UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-5070

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

WILLIAM CARL SOUDER, JR.; MARVIN DEAN CHAMBERS, SR.; ALVIN 

LEWIS ELLIOTT, SR.,

Defendants – Appellees.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. James A. Beaty, Jr., 

Chief District Judge. (1:08-cr-00136-JAB-1)

Argued: March 25, 2011 Decided: June 30, 2011

Before TRAXLER, Chief Judge, and WILKINSON and DIAZ, Circuit 

Judges.

Affirmed in part, reversed in part, and remanded by unpublished 

opinion. Judge Diaz wrote the opinion, in which Chief Judge 

Traxler and Judge Wilkinson joined.

ARGUED: Frank J. Chut, Jr., OFFICE OF THE UNITED STATES 

ATTORNEY, Greensboro, North Carolina, for Appellant. James E. 

Ferguson, II, FERGUSON STEIN CHAMBERS GRESHAM & SUMTER, P.A., 

for Appellees. ON BRIEF: Anna Mills Wagoner, OFFICE OF THE 

UNITED STATES ATTORNEY, Greensboro, North Carolina, for 

Appellant. Thomas H. Johnson, Jr., GRAY, JOHNSON & LAWSON, LLP, 
2

for Appellee Souder; Eric D. Placke, OFFICE OF THE FEDERAL 

PUBLIC DEFENDER, Greensboro, NC, for Appellee Elliott.

Unpublished opinions are not binding precedent in this circuit.
3

DIAZ, Circuit Judge:

William Carl Souder, Jr., Marvin Dean Chambers, Sr., and 

Alvin Lewis Elliott, Sr. (“Defendants”) were indicted in 

Greensboro, North Carolina on nine counts of mail fraud in 

violation of 18 U.S.C. § 1341. The Defendants, along with a 

fourth co-defendant, James Henry Wilcher, were also charged in a 

second indictment with honest services mail fraud in violation 

of 18 U.S.C. §§ 1341 and 1346. After a thirteen-day trial that 

began on June 30, 2009, the jury returned guilty verdicts 

against the Defendants as to all counts in both indictments, but 

acquitted Wilcher.

The Defendants filed a joint post-verdict motion for 

judgment of acquittal, which the district court granted. The 

district court also conditionally granted a new trial. The 

government timely appealed.1

 

1 The government has since dismissed its appeal with respect 

to the honest services mail fraud charges in the second 

indictment.

 We hold that the district court 

erred in granting judgment of acquittal and therefore reverse as 

to that issue. Applying the much more deferential “abuse of 

discretion” standard to the district court’s decision to 

conditionally grant a new trial, we affirm that ruling, and 

remand for further proceedings.
4

I.

We review first the trial court’s order granting the 

Defendants’ motion for judgment of acquittal. As to this issue, 

we view the evidence in the light most favorable to the 

government and recite the facts accordingly.

This case stems from a supplemental life insurance program 

developed by the Defendants for the Most Worshipful Prince Hall 

Grand Lodge of Free and Accepted Masons of North Carolina and 

Jurisdiction, Inc. (“Grand Lodge”). The Grand Lodge oversees

approximately three hundred local Masonic lodges scattered 

throughout North Carolina, which, at the time of these events, 

boasted over 18,000 individual members or Masons. Defendants

Chambers and Elliott were salaried officers of the Grand Lodge, 

serving as Grand Master and Grand Secretary, respectively. 

Defendant Souder was President and CEO of Atlanta Life General 

Agency, Inc. (“ALGA”), a corporate subsidiary of Atlanta Life 

Insurance Company. ALGA’s primary business was the sale of

insurance products underwritten by other companies, from which 

it earned commissions. Defendant Wilcher was an insurance agent 

and owner of the Wilcher Group, based in Johnsonville, South 

Carolina.

Stated broadly, the government’s theory of the case was 

that the Defendants misrepresented the terms of the supplemental 
5

life insurance program to the Masons by, at least in some 

instances, binding Masons (and the Grand Lodge) to pay premiums 

on insurance policies that (1) exceeded the amount of the death 

benefit sought by the Mason, and (2) named the Grand Lodge as a 

partial beneficiary without the Mason’s consent. In furtherance 

of the alleged scheme, the Defendants mailed so-called 

“certificates of insurance” to Masons that understated the 

amount of insurance obtained by the Mason and failed to disclose 

that the Grand Lodge was a partial beneficiary of the policy. 

