                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-30-2002

USA v. Basroon
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-1171




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                                                 NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No. 01-1171




                    UNITED STATES OF AMERICA

                                v.

                        MARTIN BASROON,

                                     Appellant



    ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
                     DISTRICT OF NEW JERSEY

                  (Dist. Court No. 98-cr-444)
      District Court Judge: Honorable Katharine S. Hayden


                      Argued March 4, 2002

       Before: ALITO, RENDELL, and HALL, Circuit Judges.

                 (Opinion Filed: May 30, 2002)
                       __________________

                                       Shalom D. Stone (Argued)
                                Justine P. Walder
                                  Walder, Sondak & Brogan, P.A.
                                             5 Becker Farm Road
                                     Roseland, New Jersey 07068

                                            Counsel for Appellant

                        George S. Leone
                                 Elizabeth S. Ferguson (Argued)
                               Assistant United States Attorney
                                                970 Broad Street
                                        Newark, New Jersey 07102
                                            Counsel for Appellee




                      OPINION OF THE COURT



PER CURIAM:
                           Background
     Defendant/appellant Martin Basroon ("Basroon") was the president of Plaza
Mortgage Company ("Plaza"), an entity engaged in the mortgage-writing business. The
government indicted Basroon after an investigation into fraudulent misrepresentations
that Basroon and Plaza allegedly made to investors. After a jury trial, Basroon was
convicted on both counts charged in the superseding indictment: (1) conspiracy to commit
mail and wire fraud, in violation of 18 U.S.C. 371, and (2) interstate transportation of
property taken by fraud, in violation of 18 U.S.C. 2314 and 2.
     Basroon appeals his conviction on numerous grounds. He contends that his
conviction was based on false evidence that Plaza was insolvent, that the government’s
accounting expert improperly testified as to matters beyond the scope of his expertise,
that the government introduced irrelevant and highly prejudicial evidence, that the
government engaged in prosecutorial misconduct during summation, that the jury was
improperly instructed as to both the conspiracy count and the interstate transportation of
property taken by fraud count for several reasons, that the government presented
insufficient evidence to sustain his convictions as to both counts, that he was prejudiced
by pre-indictment delay, and that the conspiracy charge was barred by the statute of
limitations. Because the parties are familiar with the facts of this case, we recount them
here only to the extent necessary to explain our rulings.
                           Discussion

