UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4795

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MERRILL ROBERTSON, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:16-cr-00133-JAG-1)

Argued: October 30, 2018 Decided: February 5, 2019

Before FLOYD and HARRIS, Circuit Judges, and Donald C. COGGINS, Jr., United States District Judge for the District of South Carolina, sitting by designation.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Patrick Risdon Hanes, WILLIAMS MULLEN, Richmond, Virginia, for Appellant. Katherine Lee Martin, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Jonathan T. Lucier, WILLIAMS MULLEN, Richmond, Virginia, for Appellant. Tracy Doherty-McCormick, Acting United States Attorney, Alexandria, Virginia, Stephen E. Anthony, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Appellant Merrill Robertson, Jr., was charged in a fifteen-count superseding

indictment related to a large investment and bank fraud scheme. Robertson remained out

on bond during his lengthy trial. However, on the last day of trial, after Robertson testified,

the trial court sua sponte convened a bond revocation proceeding. During the hearing, and

outside of the presence of the jury, the trial court made a number of prejudicial remarks

about Robertson’s character and credibility and revoked Robertson’s bond. The following

morning, the Richmond Times-Dispatch published an article about Robertson’s trial, which

quoted several of the trial court’s prejudicial remarks. Over Robertson’s objection, the trial

court declined to inquire about the jury’s exposure to the specific article. Thereafter, the

jury convicted Robertson of all counts, and the trial court sentenced Robertson to 480

months’ incarceration.

Robertson raises five issues in this appeal. First, Robertson contends the trial court

abused its discretion in failing to determine whether jurors were exposed to the trial court’s

statements reprinted in the Richmond Times-Dispatch. Second, Robertson argues his 480-

month sentence is procedurally and substantively unreasonable. Third, Robertson seeks a

judgment of acquittal on Count Five, arguing the Government failed to prove his statements

were material. Fourth, Robertson contends his convictions on Counts One through Nine

must be vacated because the trial court improperly instructed the jury on the definition of

“material.” Finally, Robertson seeks consideration of additional issues under Anders v.

California,

(1967). As detailed below, we agree as to Robertson’s first issue

and vacate his convictions and sentence.

3 I.

Robertson was the co-owner of a private investment company, Cavalier Union

Investments. From 2008 to 2016, Robertson and his partner collected large sums of money

from investors. By 2015, investors began to ask for the return of their investments, but

Robertson had spent most of the money. As a result, Robertson and several other

individuals submitted falsified loan applications to a number of financial institutions.

Thereafter, a grand jury returned a fifteen-count superseding indictment charging

Robertson with conspiracy to commit mail and wire fraud, mail fraud, wire fraud,

conspiracy to commit bank fraud, bank fraud, and engaging in unlawful monetary

transactions.

Robertson proceeded to trial. Following his testimony, the trial court discharged

the jury and informed the parties that it would be holding a hearing to reevaluate

Robertson’s pretrial release, noting that Robertson “is not a truthful person, and that he will

do anything he needs to do to protect himself.” In light of this unexpected turn of events,

the trial court gave Robertson and his counsel a short time to prepare for the hearing. When

the trial court reconvened later that evening, the Government argued for revocation of

Robertson’s pretrial release due to “the risk of flight” and “[t]he lack of constant

connections.” Robertson opposed revocation of his bond, arguing that he had been

generally compliant with the terms of his pretrial release and that nothing had changed

regarding his connections to the community or risk of flight. After considering the parties’

arguments, the trial court revoked Robertson’s bond based on the overwhelming “weight

4 of the evidence against him,” his “demonstrably false” testimony, and “his willingness to

victimize the people who are closest to him.”

The following morning, the Richmond Times-Dispatch quoted some of the trial

court’s comments on the front page of the Metro section in an article titled, “Ex-U.Va.

football player’s bond revoked in fraud trial” and subtitled, “Judge calls former

Chesterfield resident ‘not a truthful person.’” Based on the publication of this article,

Robertson moved for a mistrial. The trial court took the motion under advisement, 1

apparently recognizing the potential for significant prejudice because the jurors were not

sequestered and may have been exposed to the article or headline. To determine the

potential exposure, the trial court told the parties, “[w]hen [the jurors] come back[,] I will

ask if anybody read anything about the case, or heard anything. If they have, what I will

do is have them come up and ask them what they have seen and heard individually, and

see where we go from there.” Robertson also requested that the trial court “inquire as to

whether [jurors] received the Richmond Times Dispatch in their home.” Initially, the trial

court expressed a willingness to inquire about this point, but deferred resolving the issue

until the parties discussed the jury instructions.