According to the government, this scheme directly benefitted 

Souder, in that he earned commissions on all policies issued, 

and had the potential to benefit Chambers and Elliott, who, as 

the Grand Lodge’s senior officers, would have free rein over the 

use of the death benefit proceeds accruing to the Grand Lodge.

Before offering the supplemental insurance program at issue

in this case, the Grand Lodge provided each Mason a $500 

benefit, payable to a surviving beneficiary upon a Mason’s 

death. This death benefit was paid from the Grand Lodge’s 

“Benevolence Fund,” which was funded primarily by the Masons’ 

annual dues. Benevolence Fund monies were held in trust by the 

Grand Lodge and were to be used for the purpose of paying death 

benefits to beneficiaries.
6

In late 2001 or early 2002, Chambers met Wilcher at a 

conference where they discussed the prospect of developing a 

supplemental insurance program for the Grand Lodge. Chambers 

told Wilcher that any such program would have to satisfy certain 

requirements, to wit: (1) every Mason had to be able to qualify 

without, or with only a modest, physical examination; (2) issued 

policies had to be whole life; and (3) the premium structure had 

to allow for payment by both the insured Mason and the Grand

Lodge.

Unable to implement Chambers’s concept, Wilcher introduced 

Chambers to Souder. Chambers and Souder met in Atlanta several 

times to discuss the program. On or about May 16, 2002, Souder 

spoke with Jayne Silven, a vice president serving special 

insurance markets for American Heritage Life Insurance Company 

(“American Heritage”), about the insurance program. As Souder 

described the program to Silven, the Grand Lodge would own the 

individual policies and be responsible for collecting premiums

from the Masons. Masons under the age of 65 would be eligible 

for $25,000 of coverage, while those aged 65 to 75 could obtain 

$10,000 in coverage. Any death benefit paid on $25,000 policies 
7

would be split between the insured’s beneficiary and the Grand 

Lodge.2

After conducting due diligence, American Heritage agreed to 

underwrite the insurance program. In its final form, the 

program provided that the Grand Lodge would receive $15,000 of 

any death benefit paid under a $25,000 policy, with the 

beneficiary designated by the Mason receiving the $10,000 

balance.

Chambers convened a special session meeting of the Grand 

Lodge at its headquarters in Durham, North Carolina on May 25, 

2002, where he announced the new insurance program to the Grand 

Lodge’s regional directors, deputy wardens, and some rank and 

file Masons in attendance. Many of the attendees were there in 

a representative capacity, sent to gather information about the 

program to disseminate to their respective local lodges. 

Several hundred Masons attended the May 25 meeting, along 

with more than a hundred members of the Grand Lodge’s sister 

organization, the Order of the Eastern Star. Chambers explained 

that the program would supplement the death benefits offered 

 

2 At trial, several witnesses described this type of split 

beneficiary arrangement as a “legacy” program, which is commonly 

used in the insurance industry as a funding mechanism for 

charitable organizations.
8

through the Benevolence Fund and encouraged Masons to apply. 

Souder described the program as a voluntary plan providing a 

$10,000 death benefit to the beneficiary of the Mason’s choice. 

Souder also provided a written summary of the program that 

listed the $10,000 benefit amount and advised the Masons that 

they would have to pay $5.50 per week for the coverage, with the 

Grand Lodge paying the entire premium for the first quarter that 

the individual policies were in place, and thereafter providing 

a weekly $3.00 subsidy for each Mason’s policy. At the meeting, 

some Masons expressed concern about the impact of the new 

program on the Benevolence Fund, but Chambers disclaimed any 

intent to use money from the Fund to pay premiums for the 

insurance program.

Chambers told those present at the meeting that the Grand 

Lodge would be the owner of the policies, would maintain the 

policies, and would issue certificates to Masons choosing to 

participate in the program. However, neither Chambers nor 

Souder disclosed that the program they were contemplating would 

also provide a $25,000 policy option that would partially 

benefit the Grand Lodge. To the contrary, Chambers 

affirmatively represented that the Grand Lodge would not benefit 

from the program. In response to an inquiry as to whether the 

Grand Lodge would receive any portion of the $10,000 death 
9

benefit, Souder stated that each Mason would determine his 

beneficiary and “[t]hat person will receive the $10,000.” J.A. 

2900 (transcript of tape recording of May 25, 2002 meeting). 

Chambers added, “[I]f you want to make the Grand Lodge the 

beneficiary, we get the $10,000.” Id.

