UNPUBLISHED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Affirmed by unpublished opinion.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
2

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Unpublished opinions are not binding precedent in this circuit.
3

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.
4

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 
5

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

daily reports did not show the overdrafts. Farkas’s coconspirators 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 
6

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 
7

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, 
8

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.
9

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, 
10

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 
11

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 
12

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)
13

“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.
14

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 
15

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 
16

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. 
17

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 
18

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), ‘crossexamination 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 
19

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. 
20

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 
21

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-thetruth 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-thetruth instruction, but later withdrew his request.
22

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 
23

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 
24

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.
25

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 
26

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-fromshareholder 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 
27

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 
28

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.