-2005, and by August 2009, Colonial Bank held

approximately       $500   million      in       Plan    B   pools     of   loans.     As   a

result, Colonial BancGroup significantly overstated the value of

its assets in its quarterly and annual reports to the United

States Securities and Exchange Commission.

       Relatedly,    in    furtherance           of    the   scheme,    Farkas      created

Ocala Funding, a subsidiary of TBW that issued commercial paper

to investors in return for cash, which in turn was used to fund

mortgage loans at TBW. Farkas and his co-conspirators overstated

by   hundreds   of    millions     of    dollars         the   actual       value    of   the

collateral backing the commercial paper and underreported Ocala

                                             5
Funding’s liabilities, ultimately resulting in a shortfall of

more than $1.5 billion. In the final stage of the scheme, Farkas

and his co-conspirators attempted to fraudulently obtain $553

million for Colonial BancGroup, Colonial Bank’s holding company,

from the Troubled Asset Relief Program, a program that Congress

created to rescue distressed financial institutions.

                                       B.

        On June 10, 2010, a grand jury in the Eastern District of

Virginia      returned   a   sixteen-count      indictment     against   Farkas

including, among other charges, bank and wire fraud in violation

of 18 U.S.C. §§ 1344 and 1343, respectively, and conspiracy to

commit bank and wire fraud in violation of 18 U.S.C. § 1349. The

indictment included a forfeiture provision and provided notice

that,    if   necessary,     the   Government   would   seek    forfeiture     of

substitute assets pursuant to 21 U.S.C. § 853(p). The following

day, the district court entered a restraining order enjoining

the sale or transfer of Farkas’s assets pursuant to 21 U.S.C.

§ 853(e)(1)(A).

     At his arraignment on July 2, 2010, Farkas appeared with

Gerald H. Houlihan, Esq., a Florida-based attorney, and Jeffrey

Harris, Esq., his would-be local counsel, neither of whom had

entered an appearance or been retained. Houlihan explained that,

as Farkas’s assets had been frozen and coverage under the TBW

Directors     &   Officers    insurance     policy   (“D&O   policy”)    was   in

                                        6
dispute,    Farkas         hoped       to    negotiate      a    carve-out        from    seized

assets for attorneys’ fees. The district court allowed Houlihan

and   Harris    to    enter        a    limited         appearance,     arraigned        Farkas,

accepted his Speedy Trial Act waiver, and set a trial date of

November 1, 2010. In mid-July, Houlihan and Harris notified the

court that a bankruptcy hearing concerning the D&O policy was

scheduled   for      July     16,       2010,      and    that     negotiations      with    the

Government regarding the possibility of a carve-out from assets

frozen   under       the    restraining            order    were     also       ongoing.    When

Farkas had not resolved his representation issues as of August

10, 2010, the district court appointed William B. Cummings, Esq.

to represent him under the Criminal Justice Act, 18 U.S.C. §

3006(A).    Farkas      objected            to    the    appointment       of    counsel.    The

court    responded         that        its       appointment       of     counsel    did     not

foreclose Farkas from retaining counsel, but that “at this point

we have to get this case moving.” J.A. 84.

      On August 26, 2010, Farkas moved to transfer venue to the

Middle District of Florida pursuant to Federal Rule of Criminal

Procedure      21(b).      The     Government            opposed    the     motion    and    the

district court denied Farkas’s request orally and by written

opinion. Farkas also moved for a continuance on four separate

occasions. The court granted Farkas’s first and second motions,




                                                   7
which were unopposed by the Government, but denied his third and

fourth requests. 1

        Following a nine-day jury trial, Farkas was found guilty on

fourteen counts, including conspiracy to commit bank fraud, wire

fraud, and securities fraud, in violation of 18 U.S.C. § 1349

(Count 1); six counts of bank fraud, in violation of 18 U.S.C.

