United States v. Merrill Robertson, Jr. ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4795
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MERRILL ROBERTSON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:16-cr-00133-JAG-1)
Argued: October 30, 2018 Decided: February 5, 2019
Before FLOYD and HARRIS, Circuit Judges, and Donald C. COGGINS, Jr., United States
District Judge for the District of South Carolina, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Patrick Risdon Hanes, WILLIAMS MULLEN, Richmond, Virginia, for
Appellant. Katherine Lee Martin, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee. ON BRIEF: Jonathan T. Lucier, WILLIAMS
MULLEN, Richmond, Virginia, for Appellant. Tracy Doherty-McCormick, Acting United
States Attorney, Alexandria, Virginia, Stephen E. Anthony, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellant Merrill Robertson, Jr., was charged in a fifteen-count superseding
indictment related to a large investment and bank fraud scheme. Robertson remained out
on bond during his lengthy trial. However, on the last day of trial, after Robertson testified,
the trial court sua sponte convened a bond revocation proceeding. During the hearing, and
outside of the presence of the jury, the trial court made a number of prejudicial remarks
about Robertson’s character and credibility and revoked Robertson’s bond. The following
morning, the Richmond Times-Dispatch published an article about Robertson’s trial, which
quoted several of the trial court’s prejudicial remarks. Over Robertson’s objection, the trial
court declined to inquire about the jury’s exposure to the specific article. Thereafter, the
jury convicted Robertson of all counts, and the trial court sentenced Robertson to 480
months’ incarceration.
Robertson raises five issues in this appeal. First, Robertson contends the trial court
abused its discretion in failing to determine whether jurors were exposed to the trial court’s
statements reprinted in the Richmond Times-Dispatch. Second, Robertson argues his 480-
month sentence is procedurally and substantively unreasonable. Third, Robertson seeks a
judgment of acquittal on Count Five, arguing the Government failed to prove his statements
were material. Fourth, Robertson contends his convictions on Counts One through Nine
must be vacated because the trial court improperly instructed the jury on the definition of
“material.” Finally, Robertson seeks consideration of additional issues under Anders v.
California, 386 U.S. 738 (1967). As detailed below, we agree as to Robertson’s first issue
and vacate his convictions and sentence.
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I.
Robertson was the co-owner of a private investment company, Cavalier Union
Investments. From 2008 to 2016, Robertson and his partner collected large sums of money
from investors. By 2015, investors began to ask for the return of their investments, but
Robertson had spent most of the money. As a result, Robertson and several other
individuals submitted falsified loan applications to a number of financial institutions.
Thereafter, a grand jury returned a fifteen-count superseding indictment charging
Robertson with conspiracy to commit mail and wire fraud, mail fraud, wire fraud,
conspiracy to commit bank fraud, bank fraud, and engaging in unlawful monetary
transactions.
Robertson proceeded to trial. Following his testimony, the trial court discharged
the jury and informed the parties that it would be holding a hearing to reevaluate
Robertson’s pretrial release, noting that Robertson “is not a truthful person, and that he will
do anything he needs to do to protect himself.” In light of this unexpected turn of events,
the trial court gave Robertson and his counsel a short time to prepare for the hearing. When
the trial court reconvened later that evening, the Government argued for revocation of
Robertson’s pretrial release due to “the risk of flight” and “[t]he lack of constant
connections.” Robertson opposed revocation of his bond, arguing that he had been
generally compliant with the terms of his pretrial release and that nothing had changed
regarding his connections to the community or risk of flight. After considering the parties’
arguments, the trial court revoked Robertson’s bond based on the overwhelming “weight
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of the evidence against him,” his “demonstrably false” testimony, and “his willingness to
victimize the people who are closest to him.”
The following morning, the Richmond Times-Dispatch quoted some of the trial
court’s comments on the front page of the Metro section in an article titled, “Ex-U.Va.
football player’s bond revoked in fraud trial” and subtitled, “Judge calls former
Chesterfield resident ‘not a truthful person.’” Based on the publication of this article,
Robertson moved for a mistrial. The trial court took the motion under advisement, 1
apparently recognizing the potential for significant prejudice because the jurors were not
sequestered and may have been exposed to the article or headline. To determine the
potential exposure, the trial court told the parties, “[w]hen [the jurors] come back[,] I will
ask if anybody read anything about the case, or heard anything. If they have, what I will
do is have them come up and ask them what they have seen and heard individually, and
see where we go from there.” Robertson also requested that the trial court “inquire as to
whether [jurors] received the Richmond Times Dispatch in their home.” Initially, the trial
court expressed a willingness to inquire about this point, but deferred resolving the issue
until the parties discussed the jury instructions.
After the charge conference, the trial court informed the parties that he was “not
going to ask [jurors] about the Times Dispatch” because he didn’t “want [jurors] to go dig
out a bunch of old Times Dispatches and start reading them tonight if they are still
1
The record reflects that the motion for mistrial was denied during the jury’s first
day of deliberations.
