Memorandum Opinion and Order, U.S. v. David L. Merryman, No. 4:24-cr-00004, Dkt. 91 (E.D. Va.)

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A Memorandum Opinion and Order in United States of America v. David L. Merryman, Criminal No. 4:24-cr-4, in the U.S. District Court for the Eastern District of Virginia, Newport News Division, filed August 1, 2025 as Document 91, on restitution under the Mandatory Victims Restitution Act. It recounts that Merryman pled guilty on July 31, 2024 to Counts Three, Eleven, Twenty-eight, and Thirty-one of a Superseding Indictment and was sentenced on December 18, 2024 to 204 months, followed by 3 years of supervised release. The Government sought an additional $110,316.51 for six witnesses whom both parties agree are victims, and the court finds the burden unmet for all but J.N., citing missing receipts and documentation. J.N. is awarded $2,101.99 for twelve months of storage costs, and the court orders Merryman to pay $235,427.99 in total restitution.

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“Memorandum Opinion and Order, U.S. v. David L. Merryman, No. 4:24-cr-00004, Dkt. 91 (E.D. Va.).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/memorandum-opinion-and-order-u-s-v-david-l-merryman-no-4-24-cr-00004-d-0587b39849/, SHA-256 810943e726e058fcb8d765d823100b28f532fbb1e423cd5a87727a71149cbcf6.

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Case 4:24-cr-00004-RAJ-DEM Document 91 Filed 08/01/25 Page 1 of 10 PageID# 938

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Newport News Division

UNITED STATES OF AMERICA,

V. Criminal No. 4:24-cr-4

DAVID L. MERRYMAN,

Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is the Government’s Supplemental Position on Restitution under the

Mandatory Victim Restitution Act (“MVRA”), 18 U.S.C. § 3663A. ECF No. 89 (“Gov’t’s Br.”).

Defendant David L. Merryman also filed a Supplemental Position on Restitution under the MVRA.

ECF No. 90 (“Def Br.”). The Court held a hearing on this matter. ECF No. 84 (“Transcript”). This

matter is now ripe for judicial determination. For the reasons below, the Government’s Brief is

GRANTED in PART and DENIED in PART.

I. FACTUAL AND PROCEDURAL HISTORY

On March 12,2024, Defendant was named in a Superseding Indictment charging him with

thirty-one Counts. ECF No. 18. Counts One through Ten charged Defendant with Wire Fraud, in

violation of 18 U.S.C. §§ 1343 and 2. Id. Counts Eleven through Thirteen charged Defendant with

Interference with Housing, in violation of 42 U.S.C. § 3631 and 18 U.S.C. § 2. Id. Counts Fourteen

through Fifteen charged Defendant with Interstate Communications with Threats to Injure, in

violation of 18 U.S.C. §§ 875(c) and 2. Id. Counts Sixteen through Twenty-one charged Defendant

with Theft of Government Money, in violation of 18 U.S.C. §§ 641 and 2. Id. Counts Twenty-two

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through Twenty-five charged Defendant with False Statement to Department of Housing and

Urban Development, in violation of 18 U.S.C. §§ 1010 and 2. Id. Counts Twenty-six through

Twenty-nine charged Defendant with Aggravated Identity Theft, in violation of 18 U.S.C. §§

1028A and 2. Id. Counts Thirty through Thirty-one charged Defendant with Interference with

Federally Protected Activities, in violation of 18 U.S.C. §§ 245(b)(2)(C) and 2. Id. On July 31,

2024, Defendant pled guilty to Counts Three, Eleven, Twenty-eight, and Thirty-one. ECF Nos. 42,

43.

According to the Statement of Facts contained in the Presentence Investigation Report

(“PSR”), around 2019 through January 2024, Defendant “created a scheme and artifice to defraud

and obtain money and property by making various materially false pretenses, representations, and

promises.” ECF No. 64 ^ 7 (“PSR”). Defendant obtained benefits from Virginia Department of

Housing and Community Development (“VHDA”) that were made available because of the

COVID-19 pandemic. Id. Defendant obtained deposits from prospective tenants by implying that

he would lease rentals for longer tenancy terms when his true intention was to evict them as quickly

as possible to generate additional profit by collecting deposits from new tenants. Id.

Defendant, aided and abetted by others, used the names and other personally identifying

information of tenants to apply for rent relief benefits without the tenants’ consent. Id.