§§ 1344      and        2    (Counts     2-7);    four    counts      of   wire      fraud,   in

violation of 18 U.S.C. §§ 1343 and 2 (Counts 8-11); and three

counts of securities fraud, in violation of 18 U.S.C. §§ 1348

and 2 (Counts 14-16). 2 The district court sentenced Farkas to 30

years       of    imprisonment,             to   be   followed     by      three      years   of

supervised release. Following sentencing, the court granted the

Government’s            preliminary          motion    for     forfeiture       and     ordered

Farkas       to        forfeit     $38,541,209,          representing         the    value    of

property         constituting          or    derived     from    proceeds       he     obtained

directly          or        indirectly      as   a    result     of     his     offenses      of

conviction. The court also held Farkas jointly and severally

liable for restitution payments totaling $3,507,743,557. We have

jurisdiction over Farkas’s timely appeal under 28 U.S.C. § 1291.


        1
       Farkas’s third motion for a continuance was styled as a
motion to amend the district court’s order granting his second
motion for a continuance.
        2
       Counts 12 and 13, which both charged wire fraud, were
dismissed on the Government’s motion during trial.



                                                  8
                                           II.

       We begin by addressing Farkas’s Sixth Amendment arguments.

The Sixth Amendment provides in part that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him . . . and to have the

Assistance of Counsel for his defence.” U.S. Const. amend. VI.

Farkas   argues    that     the       district   court      violated   his   right       to

assistance of counsel when it denied his motion for a transfer

of    venue,   denied     his     fourth    motion       for   a   continuance,         and

appointed counsel over his objection while negotiations bearing

on his ability to afford retained counsel were ongoing. Farkas

also    argues    that    the     district       court    violated     his   right       to

confrontation      when     it        limited    his     cross-examination         of    a

Government       witness.        We    reject     these      contentions     for        the

following reasons.

                                           A.

       Farkas argues that the district court abused its discretion

in denying his motion to transfer venue to the Middle District

of Florida. Federal Rule of Criminal Procedure 21(b) provides

that the court may transfer a proceeding, upon the defendant’s

motion, to another district, “for the convenience of the parties

and    witnesses    and     in    the    interest      of    justice.”   This      court

reviews a district court’s denial of a motion to transfer venue

for abuse of discretion. United States v. Heaps, 39 F.3d 479,

                                            9
482 (4th Cir. 1994), abrogated on other grounds, United States

v. Cabrales, 524 U.S. 1 (1998).

       In    deciding      a    Rule     21(b)      motion    to    transfer       venue,    a

district court should consider the factors enunciated in Platt

v. Minnesota Mining & Mfg. Co., 376 U.S. 240 (1964), namely, the

(1) location of the defendant; (2) location of witnesses; (3)

location     of    events       likely    to      be   in    issue;      (4)    location    of

documents      and       records;      (5)     disruption          of    the    defendant’s

business; (6) expense to the parties; (7) location of counsel;

(8)    relative      accessibility           of     place     of    trial;      (9)   docket

conditions in each district; and (10) any other specific element

which might affect the transfer. Platt, 376 U.S. at 243-44; see

also Heaps, 39 F.3d at 483 (upholding use of Platt factors). No

one of these factors is dispositive, and “[i]t remains for the

court to try to strike a balance and determine which factors are

of greatest importance.” United States v. Stephenson, 895 F.2d

867, 875 (2d Cir. 1990).

       Having carefully examined the record, we conclude that the

district court did not abuse its discretion in allowing this

case    to    proceed      in    the     Eastern        District        of   Virginia.     The

district court properly considered each of the Platt factors,

determined        that    only    the     first        of   the    ten       non-dispositive

factors (location of defendant) weighed in favor of transfer,

and accordingly denied the motion. For the reasons stated by the

                                               10
district court in its thorough written opinion, we find that it

did not abuse its discretion in applying the Platt factors in

the instant case. See United States v. Farkas, No. 1:10cr200

(LMB), 2010 U.S. Dist. LEXIS 100916 (E.D. Va. Sept. 10, 2010).

In addition, we note Farkas’s concession that “[t]he trial court

undertook a thorough analysis of each of the Platt factors.”

Appellant’s Br. at 15.

                                    B.

