19 - 3207 - cr (L) United States of America v. Levy UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 20 20 (Argued: December 3 , 20 20 Decided: November 5 , 202 1 ) Docket No s . 19 - 3207 - cr/19

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U NITED S TATES OF A MERICA , Appell ant ,
v. U RI L ANDESMAN , J OSEPH S ANFILIPPO , J OSEPH M ANN , D ANIEL S MALL , J EFFREY S HULSE , Defendants , D AVID L EVY , M ARK N ORDLICHT , Defendants

- Appellees.
Before: S ACK , C HIN , AND L OHIER , Circuit Judges

. After a nine

- week jury trial, d efendants

- appellees David Levy and Mark Nordlicht were convicted of securities fraud, in violation of 15 U.S.C. §§ 78j(b) and 78ff, conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371, and conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349. The

c onvictions relate to the defendants' participation in a fraudulent scheme to defraud bondholders of an oil and gas company, Black Elk Energy Offshore Operations, LLC, from the proceed s of a lucrative asset sale. Following the trial, the defendants moved for a j udgment of acquittal pursuant to Federal Rule ofNo s . 19 - 3207 - cr/19

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2 Criminal Procedure 29, or , in the alternative, for a new trial pursuant to Federal Rule of Criminal Procedure 33. The district court (Brian M. Cogan, Judge ) granted Levy's motion for a judgment of acquittal and conditionally granted his motion for a new trial in the event the judgment of acquittal was later vacated or reversed. The district court denied Nordlicht's motion for a j udgment of acquittal, but nevertheless granted his motion for a new trial. The government appeals, arguing that the district court erred in granting the defendants' post

- trial motions. For the reasons set forth below, we agree. We therefore VACATE the district court's order and judgment granting the defendants' post

- trial motions, and REMAND for further proceedings consistent with this opinion

. L AUREN H OWARD E LBERT , Assistant United States Attorney ( Kevin Trowel, D avid Pitluck, Lauren Howard Elbert, Patrick Hein, Assistant United States Attorneys, on the brief ), for Jacquelyn M. Kasulis, Acting United States Attorney for the Eastern District of New York ; M ICHAEL S. S OMMER ( Morris J. Fodeman, Katherine T. McCarthy, on the brief ), Wilson Sonsini Goodrich & Rosati, P.C., for Defendant

- Appell ee David Levy ; W ILLIAM A. B URCK ( Daniel R. Koffman, on the brief ), Quinn Emanuel Urquhart & Sullivan, LLP , for Defendant

- Appellee Mark Nordlicht.No s . 19 - 3207 - cr/19

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3 S ACK , Circuit Judge : Th is appeal concerns a scheme allegedly executed by defendants

- appellees Mark Nordlicht and David Levy to defraud bondholders of an oil and gas company, Black Elk Energy Offshore Operations, LLC ("Bl ack Elk") , of the proceeds of a lucrative asset sale to Renaissance Offshore, LLC (the "Black Elk Scheme"). In connection with their participation in the Black Elk Scheme , t he defendants were both convicted of securities fraud, conspiracy to commit
securi ties fraud, and conspiracy to commit wire fraud

. Central to the alleged Black Elk Scheme was a New York

- based hedge fund known as Platinum Partners L.P. ("Platinum"). Platinum consisted of multiple investment funds, including Platinum Partners Value Arbitrage Fund , L.P. ("PPVA"), Platinum Partners Credit Opportunities Master Fund , L.P. ("PPCO"), and Platinum Partners Liquid Opportunity Master Fund , L.P. ("PPLO"). Nordlicht and others founded Platinum in 2003, and Nordlicht was the Chief Investment Officer ("CIO") of PPVA, PPCO, and PPLO. Platinum also had a relationship with a reinsurance company named Beechwood, which was founded in or around early 2014 by a group of investors that included Nordlicht. Beechwood included several entities: Beechwood Bermuda International Ltd.No s . 19 - 3207 - cr/19

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4 ("BBIL"), Beechwood Re, and B Asset Management ( "BAM"). Levy worked at Platinum as a portfolio manager. In early 2014, Levy left Platinum and joined Beechwood as its CIO . He later returned to Platinum where he became co

