US v. Yvonne Robertson, No. 11-4529 (4th Cir. 2013)

Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4529 UNITED STATES OF AMERICA, Plaintiff Appellee, v. YVONNE L. ROBERTSON, Defendant Appellant.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 Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 be laundering convictions must 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 investment to company 2008, Robertson known as operated Angel s Investments, LLC ( Angel s Touch ). 1 Touch a real Real estate Estate Robertson used the company to orchestrate a mortgage fraud scheme involving the purchase and sale of residential properties 1 in the Tidewater Area of 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 apply to submission of for loan false information. and obtain applications mortgage and loans other through documents the bearing 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 submission Manns of bank signatures false on the information balances and purchase to rental the agreement, lender income. and the regarding the The property s settlement statement listed a disbursement of $42,684 to Angel s Touch for [h]ome [i]mprovements. disbursement check was cut, J.A. 288, 352. Robertson contacted After the the title company to have the check voided and the funds divided between herself and Erica Colvin. $38,000 to Colvin, which The title formed laundering offense in count 14. 4 the company in turn wired basis for the money 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. Robertson s $97,320.96 direction, of the the payout title to After closing, at company Muhammad instead Hassan, her wired sometime- boyfriend. Robertson was separately charged in count 16 with making a false statement interview with to FBI a law Special enforcement Agent officer. Scott Salter, During an 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 denied. money laundering Robertson elected counts, not to which the testify district and court 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 The district court denied the motion. 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 sufficient contends evidence that to the support government her did not convictions present 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, separately that of her a fraudulent conviction scheme. for making Robertson a false argues statement fails because the government did not prove the requisite intent. The substantial verdict of evidence, a jury taking Government, to support it. must the be view sustained most if there favorable to is the 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). context of reasonable a We have defined substantial evidence, in the criminal finder of action, fact as could that accept evidence as which adequate a 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. [C]riminally derived property is 18 U.S.C. § 1957(a). 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 deliver them to collectors, including co-defendant Diaz. 509. and Id. at 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. at 510. The Seventh Circuit affirmed, and, in a judgment of Id. plurality opinion, the Supreme Court did as well. In Justice his opinion Scalia announcing explained that, the if proceeds the Court, 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 moneylaundering 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. the Government Id. at 526-27. to treat the He explained that [a]llowing mere payment of the expense of operating an illegal gambling business as a separate offense is in practical effect tantamount to double jeopardy. Therefore, generated Justice by a Stevens gambling concluded business that that is Id. at 527. [t]he used to revenue 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. at 278. Id. 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, broker for their roles in the scheme. and a mortgage 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, 11 a merger problem existed because the kickbacks expenses of (internal quotations explaining constituted operating that the fraudulent omitted). Halstead s payment We of the scheme. essential Id. distinguished transfers of funds at 406 Halstead, 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 connection between this the determination, predicate crime we and focus the which the money laundering charges are based. on the transfers on 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 fraud. profits when See id. at 409. the predicate crime is mortgage 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 laundering on count 13 does not present a merger problem. transaction, in which Robertson received money from a money This straw buyer, does not represent a payment of the essential expenses of the mail fraud, but is instead 12 more akin to the transfers between the defendant s personal accounts in Halstead. 273. Id. at 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. problem exists as to count 13, the Because no merger 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 conviction on count 14. conclusion as to Robertson s The transfer here involved a title company s wire of $38,000 to Erica Colvin, made at Robertson s direction. connection scheme. The to record Robertson, is silent or role as (if to any) Colvin s in the identity, fraudulent 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 offense. to its burden of proof on each element of the 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. we have already noted, the government See id. at 409. presented no As evidence explaining the nature and purpose of the title company s wire to Colvin. its Accordingly, we find that the government failed to meet burden to show that Robertson in fact transferred profits of the mortgage fraud scheme to Colvin. the We therefore reverse Robertson s conviction for money laundering under count 14. C. We denying next consider Robertson s whether Rule the 29 district motion with court erred in 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 indicia lack of she of displayed candor or 14 no evasiveness forthrightness or other during her 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. Jackson, 608 F.3d 193, 196 (4th Cir. See United States v. 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 denied receiving a $24,000 check from Mann. 15 specifically Second, Robertson 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 making a is sufficient false to statement support to Agent Robertson s Salter. conviction for Accordingly, the district court did not err in denying Robertson s Rule 29 motion with respect to count 16. D. We turn finally Robertson s sentence. to the impact of our decision on 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