     Farkas also argues that the district court violated his

Sixth Amendment right to assistance of counsel when it denied

his fourth motion for a continuance. The denial of a continuance

contravenes a defendant’s Sixth Amendment right to counsel only

when there has been “an unreasoning and arbitrary insistence

upon expeditiousness in the face of a justifiable request for

delay.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (internal

quotation marks omitted) (citing Ungar v. Sarafite, 376 U.S.

575, 589 (1964)). To prevail on this issue, Farkas is obliged to

show, first, that the district court abused its discretion in

refusing   to   continue   the   trial,   and   second,   that   the   ruling

“specifically prejudiced” his case. United States v. Hedgepeth,

418 F.3d 411, 423 (4th Cir. 2005) (citations omitted). Farkas

has failed to make these showings here.

     The district court granted Farkas’s initial motion for a

continuance filed on August 31, 2010 (continuing the trial from

                                    11
November 1, 2010 to February 22, 2011), as well as his second

motion filed on December 6, 2010 (continuing the trial to April

4,    2011),     each      of    which     was      unopposed.        At     the      hearing    on

Farkas’s second motion for a continuance, the court cautioned

the    parties      that    it     would    grant         no    additional        continuances.

Nevertheless, Farkas moved to amend the court’s order later the

same day on the basis that the new trial date conflicted with

defense counsel’s law school teaching schedule. The court denied

the motion.         Several       months    later,        on     March     30,     2011,   Farkas

filed a fourth motion for a continuance requesting a trial date

on    or    after   May     30,    2011.       He     cited     the   need       to    review   new

discovery that had been added to the electronic database created

by    the    Government,          as    well     as     “the      ongoing        invocation     of

privilege by a number of legal and accounting firms,” which he

argued      prevented       the        disclosure         of     potentially          exculpatory

materials. J.A. 258. The court held a motions hearing, addressed

Farkas’s       discovery         production         and        privilege     arguments,         and

denied the motion in open court. On appeal, Farkas asserts that

the    “monumental         discovery       production           justified        the    defense’s

requests for continuances,” Appellant’s Br. at 18, but does not

reprise his privilege argument. 3

       3
       Notably, at the motions hearing Farkas backed away from
his discovery production argument and instead emphasized his
privilege argument. Defense counsel stated:
(Continued)
                                                 12
     “There are no mechanical tests for deciding when a denial

of a continuance is so arbitrary as to violate due process.”

Ungar, 376 U.S. at 589. Instead, “[t]he answer must be found in

the circumstances present in every case, particularly in the

reasons presented to the trial judge at the time the request is

denied.” Id. In declining to grant a fourth continuance on the

basis of the scale of discovery in this case, the district court

emphasized      that   the   Government    had   provided        considerable

assistance to defense counsel in reviewing documentary discovery

production,     including    instituting   an    open    file    policy   and

holding regular meetings. The court further noted that the case

had been continued twice, at least three attorneys represented

Farkas,   and    the   Government   had    provided     access    to   Jencks



     [M]y concern is that the emphasis – and we may have
     put too much on it – with regard to the discovery was
     really not the focus of our motion. There’s no
     question that the government has been very cooperative
     with us and has provided documents. We’ve had weekly
     telephone calls. Our concern has to do with the
     exercise of privilege by virtue of the TBW and the
     Colonial Bank both auditors and lawyers refusing to
     talk to us and providing only limited documents and
     continuing to assert privilege.

J.A. 291. Defense counsel later reiterated that “our concern is
more with privilege than with documents.” J.A. 293.

     We need not address whether Farkas has waived his discovery
production argument, however, as we find that the district court
did not abuse its discretion in denying the motion for a
continuance.



                                    13
material even earlier than the court’s discovery order required.

Given its thorough explanation of its reasons for refusing to

further      delay      the   trial    after        having    already       granted     two

continuances, the court’s denial of Farkas’s fourth motion for a

continuance cannot be described as “unreasoning and arbitrary.”

Thus, we find that the denial of a continuance here did not so

clearly violate fundamental fairness as to compel a conclusion

that    it    constituted      an    abuse    of     discretion.      Nor     has    Farkas

plausibly identified any specific prejudice stemming from the

district court’s denial of a further continuance. Thus, Farkas

is not entitled to relief on this ground.

