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Defendant Robertson’s Memorandum Regarding Forfeiture and Imposition of a Money Judgment — United States v. Robertson (Dkt. 96, N.D. Ga.)

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Defendant Shelitha Robertson's memorandum regarding forfeiture and imposition of a money judgment in United States v. Shelitha Robertson, Case No. 1:22-cr-00432-SDG-JEM, in the U.S. District Court for the Northern District of Georgia, Atlanta Division, filed December 19, 2023 as Document 96. It asks the court to decline to impose any money judgment under Rule 32.2, arguing that her interest was limited to the PPP loan proceeds she received, over $7 million according to the indictment, which, the memorandum says, government witnesses testified under oath at trial she had repaid with interest. It also argues that amounts of loans to others should not be included and contrasts the fine limits of the wire fraud and money laundering statutes.

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Filed December 19, 2023 in Shelitha Robertson; one of 2 filings from this case.

Record facts

Court	U.S. District Court for the Northern District of Georgia
Filed	2023-12-19

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“Defendant Robertson’s Memorandum Regarding Forfeiture and Imposition of a Money Judgment — United States v. Robertson (Dkt. 96, N.D. Ga.).” U.S. District Court for the Northern District of Georgia, No. 1:22-cr-00432, Doc. 96, filed 2023-12-19. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-shelitha-robertson/2023-12-19-defendant-robertson-s-memorandum-regarding-forfeiture-and-im-dkt-96/, SHA-256 5b2746ea9aec9436d632e6522acc0088ecfaf7b0dd3d67cc5e8bbe876baac102.

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Case 1:22-cr-00432-SDG-JEM Document 96 Filed 12/19/23 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA Case No. 1:22-cr-00432-SDG-JEM

SHELITHA ROBERTSON,

Defendant.

DEFENDANT ROBERTSON’S MEMORANDUM
REGARDING FORFEITURE AND IMPOSITION OF
A MONEY JUDGMENT

Defendant Shelitha Robertson respectfully files this Memorandum

Regarding Forfeiture and Imposition of a Money Judgment, and respectfully asks

the Court to decline to impose any money judgment on Defendant under Federal

Rule of Criminal Procedure 32.2, or if the Court must award a money judgment

that the judgment be in the nominal amount of one dollar. Defendant formally

objects to the imposition of any money judgment on Defendant in any greater

amount, based upon the authorities set forth herein.

The Government cites 18 U.S.C. §§ 981 and 982, and 28 U.S.C. § 2461, in its

Indictment, alleging that Ms. Robertson must forfeit “any property, real or

personal, that constitutes or is derived from proceeds traceable to such offenses…”

Case 1:22-cr-00432-SDG-JEM Document 96 Filed 12/19/23 Page 2 of 6

Doc. # 1, ¶ 33. The prosecution states in the Indictment its intent to seek forfeiture

of Ms. Robertson’s property “up to the value” of the forfeitable property described

in the Indictment. Id. at ¶ 35. It alleges that Ms. Robertson shall forfeit “[a] sum of

money in United States currency, representing the amount of proceeds obtained

as a result of the offenses alleged in this Indictment…” Id. at ¶ 33(a) (emphasis

added).

Federal Rule of Criminal Procedure 32.2 requires that, “[i]f the government

seeks a personal money judgment, the court must determine the amount of money

that the defendant will be ordered to pay.” Fed. R. Crim. P. 32.2(b)(1)(A). If the

forfeiture is contested, “on either party’s request the court must conduct a hearing

after the verdict or finding of guilty.” Fed. R. Crim. P. 32.2(b)(1)(B).

The “amount of proceeds” alleged in the Government’s Indictment is

allegedly “over $7 million in [Paycheck Protection Program (PPP)] loans to the

Robertson Entities.” Doc. # 1, ¶ 24. The Government’s own witnesses admitted

under oath at trial that Ms. Robertson had repaid all PPP loan proceeds, as well as

the interest on the proceeds, by the end of June of 2020.

“Money that is the ‘proceeds’ of a criminal offense ‘constitute[s] a

defendant’s interest in property’ and is subject to forfeiture via an in personam

money judgment.” United States v. Waked Hatum, 969 F.3d 1156, 1163 (11th Cir.