- CIO with Nordlicht. One of Platinum's largest investments was in Black Elk, an oil and gas company headquartered in Houston, Texas. In 2010, Black Elk raised capital by issuing $150 million in bonds. Black Elk also issued a Series E preferred security in early 2013, of which Platinum purchased the majority.
But Black Elk experien ced significant financial setbacks between 2012 and 2014. An explosion in November 2012 at one of its offshore oil platforms in the Gulf of Mexico, coupled with ensuing civil litigation and regulatory scrutiny, resulted in a sharp decline in its business. Black Elk was also plagued by rampant mismanagement and poor financial planning. By 2014, it appeared to be spiraling towards bankruptcy. At trial, the government alleged that Nordlicht, Levy, and their co

conspirators sought to limit Platinum's los ses in the event of a Black Elk bankruptcy. They did so by orchestrating the sale of Black Elk's most valuable
assets , and fraudulently manipulating the priority structure by which Black ElkNo s . 19 - 3207 - cr/19

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5 debt and equity holders would be repaid to ensure that the proce eds of any asset sales went to the preferred equity holders (among whom Platinum was prominent) instead of the bondholders who would have otherwise had priority to those proceeds. In order to modify the priority structure, it was necessary for

a majority of the outstanding bonds to consent (against their interest) to an amendment to the bond indenture. The government alleged that the defendants rigged the vote of bondholders by fraudulently concealing their control over certain bonds

– in violation of the bond indenture

– to ensure that the amendment would pass. As a result of this alleged fraud, the defendants unlawfully diverted nearly $100 million in asset sale proceeds f rom the bondholders to the preferred equity holders

– who were not entitled to it

– to Platinum's benefit. After a nine

- week trial, a jury convicted Nordlicht and Levy on th e charges related to the Black Elk Scheme

. After the verdict, Nordlicht and Levy both moved for judgment s of acquittal or , in the alternative , for new trial s . The district court denied Nordlicht's motion for a judgment of acquittal, concluding that "when viewed in the light most favorable to the Government, the Government adduced suf ficient evidence . . . to make a judgment of acquittalNo s . 19 - 3207 - cr/19

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6 under Rule 29 inappropriate." United States v. Nordlicht , No. 16

- cr - 00640 (BMC), 2019 WL 4736957, at *9 (E.D.N.Y. Sept. 27, 2019 ). Despite this, however, the district court concluded that "letting th e verdict stand against Nordlicht would be a manifest injustice" and therefore granted his motion for a new trial. Id. at *16

. The district court separately granted Levy's motion for a judgment of acquittal, reasoning that "[e]ven making reasonable infer ences in favor of the Government, and deferring to the role of the jury in weighing evidence and assessing credibility, the Government failed to meet its burden of proving beyond a reasonable doubt that Levy had criminal intent." Id. at *14

. The district court also " conditionally grant [ ed ] Levy's motion for a new trial in the event that the judgment of acquittal [ wa s ] later vacated or reversed. " Id. at *18

. The government now appeals. For the reasons set forth below, we conclude that the district court erred in granting the defendants' respective Rule 29 and Rule 33 motions. We therefore
vacate the district court's judgment of acquittal as to Levy, vacate the district court's order gra nting new trials to Levy and Nordlicht, and remand for further proceedings consistent with this opinion

.No s . 19 - 3207 - cr/19

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7 BACKGROUND Factual Background 1 A. The Relevant Entities

1. Platinum Partners L.P. Defendant

- appellee Mark Nordlicht and his two partners, Murray Huberfeld and David Bodner, founded Platinum

– a New York

- based hedge fund

– in 2003. Platinum consisted of multiple investment funds, which included PPVA, PPCO, and PPLO. Nordlicht was the CIO of Platinum and its v arious hedge funds, and in his role as CIO , Nordlicht made the "final decision" regarding investments. GA.194

. Defendant

- appellee David Levy is Huberfeld's nephew. Levy worked as a portfolio manager at Platinum until around early 2014. As a portfolio manager, Levy was responsible for overseeing some of Platinum's portfolio investments, as

1 Because the defendants appeal their convictions following a jury trial, for purposes of our review of the district court's decision on the Rule 29 motions, "our statement of the facts views the evidence in the light most favorable to the government, crediting any infe rences that the jury might have drawn in its favor." United States v. Rosemond , 841 F.3d 95, 99

- 100 (2d Cir. 2016); see infra pp. 46

- 47. For purposes of our review of the district court's decision on the Rule 33 motions, "all facts and circumstances" must be examined to "make an objective evaluation." United States v. Aguiar, 737 F.3d 251, 264 (2d Cir. 2013); see infra pp. 76

- 77.No s . 19 - 3207 - cr/19

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8 well as finding other potential investment opportunities. One of Platinum's largest investments , on which Levy worked , was in a company named Black Elk. In early 2014, Levy left Platinum to join a reinsurance company, Beechwood , as its CIO. Around late 2014 or early 2015, after his brief stint as Beechwood's CIO , Levy returned to Platinum as its co - CIO alongside Nordlicht. Black Elk a) Platinum ' s Relations hip with Black Elk Black Elk was a Houston