                                             C.

       Farkas next contends that the district court violated his

Sixth Amendment right to counsel when it appointed counsel to

represent him despite his ongoing negotiations as to his ability

to     retain     private     counsel.       We     have     recognized       that    “[a]n

essential element of the Sixth Amendment’s protection of right

to counsel is that a defendant must be afforded a reasonable

opportunity        to   secure      counsel    of     his    own    choosing.”       United

States       v.   Gallop,      838    F.2d     105,      107-08      (4th     Cir.    1988)

(citations        omitted).    We    have     also      noted,     however,    that    “the

right to counsel of a defendant’s choosing is not absolute . . .

. Such right must not obstruct orderly judicial procedure and

deprive      courts     of    the    exercise      of    their     inherent     power    to

                                             14
control the administration of justice.” Id. (citations omitted).

Like    Farkas’s        other      Sixth    Amendment          claims,    we    review        the

district       court’s       decision      to       appoint     counsel    for    abuse       of

discretion.

       While Farkas acknowledges that “[a] trial court maintains

‘wide       latitude    in    balancing         the    right    to   counsel      of    choice

against the needs of fairness . . . and against the demands of

its calendar,’” Appellant’s Br. at 23 (citing United States v.

Gonzalez-Lopez, 548 U.S. 140, 152 (2006)), he argues that, in

this    case,    “[f]undamental            fairness     and     [his]     Sixth       Amendment

right to counsel of his choice far outweighed the trial court’s

insistence on moving the case along at the pace it did,” id. at

25.    We    disagree.       As    the   Government         notes,   Farkas       apparently

contends that the district court should have held the criminal

proceedings in abeyance until the bankruptcy court and the TBW

insurance company determined whether the D&O policy would be

available for Farkas’s use. In declining to take this course of

action, the district court appropriately weighed speedy trial

concerns       in      the    context          of     the     uncertain        circumstances

surrounding Farkas’s ability to retain preferred counsel, and

further indicated that appointment of counsel would not impede

Farkas’s retention of counsel of his choosing if and when funds

became        available        for       his        defense.      Indeed,        as     Farkas

acknowledges,          he    was   represented         by     retained    counsel        as    of

                                                15
December 2010, almost a full year prior to commencement of his

trial. As the Supreme Court has noted, the Sixth Amendment does

not    provide          an    absolute          right,       but     instead       guarantees       a

defendant        a    “fair    opportunity”            to    secure      counsel       of    his   own

choice to represent him at trial on criminal charges. See Powell

v. Alabama, 287 U.S. 45, 53 (1932). It is clear on the record

before      us    that       Farkas    was      not    denied       a    fair    opportunity        to

secure counsel of his choice as a result of the district court’s

appointment of counsel. Thus, we find that the district court

did not abuse its discretion.

                                                  D.

      Farkas’s final Sixth Amendment claim is that the district

court infringed his right to confront witnesses against him when

it    limited          his    cross-examination               of     Neil       Luria,      managing

director         of    Navigant       Consulting,           Inc.    (“Navigant”)         and    chief

restructuring            officer          for    TBW        during       bankruptcy.         Luria’s

testimony on direct examination primarily concerned his analysis

of    the    TBW       bankruptcy          estate.      On     cross-examination,              Farkas

sought to question Luria regarding fees Navigant received for

managing         the     estate.          The     Government            raised     a        relevance

objection,            which    the        district          court       sustained.       While      we

typically review a district court’s limitations on a defendant’s

cross-examination              of     a     prosecution            witness       for     abuse     of

discretion, United States v. Smith, 451 F.3d 209, 220 (4th Cir.

                                                  16
2006),    where    the   defendant    raises      an    alleged      constitutional

violation for the first time on appeal, as in this case, we

apply plain error review. See Fed. R. Crim. P. 52(b); United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (citations

omitted).

      “In    reviewing    for   plain    error,        our    initial    inquiry     is

whether     an   error   occurred.”     Hughes,     401      F.3d   at   547    (citing

United States v. Hastings, 134 F.3d 235, 239 (4th Cir. 1998)).

