United States v. Yvonne Robertson ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4529
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
YVONNE L. ROBERTSON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Raymond A. Jackson,
District Judge. (4:10-cr-00027-RAJ-FBS-1)
Argued: December 6, 2012 Decided: March 11, 2013
Before SHEDD, DIAZ, and THACKER, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.
ARGUED: Gregory Bruce English, THE ENGLISH LAW FIRM, PLLC,
Alexandria, Virginia, for Appellant. Brian James Samuels,
OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia,
for Appellee. ON BRIEF: Neil H. MacBride, United States
Attorney, Alexandria, Virginia; John Nobrega, Third Year Law
Student, WILLIAM AND MARY SCHOOL OF LAW, Williamsburg, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Yvonne L. Robertson challenges the sufficiency of the
evidence to support her convictions of three counts of money
laundering, violations of 18 U.S.C. §§ 1957 and 1952, and one
count of making a false statement to a law enforcement officer,
a violation of 18 U.S.C. § 1001. Robertson argues that her
money laundering convictions must be reversed under United
States v. Santos, 553 U.S. 507 (2008), and that the district
court therefore erred in rejecting her motion for acquittal on
that ground. In addition, Robertson contends that the evidence
presented in support of the false statement charge failed to
exclude the reasonable possibility of mistake. We affirm in
part, reverse in part and remand.
I.
A.
From 2006 to 2008, Robertson operated a real estate
investment company known as Angel’s Touch Real Estate
Investments, LLC (“Angel’s Touch”). 1 Robertson used the company
to orchestrate a mortgage fraud scheme involving the purchase
and sale of residential properties in the Tidewater Area of
1
We recite the facts in the light most favorable to the
government, as the prevailing party at trial. See United States
v. Jefferson, 674 F.3d 332, 341 n.14 (4th Cir. 2012).
2
Virginia. Robertson recruited straw buyers with good credit
scores to apply for and obtain mortgage loans through the
submission of loan applications and other documents bearing
false information. In return for their participation, Robertson
made side agreements with the buyers that were not disclosed to
the lenders, promising to give the straw buyers cash, to repay
the mortgages herself, or to find renters for the properties.
Robertson also arranged transactions so that she or Angel’s
Touch would receive money at settlement in return for promises
to make repairs and upgrades to the properties.
Ultimately, Robertson refused to provide promised funds to
the straw buyers and failed to find promised renters or make
promised mortgage payments. And neither Robertson nor Angel’s
Touch performed the promised repairs and upgrades. Invariably,
the net result of the scheme was foreclosure and the financial
ruin of the straw buyers.
B.
1.
A federal grand jury charged Robertson in a sixteen-count
superseding indictment with conspiracy to commit mail and wire
fraud, in violation of 18 U.S.C. § 1349 (count 1); mail fraud,
in violation of 18 U.S.C. §§ 1341 and 2 (counts 2-8); wire
fraud, in violation of 18 U.S.C. §§ 1343 and 2 (counts 9-12);
money laundering, in violation of 18 U.S.C. §§ 1957 and 1952
3
(counts 13-15); and making a false statement to a law
enforcement officer, in violation of 18 U.S.C. § 1001 (count
16).
Robertson appeals her convictions on counts 13 through 16
of the superseding indictment. The money laundering offense
charged in count 13 arose from a property purchase coordinated
by Robertson, in which she made fraudulent representations in
documents mailed to the mortgage lender. Following the closing,
and in a deal not disclosed to the lender, the property seller
wired the buyer, Janis Mann, $24,430 in cash. Five days after
the closing, at Robertson’s direction, Mann transferred $24,000
of these funds to Robertson via a cashier’s check.
Robertson also solicited Mann and her husband to serve as
straw buyers for a second real estate transaction involving the
use of forged signatures on the purchase agreement, and the
submission of false information to the lender regarding the
Manns’ bank balances and rental income. The property’s
settlement statement listed a disbursement of $42,684 to Angel’s
Touch for “[h]ome [i]mprovements.” J.A. 288, 352. After the
disbursement check was cut, Robertson contacted the title
company to have the check voided and the funds divided between
herself and Erica Colvin. The title company in turn wired
$38,000 to Colvin, which formed the basis for the money
laundering offense in count 14.
4
The money laundering offense charged in count 15 arose from
a property sale from Angel’s Touch to Joseph Garner. The
accompanying loan application, mailed to the lender, contained
numerous false statements. When the transaction closed, Angel’s
Touch was to receive a payout of $97,345.96. After closing, at
Robertson’s direction, the title company instead wired
$97,320.96 of the payout to Muhammad Hassan, her sometime-
boyfriend.
