United States v. Robinson ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4036
DAVID M. ROBINSON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-95-479-WMN)
Submitted: October 9, 1998
Decided: November 13, 1998
Before LUTTIG and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
David M. Robinson, Appellant Pro Se. Barbara Slaymaker Sale,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
David M. Robinson appeals his conviction and sentence pursuant
to a guilty plea for mail fraud, in violation of 18 U.S.C. § 1341(1994), and wire fraud, in violation of 18 U.S.C.§ 1343 (1994). Rob-
inson received an eighty-five month term of imprisonment and was
ordered to pay restitution in the amount of $953,255.31. Robinson
moved to proceed pro se on appeal, and we granted his motion. Rob-
inson makes several ineffective assistance of counsel claims. He also
assigns error to the district court's calculation of actual loss under
U.S. Sentencing Guidelines Manual § 2F1.1 (1995), application of a
two-level enhancement for acting on behalf of a religious or charita-
ble organization under USSG § 2F1.1(b)(3)(a), and determination that
loss attributed to uncharged relevant conduct be included in the resti-
tution order. Finding no error, we affirm.
Robinson met Morris Vickers in 1991. Vickers was an ordained
Baptist minister who also had extensive training in retirement plan-
ning and operated a financial planning business known as Financial
Security Advisors. Vickers developed an idea for a retirement plan for
persons employed by non-profit organizations. He wanted to submit
his idea to the Internal Revenue Service (IRS) for its review and
approval. Robinson represented that he was a practicing attorney in
this area and drafted the documents for Vickers and submitted them
to the IRS. Vickers decided to market the plan as a separate business
and incorporated Financial Diversified Services (FDS) for that pur-
pose.
Vickers asked Robinson to join him as an equal fifty percent share-
holder of FDS, based upon his understanding of Robinson's expertise.
Vickers and Robinson agreed that Robinson would hold the title of
President, and Vickers would be FDS's Chief Executive Officer.
Throughout almost the entire period that Robinson defrauded FDS,
Vickers remained in full-time employment with the Arundel Baptist
Association. Robinson managed FDS on a day to day basis. Even
after Vickers joined FDS on a full-time basis, Robinson continued to
be responsible for managing the company's finances. In 1993, Robin-
son persuaded Vickers to seek funds for FDS and invest them with
2
a fictitious investment partnership, Zinman & Associates, promising
a return of twenty-five percent in a three-month period.
In 1992, Robinson learned that two ministers had organized an
interfaith group of ministers who met periodically to discuss issues of
mutual concern. Robinson suggested to the two ministers that the
organization be incorporated and prepared the articles of incorpora-
tion under the name of The Minister's Roundtable, Inc. (TMR). Rob-
inson assumed the titles of treasurer and legal counsel for TMR. The
financial matters of FDS and TMR soon became linked due to Robin-
son's roles in both organizations. Robinson arranged for Vickers to
make presentations to TMR regarding financial planning for the min-
isters and their churches. Robinson also suggested that he and Vickers
solicit loans for TMR to finance its activities such as speaker's
expenses and funding outreach ministries. Robinson suggested that
the loan proceeds be invested with the fictitious investment partner-
ship and the interest earned that exceeded the amounts due on the
loans could finance TMR's activities.
From October 1993 to April 1994, Robinson induced Vickers to
solicit funds from various individuals to invest with either FDS or
TMR. The individuals who loaned money to the organizations
received promissory notes guaranteeing repayment in one year at
interest rates between seven and fourteen percent. Robinson then
drafted letters from the fictitious investment partnership to himself
falsely representing that the funds invested were accruing twenty-five
percent interest every ninety days. Robinson prepared balance sheets
for FDS showing the substantial funds invested with the investment
firm. However, during this period, Robinson embezzled and diverted
to his own use all of the funds that he represented to Vickers were
invested with Zinman and Associates for FDS. Of the total of
$573,500 FDS received from its clients, $170,871 was used to pur-
chase eight lots of property known as the Piscataway Estates. Vickers
approved the purchase of these properties.