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[deliberating] then.” Robertson objected to the trial court’s proposed limited questioning
of the jury and also asked the trial court to inquire if the jurors heard anything about the
article or the trial court’s comments on the radio. The trial court overruled Robertson’s
objections and brought the jury into the courtroom. The trial court then polled the jury,
stating, “Let me just ask you. Have any of you during the course of the trial heard or read
anything about the case?” The jurors responded in the negative, and the trial proceeded to
closing statements and jury instructions.
At the conclusion of closing statements and jury instructions, the trial court
discharged the jury for the evening. The following morning, the trial court did not question
the jurors about any exposure to the article prior to deliberations beginning. The jury
deliberated for almost two days before finding Robertson guilty on all counts. After the
verdict, Robertson filed a Motion for a New Trial, based largely on the trial court’s failure
to question the jury specifically about the Richmond Times-Dispatch article, and a Motion
for Judgment of Acquittal on Counts Five and Ten through Fifteen. The trial court denied
both motions. At the sentencing hearing, the trial court varied upwards from Robertson’s
guidelines range and sentenced him to 480 months’ incarceration.
Following sentencing, Robertson filed a notice of appeal, raising the five issues set
forth above. As we find Robertson’s first issue warrants vacating his convictions and
sentence, we focus our discussion on that issue. However, because Robertson also raises
a challenge to the sufficiency of the evidence as to Count Five of the superseding
indictment, we find it prudent to conclude by briefly addressing that issue in light of
potential double jeopardy concerns.
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II.
Under Rule 33 of the Federal Rules of Criminal Procedure, the trial court “may
vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R.
Crim. P. 33. The decision whether to grant or deny a motion for a new trial is committed
to the broad discretion of the trial court, and should be disturbed only when the trial court
abuses its discretion. United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003). “[W]hen
highly prejudicial information may have been exposed to the jury,” the trial court abuses
its discretion if it fails to “ascertain the extent and effect of the infection” and does not
“take appropriate measures to assure a fair trial.” United States v. Hankish, 502 F.2d 71,
77 (4th Cir. 1974) (citations omitted).
III.
“[T]he procedure required by this Circuit where prejudicial publicity is brought to
the court’s attention during a trial is that the court must ascertain if any jurors who had
been exposed to such publicity had read or heard the same.” Id. Jurors who indicate they
have been exposed to the publicity in question must “be examined, individually and outside
the presence of the other jurors, to determine the effect of the publicity.” Id. This
procedure “open[s] the way for appropriate corrective measures—cautionary instructions,
excusing individual jurors when alternates are available, or a mistrial if nothing else will
cure the prejudice.” Id. (internal footnotes omitted).
The initial inquiry, therefore, is whether the publicity is prejudicial to the defendant.
See id. (“We do not hold that every newspaper article appearing during trial requires such
protective measures. Unless there is substantial reason to fear prejudice, the trial court may
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decline to question the jurors.” (citations omitted)). As we have previously held,
“[i]nformation is prejudicial if it is substantially adverse to a defendant, has not been
presented to the trial jury in court and is not properly admissible in the trial.” United States
v. Gray, 788 F.2d 1031, 1033 (4th Cir. 1986) (citations omitted). Under this rubric, the
Richmond Times-Dispatch article is prejudicial, because the headline reflects the trial
court's characterization of Robertson as “not a truthful person.” The trial judge’s remarks
were adverse to Robertson and would have been inadmissible comments on the facts if
made in the presence of the jury. 2 Indeed, in any trial where a defendant testifies, the jury’s
credibility determination is of paramount importance, and we hold that the trial court’s
comments about Robertson’s credibility would have been prejudicial if read or heard by a
juror.
In light of the prejudicial nature of the publicity, we must next determine whether
the trial court properly “ascertain[ed] the extent and effect of the infection” and took
“appropriate measures to assure a fair trial.” Hankish, 502 F.2d at 77 (citations omitted).
Here, the trial court generally asked the jurors if they had heard or read anything about the
case. That inquiry is insufficient under this Court’s well-established precedent, which
requires the trial court to specifically question jurors about their exposure to the prejudicial
publicity in question. Id. The trial court’s general question was insufficient to determine
whether any jurors had been exposed to the Richmond Times-Dispatch article, for a juror
2
The Government concedes in its brief that the trial judge’s comments were
prejudicial.
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could fairly answer the trial court’s general question in the negative if she saw the
prejudicial headline but did not read the article. We emphasize that there is no specific
question or questions that must be asked by a trial court in these cases. Trial courts have
ample discretion to fashion their questioning to determine whether jurors have been
exposed to specific publicity without further prejudicing the defendant. For example, the
trial court in this case could have posed a series of questions beginning with asking which
jurors subscribe to or regularly read the Richmond Times-Dispatch and then narrowing the
questioning to determine whether any jurors saw the headline in question. Indeed, there
are innumerable ways for a trial court to question jurors in such a situation, and we
emphasize that trial courts have broad discretion to fashion an appropriate remedy if there
is exposure to prejudicial publicity.