- based oil and gas exploration company that held and managed valuable oil and gas assets in the Gulf of Mexico. Black Elk raised money for its operations by issuing common equity as well as various forms of debt. In November 2010, Black Elk issued $150 million of publicly traded senior secured bonds. In 2013, to raise additional capital , Black Elk also issued a Series E preferred security, which functioned like debt. In the event of a bankruptcy or liquidation, the secured bondholders would be paid first, followed by those with preferred equity and then those with common equity. Platinum was a significant investor in Black Elk. Levy and Daniel Small

– another portfolio manager at Platinum

– co - managed Platinum 's position in the
company . PPVA continued invest ing in Black Elk over time . B y 2014 , PPVANo s . 19 - 3207 - cr/19

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9 owned 85% of Black Elk's common equity. As of 2014, PPVA, PPLO, and PPCO also held most of its preferred equity. Because of Platinum's significant investments in Black Elk, Nordlicht, Levy , and Small were involved in Black Elk's management. Nordlicht, Levy, and Small maintained close communication with Black Elk management, including
its co

- founder and Chief Executive Officer ("CEO") John Hoffman, C hief Financial Officer ("CFO") Jeffrey Shulse, Chief Technical Officer Art Garza, and Vice President of Operations Joseph Bruno. For example, Black Elk management met with Nordlicht, Levy, and Small to discuss prospective Black Elk acquisitions and strate gic objectives. Nordlicht, Levy, and Small also often worked out of Black Elk's offices and participated in its management meetings. The Indenture The relationship between Black Elk and its bondholders was governed by an indenture (the "Indenture"). The Indenture contain s several key provisions, including ones that govern the use of proceeds from an asset sale (Section 4.10), establish limitations on Black Elk's annual capital expenditures (Section 4.21), set forth the circumstances under which a default could be called and waivedNo s . 19 - 3207 - cr/19

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10 (Section s 6.01 and 6.04), and establish the procedure for amending the Indenture ( Article 9 ). Under Section 4.10(b) of the Indenture, Black Elk could use any asset sale proceeds: (1) to repay indebtedness, including money owe d to Black Elk bondholders; (2) to acquire assets of an oil and gas business; (3) to acquire the majority of the voting stock of an oil and gas business; or (4) to make capital expenditures or acquire long

- term assets for its oil and gas business. U nder t he Indenture, the proceeds from a sale of Black Elk's assets could not be paid to any equity holder. Section 4.21 of the Indenture sets forth strict limitations on Black Elk's capital expenditures in any one year. Section 6.01 provides that holders of 25% of the aggregate principal amount of the bonds may call a default alleging that Black Elk violated the terms of the Indenture. Section 6.04, however, allows holders of a majority of the aggregate principal amount of the bonds to waive any d efault called by the bondholders. Section 9.02(a) permits amendment of the Indenture with the consent of the holders of a majority in aggregate principal amount of the outstanding bonds. Section 2.09 (the "Affiliate Rule"), however, explains that

– whenNo s . 19 - 3207 - cr/19

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11 determining consent

– bonds held "by the Permitted Holders, the Issuers or any Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Permitted Holders , the Issuers or any Guaran tor , will be considered as though not outstanding." GA.888

. 2 In other words, such Black Elk bonds could not be counted in determining whether holders of a majority in aggregate principal amount of the bonds consented to any proposed amendments. In Sec tion 1.01, t he Indenture defines the terms "affiliate" and "control" as follows:

" Affiliate " of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified P erson. For the purposes of this definition,

" control , " as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the owners hip of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of a Person will be deemed to be control. For purposes of this definition, the terms " controlling , "

" controlled by " and " under common control with " have correlative meanings. GA.861 (emphases in original)

.

2 As cited herein, "GA" refers to the Government Appendix, "Supp. GA" refe rs to the Government's Supplemental Appendix, "SGA" refers to the Government's Special Appendix submitted with its opening brief, and "SA" refers to the defendants' Supplemental Appendix.No s . 19 - 3207 - cr/19

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12 2. Beechwood Around 2013 or early 2014, a group of investors

– consisting of the founders of Platinum (Nordlicht, Huberfeld, and Bodner), as well as Mark Feuer and Scott Taylor

– founded a reinsurance company named Beechwood. Beechwood was paid a premium by primary in surers to invest those companies' funds. BAM, BBIL, and Beechwood Re were entities related to Beechwood. Nordlicht, Levy, and their associates at Platinum retained significant control over Beechwood's investment decisions. Email correspondence among Fe uer, Huberfeld, and Nor d licht from 2013 outlined Beechwood's corporate terms as follows: "1