At approximately the same time that the FDS and TMR schemes
were ongoing, Robinson organized another investment venture known
as International Investment Consortium, Inc. (IIC). While fraud
related to this venture is not a part of Robinson's criminal charges, he
stipulated in the plea agreement to his fraudulent activities related to
3
IIC and agreed that the restitution order would include these losses.
The sentencing court found that Robinson's activities with IIC were
relevant conduct. IIC's purpose was to use its investors' funds to pur-
chase run-down real estate in Baltimore, renovate it, and resell the
properties at a profit. IIC received approximately $200,000 in funds
from over forty investors. IIC eventually purchased and attempted to
renovate three properties, all titled in Robinson's name. One of the
properties, the North Payson Street property, was renovated and
resold at a profit. One of the two remaining properties, Hilton Street,
was renovated. Robinson then took out a second mortgage against the
property and kept the proceeds. The third property was foreclosed
upon because Robinson did not make the mortgage payments. Some
of the IIC investors were also investors in FDS and TMR, and the
Government considered the IIC scheme to be part of the same course
of conduct or common scheme as the FDS and TMR frauds.
On December 7, 1995, the Government filed an indictment against
Robinson for numerous mail and wire fraud violations. Robinson sub-
sequently pled guilty to one count each of mail fraud and wire fraud.
The court accepted his plea and sentenced him to an eighty-five
month term of imprisonment and ordered him to pay restitution in the
amount of $953,255.31. Robinson timely noted his appeal.
Robinson claims that his counsel was ineffective for failing to
investigate his mental and emotional status to determine his mental
capacity at the time of the crimes and his competency to stand trial.
He also alleges that his counsel was ineffective for failing to contest
allegations of other relevant conduct at the guilty plea and sentencing
hearings. Robinson's final ineffective assistance claim is that his
counsel failed to impeach the testimony of the Government's main
witness at sentencing.
Generally, claims of ineffective assistance of counsel are not
appropriate on direct appeal. Claims of ineffective assistance should
be raised in a motion pursuant to 28 U.S.C.A. § 2255 (West 1994 &
Supp. 1998), unless it conclusively appears from the record that coun-
sel did not provide effective assistance. See United States v. Fisher,
477 F.2d 300, 302 (4th Cir. 1973). A review of the record in this case
does not reveal any conclusive evidence that Robinson's trial counsel
4
was ineffective.1 Therefore we find that it is more appropriate for
Robinson to bring these claims in a § 2255 motion.
The Sentencing Guidelines provide for a base offense level of six
for crimes involving fraud or deceit and then set forth a schedule for
incrementally increasing the offense level according to the amount of
loss suffered as a result of the fraud. USSG § 2F1.1. "Loss" is gener-
ally defined as "the value of the property taken, damaged, or
destroyed." USSG § 2F1.1, comment. (n.7); USSG § 2B1.1, com-
ment. (n.2).
Robinson claims on appeal that the amount of the actual loss was
incorrectly calculated. The district court determined the amount of
total loss to be $579,675, and increased the offense level by ten to an
offense level of sixteen. See USSG § 2F1.1. However, Robinson did
not raise in the district court four of the issues regarding the loss that
he currently argues on appeal. These claims regarding the reduction
of loss have thus been forfeited, see United States v. Bell, 5 F.3d 64,
66 (4th Cir. 1993), and they receive only plain error review. See
United States v. Olano, 507 U.S. 725, 731-32 (1993). We do not find
plain error in the calculation regarding these claims.
The first of the forfeited claims Robinson argues is that the
appraised value for eight lots purchased by FDS comprising the Pis-
cataway Estates should be deducted from the total amount of loss.
Robinson states that the lots were appraised by Charles County,
Maryland, for a total value of $585,000. Robinson did not seek to
have the loss reduced by this amount or present evidence of the
appraisal to the district court and does not present any documentary
evidence of it on appeal. In addition, he also attempts to include the
purchase price in the reduction of loss resulting in a double counting
of that value. We therefore do not find plain error in the district
court's failure to include the appraised value to reduce the total loss.