On June 4, 2002, ALGA and American Heritage signed a formal 

letter of intent to issue $10,000 and $25,000 policies. ALGA 

also engaged a second insurance company, Presidential Life 

Insurance Company (“Presidential Life”), to provide $10,000 

insurance coverage for those Masons who failed to qualify for 

American Heritage policies. Although disputed by the 

Defendants, the government’s evidence showed that at the time of 

the May 25 special session meeting, American Heritage was the 

only insurance company then being solicited by the Defendants to 

provide coverage to the Masons.

On June 15, 2002, after ALGA and American Heritage signed a 

letter of intent to provide insurance coverage--to include 

$25,000 split beneficiary policies--Chambers presented the 

program to the executive committee of the Order of the Eastern 

Star. Again, Chambers did not disclose that the Grand Lodge 

would be a partial beneficiary on any $25,000 policies issued, 

although he briefly mentioned that the Grand Lodge expected to 
10

obtain some return on the program if there was sufficient 

participation.3

Following these meetings, various regional and local lodge 

meetings were held around the state to inform Masons about the 

availability of the supplemental insurance program and to 

explain its benefits. From June 2002 to August 2003, between 

six and seven hundred Masons across the state applied for 

insurance coverage through the program; approximately three 

hundred $25,000 policies were issued and approximately three

hundred and fifty $10,000 policies were issued.

ALGA was responsible for administering the program and 

processing the insurance applications. Each of the Defendants 

participated in teleconferences discussing the manner in which 

ALGA would process Mason applications. During one such 

teleconference, Defendant Elliott stated “[t]hat the agents 

[processing the applications] should not disclose the face 

amount of the policy to the applicants.” Id. 1015.

Souder and Gloria Giles, the assistant vice president of 

training and development at ALGA, trained the policy writing 

 

3 According to Chambers, this return would come in the form 

of unspecified “residuals” that would flow back to the Grand 

Lodge. 
11

agents, both in person at ALGA’s offices in Atlanta and via 

teleconference. Giles, who reported directly to Souder,

instructed agents not to complete the application fields 

relating to the face amount of the death benefit or the 

beneficiary designation. Agents were directed to deliver the 

signed applications to Souder’s attention at ALGA. ALGA would 

then determine the face amount of the death benefit, calculate 

the premium, and name the Grand Lodge as a beneficiary for 

Masons who qualified for $25,000 policies.

When a Mason applied for insurance under the program, he 

also signed a “Required Disclosure Statement for Accelerated 

Benefit Rider,” (“Rider”) which informed the Mason that he might 

be eligible for an advance of a percentage of the death benefit, 

in the event he was diagnosed with a terminal illness. The 

Riders also contained a generic statement that “The minimum face 

amount of a policy that this rider may be attached to is 

$25,000.” The Riders, however, were attached to all 

applications, only some of which resulted in the issuance of 

$25,000 policies. Further, the Riders did not alert Masons that 

the Grand Lodge would be a beneficiary on $25,000 policies.

After issuing the policy, American Heritage delivered it to 

ALGA, which then sent it to Chambers and Elliott along with a 

request that the Grand Lodge remit the premium payment. The 
12

Grand Lodge did not forward policies to insured Masons but 

instead retained them in its files. However, to provide insured 

Masons with some evidence of their arrangement with the Grand 

Lodge, Elliott and Chambers, with the assistance of Gloria Giles 

at ALGA, prepared certificates of insurance that (1) listed the 

name of the Mason’s designated beneficiary, (2) identified the 

Grand Lodge as the owner of the policy, (3) represented that the 

Mason was entitled to a $10,000 death benefit, and (4) advised 

the Mason that his share of the monthly insurance premium was 

$22.00. The certificates did not, however, disclose the face 

amount of policies issued for $25,000, did not reflect that the 

Grand Lodge was a beneficiary of those policies, and listed a 

uniform “policy number” (79647) that did not match the 

individual Mason’s policy number.4

 Chambers and Elliott signed 

the certificates and mailed them to participating Masons.5

At the annual Grand Lodge meeting in October 2003, Chambers 

and Elliott represented in writing that the supplemental 

insurance program was a success and that it provided a $10,000 

 

4 This number instead referred to the uniform billing number 

created by ALGA.

5 The misrepresentations and omissions contained in the 

certificates of insurance underpinned the government’s ninecount indictment alleging mail fraud.
13

benefit to participating Masons. Chambers and Elliott did not 

then disclose that some Masons had been insured for $25,000

without their knowledge or that the Grand Lodge was a 

beneficiary of such policies.