- Nordlicht group to put any capital necessary to secure funds"; "2

- Capital to receive 8 percent preferred return"; "3

- Capital to be returned and preferred return to be re[]paid before any profit split"; "4

- Feuer group to receive 750k a year in draws (deducted from their profit split) after 100 million in funds deployed"; "5

- Feuer group will run the insurance end"; "6

- Nordlicht group will run the investment allocation side"; "7

- all profits split 50

- 50 to each group (After paying back the original capital) "; "8

- Nordlicht group to retain all fees generated by invest[m]ents in Platinum funds." GA.582

- 83. Consistent with this,

w hen Beechwood was first created, Nordlicht and Levy together decided wh ichNo s . 19 - 3207 - cr/19

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13 investments would be purchased and transferred from Platinum to Beechwood. And Beechwood invested in many portfolio companies and securities in which Platinum was already invested, including Black Elk, and in the Platinum f unds themselves.
S hortly after Beechwood was founded, Levy left Platinum to bec o me CIO of Beechwood . As such , he controlled the investment side of Beechwood and made investment decisions on behalf of the company on a day

- to

- day basis , while Feuer and Taylor ran the "insurance side" of the company. GA.20 6

. While CIO of Beechwood, Levy also continued to work for Platinum on its investment in Black Elk. Platinum and Beechwood also shared employees , and Platinum employees frequently wo rked out of Beechwood's office , which was only a few blocks away from Platinum 's

. While CIO of Beechwood, Levy, as mentioned, continued working for Platinum on Black Elk

- related issues. Nordlicht would periodically
enter the Beechwood office to take phon e calls and participate in meetings. Naftali Manela , who was CFO of PPCO through late 2014 , also worked simultaneously at Platinum and Beechwood; at Beechwood , Manela assist ed Nordlicht in figuring out how much money Beechwood could invest in PlatinumNo s . 19 - 3207 - cr/19

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14 and what form those investments could take. In addition, Israel Wallach

– although n ever a Platinum employee

– worked at BAM as a portfolio manager from January 2014 to March 2016 and had links to Nordlicht : H e learned about
th e position at Beechwood from Nordlicht , met with Nordlicht to discuss the position at Beechwood, and communicated wi th Nordlicht about his work at Beechwood after he was hired

. Manela testified, on cross

- examination, that Feuer and Taylor engaged legal counsel to ensure that Beechwood was structured in such a way that it would not be an " affiliate " of Platinum. Manel a further testified that Levy was present for one conversation where Feuer and Taylor stated that Beechwood was not an affiliate of Platinum.
B. Black Elk Spirals Towards Bankruptcy Black Elk began experiencing significant financial difficulties from late

2 012 through early 2014. In November 2012, Black Elk's business suffered a sharp decline after one of its oil platforms , West Delta 32 , exploded in the Gulf of Mexico, resulting in three fatalities . Following the explosion, government regulators shut down several of Black Elk's platforms, rendering them non

operational and unable to produce revenue . The cessation of oil production,No s . 19 - 3207 - cr/19

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15 heightened regulatory scrutiny , and ensuing civil lawsuits put a cash flow strain on the company

. As a result, Black Elk did not have enough incoming revenue to cover its expenses and was having trouble paying its bills. There was also evidence that Black Elk's executives and employees engaged in extravagant spending, including on private jet travel (in at least one instanc e with New Orleans Saints Cheerleaders onboard) , trips to Mardi Gras in New Orleans , the purchase of a fleet of helicopters, the purchase of a condo on Bourbon Street in New Orleans, attendance at strip clubs, hunting trips, and the purchase of a speedboat . By the end of 2013, Black Elk was heavily in debt. At Black Elk management meetings during the period following the West Delta 32 explosion, Black Elk management discussed with Levy and Small Black Elk's financial difficulties and the possibility of putting Black Elk into bankruptcy. Black Elk's Vice President of Operations , Joseph Bruno , testified that at one such management meeting at which Levy was present, Levy

– in response to the prospect of bankruptcy

– stated, "We cannot do that. It's a lot of money to lose." Bruno testified that it was his impression that Levy was in charge of managing Platinum's investment in Black Elk.No s . 19 - 3207 - cr/19

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16 C. Platinum Seeks to Sell Black Elk's Assets to Pay Preferred Equity Holders Despite Black Elk's financial difficulties, i ts oil and gas reserves retained significant value. In 2014, to raise cash, the company began contemplating the sale of its most valuable assets