Additionally, Defendant fabricated lease agreements that his aiders and abettors filled out with

incorrect information before forging his tenants’ signatures and falsely represented himself as

authorized to act on behalf of his tenants. Id. Defendant made false representations about the rent

and fees due from the tenant applications, and the time periods the tenant applicants resided at the

properties. Id. 16-17. Defendant obtained relief benefits and used the money for himself and as

commission to his aiders and abettors without telling the tenants. Id. Defendant later evicted the

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tenants for unpaid rent. Id. Defendant also engaged in racist and discriminatory harassment of the

tenants and would pressure them to leave the properties to start collecting payments again. Id. T|

Defendant caused electronic transfers of information between the Eastern District of Virginia and

outside of Virginia. Id. T| 20.

On December 18, 2024, the Court sentenced Defendant to 204 months, followed by 3 years

of supervised release. ECF Nos. 72, 74. On March 28,2025, the Court held a hearing on the amount

of restitution Defendant owes his victims. On May 27, 2025, both the Government and Defendant

filed supplemental positions on restitution.

II. LEGAL STANDARD

Under the Mandatory Victims Restitution Act of 1996 (“MVRA”), 18 U.S.C. § 3663A, it

provides that whenever “a defendant convicted of an offense described in subsection (c), the court

shall order . . . that the defendant make restitution to the victim of the offense or, if the victim is

deceased, to the victim’s estate. The MVRA describes a “victim” as “a person directly and

proximately harmed as a result of the commission of an offense for which restitution may be

ordered ....” 18 U.S.C. § 3663A(a)(2). Restitution shall apply for any offense that is an offense

against property “in which an identifiable victim or victims has suffered a physical injury or

pecuniary loss. 18 U.S.C. § 3663A(c)(l)(A)-(B). A district court must order a convicted

defendant to “return the property to the owner of the property,” or, if the property cannot be

returned “pay an amount equal to the greater of the value of the property on the date of the damage.

loss, or destruction; or the value of the property on the date of sentencing, less the value ... of any

part of the property that is returned.” 18 U.S.C. § 3663A(b)(l). “In each order of restitution, the

court shall order restitution to each victim in the full amount of each victim’s losses as determined

by the court and without consideration of the economic circumstances of the defendant.” 18 U.S.C.

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§ 3664(f)(1)(A). “The MVRA limits restitution to the actual loss directly and proximalely caused

by the defendant’s offense of conviction.” United States v. Borino, 123 F.4th 233, 247 (5th Cir.

2024) (alterations in original).

“The MVRA gives district courts discretion to determine the proper method of calculating

the value of lost property.” United States v. Steele, 897 F.3d 606, 610 (4th Cir. 2018). “Instead of

prescribing a single valuation method, the MVRA leaves that determination to district courts.” Id.

“District courts use a variety of methods to calculate the value of lost property,” including fair

market value, replacement cost, and cost to the victim. Id. “Nevertheless, [the] MVRA procedure

‘makes clear that the defendant is expected from the outset to repay all of the actual losses that he

caused, but no more.’” Id. at 611 (internal citation omitted). “Thus, in calculating restitution under

the MVRA, courts abuse their discretion by granting the defendant a bailout or by allowing the

victim to obtain a windfall.” Id. (internal citations and quotations omitted). In most cases, fair

market value is the best method to measure the value of lost property. Id. “Fair market value is

‘[t]he price that a seller is willing to accept and a buyer is willing to pay on the open market and

in an arm’s length transaction. Id. at 610 (alterations in original) (citations omitted). By contrast.
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replacement cost is “[tjhe cost of a substitute asset that is equivalent to an asset currently held.

Id. at 611 (alterations in original) (citations omitted). “[Rjeplacement cost may be an appropriate

measure of value when the fair market value is difficult to determine or would inadequately capture

the value of the victim’s actual losses.” Id. at 612. “Courts, however, should be cautious when

using replacement costs to calculate the value of lost property. Using replacement cost in

inappropriate circumstances may incentivize victims to inflate their losses by replacing older,

depreciated property with newer, more expensive property.” Id.

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Section 3664(e) establishes a burden-shifting framework for a court to determine the loss-

amount. Borino, 123 F.4th at 247 (5th Cir. 2024). The government bears the ‘'burden of

demonstrating the amount of the loss sustained by a victim as a result of the offense” by a

preponderance of the evidence. Id.; see also 18 U.S.C. § 3664(e). Then, the burden shifts to the

defendant to “demonstrate[e] [his or her] financial resources and the financial needs of [his or her]

dependents.” Id. at 244. “If the defendant satisfies his burden, ‘the government can rebut with

additional evidence.”’ Borino, 123 F.4th at 247. Additionally, the Court will consider supporting

documentation, including receipts, repair bills, etc., as stated in the Victim Impact Statement form

when determining whether to award restitution.