In 2003, Chambers was defeated in his bid for re-election 

as Grand Master. The new Grand Lodge leadership terminated the 

insurance program, after discovering that the Grand Lodge had 

paid over $300,000 in premiums, a portion of which was funded 

through the Grand Lodge’s Benevolence Fund. Individual Masons 

paid over $50,000 in insurance premiums. Moreover, only one 

insured Mason died during the time the program was in operation, 

and his claim for benefits was denied.

At trial, several Masons testified that they were unaware 

they had been insured for $25,000 or that the Grand Lodge was a 

beneficiary of their policies. The certificates of insurance 

also lulled some Masons into believing they had a $10,000 

insurance policy with a single beneficiary, when in fact they 

were insured for $25,000 with the Grand Lodge as a partial 

beneficiary.

A jury convicted Souder, Chambers, and Elliott of the nine 

counts of mail fraud charged in the first indictment. The 

district court heard argument on the Defendants’ joint postverdict motion for judgment of acquittal and found the 
14

government’s evidence insufficient as a matter of law to sustain 

the verdicts. Accordingly, the district court granted the 

Defendants’ motion and also conditionally granted a new trial.

II.

A.

The government first contends that the district court erred 

in entering judgment of acquittal on the mail fraud counts. We 

agree and reverse. 

We review a district court’s grant of a judgment of 

acquittal de novo, assessing whether, taking the evidence in the 

light most favorable to the government, “a rational trier of 

fact could have found the essential elements of the charged 

offense beyond a reasonable doubt.” United States v. Singh, 518 

F.3d 236, 246 (4th Cir. 2008). A conviction for mail fraud 

under 18 U.S.C. § 1341 requires the government to prove “the 

existence of a scheme to defraud, and [] the use of the mails 

for the purpose of executing the scheme.” United States v. 

Godwin, 272 F.3d 659, 666 (4th Cir. 2001). The government must 

also prove that each defendant acted with specific intent to 

defraud. Id. A scheme or artifice to defraud must employ some 

material misrepresentation or concealment of fact. See, e.g.,

United States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). 
15

Common-law fraud arises not just from a failure to disclose 

material information pursuant to a fiduciary, statutory, or 

other legal duty, but “ ‘includes acts taken to conceal, create a 

false impression, mislead, or otherwise deceive in order to 

prevent the other party from acquiring material information.’ ” 

United States v. Gray, 405 F.3d 227, 235 (4th Cir. 2005) 

(quoting United States v. Colton, 231 F.3d 890, 898 (4th Cir. 

2000)).

The government contends the evidence of the Defendants’ 

conduct with respect to the Grand Lodge insurance program was 

sufficient to sustain the mail fraud convictions. In 

particular, the government points to evidence tending to show 

that the Defendants (1) failed to disclose at the May 25, 2002 

meeting that the supplemental insurance program then being 

contemplated would include policies providing $25,000 in 

insurance coverage with a partial benefit to the Grand Lodge; 

(2) continued to misrepresent the terms of the program in 

subsequent discussions with Masons, including members of the 

Grand Lodge’s leadership; (3) directed ALGA agents to omit the 

policy amounts and beneficiary designations on applications 

submitted by participating Masons; (4) created certificates of 

insurance for mailing to participating Masons that did not 

accurately represent the actual policy amounts and failed to 
16

disclose that the Grand Lodge would be a partial beneficiary on 

policies issued for $25,000; and (5) deprived both the Grand 

Lodge and individual Masons of the money used to fund the 

premium payments for the program.

As they did at trial, the Defendants contend that the 

government improperly “create[d] a crime” from the Defendants’

mismanaged efforts to create an insurance program designed to

benefit both the Grand Lodge and its members. Appellee’s Br. 3. 

The Defendants maintain that the $25,000 policies that are the 

crux of the government’s case had not yet been approved by 

American Heritage at the time of the May 25, 2002 meeting and, 

thus, the Defendants could not have materially misrepresented 

the terms of those policies. Although the Defendants do not 

dispute that certificates of insurance were prepared and mailed 

to participating Masons, they contend that the documents served 

only to provide Masons with proof that they were insured and

that their named beneficiary would receive a $10,000 benefit.

According to the Defendants, the Masons were otherwise aware of 

the full scope of the insurance program implemented by the Grand 

Lodge.

B.