Robertson was separately charged in count 16 with making a
false statement to a law enforcement officer. During an
interview with FBI Special Agent Scott Salter, Robertson
specifically denied receiving a $24,000 cashier’s check from the
Manns. Robertson also falsely denied receiving money following
the closings on two other properties.
2.
At trial, Robertson moved for a judgment of acquittal on
the three money laundering counts, which the district court
denied. Robertson elected not to testify and called no
witnesses, instead introducing one exhibit through stipulation.
After resting her case, Robertson renewed her motion, which the
district court again denied. Later that day, the jury convicted
Robertson of all charges.
5
Prior to sentencing, Robertson filed a written motion for
judgment of acquittal under Fed. R. Crim. P. 29 on counts 13
through 16. The district court denied the motion.
The district court sentenced Robertson to 84 months’
imprisonment on each count of conviction, to run concurrently, a
sentence below the advisory guideline range of 108-135 months.
The court also ordered Robertson to pay $567,094.17 in
restitution and imposed a special assessment of $1,600, or $100
for each count of conviction. This appeal followed.
II.
Robertson contends that the government did not present
sufficient evidence to support her convictions for money
laundering and for making a false statement to a law enforcement
officer. With respect to the money laundering convictions,
Robertson argues that the government failed to prove that the
transfers of proceeds alleged in counts 13 through 15 of the
superseding indictment involved “actual profits,” as opposed to
“gross receipts,” of a fraudulent scheme. Robertson argues
separately that her conviction for making a false statement
fails because the government did not prove the requisite intent.
“The verdict of a jury must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” Glasser v. United States, 315 U.S.
6
60, 80 (1942), superseded by statute on other grounds, Fed. R.
Evid. 104, as recognized in Bourjaily v. United States, 483 U.S.
171, 177 (1987). We “have defined substantial evidence, in the
context of a criminal action, as that evidence which a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” United States v. Newsome, 322 F.3d 328,
333 (4th Cir. 2003) (internal quotations omitted).
With that standard in mind, we turn to Robertson’s
arguments.
A.
We first consider whether the district court erred in
denying Robertson’s Rule 29 motion regarding her convictions for
money laundering. Relying on the Supreme Court’s holding in
Santos, Robertson argues that the government failed to prove
that the transfer of proceeds alleged in counts 13 through 15 of
the superseding indictment involved “actual profits,” as opposed
to “gross receipts,” of a fraudulent scheme.
The government responds that Santos required that the
prosecution prove a transfer of “actual profits” only in cases
involving a merger issue between the predicate crime and the
money laundering offense. Asserting that no merger issue exists
here, the government contends that it need only have proven that
the money laundered represented the “gross receipts” of criminal
7
activity. Alternatively, the government responds that even if
the “profits” definition is applicable, it presented sufficient
evidence at trial to sustain the convictions.
18 U.S.C. § 1957 makes it a crime to “knowingly engage[] or
attempt[] to engage in a monetary transaction in criminally
derived property of a value greater than $10,000 and . . .
derived from specified unlawful activity.” 18 U.S.C. § 1957(a).
“[C]riminally derived property” is defined as “any property
constituting, or derived from, proceeds obtained from a criminal
offense.” Id. § 1957(f)(2).
Prior to 2009, the federal money laundering statute did not
contain a definition of “proceeds.” 2 Elsewhere in the criminal
code, Congress had sometimes defined it to mean “receipts” and
sometimes to mean “profits.” See United States v. Santos, 553
U.S. 507, 511-12 (2008) (comparing the definition of “proceeds”
in the terrorist material support statute to its definition in
the criminal forfeiture statute).
The Supreme Court confronted the ambiguous definition of
“proceeds” in Santos. The defendant there operated an illegal
2
In 2009, Congress added § 1956(c)(9), which defines
“proceeds” as “any property derived from or obtained or
retained, directly or indirectly, through some form of unlawful
activity, including the gross receipts of such activity.”
Because the conduct underlying counts 13 through 15 occurred in
2007, § 1956(c)(9) does not apply to Robertson’s case.
8
lottery, for which he employed runners to gather bets and
deliver them to collectors, including co-defendant Diaz. Id. at
509. From this money, Santos would pay both the salaries of his
employees and the winners. Id. Santos and Diaz were convicted
in state court of operating an illegal gambling business and
money laundering. Id. at 509-10. On collateral review, the
district court reversed the money laundering convictions based
upon its conclusion that “proceeds” meant “profits,” and that
the government had failed to present evidence that the payments
to Santos’s employees represented profits of the lottery. Id.
at 510. The Seventh Circuit affirmed, and, in a plurality
opinion, the Supreme Court did as well.