– its oil and gas wells

– to a variety of companies, including Renaissance Offshore, Fieldwood, Talos Energy, and W&T Offshore. On March 16, 2014, Small emailed Nordlicht about the severe financial challenges Black Elk was facing. Small wrote that, in 2012, Black Elk had been generating more than $100 million in annualized earnings before interest, taxes, depre ciation, and amortization ("EBITDA") and negotiating to sell itself for more than $500 million but " [w]e know what happened subsequently

– two major wells watered

- out and the company had an explosion both of which exposed its underperforming properties, bloated cost structure, poorly negotiated escrow agreements and lack of financial planning and controls. " GA.590

- 91 . Small explained that their strategy moving forward was "to renegotiate escrow agreements and surety coverage to release cash that can be used to decommission negative cash flowing fields, further reduce the cost structure, drill low/high return . . . and

. . . acquire under

- reserved fields." Id. Nordlicht responded to Small th e same day :No s . 19 - 3207 - cr/19

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17 Happy to discuss this week and come to final arrangement. This is also the week I need to figure out how to restructure and raise money to pay back 110 million of preferred [equity in Black Elk] which if unsuccessful, w[oul]d be the end of the fund [(PPVA)]. This " liquidity " crunch [at PPVA] was caused by our mismanagement

– yours [,] David [Levy] and I

– of the black elk position so I will multitask and also address your concerns but forgive me if I am a little distracted. I have been up until 3am for the last two weeks working through this issue. GA.59 0 (emphasis added)

. On April 16, 2014, after Nordlicht received an email regarding problems with Black Elk ' s oil production, he wrote to Small, Levy, Hoffman and Shulse:

" This is starting to become major issue. When will production get back up? " GA

. 596

. One month later, on May 20, 2014, Shulse wrote to Nordlicht, Small , and Levy: I am working on a revised cash forecast, but not good news from Houston

. . . Oil check is going to be $9.2 million instead of the $12.0 million I was expecting . . . [

. ] There are not enough bonds on the short term horizon to cover this kind of deficit . . . We will have royalties, hedges, payroll, insurance, rent and other " have " to pays that will not be covered by the current or future oil check [

. ] We will need to discuss some sort of bridge with Platinum and then seriously consider the options in front of us around the Talos/Renaissance transaction . . . the Fieldwood/Sandridge offer . . . and any other short term liquidity events we can make happ en . . . $6 million is a shortfall we can[ ' ]t make up [.] GA

. 614

- 15 (emphasis added) (ellipses in original)

. Nordlicht responded, c opy ing Black Elk in

- house counsel Marizza Pich è , and chastising Shulse for fail ing toNo s . 19 - 3207 - cr/19

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18 label his email as "atty client privile ge." GA.614

. Shulse responded that he was not sure "why a business issue such as cash flow would need to be covered by attorney client privilege?" Id. On June 16, 2014, Nordlicht expressed grave concerns about PPVA ' s liquidity to PPVA President Uri Lan desman: I think we need to revamp the strategy on PPVA and figure out what to do. It can ' t go on like this or practically, we [ ( PPVA ) ] will need to wind down

. This is not a rhetoric thing, it ' s just not possible to manage net outflows of this magnitude. I think we can overcome this but this is code red, we can ' t go on with status quo

. GA

. 628 (emphasis added)

. Landesman replied: " We are pushing hard, illiquidity a bigger hurdle than energy c oncentration . . .

. Need monetization/liquidity events in the fund; I know you realize this and are doing your best. " Id. Nordlicht responded: " We are getting some liquidity from black elk

– though not the equity. . . . Am hesitant to put myself in p osition of using that for reds [(redemptions)]. We just need to short term go crazy, get everyone focused, and long term try to come up with marketing pitch where we can raise even when we are illiquid. " Id. On July 2, 2014, Shulse wrote to Small, Lev y, Nordlicht , and Hoffman:

" We [Black Elk] are officially out of money next week

. . . . We had a lot of [Accounts Payable] obligations to keep production from shutting in last week . . .No s . 19 - 3207 - cr/19

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19 I am doing everything humanly possible to keep this ship moving for ward[.] Just letting everyone know where things stand. " GA

. 632. Around this same time, Black Elk began pursuing a significant sale of assets to Renaissance Offshore, LLC (the "Renaissance Sale"). Black Elk ultimately entered into a Purchase and Sale Agreement with Renaissance on July 10, 2014, and the sale was expected to close in August 2014.
D. Black Elk and Platinum's Attempt s to Amend the Indenture