“Next, the error must be plain.” Id. (citing Hastings, 134 F.3d

at 239). “Third, [Farkas] must establish that the error affected

his substantial rights, i.e., that it was prejudicial.” Id. at

548   (citing     Hastings,     134   F.3d     at      240).    Fourth,        we   must

determine whether our failure to reverse the judgment of the

district court would amount to a miscarriage of justice. Id. at

555 (citing Hastings, 134 F.3d at 244). Farkas concedes that

“[t]he third and fourth Hughes prongs, requiring a showing of

prejudice and a miscarriage of justice, are virtually impossible

to establish on the record, especially given trial counsel’s

failure to further develop this issue.” Appellant’s Br. at 35.

Farkas urges us to overlook this fatal shortcoming, but we find

that it forecloses his Sixth Amendment argument.

      We further note that, irrespective of Farkas’s concession

that he is unable to establish prejudice or a miscarriage of

justice, he has failed to demonstrate that the district court

                                        17
erred in the first instance. Although “cross-examination is an

important element of the right of confrontation,” United States

v. McMillon, 14 F.3d 948, 956 (4th Cir. 1994) (citing Smith v.

Illinois, 390 U.S. 129 (1968)), “the trial court is vested with

broad    discretion      to     control    the   mode     of    interrogation      and

presentation of evidence to insure that witnesses are treated

fairly and the search for truth is not impaired by presentation

of extraneous, prejudicial or confusing material,” United States

v. Gravely, 840 F.2d 1156, 1163 (4th Cir. 1988) (citing Fed. R.

Evid. 611)). “Under Federal Rule of Evidence 611(b), ‘cross-

examination     should     be    limited    to   the    subject      matter   of   the

direct examination and matters affecting the credibility of the

witness.’” McMillon, 14 F.3d at 956.

     Farkas argues that the line of questioning at issue was

relevant to Luria’s credibility because he sought to demonstrate

that Luria and Navigant had a pecuniary interest in the outcome

of the trial. The record does not support this characterization

of the questioning, however, and suggests instead that Farkas

sought    to   show   that      Luria’s    salary   and    other     administrative

costs    connected    to   the    bankruptcy     reduced       the   amount   of   TBW

assets available to pay its creditors. The district court stated

in sustaining the Government’s relevance objection that “it is

completely irrelevant to this case as to whether there’s a $50

billion hole or a $5 billion hole. It could be relevant to the

                                           18
forfeiture issue, which is for down the road, but I don’t want

to waste the jury’s time . . . . It’s a fraud case, and quite

frankly, you can have fraud without a big loss.” J.A. 1693-95.

Defense    counsel       responded,       “Yes    ma’am.    I    was    just     concerned

about the prejudice with those big numbers.” J.A. 1695. Farkas

made no attempt to proffer that he sought to show bias; on the

contrary, he suggested that the large disparity between TBW’s

assets    and     its    liabilities        to    creditors      in     bankruptcy         was

prejudicial.       The     district       court    found    that      it   was      not.    We

decline    on     appeal    to    find    error     based   on     Farkas’s      post      hoc

recasting of the evidentiary basis for his cross-examination of

Luria with respect to fees Navigant received for managing the

TBW bankruptcy estate. Thus, we find that the district court did

not err in limiting Farkas’s cross-examination of Luria.



                                           III.

       Farkas next advances two intertwined Fifth Amendment due

process claims. He argues that the district court erred when it

declined     to     give     a     jury     instruction         defining       “beyond      a

reasonable      doubt,”      but       instructed    the    jury       that    its    “sole

interest is to seek the truth.” Appellant’s Br. at 26 (citing

J.A.   2042).      We    review    a    district     court’s     refusal       to    give    a

specific jury instruction for abuse of discretion. United States

v. Herder, 594 F.3d 352, 359 (4th Cir.), cert. denied, 130 S.

                                            19
Ct. 3440 (2010). “We review the accuracy and adequacy of jury

instructions de novo,” United States v. McIver, 470 F.3d 550,

557-58 (4th Cir. 2006) (citing United States v. Scott, 424 F.3d

431, 434 (4th Cir. 2005)), and will not reverse a conviction so

long as “the instructions, taken as a whole, adequately state

the controlling law,” id. (citing United States v. Wills, 346

F.3d 476, 492 (4th Cir. 2003)). For the reasons that follow, we

find that the jury instructions in this case were proper in all

respects.