In granting the motion for judgment of acquittal, the 

district court concluded that “the Government failed to present 
17

substantial evidence, or any evidence for that matter, of any 

material misrepresentation or omission made by Defendants with 

regard to or in furtherance of a scheme to defraud the Grand 

Lodge and its members.” J.A. 2859. Viewing the evidence in the 

light most favorable to the government, we find the district 

court’s conclusion at odds with the record.

The district court first concluded that statements made by 

the Defendants at the May 25, 2002 meeting were not 

misrepresentations as to the existence of a $25,000 policy that 

would benefit the Grand Lodge because “negotiations between 

Atlanta Life and American Heritage [regarding issuance of 

$25,000 policies] were not complete until June 4, 2002.” Id.

2833. On this issue, however, the district court failed to 

credit the government’s evidence tending to show that the 

Defendants’ intent from the inception of the program was, at 

least in part, to benefit the Grand Lodge directly. To that 

end, the evidence showed that Souder pitched the program to 

Jayne Silven on May 16 or 17, 2002 as one where the Grand Lodge 

would own any policies issued and would be a partial beneficiary 

on certain policies. This discussion predated the May 25, 2002 

meeting at which Chambers and Souder denied that the Grand Lodge 

stood to benefit from the program. Considering the evidence as 

a whole and drawing all inferences in favor of the government, a 
18

rational jury could conclude that Chambers’s and Souder’s 

failures to inform the Masons at the May 25 meeting of the 

specifics of the insurance program then being contemplated, 

coupled with Chambers’s statements that the Grand Lodge would 

not benefit from the program, were material misrepresentations.

Further, the jury heard evidence that Chambers provided a 

summary to the Executive Committee of the Eastern Star on June 

15, 2002--after American Heritage had agreed to underwrite the 

$25,000 split benefit policies--where he again failed to mention 

that the Grand Lodge stood to benefit from the program. The 

jury heard additional evidence that Chambers and Elliott made 

written representations to Masons at the Grand Lodge annual 

meeting in October 2003 that the program was a success and 

provided a $10,000 benefit, but again omitted any reference to 

the $25,000 policies for which the Grand Lodge was a 

beneficiary. Finally, several members of the Grand Lodge 

executive committee testified that they were unaware that the 

Grand Lodge was a beneficiary on issued $25,000 policies.

Moreover, even if we were to accept the district court’s 

view that the Defendants’ failure to discuss the details of the 

proposed $25,000 policy program at the May 25 meeting was not a 

material omission of fact because such a program had not yet 

been finalized, the government presented other evidence that a 
19

rational jury could have accepted as sufficient to convict on 

the mail fraud counts. In particular, the district court failed 

to credit the government’s evidence tending to show that the 

Defendants directed ALGA agents to omit the face amount of the 

policy and the identity of the beneficiary on applications 

submitted by Masons, and that, at least in some instances, 

policies were issued that insured Masons for $25,000 and named

the Grand Lodge as a partial beneficiary without the knowledge

of the insured.

The Defendants posit an innocent explanation for this state 

of affairs, contending that the face amount of the policy could 

not be established at the time of the application, because the 

ultimate amount of coverage depended on underwriting variables 

related to each insured. That explanation, however, does not 

fully address the government’s contention that Masons were never

told that they could be approved for $25,000 in insurance 

coverage, or that a portion of that coverage would inure to the 

benefit of the Grand Lodge. Regardless, in apparently crediting 

the Defendants’ explanations for their actions, the district 

court failed to recognize that the jury was free to assess the 

evidence and to resolve any contradictions against the 

Defendants.
20

As for the certificates of insurance that the Defendants 

prepared, signed, and mailed to individual Masons, a rational 

jury could have concluded that they were created for deceptive 

purposes, contrary to the district court’s conclusion and the 

Defendants’ argument on appeal. As we have already noted, the 

certificates were inaccurate in key respects, insofar as they 

omitted the face amount of the policies for those Masons who had 

been insured for $25,000 and did not reflect that the Grand 

Lodge was a beneficiary of those policies. We are also 

satisfied that a rational jury could conclude that these 

omissions were material. Indeed, the government presented 

testimony from a number of Masons that they never intended to 

purchase $25,000 policies that would benefit the Grand Lodge and 

that the certificates misled them about the true nature of the 

transactions. 

