United States v. Arvel Henderson, II

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0481n.06
Case No. 19-3076
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Aug 14, 2020
) DEBORAH S. HUNT, Clerk
)
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
ARVEL HENDERSON, II, )
Defendant-Appellant. )
) OPINION
BEFORE: MOORE, CLAY, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. Arvel Henderson, II played a key role in a scheme to sell
bonds that no one in the deal ever had authority to sell. That scheme was crafted by Mark
Wittenmyer, an accomplished fraudster whom the FBI had been investigating for years.
Henderson and Wittenmyer managed to convince someone to wire them a $500,000 commission
for this deal, which they promptly spent on expensive clothes, resorts, and a trip to Las Vegas.
Afterwards, Henderson was indicted for and convicted of conspiracy to commit money laundering
as well as engaging in monetary transactions with criminally derived property.
Henderson appeals those convictions, claiming four errors with the proceeding below: a
Brady violation, prosecutorial misconduct in closing arguments, insufficient evidence of venue,
Case No. 19-3076, United States v. Henderson
and insufficient evidence of guilt. We find these arguments without merit and AFFIRM
Henderson’s convictions.
I
Henderson first met Wittenmyer in late 2011 when Wittenmyer was planning on
purchasing a home in Sylvania, Ohio for $1.7 million. Henderson was a real estate agent working
for RE/Max in Toledo, Ohio at the time. The FBI had been investigating Wittenmyer for various
financial crimes since 2008, and this potential real estate transaction drew the FBI’s attention
because Wittenmyer had not earned any legitimate income for the past seven or eight years and
was using money he obtained illegally during that time.
Wondering just how Wittenmyer could afford an expensive home, FBI agent Eric Robinson
met with Henderson and several other RE/Max representatives on April 17, 2012 regarding the
proposed sale. Henderson told Robinson that the $1.7 million was coming from a group called
RM Capital, which Robinson knew was a shell company that Wittenmyer had recently used to
illegally obtain $85,000. Robinson explained this information to Henderson and the RE/Max
representatives and confirmed that Wittenmyer and other individuals from RM Capital were using
stolen money. Afterwards, the RE/Max representatives told Robinson they did not want to be
involved with the deal and had concerns about its fraudulent nature. Henderson had a different
idea. Henderson was upset that he might lose out on a “premium commission” of almost $100,000
if the deal did not go through, even though Robinson explained the FBI would seek to forfeit any
money that came from RM Capital. Undeterred, Henderson decided to continue with the sale, and
so RE/Max returned Henderson’s real estate license to the Ohio Division of Real Estate.
On December 22, 2012, Wittenmyer was arrested at Henderson’s home and charged with
fraud in an unrelated transaction, which was later incorporated into the federal indictment in this
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case. Henderson posted Wittenmyer’s bond and told the bail bondsman he expected to make a
substantial amount of money on the sale of a house to Wittenmyer. Unfortunately for Henderson,
Wittenmyer never bought the house.
But Henderson was still seeking that premium commission. In 2013, Wittenmyer
facilitated an agreement where a company called Creative Global Consulting would purchase three
Freddie Mac bonds and then sell them to a shell company, CL Trust Management, which would
then sell the bonds to another buyer, the Panchine Group. Wittenmyer told the Panchine Group
that Creative Global Consulting already owned the bonds. The bonds had a face value of $100
million, and so Wittenmyer’s commission would be one percent (or $1 million). While Creative
Global Consulting had multiple conversations with a bond broker, the company never opened an
account or attempted to purchase any bonds. Henderson was necessary to this scheme according
to Wittenmyer because he told Henderson he couldn’t have the commission paid directly into his
account as he brokered the deal, and so the plan was for the commission to be deposited into
Henderson’s FTL Properties business account.
Wanting a third associate, Wittenmyer reached out to Ira Brody to assist him with the bond
deal. Wittenmyer knew Brody because Wittenmyer asked Brody for a seven-day loan to close a
financial deal in 2012. Brody loaned him the money, but Wittenmyer had not paid Brody back by
the time of the bond deal. So, Brody agreed to participate in the bond deal because he was still
hoping to get back what he loaned Wittenmyer. Because no one was willing to pay the million-
dollar commission for the bond deal, Brody wrote threatening letters to the involved parties
claiming that liens would be placed on the bonds if the commission was not paid (rendering them
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unsellable). The owner of CL Trust Management eventually grew skeptical and withdrew from
the deal.