       Farkas     requested   a   jury   instruction          defining      “beyond     a

reasonable doubt” as “proof of such a convincing character that

a reasonable person would not hesitate to rely and act upon it

in the most important of his or her own affairs.” J.A. 1859-60.

The court included an instruction stating that “the burden of

proving    guilt    beyond    a   reasonable     doubt       is    always     with    the

government,” J.A. 2002, but declined to adopt Farkas’s proposed

definition of “beyond a reasonable doubt.” Farkas objected at

the    charging    conference     to   the    court’s       refusal   to    give      this

particular instruction. As Farkas concedes on appeal, however,

this    court     has   repeatedly     held    that     a    trial    court      is    not

required to define “beyond a reasonable doubt” for the jury.

See, e.g., United States v. Walton, 207 F.3d 694, 698 (4th Cir.

2000)    (en    banc)   (“[A]lthough     the     district         court    may   define

reasonable doubt to a jury . . . the district court is not

                                         20
required to do so.”); United States v. Hornsby, 666 F.3d 296

(4th Cir. 2012) (“Not requiring such an instruction is based on

this       Circuit’s   belief   that     attempting     to   explain   the   words

‘beyond a reasonable doubt’ is more dangerous than leaving a

jury to wrestle with only the words themselves.”). Thus, the

district court did not abuse its discretion in declining to give

Farkas’s requested jury instruction.

       Farkas     also    argues   that    the     district    court   erred   in

instructing the jury that, as part of its duty to deliberate,

the jury’s “sole interest is to seek the truth” (hereafter the

“seek-the-truth instruction”). 4 Farkas objected to the seek-the-

truth instruction at the charging conference and renewed his

objection at trial. On appeal, he argues that the seek-the-truth

instruction, in combination with the court’s refusal to define

“beyond a reasonable doubt,” improperly diluted the Government’s

burden of proof.

       Farkas    relies    on   United    States   v.   Gonzalez-Balderas,      11

F.3d 1218 (5th Cir. 1994), in which the Fifth Circuit considered

a jury instruction similar to the seek-the-truth instruction and

       4
       In the portion of the jury charge describing the duty to
deliberate,   the  district   court   instructed   the jury   to
“[r]emember at all times that you are not partisans. You are
judges — judges of the facts of this case. Your sole interest is
to seek the truth from the evidence received during the trial.”
J.A. 2042. Notably, Farkas initially requested the seek-the-
truth instruction, but later withdrew his request.



                                          21
opined    that   “[a]s      an    abstract     concept,    ‘seeking         the    truth’

suggests   determining       whose    version     of   events     is    more       likely

true, the government’s or the defendant’s, and thereby intimates

a   preponderance      of   the    evidence    standard.”     Id.      at    1223.     The

court opined that “[s]uch an instruction would be error if used

in the explanation of proof beyond a reasonable doubt,” but held

that the instruction in that case was not erroneous because the

trial court had defined reasonable doubt. Id. The court reasoned

that “[t]here is no reasonable likelihood that the jury inferred

that the single reference at the end of the charge to ‘seeking

the truth,’ rendered as it was in the context of an admonition

‘not to give up your honest beliefs,’ modified the reasonable

doubt burden of proof.” Id.

      As in Gonzalez-Balderas, the seek-the-truth instruction at

issue here was presented at the end of the jury charge in the

context    of    the   court’s      explanation     of     the    jury’s      duty      to

deliberate.      In    addition      to      instructing    the     jury          on   the

Government’s burden to prove its case beyond a reasonable doubt,

the district court referred to the reasonable doubt standard on

at least twenty-six separate occasions in the jury instructions.

“To determine whether jury instructions require reversal . . .

we assess the instructions as a whole and view them in context.”