1. The Failed Private Consent Solicitation In early 2014, Nordlicht, Levy, and others endeavored to amend the Black Elk Indenture through a private consent solicitation process. L ate in 2013 or early in 2014 , a group of Black Elk bondholders who held at least 25% of the Black Elk bonds began to threaten Black Elk with a default based on Bl ack Elk exceeding the capital expenditure limits set forth in Section 4.21 of the Indenture. Nordlicht, faced with the prospect of these bondholders filing for default, sought to gain control over at least 50% of the principal amount of the Black Elk bond s to override any default action and adopt certain amendments to the Indenture. In particular, Platinum sought to amend , inter alia , Section s 4.09 and 4.21 of the Indenture to address Black Elk's capital expenditure covenant and its ability toNo s . 19 - 3207 - cr/19

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20 incur addit ional debt. T he proposed amendment s did not then include any changes to the provision governing the use of asset sale proceeds (Section 4.10). On February 6, 2014, Nordlicht wrote to Black Elk CEO John Hoffman with

a c opy to in

- house counsel Pich è : John

- FYI

- am close to buying 20 million bonds from msd. 3 It will at that point be easy task to buy additional 25 if bondholders don ' t behave and we can change covenants at any time by flipping our bonds to friendlies who w ill [d]o right by the company. GA.581 (footnote added) . On March 3, 2014, Nordlicht updated Black Elk's CFO , Jeffrey Shulse, as well as Small, Pich è , Hoffman , and Levy: " Their [(the bondholders threatening default )] group is falling apart. Msd just so ld their position. They still have 25 percent but likely we will have 50 percent in friendly hands relatively quickly in which case this is all academic. " GA.584. On March 5, 2014, Rob Shearer of BakerHostetler

– outside counsel to Black Elk

– emailed Shulse : " F or purposes of calculating whether the requisite consent has been ob tained , . . . indenture securities owned by an obligor

. . . or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with any such obligor" must be excluded under s ection 316(a) of the Trust Indenture Act ("TIA") . GA.587 (emphasis omitted)

. Shulse

3 "MSD" was a holder of Black Elk bonds that had threatened a defau lt. GA.435

.No s . 19 - 3207 - cr/19

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21 then forwarded Shearer ' s email quoting s ection 316(a) of the TIA to Nordlicht, Levy and others , stating: " W e need to be mindful of this provision when assuming we control the bonds or not. " Id. Nordlicht responded: " I see u accidentally forgot to include Marizza and label this attorney client privilege. I have corrected . . . . But when we say we have frien dly holders we will be fully compliant with this provision. " Id. As a part of the private consent solicitation process to amend the Indenture, on May 6, 2014, three of the Platinum f unds

– PPVA, PPCO, and PPLO, which collectively held about $93 million i n Black Elk bonds (or about 62% of the issued bonds)

– submitted consents in favor of the proposed amendments to the Indenture. The consents disclosed that PPVA held $50,308,000 in bonds, PPLO held $10,046,000 in bonds, and PPCO held $32,917,000 in bonds. These consents were distributed to counsel, including Shearer. Shearer testified that , at the time, he did not raise any concerns that Nordlicht's actions in "flipping bonds to friendly companies" might violate the Affiliate Rule . SA.173. He further testified that he could not recall any discussions where he told anyone at Black Elk that it was improper for PlatinumNo s . 19 - 3207 - cr/19

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22 to flip bonds to friendly companies in order to amend the Indenture. Shearer also testified, however, that neither he , the trustee's counsel, n or the other lawyers at BakerHostetler working on the private consent solicitation knew tha t the Platinum entities were voting their bonds until after they received the consents. Shearer nevertheless also testified that neither h e nor any of the lawyers working on the transaction raised any concerns about Platinum voting their bonds after they received the consents. BakerHostetler drafted , signed , and submitted to the trustee a legal opinion indicating that the firm had reviewed the Indenture and that all conditions necessary for its amendment had been met. Shearer explained at trial that the lawyers working on the transaction had not been focused on the A ffiliate R ule at the time of the private consent solicitation
process and h ad erred in overlooking it. In June 2014, Shearer notified Shulse that the trustee for the Black Elk bondholders was "not comfortable that the consents were properly obtained," and was insisting that a public solicitation process be used. GA.796

. In
pa rticular, in a June 2, 2014 email, Shearer wrote to Shulse : They are insisting that we run a new consent solicitation process. Among other things, they pointed out that when you run a more customary process, DTC [ ( Depository Trust Company ) ] will freeze tr ading of the bonds held by holders who consent to the proposed amendments so thatNo s . 19 - 3207 - cr/19