     I.   Evidence that Plaza was Insolvent
     Basroon points out that if Plaza had not been insolvent at the time he made various
alleged misrepresentations to investors, the government would have had difficulty
meeting its burden of proving that Basroon knew that he could not fulfill the
representations he made at the time that he made them or that he had concealed Plaza’s
insolvency. The government called an expert witness, Herbert Miller, to testify as to
Plaza’s insolvency during the relevant time period.   Basroon argues that Miller presented
"false evidence" of Plaza’s insolvency, claiming that Miller improperly failed to value
Plaza at "fair value" and instead erroneously valued Plaza’s assets and liabilities using
Generally Accepted Accounting Principles, which required Miller to alter Plaza’s balance
sheets by deferring substantial portions of income over time. Without these adjustments,
Basroon contends that Plaza’s balance sheets reflected that it was solvent during the
relevant time period. We review Basroon’s claim only for plain error, as Basroon failed
to timely object below. United States v. Stewart, 283 F.3d 579, 580 (3d Cir. 2002).
      Miller stated that he would perform a "fair value" analysis, and his methodology
would not have been adequate to meet a party’s burden of proving insolvency in a
bankruptcy proceeding. See, e.g., In re Merry-Go-Round Enterprises Inc., 229 B.R. 337,
342-43 (Bankr. Md. 1999). In such a proceeding, insolvency, meaning "the sum of such
entity’s debts is greater than all of such entity’s property," 11 U.S.C. 101(32)(A), must
be demonstrated by the "fair value" method where a fair valuation of an entity’s property
refers to the amount of cash that could be realized from a sale of the property during a
reasonable period of time. Travellers International AG v. Trans World Airlines, Inc., 134
F.3d 188, 194 (3d Cir. 1998).
     However, as Basroon concedes, "there are different definitions of insolvency."
Basroon does not explain why Miller was bound to use the definition from the
Bankruptcy Code. This was not a bankruptcy proceeding, and Miller’s methodology was
not plainly erroneous. Basroon argues with some of the assumptions and estimates that
Miller made; Miller’s testimony could have been the subject of cross-examination, and at
trial Basroon passed on the opportunity to use his own expert witness for rebuttal.
Miller’s error, if any, was not plain.
     II. Scope of Miller’s Testimony
          Next, Basroon claims that Miller’s testimony "impermissibly invaded the
province of the jury on critical issues such as Basroon’s intent and the credibility of
Basroon’s deposition testimony." Basroon pinpoints three alleged violations of Federal
Evidence Rule 704(b) in Miller’s testimony: Miller’s testimony that Plaza’s operations
were consistent with the operation of a Ponzi scheme, Miller’s testimony that Plaza’s
financial statements were false and misleading, and Miller’s testimony that Basroon had
not offered an adequate explanation for variations between Plaza’s tax returns and
financial statements in his depositions.
               A.   Miller’s Opinion that Plaza’s Operation was Consistent with the
          Operation of a Ponzi Scheme
     Miller was permitted to testify, over objection, that a Ponzi scheme is a scheme to
defraud investors, and that Plaza’s operation was "consistent with" the operation of a
Ponzi scheme. Basroon claims that this testimony impermissibly stated an "opinion or
inference" as to Basroon’s mental state, i.e., his intent, violating Fed. R. Evid. 704(b).
See U.S. v. Bennett, 161 F.3d 171, 182 (3d Cir. 1998) (Rule 704(b) prohibits expert
testimony "from which it necessarily follows ... that the defendant did or did not possess
the requisite mens rea.") (internal quotations omitted).
     However, contrary to Basroon’s assertions, Miller never implied that Basroon
intended to defraud investors or intended to run a Ponzi scheme. The government did not
question Miller about Basroon’s mental state, and the conclusion that Basroon possessed
the requisite mental state did not necessarily follow from Miller’s testimony.
Accordingly, the district court did not err in admitting this testimony. See United States
v. Watson, 260 F.3d 301, 308 (3d Cir. 2001).
               B.    Millers’s Testimony that Plaza’s Financial Statements were False and
          Misleading
     Miller testified that the accounting techniques used by Basroon to prepare Plaza’s
books and records were false and misleading, and when asked to opine as to the quality of
the financial statements, testified that he "would not even classify them as being financial
statements." While Basroon argues that this testimony conveyed to the jury that Basroon
acted with fraudulent intent in preparing the financial statements, the questions were all
factual, going only to the quality of the financial statements. There was no discussion of
Basroon’s intent in filing the financial statements, and their admission was not error.
               C.    Miller’s Testimony Regarding Basroon’s Explanation for Variations
          Between Plaza’s Financial Statements and Income Tax Returns
     Miller was shown a chart illustrating variations between Plaza’s financial
statements and income tax returns. Miller testified that the explanation for those
variations given by Basroon in his civil deposition testimony was "totally inadequate,"
without documentation, and "didn’t make any sense to [him]." Similarly, when Miller