In his opinion announcing the judgment of the Court,
Justice Scalia explained that, if “proceeds” meant “gross
receipts,”
nearly every violation of the illegal-lottery statute
would also be a violation of the money-laundering
statute, because paying a winning bettor is a
transaction involving receipts that the defendant
intends to promote the carrying on of the lottery.
Since few lotteries, if any, will not pay their
winners, the statute criminalizing illegal lotteries,
18 U.S.C. § 1955, would “merge” with the money-
laundering statute.
Id. at 515-16. The plurality found that the meaning of the term
“proceeds” was ambiguous and thus invoked the rule of lenity to
conclude that “proceeds” should always mean “profits” because
9
that definition is “always more defendant-friendly.” Id. at
513-14.
Justice Stevens wrote separately, concurring only in the
judgment. See id. at 524 (Stevens, J., concurring). Although
Justice Stevens agreed that Congress had not stated a definitive
meaning for the term “proceeds,” he determined that Congress
could have intended to define it differently when applied to
different predicate offenses. Id. at 525. In the context of an
illegal gambling offense, Justice Stevens found that application
of the “gross receipts” definition would be “perverse” due to
the resulting merger of the money laundering offense and the
predicate crime. Id. at 526-27. He explained that “[a]llowing
the Government to treat the mere payment of the expense of
operating an illegal gambling business as a separate offense is
in practical effect tantamount to double jeopardy.” Id. at 527.
Therefore, Justice Stevens concluded that “[t]he revenue
generated by a gambling business that is used to pay the
essential expenses of operating that business is not ‘proceeds’
within the meaning of the money laundering statute.” Id. at
528.
We have interpreted Santos in two recent cases. In United
States v. Halstead, the defendant was convicted of mail fraud,
healthcare fraud, and money laundering for transfers made to
himself and his co-conspirator in an insurance fraud scheme.
10
634 F.3d 270, 273 (4th Cir. 2011). On appeal, the defendant
argued that Santos required the government to prove that he had
laundered “profits” of his insurance scheme. Id. at 274.
We concluded that the “driving force” behind the holding in
Santos was the Court’s concern about the “merger problem.” Id.
at 278. Therefore, we read Santos to stand for the proposition
that when a defendant is charged with money laundering and there
is a merger problem with the predicate offense, we must
determine the proper definition of proceeds “on a case-by-case
approach.” Id. at 279. Applying this interpretation, we
concluded that there was no merger problem in Halstead because
the healthcare fraud was “complete” once the insurance companies
transferred funds to the defendant’s medical corporation. Id.
at 280.
We reached a different conclusion in United States v.
Cloud, where the defendant was convicted of various offenses
stemming from a mortgage fraud conspiracy, including six counts
of money laundering. 680 F.3d 396, 399 (4th Cir. 2012). The
money laundering charges were based upon kickback payments the
defendant made to straw buyers, recruiters, and a mortgage
broker for their roles in the scheme. Id. at 400, 405-06. On
appeal, we reversed the convictions, concluding that despite the
fact that the mortgage fraud was “complete” once the defendant
received the funds from the banks, a merger problem existed
11
because the kickbacks constituted payment of the “essential
expenses” of operating the fraudulent scheme. Id. at 406(internal quotations omitted). We distinguished Halstead,
explaining that Halstead’s transfers of funds to his co-
conspirator constituted the two of them “reaping the fruit of
their crimes” rather than Halstead “paying the expenses of the
fraud.” Id. at 406 n.4.
Applying our precedents, the first question in the instant
case is whether the money laundering transfers present a merger
problem. In making this determination, we focus on the
connection between the predicate crime and the transfers on
which the money laundering charges are based. Id. at 406-07.
If a merger problem exists with respect to any of the counts,
the definition of “proceeds” should be narrowed to encompass
only “actual profits” when the predicate crime is mortgage
fraud. See id. at 409. If there is not a merger problem, the
broader “gross receipts” definition applies. See Halstead, 634
F.3d at 279.
B.