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23 they cannot be traded until the second supplemental indenture is signed. Without that, they are not comfortable that the consents were properly obtained. I think they are u ncomfortable with other aspects of the process, but that one by itself is enough to cause them to require us to start over. Id. Later that day, Shulse forwarded to Nordlicht the public consent solicitation documents he received from Shearer, and Nordlic ht replied to Shulse, Levy , and Small: " David [Levy]

– u needn ' t explain to me what the hell is going on and why we are wasting time on this. " GA

. 62 5 - 2 6. Shulse replied to all: " The short answer is the trustee refused to sign unless we did the solicitation process . . . they don ' t trust our consents are valid because we have received a default notice in the past 60 days and we have the behind the scenes process with various dates on our consents . . . . " Id. Nordlicht asked what was the " quick est way to end [the] process, " and Shulse replied that " [t]he quickest way is to do the formal solicitation . . . get our 51% in order . . . vote it through the DTC / BNY [ ( Bank of New York ) ] agents and end it . . . . " GA.625. Nordlicht replied to Levy, Small , and Shulse: " There is a disconnect here. No more talking to lawyers. David [Levy], u f ' d this one up bad for no reason. We will have one pager signed by 51% of bondholders, no trustee necessary. It ' s fine. We don ' t need any process. Bondholde rs are being taken out, this is all moot. " Id.
T he private consent process was ultimately terminated.No s . 19 - 3207 - cr/19

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24 2. The Public Consent Solicitation Process and the Amendment of the Asset Sales Provision a) The Consent Solicitation 's Proposed Amendments After Nordlicht and Levy failed in their attempt to amend the Indenture through the private consent solicitation process, they began to move forward with a public process (the "Consent Solicitation")

. On June 23, 2014, Small emailed Shearer an earlier draft of the proposed

a mendments to the Indenture and asked him to " eliminate all of the existing amendments in the attached" except those pertaining to the elimination of the capital expenditure covenant (Section 4.21). GA.797. Small also requested that Shearer add an amendment allowing Black Elk to "use proceeds from Asset Sales under section 4.10 to make an offer at par for outstanding bonds which offer will be open for 10 business days and any remaining proceeds following the 10 day offer period may be used to repurchase preferred equity of the company." Id. The proposed amendment to Section 4.10 thus allowed for a fifth use of asset proceeds beyond the four enumerated uses originally specified in the Indenture : it permitted Black Elk to use the proceeds of an asset sale to purchase at par any Black Elk bonds that Black Elk bondholders elected to tender and then to use any remaining asset sale proceeds to " repurchase or redeem preferred equity ofNo s . 19 - 3207 - cr/19

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25 [Black Elk]. " GA.832

. Black Elk b ondholders had three options in responding to the Consent Solicitation: (1) tender their bonds at par (thereby consenting to the proposed amendments); (2) consent to the proposed amendments without tendering, thereby continuing to own their bonds; or (3) neither tender nor
consent. The Renaissance Sale was the specific asset sale that would provide proceeds in connection with the Consent Solicitation. The amendment of the asset sales provision would therefore permit Black Elk

– which Platinum was
active ly managing

– to pay Platinum and other Black Elk preferred equity holders with funds obtained from the Renaissance Sale. b) Platinum Transfers Black Elk Bonds to Beechwood to Manipulate the Consent Solicitation Vote On April 8, 2014

– more than three months before the Consent Solicitation
Statement was distributed to the Black Elk bondholders

– Levy, Nordlicht, and Small were assessing the Black Elk bonds that they controlled at Platinum ' s hedge funds (PPVA, PPCO and PPLO) and the Beechwood enti ties (BAM and , later, BBIL) , which were summarized in one consolidated table. Small wrote to Platinum trader Nicholas Marzella , copying Levy, with the subject "Black Elk bonds": "Nick, can you send the holder and amount of bonds that are with eachNo s . 19 - 3207 - cr/19

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26 broker

. " GA.609

. Marzella replied to Levy and Small by sending the following table, which showed that various Platinum and Beechwood entities held a total of $98,730,500 of the $150 million of outstanding Black Elk bonds:

GA.609

- 10. Around this time, Nordlicht also asked Wallach and another Beechwood employee, David Shirreffs, to obtain the third

- party market pricing for the Black Elk bonds and to include them on their profit and loss statements going forward, so that they could monitor the price of th e Black Elk bonds on a daily basis. T hey subsequently added the Black Elk bonds to their profit and loss statements for tracking purposes and kept Nordlicht apprised of the price . During April and May 2014, Nordlicht inquired several times regarding the price of Black Elk bonds and whether BAM and BBIL had the capacity to purchase those bonds.No s . 19 - 3207 - cr/19