United States v. Hsu, 364 F.3d 192, 204 (4th Cir. 2004). In

light of the district court’s emphasis on the reasonable doubt

                                          22
standard in the jury instructions taken as a whole, we cannot

conclude      that     the   single   seek-the-truth            reference,       which      the

court made in the course of admonishing individual jurors not to

surrender      their      honest    convictions,         diluted    the     Government’s

burden, or otherwise amounted to error.



                                            IV.

       Apart from the above challenges to his convictions, Farkas

asserts       that     factual      error    infects       the     district           court’s

forfeiture      order.       Specifically,        he   argues     that     the    district

court clearly erred in finding that “TBW would have failed ‘but

for’    the     [fraud]      schemes,”      thereby      rendering        certain       funds

identified by the Government as forfeitable indirect proceeds of

his crimes. Appellant’s Br. at 37. Whether TBW would have been

insolvent but for the fraud schemes is a question of fact. We

review a district court’s findings of fact as to forfeitability

for clear error. Herder, 594 F.3d at 363-64.

       Farkas     is    subject      to   mandatory       forfeiture        due       to    his

convictions for bank and wire fraud under 18 U.S.C. §§ 1344 and

1343, and for conspiracy to commit these offenses. Federal Rule

of     Criminal      Procedure      32.2(b)(1)         provides     for    entry       of    a

preliminary       order      of   forfeiture      upon    the    return    of     a    guilty

verdict if the Government proves the requisite nexus between the

identified        funds      and    the     offenses       of      conviction          by     a

                                            23
preponderance of the evidence. See Libretti v. United States,

516 U.S. 29 (1995); United States v. Cherry, 330 F.3d 658, 669-

70 (4th Cir. 2003). Following the jury’s guilty verdict in this

case, the Government filed a preliminary motion for forfeiture

and forfeiture of substitute assets pursuant to 18 U.S.C. §§

982(a)(2)    and     981(a)(1)(C).      Section    982(a)(2)        requires       the

forfeiture    of     “any    property   constituting,          or   derived    from,

proceeds    the    person    obtained   directly    or    indirectly,         as   the

result of” certain enumerated offenses, including bank and wire

fraud    affecting    a     financial   institution,          and   conspiracy     to

commit these offenses. Section 981(a)(1)(C) authorizes the civil

forfeiture    of      “[a]ny    property,    real        or     personal,      which

constitutes or is derived from proceeds traceable to” certain

enumerated offenses, such as bank and wire fraud. 5

     The district court held a hearing, granted the Government’s

motion in open court and issued an Order requiring Farkas “to

forfeit a money judgment in the amount of $38,541,209.69 as the

value of the property constituting or derived from proceeds he

obtained directly or indirectly as a result of his fraudulent

activities.” United States v. Farkas, No. 1:10cr200 (LMB), 2011




     5
       The provisions of § 981(a)(1)(C) are applicable to this
case pursuant to 28 U.S.C. § 2461(c), which allows criminal
forfeiture where civil forfeiture is authorized.



                                        24
U.S.    Dist.        LEXIS      124001,          at    *1        (E.D.     Va.    Oct.      26,        2011)

(citation and internal quotation marks omitted).

       In a written opinion explaining its order, the district

court     identified            four        sources          of        forfeitable       funds:         (1)

$15,000,000          paid       to        TBW    for        an     amount        due   on        Farkas’s

shareholder          account;         (2)       $8,394,459.67            paid     to   or        for    the

benefit of Farkas from his shareholder account; (3) $7,330,500

in fraudulent loans originated through TBW (referred to by the

Government          and   the    district             court       as    “Lee     loans”);        and    (4)

$11,474,637.80 transferred from TBW for the benefit of Farkas’s

general partnership, 3201 Partnership. Id. at *5-6. The court

then    considered          whether         the       Government          had     established           the

requisite nexus between each category of funds and the offenses

of conviction. Id. at *6-19. The court first determined that the

$15 million applied to Farkas’s due-from-shareholder account and

the     $7,330,500        in     “Lee           loans”      were        forfeitable         as    direct

proceeds       of    Farkas’s         scheme.         Id.     at       *14-15.    Farkas     does        not

challenge the forfeitability of these funds on appeal.