III. DISCUSSION

The Government requests that the Court order Defendant to pay “restitution in the amount

of $347,900.00, which represents $233,326.00 in prepaid restitution as well as an additional

$114,574.00.”' Gov’t’s Br. at 8. The Government’s Supplemental Position focuses on the disputed

restitution of $110,316.51. Id. At the hearing, the Government called six witnesses^ to testify and

sought restitution for the following victims;

Victim Restitution Amount

Victim E.S. $3,500.00

Victim J.N. $13,601.21

Victim L.G. $9,290.00

Victim E.P. $30,435.30

' The total amount of restitution the Government is requesting should be $343,642.51 instead of
$347,900.00. Based on the figures in the chart and what the Government requests for each victim in its
brief, the total outstanding balance of restitution being sought is $ 110,316.51. $110,316.51+$233,326
brings the total restitution amount being requested to $343,642.51.
^ Both parties agree that the six witnesses are victims. See generally Gov’t’s Br.; Def.’s Br.
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Victim D.P. $28,490.00

Victim G.J. $25,000.00

The Court will analyze each victim’s claim separately. For the reasons stated below, the

Court denies restitution to all victims except J.N., who is awarded restitution in the amount of

$2,101.99.

First Victim; E.S.

The Government argues that restitution is owed to E.S. in the amount of $3,500.00 in lost

wages because he testified as part of the criminal investigation. Gov’t’s Br. at 9; Transcript at 10-

11. Under the MVRA, the Court must order Defendant to “reimburse the victim for lost income

and necessary child care, transportation, and other expenses related to participation in the

investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18

U.S.C. § 3663A(b)(4); Gov’t’s Br. at 9. Defendant counters that E.S. failed to provide any receipts

or documentation to support his claim. Def.’s Br. at 3.

The Court finds that the Government has failed to meet its burden by a preponderance of

the evidence. E.S.’s claim is unsupported, and his testimony cannot serve as the principal piece of

evidence supporting the $3,500 in lost wages. The Court needs to know how E.S. arrived at the

$3,500 figure to justify the lost wages, and as it stands, the record is silent as to how that amount

was calculated. Without at least some supporting documentation, the Court cannot order Defendant

to pay E.S. $3,500. The Court specifically asked E.S. to name any of the jobs affected because of

his court appearance, and he could not name a single job. Transcript at 13. While the Court is

sympathetic to E.S.’s experience, the absence of any proof precludes recovery. There is no

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indication to the Court that it would be difficult to produce some documents to substantiate his

losses. Therefore, the Government’s request for $3,500 in restitution is denied.

Second Victim; J.N.

The Government argues that J.N. incurred storage expenses in the amount of $13,601.21

because Defendant interfered with his housing rights based on his race. Gov’t’s Br. at 9. J.N. was

forced to move from a two-bedroom house to a one-room rooming house, necessitating storage of

his belongings. Id. at 10. Defendant argues that the separate storage unit and his offense conduct

are too remote to justify restitution. Def’s Br. at 4.

During the hearing, J.N. testified that he rented a two-bedroom house from Defendant, but

left the property in December 2020 pursuant to a settlement agreement. Transcript at 24:4-6,

28:23-25. After he left Defendant’s property, he moved into a one-room space because he could

not find a place to rent with his fiancee that could accommodate the items he had in his two-

bedroom house, forcing him to put his items in storage from December 2020 until December 2024.

Id. at 18, 20-21. 31.

The Court in no way minimizes the harm Defendant has caused J.N., but the Court finds it

unreasonable to expect Defendant to cover J.N.’s storage expenses for nearly four years. J.N. chose

to live in a one-room space for nearly four years instead of finding an apartment that would

accommodate his belongings. Now, the Court believes that Defendant needs to be held responsible

for the storage costs J.N. had to incur, but only for a period of twelve months, as it is a reasonable

period of time to find a suitable apartment. Based on J.N.’s testimony and supporting receipts.

minus any fees or insurance charges, the Couit finds that Defendant owes restitution to J.N. in the

amount of $2,101.99. Therefore, the Government’s request for $13,601.21 in restitution is denied.

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Third Victim: L.G.

The Government argues that the Court should order restitution in the amount of $9,290.00,^

which includes $7,790.00 for lost/destroyed property and $1,500 for transportation expenses to

L.G. GovT’s Br. at 10. Defendant argues that L.G. failed to provide any documentary proof to

support her claim. Def’s Br. at 5.