Recognizing that one million dollars was not coming, Wittenmyer and Henderson decided
half was better than none and agreed to accept $500,000 instead. Brody told Wittenmyer and
Henderson that he was willing to process the $500,000 commission through his business but would
tell Robinson about the transaction. Unsurprisingly, Wittenmyer and Henderson didn’t like that
idea, and accepted the $500,000 commission into Henderson’s FTL Properties account on
November 8, 2013 directly from P.L., a different buyer who had been contacted by the Panchine
Group. A representative from the Panchine Group promised P.L. that he would get his $500,000
back within a week or two and then another $500,000 shortly thereafter, but he never received any
money.
After getting the commission that he wanted, Henderson began spending the $500,000 as
rapidly as he could. No better place to do that than South Florida; Henderson spent thousands at
Louis Vuitton, Neiman Marcus, Joe’s Stone Crab, the Art of Shaving, Hertz, and various hotels,
as well as transferring thousands to his personal account. Henderson and Wittenmyer also took a
trip to Las Vegas at the end of November 2013, spending tens of thousands on hotels and gambling.
By the time Brody learned about the $500,000 deposit in late November or early December,
Henderson told him almost all the money had been spent.
During the midst of Henderson’s spending spree, Robinson learned about the $500,000
wire transfer and contacted Henderson about it on November 20, 2013. Henderson said he didn’t
know anything about the wire transfer and had simply loaned Wittenmyer some money. The FBI’s
subpoena of Henderson’s bank records for FTL Properties told a different story, revealing the
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$500,000 wire transfer as well as showing a stark difference between Henderson’s normal
spending habits and his spending when the closing for the bond deal began.
On June 3, 2015, in the United States District Court for the Northern District of Ohio,
Henderson was charged with one count of conspiracy to commit money laundering, in violation
of 18 U.S.C. § 1956(h), and five counts of engaging in monetary transactions with property derived
from a specified unlawful activity, in violation of 18 U.S.C. §§ 1957 and 2. The government
dismissed one of the counts before trial. Additionally, Henderson was charged with bankruptcy
fraud based partially on his failure to declare the $500,000 commission on his list of assets. See
United States v. Henderson, 3:16-CR-285 (N.D. Ohio 2016).
The government, over Henderson’s opposition, sought to consolidate the two cases, given
that they involved the same defendant, the same bank accounts, and the same business entity. The
district court denied the motion, finding that the overlap between the money laundering charges
and bankruptcy fraud was minimal and the potential for prejudice was too great. The trial on the
money laundering charges began on February 20, 2018, and on February 23, 2018, Henderson was
found guilty on all five counts.
On January 10, 2019, one day before his sentencing, Henderson filed a motion to continue,
claiming a Brady violation because the government failed to produce relevant discovery in the
bankruptcy fraud case involving anonymous complaints and emails to the bankruptcy trustees, and
arguing that the discovery would have changed his trial strategy in this case. These emails
allegedly revealed that the bankruptcy trustee treated Henderson’s bankruptcy petition as a
criminal referral and that the United States Trustee’s Office may have thought Henderson’s
bankruptcy counsel was involved in the suspected fraud. The district court proceeded with the
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sentencing hearing the following day and addressed the motion to continue, denying Henderson’s
motion. This appeal followed.
Henderson claims four errors in the money laundering proceeding below. First, Henderson
claims that after the trial was over, he became aware of potential Brady evidence from his
bankruptcy fraud case, and that this should have resulted in the district court granting his motion
to continue sentencing. He claims that this would have changed his trial strategy for the money
laundering trial, including whether he would oppose consolidation with the bankruptcy fraud
proceeding and whether he would have testified at trial. Second, Henderson claims that the
prosecutor’s comment in closing argument regarding his decision not to speak with the FBI was
an improper and unconstitutional comment on his silence. Third, Henderson claims that the jury
was not given sufficient evidence to find that venue was proper in the Northern District of Ohio.
And finally, Henderson claims that the evidence at trial was insufficient to prove that he knew the
$500,000 commission was criminally derived.