The district court also concluded that the Riders signed by 

each Mason sufficiently alerted those applying for insurance 

that they might qualify for a $25,000 policy. But while it is 

true that each Rider included a generic statement that the 

minimum face amount of the policy to which it could be attached

was $25,000, the evidence also showed that (1) the Riders were 

attached to all applications, only some of which resulted in the 

issuance of $25,000 policies, and (2) the Riders did not alert 
21

Masons that the Grand Lodge would be a beneficiary on at least 

some of the policies. Thus, a rational jury could have 

concluded that the Riders did not provide the type of notice 

that the district court ascribed to them.

The district court also determined that “the Government

presented no evidence to support a jury finding that any of the 

Defendants acted with the specific intent to defraud the Grand 

Lodge and its members of something of value.” Id. 2860. Here 

again, we find the district court failed to give proper weight 

to the government’s evidence tending to show that (1) the 

Defendants had reached an agreement in principle with American 

Heritage--before the May 25, 2002 meeting--to offer Masons 

$25,000 policies that would partially benefit the Grand Lodge; 

(2) the Defendants’ agents intentionally procured the signatures 

of Masons on insurance applications without including the face 

amount of the policy or the identity of the Grand Lodge as a 

beneficiary; (3) some applications were processed so as to 

provide Masons who qualified with $25,000 in coverage and name 

the Grand Lodge as a partial beneficiary without the insured’s 

knowledge or consent; and (4) Masons within the Grand Lodge’s 

leadership, as well as rank and file members, were unaware that 

the program was issuing $25,000 policies that in part benefitted 

the Grand Lodge. Moreover, the government easily satisfied its 
22

burden to show that the Defendants wrongfully deprived the Grand 

Lodge and its members of something of value in the form of the 

premium payments tendered by these parties.

In sum, viewing the evidence in the light most favorable to 

the government, “a reasonable jury could conclude that the 

defendants engaged in a scheme to defraud, and that they carried 

it out by use of the mails,” Godwin, 272 F.3d at 667. 

Accordingly, we reverse the district court’s grant of the 

Defendants’ post-verdict motion for judgment of acquittal.

III.

The government next asserts that the district court erred 

in conditionally granting a new trial. Applying the more 

deferential standard of review applicable to this issue, we 

affirm.

We review a district court’s grant of a new trial for abuse 

of discretion. Singh, 518 F.3d at 249. The district court may 

order a new trial if the evidence weighs so heavily against the 

verdict that to deny a new trial would be contrary to the 

“interest of justice.” See Fed. R. Crim. P. 33(a); United 

States v. Campbell, 977 F.2d 854, 860 (4th Cir. 1992). 

Although the decision to grant a new trial lies within the 

discretion of the district court, respect for the role of the 
23

jury demands that a court exercise this discretion “sparingly,” 

United States v. Smith, 451 F.3d 209, 217 (4th Cir. 2006), i.e., 

only when “the evidence weighs so heavily against the verdict 

that it would be unjust to enter judgment.” United States v. 

Arrington, 757 F.2d 1484, 1485 (4th Cir. 1985). Nevertheless, 

in contrast to the limitations imposed on a trial court when 

considering a motion for judgment of acquittal, the court may 

consider the credibility of witnesses and need not view the 

evidence in the light most favorable to the government in 

determining whether to grant a new trial. Campbell, 977 F.2d at 

860.

At the outset, we reject the government’s contention that 

the district court improperly granted a new trial for the same 

reason it erroneously granted a judgment of acquittal: that the 

evidence was insufficient to support the verdicts. There is of 

course a difference in degree and kind between a trial court’s 

decision to grant a motion for judgment of acquittal and its 

decision to award a new trial. In assessing the former, the 

trial court must find that the evidence was legally insufficient 

to support the conviction (i.e., that no rational jury could 

have voted to convict on the government’s evidence); as to the 

latter, the trial court may grant relief if it determines that 

the evidence--even if legally sufficient to convict--weighs so 
24

heavily against the verdict that it would be unjust to enter 

judgment. See id.

As a result, our cases hold that if the evidence is legally 

sufficient to affirm a criminal conviction, a trial court abuses 

its discretion when, without further explanation, it grants “a 

new trial based on its finding that the evidence was 

insufficient to support the verdict.” United States v. Wood, 

340 F. App’x 910, 911 (4th Cir. 2009). In this vein, the 

government argues here that “the same factors that the judge 

considered in granting the judgment of acquittal apparently 

provided the basis for its grant of a new trial,” and thus “the 

fundamental error that tainted the district court’s decision to 

grant a judgment of acquittal also tainted its decision to grant 

a new trial.” Appellant’s Br. 56-57.