After the charge conference, the trial court informed the parties that he was “not

going to ask [jurors] about the Times Dispatch” because he didn’t “want [jurors] to go dig

out a bunch of old Times Dispatches and start reading them tonight if they are still

1 The record reflects that the motion for mistrial was denied during the jury’s first day of deliberations.

5 [deliberating] then.” Robertson objected to the trial court’s proposed limited questioning

of the jury and also asked the trial court to inquire if the jurors heard anything about the

article or the trial court’s comments on the radio. The trial court overruled Robertson’s

objections and brought the jury into the courtroom. The trial court then polled the jury,

stating, “Let me just ask you. Have any of you during the course of the trial heard or read

anything about the case?” The jurors responded in the negative, and the trial proceeded to

closing statements and jury instructions.

At the conclusion of closing statements and jury instructions, the trial court

discharged the jury for the evening. The following morning, the trial court did not question

the jurors about any exposure to the article prior to deliberations beginning. The jury

deliberated for almost two days before finding Robertson guilty on all counts. After the

verdict, Robertson filed a Motion for a New Trial, based largely on the trial court’s failure

to question the jury specifically about the Richmond Times-Dispatch article, and a Motion

for Judgment of Acquittal on Counts Five and Ten through Fifteen. The trial court denied

both motions. At the sentencing hearing, the trial court varied upwards from Robertson’s

guidelines range and sentenced him to 480 months’ incarceration.

Following sentencing, Robertson filed a notice of appeal, raising the five issues set

forth above. As we find Robertson’s first issue warrants vacating his convictions and

sentence, we focus our discussion on that issue. However, because Robertson also raises

a challenge to the sufficiency of the evidence as to Count Five of the superseding

indictment, we find it prudent to conclude by briefly addressing that issue in light of

potential double jeopardy concerns.

6 II.

Under Rule 33 of the Federal Rules of Criminal Procedure, the trial court “may

vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R.

Crim. P. 33. The decision whether to grant or deny a motion for a new trial is committed

to the broad discretion of the trial court, and should be disturbed only when the trial court

abuses its discretion. United States v. Perry,

(4th Cir. 2003). “[W]hen

highly prejudicial information may have been exposed to the jury,” the trial court abuses

its discretion if it fails to “ascertain the extent and effect of the infection” and does not

“take appropriate measures to assure a fair trial.” United States v. Hankish,

(4th Cir. 1974) (citations omitted).

III.

“[T]he procedure required by this Circuit where prejudicial publicity is brought to

the court’s attention during a trial is that the court must ascertain if any jurors who had

been exposed to such publicity had read or heard the same.”

Jurors who indicate they

have been exposed to the publicity in question must “be examined, individually and outside

the presence of the other jurors, to determine the effect of the publicity.”

This

procedure “open[s] the way for appropriate corrective measures—cautionary instructions,

excusing individual jurors when alternates are available, or a mistrial if nothing else will

cure the prejudice.”

(internal footnotes omitted).

The initial inquiry, therefore, is whether the publicity is prejudicial to the defendant.

See

(“We do not hold that every newspaper article appearing during trial requires such

protective measures. Unless there is substantial reason to fear prejudice, the trial court may 7 decline to question the jurors.” (citations omitted)). As we have previously held,

“[i]nformation is prejudicial if it is substantially adverse to a defendant, has not been

presented to the trial jury in court and is not properly admissible in the trial.” United States

v. Gray,

(4th Cir. 1986) (citations omitted). Under this rubric, the

Richmond Times-Dispatch article is prejudicial, because the headline reflects the trial

court's characterization of Robertson as “not a truthful person.” The trial judge’s remarks

were adverse to Robertson and would have been inadmissible comments on the facts if

made in the presence of the jury. 2 Indeed, in any trial where a defendant testifies, the jury’s

credibility determination is of paramount importance, and we hold that the trial court’s

comments about Robertson’s credibility would have been prejudicial if read or heard by a

juror.

In light of the prejudicial nature of the publicity, we must next determine whether

the trial court properly “ascertain[ed] the extent and effect of the infection” and took

“appropriate measures to assure a fair trial.” Hankish,

(citations omitted).

Here, the trial court generally asked the jurors if they had heard or read anything about the

case. That inquiry is insufficient under this Court’s well-established precedent, which

requires the trial court to specifically question jurors about their exposure to the prejudicial

publicity in question.

The trial court’s general question was insufficient to determine

whether any jurors had been exposed to the Richmond Times-Dispatch article, for a juror

2 The Government concedes in its brief that the trial judge’s comments were prejudicial.

8 could fairly answer the trial court’s general question in the negative if she saw the

prejudicial headline but did not read the article. We emphasize that there is no specific

question or questions that must be asked by a trial court in these cases. Trial courts have

ample discretion to fashion their questioning to determine whether jurors have been

exposed to specific publicity without further prejudicing the defendant. For example, the

trial court in this case could have posed a series of questions beginning with asking which

jurors subscribe to or regularly read the Richmond Times-Dispatch and then narrowing the

questioning to determine whether any jurors saw the headline in question. Indeed, there

are innumerable ways for a trial court to question jurors in such a situation, and we

emphasize that trial courts have broad discretion to fashion an appropriate remedy if there

is exposure to prejudicial publicity.