was asked about Basroon’s explanation for the difference between Plaza’s financial
statements and Miller’s calculation of Plaza’s loss, Miller testified that he found
Basroon’s "explanation to be inadequate." Basroon attacks this testimony as violating the
prohibition on expert opinion as to the credibility of a witness.
     However, Miller did not opine as to Basroon’s credibility, but rather, commented
on the accounting basis for the explanation offered by another accountant (Basroon) to
explain accounting decisions made in financial documents. The testimony was not a
direct attack on Basroon’s credibility, and the testimony was properly admitted.
          III.       Introduction of Allegedly Irrelevant and Prejudicial Evidence
     Next, Basroon claims that various testimony which he characterizes as Federal
Rule of Evidence 404(b) (prior bad acts) evidence was introduced for the impermissible
purposes of proving general bad character and inflaming the jury’s passion.
     The evidence that Basroon claims should have been excluded includes testimony
regarding the guardianship of Tammy Koch, evidence that Basroon’s conduct led to the
loss of investors’ retirement and pension funds, evidence that Basroon had violated state
ethics rules, evidence that Basroon had falsified an IRS Form 1099, and testimony
concerning allegedly false statements made to Vinings Bank, which had extended a line
of credit to Plaza.
     Having thoroughly reviewed the record, we conclude that Basroon’s various Rule
404(b) evidentiary challenges lack merit. At trial Basroon failed to object to the
admission of much of this evidence. As to the evidence that Basroon did timely object to,
much of the evidence was properly admitted. To the extent that evidence was improperly
admitted, the error was harmless, due to the overwhelming independent evidence upon
which the jury could have based its conviction. U.S. v. Murray, 103 F.3d 310, 319 (3d
Cir. 1997).
     IV. Alleged Prosecutorial Misconduct re: Prosecutor’s Statements During
     Summation
     Basroon next contends that the prosecutor misled the jury by referring to evidence
that was not in the record, by improperly commenting on Basroon’s failure to testify, by
improperly commenting on victim-impact evidence and the fact that the investors, at the
time of trial, had still not received compensation, and by making improper attacks on
Basroon’s character.
               A.    Reference to Evidence Outside the Record
     Among the many facts that the government used to attempt to prove that Basroon
was misrepresenting the financial condition of Plaza was the incident in which he told
Kenneth Seidman that he was looking to sell off a considerable portion of Plaza’s loan
portfolio due to continuing financial troubles on the same day that Plaza was accepting
additional investments from Pierce and Agnes Bouvet. In closing arguments, the
government stated: "What about the Boves [sic], whose checks you have in evidence and
again who handed Basroon checks in mid January. The same date he was making a series
of extraordinary false statements to Kenneth Seidman on the tape, the Boves [sic] were
paying thousands of dollars to be invested."
     While the government presented evidence that the Bouvets relinquished possession
of the checks and gave possession of them to Plaza, there was no evidence that Basroon
himself, rather than someone else at Plaza, solicited the Bouvets’ investments. Indeed,
there was no evidence that Basroon knew about these checks. Basroon claims that
because the statement that he personally received the checks was not supported by the
evidence, it unduly prejudiced him.
     However, the jury asked during deliberations "who solicited [the Bouvet]
investments and when were they solicited?" The district court responded to the jury’s
question by stating that counsel agreed "that there is no evidence in the record with
respect to who solicited the Bove [sic] investment." In light of this instruction, and in
light of consideration of the relative unimportance of these statements in the context of
the entire trial, Basroon was not prejudiced. See United States v. Helbling, 209 F.3d 226,
241 (3d Cir. 2000).
               B.    Comments on Basroon’s Failure to Testify
     Basroon claims that the prosecutor’s statement in rebuttal summation "here are the
questions that the defendant didn’t answer" amounted to a comment on Basroon’s failure
to testify.
     The government may not comment on a defendant’s failure to testify, either
directly or indirectly. Griffen v. California, 380 U.S. 609, 615 (1965); United States v.
Balter, 91 F.3d 427, 441 (3d Cir. 1996). However, indirect references constitute
reversible error only if they were of such character that the jury would "naturally and
necessarily take [them] to be a comment on the failure of the accused to testify." Lesko v.
Lehman, 925 F.2d 1527, 1544 (3d Cir. 1991) (internal quotations omitted).
     Here, the government stated that:
     It was the defendant who put the investors’ money into these see-through homes
and nobody else. Think about the evidence that you have heard in this case and you will
realize that Leslie Johnson may have committed fraud. We went a long way towards
proving that to you, before the defense lawyer even asked her a single question, but who
else committed a fraud in this case? The defendant Martin Basroon.
     Here are the questions that the defendant didn’t answer. He’s blamed Leslie
Johnson. He’s blamed Nathan Parsa.....