The Court finds that the Government has failed to meet its burden to establish restitution.

L.G.’s testimony alone is insufficient to justify restitution. L.G. seeks $1,600 for a sectional and

washer and dryer, $3,800 per person for bleached clothing and several $200 pairs of gym shoes,

and $1,500 for gas to transport her children to school. Gov’f s Ex. 8. However, the Victim Impact

Statement form instructed L.G. to ‘'attach supporting documents such as receipts, repair bills, etc.”

Id. Yet, L.G. did not attach a single receipt to support the $ 1,500 claim for gas, nor a single internet

screenshot of the price of clothes or shoes that were damaged because of Defendant's offense

conduct. Therefore, the Government’s request for $9,290 in restitution is denied.

Fourth Victim: E.P.

The Government argues that the Court should order restitution in the amount of

$30,435.30.'' Gov’t’s Br. at 10. “The approximate value of the lost and damaged property was

$43,479.00.” However, “the values sought for the property lost/damaged were based [on] the

victim’s estimate of the ‘replacement cost. The Government believes a 30% reduction on the
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amount of restitution sought would give E.P. a fair market value of 30,435.30. Defendant counters

that E.P’s claim is uncoiToborated. Def’s Br. at 6.

^ The Government originally stated $9,200.00. However, the correct amount should be $9,290 because that
is the total the Court reaches when it adds $7,790+$l,500.
The Government request a 30% reduction on $43,479.00, which equals $30,435.30, not $34,783.00,
which is the amount the Government seeks in its brief.

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During the hearing, E.P. testified that her mom, brother, two children, and sister lived in

one of Defendant’s properties. Transcript at 51:9-20. The Government showed her Exhibit 5

which was her home in an uninhabitable condition. Id. at 62-63; see Gov’t’s Ex. 5. E.P. testified

that the condition of the home in the pictures does not refect the condition when she rented the

home, while she was living in the home, or when she left the home. Id. at 62-63. E.P. also stated

that the items in the pictures are not the items she listed in her restitution claim. Id. at 65.

Similar to L.G., E.P.’s claim for restitution is unsupported, and the Court refuses to order

Defendant to pay her $30,435.30 in restitution for a home that she barely recognizes and for

unrecognizable items in the pictures. For all the Court knows, those items could belong to someone

else, and clearly not E.P. The Court also does not even know the size of the home E.P. lived in to

support her claim for lost property. Therefore, the Government’s request for $30,435.30 in

restitution is denied.

Fifth Victim: D.P.

D.P. originally sought restitution in the amount of $125,000.00 plus interest. Gov’t’s Br.

at 11; Transcript at 77:18-25. The Government argues that the demand was ungrounded, and the

Court should instead order restitution in the amount of $28,490.00, which reflects a 30% reduction

on $40,700.00 for her lost property. Gov’t’s Br. at 11. Defendant argues that D.P.’s claim is

uncorroborated.

The Court finds that the Government failed to meet its burden establishing that Defendant

owes D.P. $28,490.00 in restitution. D.P. failed to provide documentation to support her claim for

lost property. Therefore, the Government’s request for $28,490.00 in restitution is denied.

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Sixth Victim: GJ.

The Government argues that the Court should order restitution in the amount of $25,000.00

to G.J. Gov’t’s Br. at 12. “Victim G.J. provided the Court with a number of pictures of the

lost/damaged property and an estimate of the replacement cost for those items.” Id.; see Gov’t’s

Ex. 2. Defendant counters that G.J. merely stated a price he would accept for the sale of the items,

which is speculative at best. Def.’s Br. at 8.

While G.J. provided pictures and a price he would accept for his belongings, the Court

finds the valuation unsupported. G.J. could have researched the price of the shoes and other items

to ascertain the fair market value of each item. There’s nothing to suggest to the Court that

researching the items he listed and providing that research to the Court would have been difficult

or impossible. Therefore, the Government’s request for $25,000.00 in restitution is denied.

IV. CONCLUSION

For the foregoing reasons, the Government has failed to meet its burden as it pertains to

the victims except for J.N. Thus, the Government’s Supplemental Position on Restitution is

GRANTED in PART and DENIED in PART. ECF No. 89. The Government’s request for an

additional $110,316.51 is DENIED. The Court GRANTS an additional amount of restitution to

J.N. for $2,101.99. The Court ORDERS Defendant to pay $235,427.99 in total restitution.

The Clerk is DIRECTED to provide a copy of this Order to the parties.

IT IS SO ORDERED.

Newport News, Virginia
August^ , 2025 Raymond A. Jac .son
United States District Judge

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