                             UNPUBLISHED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Affirmed in part, reversed in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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