Pressing its point further, the government analogizes the 

instant case to Singh and United States v. Wilson, 118 F.3d 228 

(4th Cir. 1997). In Singh, however, we reversed a judgment of 

acquittal and the grant of a new trial for a corporate 

defendant, finding with respect to the latter that “the evidence 

. . . did not at all weigh heavily against the verdict . . . but 

was wholly sufficient to support it.” 518 F.3d at 250. The 

district court’s error, we concluded, rested on its erroneous 

determination that the criminal conduct of the defendant’s agent 
25

or employee could not be imputed to the defendant. Id. at 251. 

This error, we held, tainted the district court’s analysis with 

respect to the judgment of acquittal and the grant of a new 

trial. Id. In this case, however, the district court did not 

commit the type of foundational legal error that compelled us to 

reverse in Singh. Rather, “we interpret the district court’s 

ruling as a finding that the verdict was against the cumulative 

weight of the evidence[, which] is a proper ground upon which to 

grant a new trial.” Campbell, 977 F.2d at 860 n.6.

In Wilson, we reversed a judgment of acquittal and affirmed

a denial of a motion for a new trial. We held there that 

because “abundant evidence support[ed] the jury’s verdict,” the 

district court did not abuse its discretion in denying a motion 

for a new trial based on the weight of the evidence. 118 F.3d 

at 237. Contrary to the government’s suggestion, however, 

Wilson does not hold that a trial court is foreclosed from 

granting a motion for a new trial in every case where the 

evidence is legally sufficient to support a jury’s verdict. And 

while Wilson teaches that “a district court should exercise its 

discretion to grant a new trial ‘sparingly’ and that the 

district court should grant a new trial based on the weight of 

the evidence ‘only when the evidence weighs heavily against the 

verdict,’ ” id., we evaluate such a ruling against the backdrop 
26

of the district court’s “broad power” to independently weigh the 

evidence when considering such a motion, as well as the 

deferential standard of review we must apply to that decision, 

Arrington, 757 F.2d at 1485.

Although the district court’s memorandum opinion could have 

been clearer on the point, we are satisfied that the able and 

experienced trial judge presiding over this case understood the 

extent, and limits, of his discretion in considering the motion 

for a new trial. And while the trial court erred by drawing 

inferences unfavorable to the government with respect to the 

Defendants’ motion for acquittal, it was under no such 

constraint when considering whether the verdicts were against 

the cumulative weight of the evidence.

In that regard, the district court noted that only a few 

hundred of the over 18,000 members of the Grand Lodge were 

present at the May 25, 2002 meeting where, according to the 

government, the Defendants first planted the seeds of deception

with respect to the supplemental insurance program. Indeed, the 

vast majority of the Masons received information about the 

program through regional and local lodge meetings held around 

the state at which the Defendants were not present.

Moreover, three Masons called by the government testified 

that they understood the program offered $25,000 policies or 
27

that those policies had a split benefit provision where some 

portion of the death benefit would be paid to the Grand Lodge. 

The Defendants also called four additional Masons, who testified 

that they too were aware of the $25,000 split benefit policies 

and understood that the Grand Lodge would receive some portion 

of the death benefit from the policies. On the strength of this 

evidence, the district court, now considering the record 

pursuant to Rule 33, opined that the government’s “evidence with 

regard to material omissions was based on the recollections of 

Masons who attended meetings regarding the [insurance program], 

some of whom testified to having knowledge of the very facts 

that the Government contends the Defendants materially omitted 

or concealed [from Grand Lodge members].” J.A. 2859-60.

The testimony of government witness James Lightfoot 

provides a stark example of the confusion endemic among the 

Masons regarding the specifics of the insurance program. 

Lightfoot attended the May 25, 2002 meeting that the government 

portrays as the genesis of the scheme to defraud. Lightfoot, 

however, insisted at trial that Chambers told those present that 

the program would include a split beneficiary arrangement to 

partially benefit the Grand Lodge, but that Chambers backpedaled 

on this aspect of the program after several Masons voiced 

objections. Lightfoot did not recall, however, hearing Chambers 
28

tell those assembled that the Grand Lodge would own the 

policies.

The government’s evidence at trial included a transcript of 

the 25 May meeting, which was produced from an audio recording. 

