2002 Decisions

Opinions of the United

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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation

"USA v. Basroon" (2002). 2002 Decisions. Paper 314.

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 NOT PRECEDENTIAL 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.