We first conclude Robertson’s conviction for money
laundering on count 13 does not present a merger problem. This
transaction, in which Robertson received money from a straw
buyer, does not represent a payment of the essential expenses of
the mail fraud, but is instead more akin to the transfers
12
between the defendant’s personal accounts in Halstead. Id. at
273. Robertson did not pay anyone for their part in the crime,
but instead helped herself (via the use of an intermediary) to
the proceeds of the fraud, thereby “reaping the fruits” of her
crime. See Cloud, 680 F.3d at 407 n.4. Because no merger
problem exists as to count 13, the district court properly
applied the broader “gross receipts” definition of proceeds.
Nor do we find a merger problem with respect to Robertson’s
conviction on count 15, which involved a wire transfer of
$97,320.96 from the title company to Muhammad Hassan, made at
Robertson’s direction. The evidence at trial showed that
Robertson frequently used Hassan’s account for her own purposes,
later spending the money to buy items such as furniture and
clothes. Again, because Robertson effectively transferred the
money to herself, the transaction cannot be deemed a payment for
the essential expenses of the predicate mail fraud, and no
merger problem exists as to count 15.
We reach a different conclusion as to Robertson’s
conviction on count 14. The transfer here involved a title
company’s wire of $38,000 to Erica Colvin, made at Robertson’s
direction. The record is silent as to Colvin’s identity,
connection to Robertson, or role (if any) in the fraudulent
scheme. On this record, we do not know why the wire transfer
was made and therefore are unable to determine whether a merger
13
problem exists. Although we are obliged to make all reasonable
inferences in favor of the government, we also must hold the
government to its burden of proof on each element of the
offense. Absent any evidence to the contrary, we will assume
that a potential merger problem exists as to count 14.
We have previously determined that when the predicate crime
is mortgage fraud, a merger problem is solved by narrowing the
definition of “proceeds” to mean “profits.” See id. at 409. As
we have already noted, the government presented no evidence
explaining the nature and purpose of the title company’s wire to
Colvin. Accordingly, we find that the government failed to meet
its burden to show that Robertson in fact transferred the
“profits” of the mortgage fraud scheme to Colvin. We therefore
reverse Robertson’s conviction for money laundering under count
14.
C.
We next consider whether the district court erred in
denying Robertson’s Rule 29 motion with respect to her
conviction for making a false statement to a law enforcement
officer. Robertson contends that the evidence “failed to
exclude the reasonable hypothesis of mistake by [Robertson] when
asked to recollect a singular event almost two years earlier”
particularly since she displayed no “evasiveness” or “other
indicia of lack of candor or forthrightness” during her
14
interview with Agent Salter. Appellant’s Br. 30. Robertson
also complains that Agent Salter failed to provide her with any
documents of the transactions to jog her memory. All of this,
Robertson contends, shows that the government failed to prove
that she had the requisite mental state to commit the crime. We
do not agree.
To convict Robertson of a violation of 18 U.S.C. § 1001,
the government was required to prove beyond a reasonable doubt
that (1) the defendant knowingly made a false, fictitious, or
fraudulent statement or representation; (2) she acted knowingly
and willfully; (3) the statement was made in a matter within the
jurisdiction of the Federal Bureau of Investigation; and (4) the
statement or representation was material. See United States v.
Jackson, 608 F.3d 193, 196 (4th Cir. 2010). The jury was
entitled to draw all reasonable inferences from the testimony,
and we are obliged to sustain the conviction if supported by
evidence viewed in the light most favorable to the government.
See United States v. Studifin, 240 F.3d 415, 424 (4th Cir.
1998).
We reject Robertson’s claim of error. First, although
Agent Salter made no effort to jog Robertson’s memory of the
transactions, Robertson also never professed that she could not
remember them. Rather, when asked, Robertson specifically
denied receiving a $24,000 check from Mann. Second, Robertson
15
also denied receiving funds following the close of two other
property transactions, and the fact that she made multiple false
statements makes it less likely that any one of them was the
product of a “reasonable mistake.” Finally, Agent Salter
testified at trial that Robertson never contacted him after the
interview to correct her statement.
Viewed in the light most favorable to the government, the
evidence is sufficient to support Robertson’s conviction for
making a false statement to Agent Salter. Accordingly, the
district court did not err in denying Robertson’s Rule 29 motion
with respect to count 16.
D.
We turn finally to the impact of our decision on
Robertson’s sentence. Robertson was sentenced to 84 months’
imprisonment on each count of conviction, to run concurrently.
Having set aside Robertson’s conviction as to count 14, we
affirm the sentence, but direct a limited remand to have the
district court strike the $100 special assessment associated
with that count.
III.
In sum, we reverse Robertson’s conviction for money
laundering under count 14 and remand so that the district court
16
may strike the $100 special assessment. We otherwise affirm the
judgment of the district court.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
17