In the next forfeited claim, Robinson seeks to reduce the loss by
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1 Regarding the issue of failure to contest relevant conduct, it appears
from the record before us that, at the sentencing hearing, Robinson's trial
counsel did in fact vigorously contest the relevant conduct attributed.
5
$135,000 for renovations to the Hilton Street property owned by IIC.2
In his sentencing memorandum, Robinson did not object to the Gov-
ernment's estimation of the renovations cost as $60,000 based upon
his own prior representations to IIC investors. The amount Robinson
now attempts to include is the same information given to the Govern-
ment prior to sentencing and is based upon receipts and other docu-
ments relating to renovations. As the Government sufficiently proved,
the increase in cost Robinson represented is due to accounting errors
such as double counting costs by submitting a delivery invoice as a
charge and a paid credit card bill for the same expense. He also sub-
mitted a receipt for work done on the Hilton Street property before
IIC even purchased it. We therefore find that the district court did not
plainly err by not including the added cost represented by Robinson.
The last two forfeited claims -- that the loss should be reduced by
the salary Robinson paid to himself in 1992 and 1993, and by the
amount of a loan repayment from Anthony DeFeo -- were not before
the district court at all as sources for reduction of loss. In addition,
Robinson does not provide any evidence of the amount of salary paid
or agreed upon, or the amount returned to FDS or TMR by DeFeo.
We therefore find that the district court did not commit plain error by
not considering these items.
The remaining disputed issues that Robinson raises are that the dis-
trict court erred in determining the actual loss because it did not
reduce the amount of loss by the proper value of the eight lots pur-
chased as the Piscataway Estates by FDS, and in finding that the loss
should not have been reduced by the amount of loans paid to private
contractors by FDS.3 The district court's finding of loss is a factual
one, to be set aside only if clearly erroneous. See United States v.
Rothberg, 954 F.2d 217, 219 (4th Cir. 1992) (citing United States v.
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2 Of the $135,000 by which Robinson seeks to reduce the loss, $60,000
was already taken into account to reduce the loss suffered by IIC inves-
tors. Robinson thus attempts to apply the $60,000 twice to reduce the
loss.
3 Robinson also included legitimate business expenses in the amount of
$78,433 as an amount that is required to be deducted from the total loss.
The Government argued at sentencing that this is the total amount of
legitimate business expenses, so this amount is not in dispute.
6
Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989)). Only a preponderance
of the evidence need support these factual findings. See United States
v. Engleman, 916 F.2d 182, 184 (4th Cir. 1990).
Robinson argues that the $138,000 of loans made by FDS to minor-
ity contractors should be deducted from the total loss. He argues that
the loans were consistent with the mission of FDS and, although made
without Vickers' approval, Vickers' approval was not necessary
because he did not have veto power on this type of financial decision.4
The Government contended that several of the contractors had repaid
the loans directly to Robinson. Robinson disputed that he received
payments for the loans. Robinson testified at the sentencing hearing
that he did not have signed promissory notes from the contractors in
the FDS files, except for four of the larger loans, that he received only
$6000 repayment from all the outstanding loans, that he only
reviewed the financial statements of two of the contractors FDS pro-
vided loans to before approving the loans, and that he did not have
any securities for the loans or liens when he made the loans on behalf
of FDS. Finally, the plea agreement stated that the prospect for repay-
ment of the debts is doubtful. We therefore find that the district
court's finding excluding most of these loans from the reduction of
total loss was not clear error.
Robinson's final issue regarding the determination of actual loss is
that the total loss should be reduced by $179,000, which he contends
is the total of the purchase price and related expenses of the eight lots
of Piscataway Estates. The Government contended that the purchase
price was $170,871.06. Because Vickers testified at the grand jury
proceedings that including the transactional costs associated with the
purchase, the expenditures totaled $179,000, Robinson argues that the
loss should be reduced by this amount. However, at sentencing, Vick-
ers testified that after his grand jury testimony he recalculated the pur-
chase price and associated transactional costs and found his prior
testimony to be incorrect. We therefore find that the court did not
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4 Vickers testified that he did have knowledge of one $30,000 loan
made to one contractor. That amount was already considered by the Gov-
ernment in its reduction of total loss.