Accordingly, we hold the trial court abused its discretion in failing to question the
jurors specifically about their exposure to the Richmond Times-Dispatch article.
Robertson offers two alternative remedies for this abuse of discretion—a new trial or
remanding the case so that the trial court may attempt to recall the jurors and question them
about their in-trial exposure to the article in question. See United States v. Thompson, 908
F.2d 648, 655 (10th Cir. 1990) (establishing a procedure for recalling jurors to attempt to
determine in-trial exposure to prejudicial publicity). While the latter remedy may be
warranted in the appropriate case, we find that a new trial is necessary to ensure compliance
with the constitutional imperative that Robertson receive a fair trial.
IV.
Turning to Robertson’s remaining issues raised in this appeal, the Court need not
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address the reasonableness of Robertson’s sentence or the propriety of the jury instructions
in light of our grant of a new trial; however, the Court finds it prudent to address the
sufficiency of the evidence as to Count Five of the superseding indictment at this time,
because double jeopardy would bar a retrial of this claim if Robertson were to prevail. For
the reasons set forth below, we reject Robertson’s argument on this issue, as it is premised
on a fundamental misunderstanding of this Court's precedent.
We review de novo a trial court’s denial of a motion for judgment of acquittal.
United States v. Clarke, 842 F.3d 288, 297 (4th Cir. 2016). “A defendant who brings a
sufficiency challenge bears a heavy burden, as ‘[a]ppellate reversal on grounds of
insufficient evidence . . . [is] confined to cases where the prosecution's failure is clear.’”
Id. (alteration in original) (internal citation omitted) (quoting United States v. Green, 599
F.3d 360, 367 (4th Cir. 2010)). The denial of a motion for judgment of acquittal should be
affirmed if “after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)
(citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)).
By way of brief background, Count Five of the superseding indictment alleged that
Robertson committed mail fraud by engaging in a scheme to defraud his childhood Sunday
School teacher—Carolyn Banks—out of her retirement benefits. The Government
adduced evidence at trial that Ms. Banks initially approached Robertson and told him that
she wanted to move her retirement funds to Cavalier Union Investments so she could gain
greater control over her money. To effectuate this transaction, Ms. Banks entered into a
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promissory note with Robertson, in which Robertson agreed to double Ms. Banks’ money
in two years. The promissory note further guaranteed Ms. Banks that her retirement
savings were secured by equipment, fixtures, inventory, and accounts receivable. Rather
than transferring Ms. Banks’ retirement funds to a Traditional IRA—as Robertson
promised to do—Robertson instead deposited the money into a Cavalier Union
Investments’ bank account that was overdrawn by more than $2,000 and quickly spent
nearly $120,000 of Ms. Banks’ money on personal expenses, including a large credit card
payment and trips to Tacoma, Washington and Honolulu, Hawaii.
Despite the ample evidence offered at trial by the Government that Robertson
misled Ms. Banks about the investment of her retirement funds, Robertson contends that
he is entitled to a judgment of acquittal because Ms. Banks testified that she did not invest
with Robertson based on anything specific that Robertson said or omitted, instead investing
so that she had more control over her money. Thus, Robertson contends that he did not
misrepresent or conceal a material fact, as any misrepresentation or concealment could not
have influenced Ms. Banks’ likely or actual behavior. This argument is plainly foreclosed
by this Court’s decision in United States v. Raza, 876 F.3d 604 (4th Cir. 2017).
In Raza, this Court reiterated the long-standing principle that materiality is
evaluated under an objective standard in mail, wire, and bank fraud schemes targeting
private entities or individuals. 876 F.3d at 614–21. In doing so, we detailed the lengthy
history of applying an objective materiality standard in such cases. Id. We further noted
that the subjective materiality standard articulated by the Supreme Court in Universal
Health Services v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016)—a False Claims
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Act case—likely does not extend “beyond the context of qui tam actions,” which are “civil
proceeding[s] that protect[] the federal government.” Raza, 876 F.3d at 620. Therefore,
we are bound by our well-established precedent requiring materiality to be proven under
an objective standard. Under this objective standard, we agree with the Government that
there is substantial evidence such that a reasonable person would find Robertson’s
representations about the growth rate and secured nature of Ms. Banks’ investment to be
material. 3 Accordingly, we hold that the trial court applied the correct standard of
materiality and properly denied Robertson’s motion for judgment of acquittal.
V.
For the foregoing reasons, we vacate the judgment of conviction and remand for
proceedings consistent with this opinion. 4 In light of our holding, we need not reach
Robertson’s remaining assignments of error.
VACATED AND REMANDED
3
Additionally, we note that the Government introduced evidence that Robertson’s
misrepresentations and concealment were subjectively material to Ms. Banks, as Ms.
Banks testified that she “was focused on what [she] was going to get back . . . from the
investment’ and never gave Robertson permission to spend her investment funds for his
own personal use.
4
Robertson, pro se and through counsel, filed a number of motions, which remain
pending. In light of the Court’s holding, all pending motions are denied as moot.
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