A man facing a second trial on charges he scammed victims out of $9 million has alleged that the federal judge handling the case is biased and should step aside.

Merrill Robertson Jr., 39, of Midlothian, played football for the University of Virginia and was a founder of Cavalier Union Investments, which the government alleges was used to perpetrate a $10.5 million fraud. He was convicted in a nine-day jury trial in 2017 of conspiracy, money laundering, and mail, wire and bank fraud.

Earlier this year, a panel of the Richmond-based 4th U.S. Circuit Court of Appeals ordered a new trial, ruling that jurors were not questioned adequately by U.S. District Judge John A. Gibney about whether they had read a newspaper story about the case.

The story, which appeared in the Richmond Times-Dispatch, reported that on the last day of testimony, after Robertson had testified, Gibney sent the jury out of the courtroom and revoked Robertson’s bond, stating, among other things, that Robertson was not truthful.

Robertson’s lawyers have filed a motion asking that Gibney be replaced by another judge, contending that he has shown bias against their client with his comments and because he sentenced Robertson to 40 years, well above the 24½ years at the top of the federal sentencing guideline range.

“In the event that [Robertson] is convicted of the criminal charges against him again, the defendant believes that he will be sentenced by this court to 40 years again, and that there is nothing the defendant can do about it,” wrote Michael Hu Young and R. Braxton Hill IV, Robertson’s lawyers.

In an affidavit, Robertson contends Gibney believes that “I took advantage of my African-American heritage and my Christianity to swindle and snooker people; that I am a swindler and a fraudster; that if I were not arrested, I would continue victimizing individuals; that the public needs to be protected from me and my predatory behavior; and that I lived the life of a king at others’ expense without regret and apology.

“I believe that Judge Gibney has taken this case personally. He is a baby boomer like most of the victims and stated that not one day goes by that he does not see an article about people his age who have not saved enough for retirement and that my actions bothered, disturbed and shocked him,” added Robertson in his affidavit.

Robertson’s motion argues that even if Gibney was not prejudiced or biased against Robertson or had any predetermined opinion of his guilt, there exists an appearance of impropriety and impartiality on the part of the judge that requires he step aside.

Robertson was a standout football player at L.C. Bird High School in Chesterfield County, played at Fork Union Military Academy for a year and then was a linebacker for the Virginia Cavaliers. He tried out for the Philadelphia Eagles but never played an NFL game.

He used his high school and college connections to solicit investors, who included former coaches, teammates, friends, church members and teachers. Some lost their life savings. In all, there were 63 victims.

Robertson’s co-defendant, Sherman Carl Vaughn Jr. of Blackstone, pleaded guilty and was sentenced to 12 years.

The U.S. attorney’s office is opposing the request that Gibney step aside for another judge, pointing out that the 4th Circuit ruling made it clear a new trial was not being ordered because of any shortcoming in the strength of the evidence of Robertson’s guilt.

In their response to Robertson’s motion, prosecutors wrote that in a prior case, the U.S. Supreme Court held that “the mere fact a judge may be ‘ill disposed’ towards a defendant because of damaging evidence is not sufficient for recusal.”

“The only cases where courts have granted recusal motions because of a ‘predisposition developed during the course of a trial’ involve particularly egregious conduct,” prosecutors wrote in urging Gibney not to step aside.

The government said Gibney’s decisions during the first trial were necessary to ensure Robertson’s continued presence at the trial and to impose a sentence and his comments concerning Robertson’s lack of truthfulness, for example, were strongly supported by the evidence.

Having already seen and heard the evidence against Robertson at the first trial, Gibney cannot be expected to ignore all he has learned in making decisions for the second trial, such as whether or not to grant Robertson bond, prosecutors said.

The U.S. attorney’s office concluded its memorandum by arguing that if the appeals court felt Gibney could not handle a new trial impartially, it would not have sent the case back to him with orders to conduct a new trial.

Gibney has scheduled a May 2 hearing on that motion and others in the case.

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