Accordingly, we hold the trial court abused its discretion in failing to question the

jurors specifically about their exposure to the Richmond Times-Dispatch article.

Robertson offers two alternative remedies for this abuse of discretion—a new trial or

remanding the case so that the trial court may attempt to recall the jurors and question them

about their in-trial exposure to the article in question. See United States v. Thompson,

(10th Cir. 1990) (establishing a procedure for recalling jurors to attempt to

determine in-trial exposure to prejudicial publicity). While the latter remedy may be

warranted in the appropriate case, we find that a new trial is necessary to ensure compliance

with the constitutional imperative that Robertson receive a fair trial.

IV.

Turning to Robertson’s remaining issues raised in this appeal, the Court need not

9 address the reasonableness of Robertson’s sentence or the propriety of the jury instructions

in light of our grant of a new trial; however, the Court finds it prudent to address the

sufficiency of the evidence as to Count Five of the superseding indictment at this time,

because double jeopardy would bar a retrial of this claim if Robertson were to prevail. For

the reasons set forth below, we reject Robertson’s argument on this issue, as it is premised

on a fundamental misunderstanding of this Court's precedent.

We review de novo a trial court’s denial of a motion for judgment of acquittal.

United States v. Clarke,

(4th Cir. 2016). “A defendant who brings a

sufficiency challenge bears a heavy burden, as ‘[a]ppellate reversal on grounds of

insufficient evidence . . . [is] confined to cases where the prosecution's failure is clear.’”

(alteration in original) (internal citation omitted) (quoting United States v. Green,

(4th Cir. 2010)). The denial of a motion for judgment of acquittal should be

affirmed if “after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia,

(1979) (emphasis in original)

(citing Johnson v. Louisiana,

(1972)).

By way of brief background, Count Five of the superseding indictment alleged that

Robertson committed mail fraud by engaging in a scheme to defraud his childhood Sunday

School teacher—Carolyn Banks—out of her retirement benefits. The Government

adduced evidence at trial that Ms. Banks initially approached Robertson and told him that

she wanted to move her retirement funds to Cavalier Union Investments so she could gain

greater control over her money. To effectuate this transaction, Ms. Banks entered into a

10 promissory note with Robertson, in which Robertson agreed to double Ms. Banks’ money

in two years. The promissory note further guaranteed Ms. Banks that her retirement

savings were secured by equipment, fixtures, inventory, and accounts receivable. Rather

than transferring Ms. Banks’ retirement funds to a Traditional IRA—as Robertson

promised to do—Robertson instead deposited the money into a Cavalier Union

Investments’ bank account that was overdrawn by more than $2,000 and quickly spent

nearly $120,000 of Ms. Banks’ money on personal expenses, including a large credit card

payment and trips to Tacoma, Washington and Honolulu, Hawaii.

Despite the ample evidence offered at trial by the Government that Robertson

misled Ms. Banks about the investment of her retirement funds, Robertson contends that

he is entitled to a judgment of acquittal because Ms. Banks testified that she did not invest

with Robertson based on anything specific that Robertson said or omitted, instead investing

so that she had more control over her money. Thus, Robertson contends that he did not

misrepresent or conceal a material fact, as any misrepresentation or concealment could not

have influenced Ms. Banks’ likely or actual behavior. This argument is plainly foreclosed

by this Court’s decision in United States v. Raza,

(4th Cir. 2017).

In Raza, this Court reiterated the long-standing principle that materiality is

evaluated under an objective standard in mail, wire, and bank fraud schemes targeting

private entities or individuals. 876 F.3d at 614–21. In doing so, we detailed the lengthy

history of applying an objective materiality standard in such cases.

We further noted

that the subjective materiality standard articulated by the Supreme Court in Universal

Health Services v. United States ex rel. Escobar,

(2016)—a False Claims

11 Act case—likely does not extend “beyond the context of qui tam actions,” which are “civil

proceeding[s] that protect[] the federal government.” Raza,

. Therefore,

we are bound by our well-established precedent requiring materiality to be proven under

an objective standard. Under this objective standard, we agree with the Government that

there is substantial evidence such that a reasonable person would find Robertson’s

representations about the growth rate and secured nature of Ms. Banks’ investment to be

material. 3 Accordingly, we hold that the trial court applied the correct standard of

materiality and properly denied Robertson’s motion for judgment of acquittal.

V.

For the foregoing reasons, we vacate the judgment of conviction and remand for

proceedings consistent with this opinion. 4 In light of our holding, we need not reach

Robertson’s remaining assignments of error.

VACATED AND REMANDED

3 Additionally, we note that the Government introduced evidence that Robertson’s misrepresentations and concealment were subjectively material to Ms. Banks, as Ms. Banks testified that she “was focused on what [she] was going to get back . . . from the investment’ and never gave Robertson permission to spend her investment funds for his own personal use. 4 Robertson, pro se and through counsel, filed a number of motions, which remain pending. In light of the Court’s holding, all pending motions are denied as moot.

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