     Taken in context, it is clear that the statement "here are the questions that the
defendant didn’t answer" does not "naturally and necessarily" refer to Basroon’s failure to
testify. Rather, the statement refers to questions that, in the government’s estimation, the
defense team had failed to adequately answer. Accordingly, Basroon’s argument is
without merit.
               C.   Victim-Impact Evidence and the Fact that Investors had Not Received
          Compensation
     Basroon argues that the government improperly asked the jury to rely on victim
impact evidence to convict Basroon. Specifically, the government pointed out in
summation that the investors lost their retirement money and that Tammy Koch needed
the money to survive. The government also argued that after seven years had passed, the
"monies are still gone. Those people are still making up for that -- that’s lost." Although
we find this an inappropriate emotional argument and do not approve of this tactic,
Basroon failed to object to the summation statement, and did not object during trial to the
testimony when it was elicited from individual investors. Moreover, considering the
minor role that these statements played within the context of the entire trial and the
weight of the evidence presented against him, we conclude that their admission was not
prejudicial.
               D.   Attacks on Basroon’s Character
     The government called Basroon a "liar" and a "crook," and stated in closing that
"you know the defendant is guilty." The government also referred to Basroon’s bouncing
of checks as a "crime." Basroon argues that these statements were improper personal
opinions about the evidence "because it improperly implies to the jury that the prosecutor
has additional evidence in his file, other than the evidence of record, that the defendant
engaged in illegal conduct." However, at the end of closing, the court gave an instruction
that the jury’s memory controlled as to the evidence. Although some of the government’s
statements were offensive, and we do not approve of its conduct, the district court
neutralized any prejudicial effect by instructing the jury "to treat the arguments of counsel
as devoid of evidentiary content." See United States v. Somers, 496 F.2d 723, 738 (3d
Cir. 1974).
     IV. Allegation that Jury was Not Charged as to the Duty to Disclose
     The government charged Basroon with numerous omissions. Basroon contends
that the jury was instructed that Basroon could be guilty of mail fraud for either a
fraudulent representation or a fraudulent omission, but the jury was not advised that
Basroon could be guilty of a fraudulent omission only if he had an affirmative duty to
disclose, nor was the jury told what circumstances would create such a duty. Because
Basroon failed to object to the omission of a charge on duty to disclose, we review for
plain error.
     One who fails to disclose material information prior to the consummation of a
transaction commits fraud only when under a duty to do so. Chiarella v. United States,
445 U.S. 222, 228 (1980); Restatement (Second) of Torts 551 (1976). However, the
district court did not err by failing to submit a "duty to disclose" instruction. Basroon
concedes that a duty to disclose may be raised by partial statements if the speaker tells a
half-truth or if the omission qualifies as a concealment. See Restatement 551(2)(b)
(disclosure necessary to prevent someone from being misled by a "partial or ambiguous"
statement); see also United States v. Olatunji, 872 F.2d 1161 (3d Cir. 1989) (fraudulent
representations may be effected by deceitful statements of half-truths or the concealment
of material facts and the devising of a scheme for obtaining money or property by such
statements or concealments); United States v. Cotton, 231 F.3d 890 (4th Cir. 2000) (even
in the absence of a fiduciary, statutory, or other independent legal duty to disclose
material information, common-law fraud includes acts taken to conceal, create a false
impression, mislead, or otherwise deceive in order to prevent other party from acquiring
material information); United States v. Moore, 37 F.3d 169, 173 (5th Cir. 1994) (holding
irrelevant whether duty to disclose existed under state law because evidence established
that defendants intended to deceive other party).
     An examination of the jury instructions reveals that Basroon’s argument is without
merit. Basroon first challenges the portion of the instructions titled Proof of Knowledge
Deliberate Ignorance (Count 1). There, the district court charged that the "government
can meet its burden of proving fraudulent intent by showing that the defendant knowingly
participated in a fraudulent scheme, made or caused to be made false statements, or
omitted or caused to be omitted material facts." Id. (emphasis added). The instruction
does not indicate that an omission can be the requisite fraudulent act, but merely that it
can serve as an indicator of intent.
     The jury instruction that deals with what the government must prove as to a
scheme to defraud indicates that a "scheme to defraud ... must ... involve some sort of
fraudulent misrepresentations or omissions, that is, deliberate failures to disclose