II
A. Brady Violation
Henderson argues that the district court erred when it denied his motion to continue
sentencing on the basis of potential Brady material produced in his bankruptcy fraud case. He
claims that this discovery would have affected his decisions about trial strategy for the money
laundering case, including whether he would testify and whether he would support consolidation
of the two cases. The denial of a motion to continue sentencing is reviewed for an abuse of
discretion. United States v. Williams, 471 F. App’x 497, 498 (6th Cir. 2012) (per curiam) (citing
United States v. Warshak, 631 F.3d 266, 298 (6th Cir. 2010)).
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The potential Brady evidence in this case is a set of communications and emails between
the United States Trustee’s Office, Henderson’s civil attorneys, and an anonymous complainant.
The emails suggest that the United States Trustee’s Office was treating Henderson’s bankruptcy
petition as a criminal referral and that Henderson’s bankruptcy counsel might also be implicated
in the suspected misconduct. Importantly, whether a Brady violation occurred in Henderson’s
bankruptcy fraud case is not before us. We are reviewing only whether the district court abused
its discretion in not granting Henderson’s motion to continue sentencing in the money laundering
case.
And here, the core problem with Henderson’s argument is that he cannot show any
potential Brady violation that occurred should have impacted the district court’s decision on
whether to continue his sentencing. His money laundering trial had already taken place. The
bankruptcy fraud charge was not mentioned at trial at all. His civil bankruptcy attorneys were not
involved. And any potential misconduct by either Henderson’s civil bankruptcy attorneys or the
United States Trustee’s Office could not impact whether Henderson’s sentencing for the entirely
separate money laundering trial should be continued. The purported Brady evidence was related
only to Henderson’s bankruptcy trial, and its disclosure had no impact on the sentencing for
Henderson’s money laundering convictions. The material is not relevant to Henderson’s money
laundering trial, and therefore there was no reason to delay Henderson’s sentencing.
Henderson argues to the contrary, claiming that had the information been disclosed earlier,
it may have affected his trial strategy, his decision to testify, or his decision to oppose consolidation
of the two trials. But Henderson fails to explain how that could be so. Whatever the relevance of
the information to his bankruptcy fraud case, it is hard to see how it could be exculpatory,
impeaching, or even relevant to this one. The district court had no reason to delay sentencing in
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Henderson’s money laundering case, and it wasn’t an abuse of discretion for the court to deny
Henderson’s motion to continue.
B. Prosecutorial Misconduct
Henderson argues that when the government compared his actions with those of Brody in
its closing argument, it violated his right against self-incrimination by invoking his “silence” in
not speaking with the FBI about the bond deal. Henderson raised this prosecutorial misconduct
issue in his motion for a new trial, and the review of the denial of that motion is for abuse of
discretion. United States v. Wettstain, 618 F.3d 577, 588 (6th Cir. 2010).
We review allegations of prosecutorial misconduct in two steps: first, we determine if the
statements were improper, and if so, we determine whether they were flagrant enough to warrant
reversal. United States v. Wells, 623 F.3d 332, 337–38 (6th Cir. 2010). Prosecutors receive “‘wide
latitude’ during closing argument and any challenged remarks are evaluated in the context of the
trial as a whole.” United States v. Lawrence, 735 F.3d 385, 431 (6th Cir. 2013) (quoting United
States v. Boyd, 640 F.3d 657, 669 (6th Cir. 2011)). This is a demanding standard, and “[t]o warrant
reversal, the prosecutorial misconduct must have rendered the trial fundamentally unfair.” Id. at
431–32.
In closing arguments, the government compared the actions of Brody and Henderson. The
prosecutor stated:
But what did Ira Brody say about his knowledge of Mark Wittenmyer? He got
warned too. He said, “Well, you know, Mark Wittenmyer wasn’t indicted, wasn’t
convicted at the time.” But he changed the way he treated Mark Wittenmyer. He
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said, “If I’m going to get money, I’m going to call the FBI first[.”] [N]ot Ray
Henderson.