Case 1:22-cr-00432-SDG-JEM Document 96 Filed 12/19/23 Page 3 of 6

2020) (emphasis added) (quoting United States v. Elbeblawy, 899 F.3d 925, 940 (11th

Cir. 2012)). Moreover, “a district court may not hold members of a conspiracy

jointly and severally liable for property that one conspirator, but not the other,

acquired from the crime.” Id. (emphasis added) (citing Honeycutt v. United States,

581 U.S. 443 (2017)). Ms. Robertson’s interest in the property involved in the

offense was limited to the $7 million in PPP loan proceeds which she received—

which she returned with interest. There is no legal basis to include amounts of PPP

loans which Government cooperating witness Chandra Norton fraudulently

applied for and received for her own benefit.

Furthermore“‘[i]f the value of the forfeited property is within the

permissible range of fines under the relevant statute or sentencing guideline, the

forfeiture is presumptively constitutional.’” United States v. Esformes, 60 F.4th 621,

640 (11th Cir. 2023), cert. denied, No. 23-95, 2023 WL 8531890 (U.S. Dec. 11, 2023)

(quoting Waked Hatum, 969 F.3d at 1168). The Court of Appeals has “closely

scrutinized forfeiture money judgments that exceeded the statutory maximum

fine…” United States v. Carlyle, 776 F. App'x 565, 572–73 (11th Cir. 2019) (per curiam;

unpublished) (citing United States v. Sperrazza, 804 F.3d 1113, 1127 (11th Cir. 2015)).

The federal wire fraud statute, 18 U.S.C. § 1343, limits any fine imposed

upon a defendant to “not more than $1,000,000…” 18 U.S.C. § 1343. In contrast, the

Case 1:22-cr-00432-SDG-JEM Document 96 Filed 12/19/23 Page 4 of 6

money laundering statute, limits any fine to “not more than twice the amount of

the criminally derived property involved in the transaction…” 18 U.S.C. §

1957(b)(2). The Government expressly alleges in its Indictment that that

“transaction” involved only $128,000 allegedly derived from wire fraud. See Doc.

# 1, ¶ 32.

Imposition of any money judgment upon Ms. Robertson in an amount

greater than $1,256,000 would presumptively constitute an excessive fine and

punishment in violation of Ms. Robertson’s rights under the Eighth Amendment

of the Constitution of the United States. However, given the undisputed fact that

the Government has been repaid all of the proceeds which Ms. Robertson received,

the Court should decline to impose any money judgment on Ms. Robertson, or if

the Court concludes that it must issue a money judgment it should do so in the

amount of $1.00.

Accordingly, based upon the authorities set forth herein, respectfully asks

the Court to decline to impose any money judgment on Defendant under Federal

Rule of Criminal Procedure 32.2, or if the Court must award a money judgment

that the judgment be in the nominal amount of one dollar.

Case 1:22-cr-00432-SDG-JEM Document 96 Filed 12/19/23 Page 5 of 6

Respectfully submitted, this 19th day of December, 2023.

/s/ Craig A. Gillen_____________
Craig A. Gillen
Georgia Bar No. 294838
Anthony C. Lake
Georgia Bar No. 431149
GILLEN & LAKE LLC
400 Galleria Parkway
Suite 1920
Atlanta, Georgia 30339
(404) 842-9700
cgillen@gwllawfirm.com
aclake@gwllawfirm.com

Counsel for Defendant Shelitha Robertson

Case 1:22-cr-00432-SDG-JEM Document 96 Filed 12/19/23 Page 6 of 6

CERTIFICATE OF COMPLIANCE AND SERVICE

The undersigned hereby certifies, pursuant to LCivR 7.1(D), that the

foregoing document has been prepared with one of the font and point selections

(Book Antigua, 13 point) approved by the Court in LCivR 5.1(B).

The undersigned hereby further certifies that on this 19th day of December,

2023, the undersigned served the foregoing document by filing the document via

the Court’s Case Management/Electronic Case Filing (CM/ECF) system, which

will automatically serve notice of such filing on all attorneys of record.