information or facts, reasonably calculated to deceive persons of ordinary prudence and
comprehension." A405. (emphasis added). This qualification eliminates the need for a
"duty to disclose" instruction. Because the instructions cover only the variety of
omissions for which proof of an affirmative duty to disclose is not required, the district
court did not err by failing to provide a "duty to disclose" instruction.
     VI. Claim that Jury Charge Failed to Properly Describe Nature of Conspiracy
     Next, Basroon claims that the jury charge improperly failed to identify the specific
objectives of the charged conspiracy and muddled the fact that Johnson was the only
alleged co-conspirator by charging multiple conspiracies. Because Basroon did not raise
this objection below, we again review for plain error.
     To convict a defendant on a conspiracy charge, the government must prove that the
defendant agreed to the essential nature of the plan and on the kind of criminal conduct in
fact contemplated, and the defendant must be shown to have agreed to commit a
particular offense and not merely a vague agreement to do something wrong. United
States v. Salameh, 152 F.3d 88, 147 (2d Cir. 1998).
     Basroon notes that although Johnson was the only co-conspirator alleged in the
superseding indictment, the district court read to the jury a redacted version of the
indictment, which was replete with references to "other conspirators" with whom Basroon
supposedly conspired. However, at Basroon’s request, the district court instructed the
jury that Johnson was the only alleged co-conspirator, and also allowed a written
statement to this effect to be submitted to the jury. The district court’s instruction cured
any error.
     Basroon also claims that the instructions failed to adequately particularize the
object of the charged conspiracy and could have led to Basroon’s conviction for
something other than the conspiracy with which he was charged. However, the
superseding indictment itself sufficiently particularized the objects of the conspiracy in
detail and provided sufficient information regarding Basroon’s alleged misrepresentations
and omissions.
           VII.      Intra-Corporate Conspiracy Doctrine
     Next, Basroon claims that the conspiracy charge, and the jury instruction relating
thereto, violated the intra-corporate conspiracy doctrine, which holds (usually in a civil
context) that, because corporate employees are ordinarily attributed to the corporation,
two employees of a corporation, acting within the scope of their employment, cannot
conspire with one another. E.g., McAndrew v. Lockheed Martin Corp., 206 F.3d 1031,
1036 (11th Cir. 2000).
     As to the conspiracy count, the district court charged the jury: "A corporation
cannot conspire with its own officers and employees. This is because in the eyes of the
law, a corporation, its officers, and employees are so closely related that they are
considered by the law to be one actor. It is, however, possible for two employees of a
corporation to conspire with each other." Basroon agrees with the first two sentences of
that charge, but argues that the intra-corporate conspiracy doctrine is inconsistent with the
third.
     While the intra-corporate conspiracy doctrine has been applied by some courts to
civil rights complaints brought pursuant to 42 U.S.C. 1985, this court has specifically
rejected the doctrine, even in the civil context. Novotny v. Great Am. Fed. S&L, 584
F.2d 1235, 1256 (3d Cir. 1978), vacated on other grounds, 442 U.S. 366 (1979). Even
those federal appellate courts accepting the intra-corporate conspiracy doctrine in this
context have typically refused to extend the theory from the civil context to bar a criminal
conspiracy prosecution. See, e.g., United States v. Hughes Aircraft Co., 20 F.3d 974,
978-79 (9th Cir. 1994); United States v. Ames Sintering Co., 927 F.2d 232, 236 (6th Cir.
1990); United States v. Hugh Chalmers Chevrolet-Toyota, Inc., 800 F.2d 737, 738 (8th
Cir. 1986); see also McAndrew, 206 F.3d at 1038. But see United States v. Suntar
Roofing, 897 F.2d 469, 476 (10th Cir. 1990) (dicta suggesting that wholly intra-corporate
conduct might not create the plurality of actors necessary for a valid criminal conspiracy
conviction); United States v. Notarantonio, 758 F.2d 777, 789 (1st Cir. 1985) (same).
     Because this Circuit does not recognize the intra-corporate conspiracy doctrine
even within the civil context, it clearly does not apply in the criminal context.
Accordingly, we reject Basroon’s argument that the intra-corporate conspiracy doctrine
rendered the jury instruction erroneous.
VIII. "Willful Blindness" Instruction
     Next, Basroon claims that a "willful blindness" jury instruction given by the
district court impermissibly lessened the government’s burden of proof as to his requisite
mental state.
     The jury was instructed, as to the conspiracy charge:
           The government can meet its burden by proving fraudulent intent not only by
     showing that a defendant knowingly lied but also by proving beyond a reasonable
     doubt that he acted ... with a conscious purpose to avoid learning the truth.