Tellingly, the transcript does not corroborate Lightfoot’s view 

as to what Chambers purportedly said regarding the split 

beneficiary arrangement, although it confirms what Chambers said 

(and Lightfoot could not remember) about the ownership of the 

policies. Our point here is this: We cannot say the district 

court abused its discretion when--in considering whether the 

verdicts were against the cumulative weight of the evidence--it 

questioned precisely what Masons were told, or remembered some 

six years later, regarding the particulars of the supplemental 

insurance program.

The district court also placed great weight on the Riders 

attached to each insurance application, which contained a 

declaration that the minimum face amount of the policy to which 

they may be attached was $25,000. The district court found that 

the Riders supported the view “that there was widespread 

knowledge among the members of the Grand Lodge’s offering of 

$25,000 policies.” Id. 2836. While the district court erred in 

drawing such an inference on the motion for judgment of 
29

acquittal, it was entitled to weigh this evidence as it saw fit 

when determining whether to grant a new trial.

Further, the record is unclear as to precisely which 

policies were available to Masons, as opposed to merely 

contemplated or agreed upon in principle, at the time of the May 

25, 2002 meeting. The district court concluded that only 

$10,000 policies were available for issuance at that time and 

thus the Defendants could not have misrepresented any facts at 

the May 25 meeting related to $25,000 policies that had not yet 

been approved. Here again, we can discern no abuse of 

discretion in such a determination by the district court.

The district court further accepted as credible the 

Defendants’ explanation that agents were instructed to leave 

blank the “amount of insurance” field on a Mason’s application

because the underwriters could determine the actual amount of 

coverage only upon review of a completed application. Regarding 

the certificates of insurance issued by the Grand Lodge that the 

government argued served to perpetuate the fraud, the district 

court concluded instead that Chambers and Elliott did not 

specifically intend to defraud their fellow Masons, but rather 

asked ALGA to help them respond to the requests of individual 

Masons by creating a document that would “serve as proof to the 

members of their death’s benefit [sic]” and “reflect the 
30

relationship between the Grand Lodge and its members.” Id.

2839. In that regard, the district court found “that the 

information contained in the certificates is correct and 

accurately represents the information that had been conveyed to 

the members” regarding the Grand Lodge’s ownership of the 

policies, the Mason’s $10,000 death benefit, the Mason’s 

designated beneficiary, and the Mason’s monthly premiums. Id.

2839-40. The government understandably infers something 

entirely different from this evidence, but it bears repeating 

that on a motion for a new trial, it is the district court’s 

prerogative to draw its own inferences, Campbell, 972 F.2d at 

860.6

Finally, Chambers and Souder testified at trial and denied 

any intent to conceal the particulars of the insurance program 

or to defraud the Grand Lodge or its members. Rather, they 

contended their intent, even if poorly executed, was “to create 

an insurance program that would inure to the benefit, and not 

 

6 The government criticizes the district court for not 

providing a point-by-point rebuttal of its evidence regarding 

the alleged scheme or artifice to defraud. Perhaps so, but we 

are unaware of any law requiring the level of detail that the 

government insists on. We are satisfied that the district court 

gave sufficient and careful consideration to all of the evidence 

in this case before determining that the verdicts were against 

the greater weight of that evidence.
31

the deprivation, of the Grand Lodge and its members.” J.A. 

2843. Although not an express point of emphasis in the district 

court’s memorandum opinion, it seems clear that the district 

court chose to credit the Defendants’ innocent explanations for 

their actions over the sinister interpretation posited by the 

government. And while the government would wish it otherwise, 

it is precisely this kind of credibility determination that is 

the trial court’s call to make on a motion for a new trial.

At bottom, in urging reversal of the district court as to 

this issue, the government would have us ignore the standard we 

are bound to apply on appeal. While reasonable judges might 

view this record differently if allowed to consider it in the 

first instance, and we have nothing but the utmost respect for 

the jury that considered this difficult matter over thirteen 

days, we cannot say that the district court abused its 

discretion in holding that the evidence weighed so heavily 

against the verdicts so as to warrant a new trial. See, e.g.,

Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 

322 (4th Cir. 2008) (“At its immovable core, the abuse of 

discretion standard requires a reviewing court to show enough 

deference to a primary decision-maker’s judgment that the court 

does not reverse merely because it would have come to a 

different result in the first instance.”).
32

IV.

For the foregoing reasons, we reverse the district court’s 

judgment of acquittal, affirm the conditional grant of a new 

trial, and remand to the district court for further proceedings.

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED