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Criminal Practice – Court failed to specify reason for ordering new trial

Where the district court set aside the defendant’s convictions for money laundering and other charges and ordered a new trial, and the order vacating the convictions was reversed, the case was remanded because of the court’s failure to specify why it ordered a new trial, as required by Fed. R. Crim. P. 29(d)(1).


In 2003, Pastor Terry Wayne Millender founded Victorious Life Church in Northern Virginia. Brenda Millender, Terry’s wife, helped Terry with oversight of the church.

Five years later, Terry established Micro-Enterprise Management Group. Terry served as its CEO, Brenda worked as its registered agent and Grenetta Wells served as its COO. Although Micro-Enterprise’s stated mission was to offer microloans to help individuals in the developing world start or expand small businesses, the majority of the funds paid for personal expenses for the Millenders and Wells.

In 2013, Terry created Kingdom Commodities Unlimited, another fraudulent investment scheme. He served as its CEO, while both Brenda and Wells assisted him. In October 2016, after the government caught on to the schemes, a grand jury indicted the Millenders and Wells. Wells pleaded guilty and agreed to cooperate with prosecutors.

A jury convicted Brenda of conspiracy to commit wire fraud, money laundering and conspiracy to commit money laundering. The district court then granted her motion for a judgment of acquittal, reasoning that the evidence was insufficient to support a conviction on any of those counts. And, in case the judgment of acquittal was reversed, the district court conditionally ordered a new trial. The government now appeals.

Judgment of acquittal

The district court first held that the evidence could not support any of Brenda’s convictions because it did not prove that she knew of the fraud perpetrated by Micro- Enterprise and Kingdom Commodities. The district court erred in assessing Wells’s credibility and failing to construe the evidence in the government’s favor. Assuming that Wells was credible and construing the evidence in the government’s favor, Wells’s testimony, buttressed by the other evidence, sufficed to support the jury’s verdict.

That Wells did not always “specifically differentiate” between her interactions with Terry and Brenda is of no moment here. Wells offered no smoking gun, but a jury could reasonably infer from her testimony, in the context of Brenda’s omnipresent involvement in Terry’s ventures and use of money from them, that Brenda knew that the companies were fraudulent and went along with them anyway.

The district court also found a second reason to override the jury’s guilty verdict as to three substantive counts of money laundering under 18 U.S.C. § 1956(a)(1)(B)(i). The district court’s underlying concern seemed to be that “in order to convict for money laundering, there must be evidence of more than simply spending money on ordinary living expenses or even extravagances.”

But as to the three counts at issue here, the government charged that the Millenders took the additional step of presenting the unlawfully obtained money as something it was not. A reasonable jury could find that the Millenders not only spent the money but also tried to conceal its nature. No more is required to sustain the jury’s verdict on these three counts. The district court’s grant of Brenda’s motion for a judgment of acquittal as to these counts is reversed.

New trial

In addition to the requirement of Fed. R. Crim. P. 29(d)(1) that a “court must specify the reasons for” its conditional decision about a new trial, this court’s cases stress that a district court should not lightly overturn a jury verdict. But the court here offered only a single sentence to explain its decision to order a new trial, and its reasoning on this issue rested entirely on its reasoning in the very different legal context of a motion for a judgment of acquittal—reasoning that this court rejected in that context. The court offered no reasoning specific to its decision to grant a new trial.

The court therefore vacates the order conditionally granting Brenda a new trial and remands the case to the district court so that it can consider whether to grant a new trial and, if so, specifically explain the rationale for that decision.

Dismissed in part, reversed in part vacated in part and remanded.

United States v. Millender (Lawyers Weekly No. 001-094-20, 16 pp.) (Diana Gribbon Motz, J.) Case Nos. 18-4784, 18-4785, and 19-4165. Aug. 17, 2020. From E.D. Va. (Anthony Trenga, J.) G. Zachary Terwilliger, Kimberly R. Pedersen, Jamar K. Walker and Richard D. Cooke for Appellant. Lana M. Manitta for Appellee.

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