7
clearly err in finding that the amount of the purchase price set forth
by the Government was correct.5
Robinson assigns error to the district court's two-level enhance-
ment for misrepresenting that he was acting on behalf of a charitable
or religious organization. Section 2F1.1(b)(3)(A) provides that if the
offense involved "a misrepresentation that the defendant was acting
on behalf of a charitable, educational, religious or political organiza-
tion" the offense level is increased by two. Robinson contends that the
enhancement does not apply to his conduct because the investors in
TMR intended to invest with the organization to make a good return
on their investment and that he did not represent that investments
would be used for charitable or religious purposes.
Four people invested a combined total of $80,000 for investment
on behalf of TMR: Morris and Twyla Vickers ($30,000); Warren
Burnham ($40,000); and Janet Rutherford ($10,000). Each investor
understood that his money would be reinvested by TMR with Zinman
& Associates at a high rate of return, averaging fifteen to twenty-five
percent annually for the individual investors, while also generating
significant additional funds that TMR could use to carry out its educa-
tional and religious purposes.
The FBI took statements from Burnham and Vaughn as part of its
investigation ("302 reports"). In Vaughn's 302 report, he stated that
Robinson indicated to him that he would establish a monetary account
for TMR. The purpose of the account was to provide donations to the
needy, fund enhancement programs, and pay overhead expenses.
Burnham's 302 report indicated that he possessed the articles of
incorporation of TMR, which included identification of a number of
ministers as the incorporators of the organization. Rutherford stated
that she was interested in receiving a good rate of return on her
investment and decided that TMR was a good place to invest, if her
money could be used for a good purpose and still earn a good rate of
return.
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5 Even if we did find $179,000 to be the correct amount, the reduction
would not result in a lower offense level.
8
The enhancement recognizes that "defendants who exploit victims'
charitable impulses . . . create particular social harm." USSG § 2F1.1
comment. (backg'd). Even when a defendant acts in part for himself
and in part for charitable purposes, the enhancement applies. See
United States v. Marcum, 16 F.3d 599, 603 (4th Cir. 1994). While it
may be that Robinson informed TMR investors that their investment
would be used primarily to earn money for themselves, the statements
of Vaughn, Burnham, and Rutherford clearly demonstrate their under-
standing that a portion of their returns would go to the charitable and
religious purposes of TMR. We find that the district court did not
clearly err in finding that Robinson represented that a portion of the
proceeds of the TMR investments would be used for charitable or
religious purposes, therefore, we hold that the enhancement was prop-
erly applied.
Finally, Robinson argues that the restitution order should not have
included losses by the IIC investors.6 This court reviews restitution
orders under the Victim and Witness Protection Act (VWPA), 18
U.S.C.A. §§ 3663, 3664 (West Supp. 1998), for abuse of discretion.
See United States v. Blake, 81 F.3d 498, 505 (4th Cir. 1996). Robin-
son's plea agreement states that under the terms of the agreement, "he
will be liable to pay restitution for all of the criminal conduct detailed
in the attached Statement of Facts if the court determines that he has
the financial ability to make restitution." (R. 4). The attached state-
ment of facts included the fraud-related losses to IIC investors. If the
parties agree to a restitution amount in the plea agreement, the plea
agreement controls. Therefore, the restitution ordered by the court
was authorized, notwithstanding the offense of conviction. See United
States v. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir. 1995).
Although a specific amount was not agreed to, the plea agreement's
statement of facts clearly outlines the losses attributed to Robinson's
conduct. Even if the plea agreement did not control, the losses are
includable as part of the restitution order because they are part of the
entire fraudulent scheme for which Robinson was indicted. See
United States v. Henoud, 81 F.3d 484, 489 (4th Cir. 1996). We there-
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6 Robinson also challenges the inclusion of $18,000 in credit card
frauds in the restitution order. However, our review of this order dis-
closes that the charges were not included.
9
fore find that the district court did not abuse its discretion in including
the IIC losses in the restitution order.
We therefore affirm the judgment. We deny Robinson's motion to
expedite the appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
10