           Stated another way, a defendant’s knowledge of a fact may be inferred from a
     deliberate or intentional ignorance of or willful blindness to the existence of that
     fact.
     A willful blindness charge does not lower the government’s burden of proving
intent as long as it emphasizes the necessity of proving a subjective awareness, and if the
charge satisfies this standard, and is supported by sufficient evidence, it is not
inconsistent for a court to charge a jury on both an actual knowledge theory and a willful
blindness theory. United States v. Stewart, 185 F.3d 112, 126 (3d Cir. 1999). A review
of the record confirms that there was sufficient evidence to support the willful blindness
jury instruction. The jury could have reasonably believed that, although Basroon was
subjectively aware of the high probability that his actions were illegal, he lacked the
requisite intent only because he purposefully blinded himself to the consequences of his
actions and to the reality of Plaza’s financial condition.
     Basroon also argues that the willful blindness instruction was error because it was
impossible for Basroon to have intended to join a conspiracy if he did not know that it
existed. However, this Court has previously rejected this precise argument. United States
v. Wertz-Ruiz, 228 F.3d 250, 255 n.3 (3d Cir. 2000).
     IX. Sufficiency of the Evidence
     Basroon argues that the government adduced insufficient evidence to support a
conviction as to both the conspiracy count and the interstate transportation of a security
count.
               A.   Conspiracy
     The government was required to establish three elements in order to convict
Basroon of a conspiracy: (1) a unity of purpose between two or more persons; (2) an
intent to achieve the goal alleged to be the object of the conspiracy; and (3) an agreement
to work together. United States v. Robinson, 167 F.3d 824, 829 (3d Cir.), cert. denied,
528 U.S. 846 (1999). Basroon argues that there was insufficient evidence of an
agreement between Johnson and himself to work together and of an intent to defraud
investors.
     The superseding indictment charged Basroon with conspiring with Johnson to
deprive investors of their funds by misleading them into believing that funds would be
invested and safeguarded in a particular manner. To establish these allegations, the
government called Johnson as a witness. Johnson’s testimony, taken in the light most
favorable to the government, was clearly sufficient to establish the conspiracy charged in
the superseding indictment. For instance, Johnson testified that she knew the
representations which Basroon was making to the investors regarding the measures
supposedly being taken to protect their investments. She also testified that at Basroon’s
direction, she assigned a single property to secure an investor’s funds as well as to obtain
funds advanced by Vinings Bank, thus "double pledging" the property and leaving a
substantial amount of the investors’ funds unsecured, that she used investor money to pay
Plaza’s bills instead of lending it to qualified borrowers, and that she falsified the aging
schedules of mortgages assigned to Vinings Bank, Plaza’s principal creditor. Similarly,
the evidence of the numerous material misrepresentations that Basroon made to investors,
viewed in the light most favorable to the government, was clearly sufficient to sustain a
reasonable inference that Basroon intended to defraud investors.
     Basroon also argues that some of the many misrepresentations alleged as objects of
the conspiracy were not "material," that they constituted mere "puffery," and that they
were merely "false statements as to future events," which he claims cannot constitute
fraud. However, because the superseding indictment charged Basroon with numerous
misrepresentations and omissions as objects of the conspiracy, the conviction must be
sustained if there is sufficient evidence from which the jury could have found that at least
one object of the conspiracy had been proven. See United States v. Morelli, 169 F.3d
798, 802 (3d Cir.) cert. denied, 528 U.S. 820 (1999). Basroon challenges only a few of
the alleged misrepresentations as "non-material," and thus implicitly concedes, as he
must, that other misrepresentations alleged were indeed material. Because sufficient
evidence was presented at trial for a jury to have convicted Basroon on numerous material
misrepresentations, we reject this argument.
               B.   Interstate Transportation of a Security
     As to Count Two, Basroon argues that the government adduced insufficient
evidence to show that he intended to defraud Paul Sica when he took a check from Sica
for approximately $17,000 in December 1992. Having reviewed the record, we find that
the evidence supports the inference that at the time he accepted the money, Basroon
knew the money was not going to be used to finance a mortgage, but to pay Plaza’s bills.
     X.   Pre-Indictment Delay
     Basroon next argues that the case should have been dismissed based on the
"presumptive prejudice inherent in the government’s 4 1/2 year delay in bringing the
charges." Where as here, the charges were brought inside the applicable statute of
limitations, to obtain a dismissal of charges on the grounds of pre-indictment delay a
defendant bears the burden of proving that (1) the delay between the crime and the
indictment actually prejudiced the defense; and (2) the government deliberately delayed
bringing the indictment in order to obtain an improper tactical advantage or to harass him.
United States v. Beckett, 208 F.3d 140, 150 (3d Cir. 2000). Because Basroon has failed
to demonstrate that the government deliberately delayed bringing the indictment in order
to obtain an improper tactical advantage or to harass him, this claim fails.
     XI. Statute of Limitations
     The superseding indictment was issued outside the applicable statute of limitations
period (more than seven years after the alleged crime). While Basroon concedes that
statute of limitations was tolled as to Count Two by virtue of the original indictment, he
argues that it was not tolled as to Count One because the conspiracy charges in the
superseding indictment are different and broader than the conspiracy charges in the
original indictment. However, Basroon did not raise the statute of limitations defense
before the district court, and cannot assert it for the first time on appeal. See United
States v. Oliva, 46 F.3d 320, 325 (3d Cir. 1995).
                            CONCLUSION
     For the foregoing reasons, Basroon’s conviction and sentence are AFFIRMED.