       The     court      then        considered            whether        the     Government            had

established the requisite nexus with respect to the funds in the

due-from-shareholder and due-from-3201 Partnership accounts. Id.

at     *5-6.    Given        the       Government’s               theory       that    these           funds

constitute          proceeds         of    Farkas’s          crimes,       the     district         court

applied      the     “but       for”       nexus       test       first     articulated           by     the

                                                      25
Seventh Circuit in United States v. Horak, 833 F.2d 1235, 1242-

43 (7th Cir. 1987), and since applied by a number of other

courts, see United States v. DeFries, 129 F.3d 1293, 1313 (D.C.

Cir. 1997); United States v. Nicolo, 597 F. Supp. 2d 342, 346

(W.D.N.Y. 2009), aff’d, 421 F. App’x 57 (2d Cir. 2011); United

States v. Ivanchukov, 405 F. Supp. 2d 708, 712 (E.D. Va. 2005);

United States v. Benyo, 384 F. Supp. 2d 909, 914 (E.D. Va.

2005). Pursuant to this test, funds are considered proceeds and

therefore deemed forfeitable if “a person would not have [the

funds] but for the criminal offense.” Nicolo, 597 F. Supp. 2d at

346   (emphasis   added)    (citation      and    internal    quotation     marks

omitted).

      Applying the “but for” nexus test, the district court held

that “[t]he nexus requirement is satisfied by tracing [Farkas’s]

fraud to the continued viability of TBW to [his] access to the

funds sought to be forfeited, demonstrating he obtained such

funds indirectly as a result of his crime.” Farkas, 2011 U.S.

Dist.   LEXIS   124001,    at   *18-19.    The    court   reasoned   that    “the

funds   defendant      obtained    from     TBW     through    the   due-from-

shareholder     and   due-from-3201   Partnership         accounts   would   not

have been available to him but for his fraud, because TBW would

not have remained in business in the absence of the bank and

wire fraud scheme.” Id. at *17. The court similarly stated, “TBW

was only able to continue its business activities due to the

                                      26
ongoing fraud.” Id. Farkas challenges only this finding of fact

on appeal, which we review for clear error. See Herder, 594 F.3d

at 363-64.

       Having reviewed the record, we conclude that the district

court did not clearly err in finding that TBW remained solvent

from    2002     to   2009    only    as     a    result      of    Farkas’s       fraudulent

conduct.       The    district       court       reasoned      that       “[t]he     evidence

produced at trial amply demonstrates that TBW was only able to

continue    its       business     activities         due   to      the   ongoing     fraud.”

Farkas, 2011 U.S. Dist. LEXIS 124001, at *17 (citing J.A. 2093-

95)    (summarizing        trial     evidence,        including       testimony       of    Ray

Bowman, Cathie Kissick, Teresa Kelly, and Desiree Brown, as well

as     summary       charts   admitted           at   trial        through   witness        Ray

Peroutka). The court’s reliance on the trial record is proper

under Federal Rule of Criminal Procedure 32.2(b)(1)(B), which

provides       that    a   sentencing        court      may        base    its     forfeiture

determination “on evidence already in the record, including any

written    plea       agreement,      and        on   any   additional           evidence   or

information submitted by the parties and accepted by the court

as relevant and reliable.”

       Farkas argues that “[the] evidence cited by the trial court

and the government was directly controverted not only by other

trial testimony, but by the averments in the Indictment, and the

actual financial documentary evidence at trial – as admitted by

                                             27
the government.” Appellant’s Br. at 37 (footnotes omitted). The

Government   correctly   responds    that   the   indictment    is   not

evidence, reviews trial testimony supporting the court’s finding

that TBW would have been insolvent but for the schemes, and

refutes Farkas’s claims that this evidence was controverted by

testimony and financial documents. Having reviewed the record,

including the testimony referenced by the district court, we

conclude that the district court did not clearly err in finding

that TBW would have been insolvent during the fraud period “but

for” Farkas’s fraud schemes. Therefore, we affirm the district

court’s order of forfeiture.



                                V.

     For the reasons set forth, the judgment is

                                                               AFFIRMED.




                                28