R. 460, PageID 5749.
Brody had decided to tell the FBI if the commission from the bond deal was transferred
into his account. Henderson claims that the prosecutor’s comment violated his Fifth Amendment
right against self-incrimination because it suggested that citizens have an obligation to report their
involvement in potentially criminal activity to the government and that Henderson’s failure to do
so was evidence of guilt.
Whether the government was commenting on Henderson’s failure to report his
involvement in criminal activity or merely comparing the actions of Henderson and Brody is a
close question, but we need not answer it. Even assuming (without deciding) that the comment
was improper, it can be grounds for reversal only if it was flagrant, and this comment was clearly
not flagrant. Four factors guide this determination: “(1) whether the conduct and remarks of the
prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the conduct or
remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally
made; and (4) whether the evidence against the defendant was strong.” Lawrence, 735 F.3d at 432
(quoting United States v. Carson, 560 F.3d 566, 574 (6th Cir. 2009)). An isolated remark in a
lengthy closing argument, in a case supported by strong evidence, cannot serve as a flagrant
comment worthy of reversal.
C. Other Challenges
Henderson makes two other arguments for reversal of his convictions below. First, he
claims that the jury was never given any evidence allowing them to determine that venue was
proper in the Northern District of Ohio. Henderson didn’t raise this issue below, either before trial
or in his motion for judgment of acquittal. “[O]bjections to defects in venue are usually [untimely]
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if not asserted before trial” unless “the defect is not apparent on the face of the indictment.” United
States v. Grenoble, 413 F.3d 569, 573 (6th Cir. 2005) (quotations omitted). However, in those
situations, the defendant still must preserve the claim for appellate review by either making a
general motion for judgment of acquittal or specifically raising the venue objection at the close of
evidence. United States v. Ramer, 883 F.3d 659, 682 (6th Cir. 2018).
Henderson correctly notes that any potential defect in venue was not apparent on the face
of the indictment, which allowed him to raise the challenge after trial. However, he forfeited this
claim for appeal because he filed a motion for judgment of acquittal at the close of evidence that
listed specific objections to the government’s case but did not challenge venue. Because
Henderson listed some specific objections in his motion, he forfeited all arguments not made.
Ramer, 883 F.3d at 682 (holding that a motion that raises specific objections is not “a general
challenge to the government’s proofs” and that “such a motion will [forfeit] all other grounds not
specified in the motion” (citing United States v. Dandy, 998 F.2d 1344, 1356–57 (6th Cir. 1993))).
Thus, he forfeited any venue objections.
Finally, Henderson challenges his conviction for conspiracy to commit money laundering
on the ground that there was insufficient evidence that Henderson knew the transaction involved
criminally derived property. Henderson need not have known that the $500,000 was criminally
derived; instead, showing that Henderson remained deliberately ignorant of its nature can also
satisfy this element. See United States v. Bowser, 787 F. App’x 853, 855–56 (6th Cir. 2019).
Henderson raised this issue in his motion for judgment of acquittal, which we review de
novo. See United States v. Vichitvongsa, 819 F.3d 260, 270 (6th Cir. 2016). In assessing
sufficiency of the evidence, the test is “whether, after viewing the evidence in the light most
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favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Henderson offers a lengthy list of evidence that purportedly fails to prove that Henderson
knew the $500,000 was criminally derived. But Henderson’s attempt to poke holes in the evidence
by attacking it piece-by-piece fails. The evidence must be looked at as a whole and must be viewed
in the light most favorable to the prosecution. Id. Here, the evidence is more than sufficient to
uphold the conviction. Before the bond deal even began, Henderson was told by Robinson that
Wittenmyer was the subject of an ongoing FBI investigation, had a long history of financial fraud,
and had no legitimate income. Wittenmyer was arrested at Henderson’s home on state credit-card-
fraud charges. Henderson engaged in rapid, unusual spending of money after receiving the
$500,000 commission in early November 2013, and then misled Robinson on a phone call later
that month by claiming he knew nothing about any wire transfers. After hearing this evidence,
and more, the jury convicted Henderson on all charges. “A defendant challenging the sufficiency
of the evidence bears a very heavy burden.” United States v. Prince, 214 F.3d 740, 746 (6th Cir.
2000) (citation and internal quotation marks omitted). Henderson has not met that burden here.
III
For the foregoing reasons, we AFFIRM the judgment of the district court.
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