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27 Between April 8, 2014, and July 7, 2014, Nordlicht directed that over $30 million of Black Elk bonds be sold from Platinum's funds to Beechwood. On May 13, 2014, Nordlicht instructed Wallach to purchase $8 million worth of Black Elk bonds on BAM’s behalf, and instructed Marzella to sell $4 million of Black Elk bonds each from Platinum acc ounts at Credit Suisse and Nomura. On June 23, 2014

– the same day that Small wrote an email to Shearer, with a copy to Levy, initiating the public c onsent s olicitation process

– Nordlicht asked Wallach how many Black Elk bonds Beechwood owned and Wallach informed him that the principal value was $13,360,000

. Later that day, Nordlicht emailed Marzella ,

c opy ing Wallach and Shirreffs, instructing him to sell $10 million worth of Black Elk bonds from PPVA Nomura to BBIL Nomura. On July 1, 2014, Nordlicht

em ailed Marzella, c opying Wallach, directing him to sell another $7 million in Black Elk bonds from PPVA Nomura to BBIL. On July 7, 2014, Nordlicht instructed Marzella to sell $6.7 million of Black Elk b onds from Platinum to Beechwood ($3.35 million from PPCO and $3. 3 5 million from PPLO). Levy was kept aware of the sales of Black Elk bonds fro m Platinum ' s hedge funds to Beechwood. For example, on July 2, 2014, Marzella sent a table to Small reflecting Black Elk bond hol dings. Small responded to Marzella: " Nick,No s . 19 - 3207 - cr/19

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28 can you update the below for recent BAM purchases. Also [ , ] can you confirm with [Credit Suisse] how much would show up as of today that is owned by the PPVA and PPLO. " GA.634

. After Marzella made these changes, Small sent the updated table to Nordlicht and Levy , saying : " We need to decide on a record date for the consent. Below is a summary of the positions held by PPBE and BAM. " Id. In addition, on July 23, 2014, Manela s ent Levy a list of investments that Beechwood held related to Platinum and wrote: "Let [ ' ] s discuss." GA.748

- 49. One of the listed Beechwood investments was $31,051,000 in " Black Elk Energy Public Debt 13.75%, " with the comment: " Purchased 3,335,000 each from PPCO and PPLO and 24,381,000 from PPVA. " GA.749

. c) The Defendants Do Not Disclose the Black Elk Bonds Held by PPCO, PPLO, or Beechwood On July 3, 2014, about two weeks before the Consent Solicitation was distributed to the Black Elk b ond holders, Small asked Black Elk attorneys Shearer and Brittany Sakowitz to confirm "that under the TIA [ ( Trust Indenture Act ) ] if $5MM of the bonds were owned by an affiliate then in order for the consent to be approved a majority of $145MM (greater than $7 2.5MM) would need to consent rather than greater than $75MM." GA.636. Sakowitz replied:
Correct. Securities owned by the obligor or by any person directly or indirectly controlling or controlled by or under direct or indirect commonNo s . 19 - 3207 - cr/19

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29 control with the ob ligor must be disregarded for purposes of calculating the vote required to approve the proposal. (Trust Indenture Act, Section 316(a)). Id. Small then forwarded this exchange to Nordlicht and Levy, stating: " See below regarding the majority consent calculation. " Id. And on July 7, 2014, Small again emailed Nordlicht and Levy, stating that "[t]he company must disclose how many bonds are owned by affiliates in order to establish the requisite number to constitute a majority.

. . . Let's disc uss asap . . . ." GA.641

. On July 8, 2014, Manela emailed to Levy and Small a table listing the amount of Black Elk bonds Platinum ' s hedge funds and Beechwood held. The latest number of Black Elk bonds that PPVA, PPCO, PPLO, BAM , and BBIL held totaled approximately $98 million. On July 9, 2014, Small wrote to Shearer and Sakowitz, among others:

" $18,321,000 bonds are controlled by PPVA and should be disclosed and excluded from the calculation. " GA.703

. On July 13, 2014, Small again reiterated to She arer and Sakowitz that $18,321,000 bonds are "controlled by and should be disclosed and excluded from the calculation." GA.705

. The Offer to Purchase and Consent Solicitation Statement was circulated to the Black Elk bondholders on July 16, 2014. The Co nsent Solicitation StatementNo s . 19 - 3207 - cr/19

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30 provided that, for the proposed amendments to pass, tenders or consents needed to be received from "at least a majority in aggregate principal amount of all the outstanding Notes [approximately $150 million] (disregarding any N otes held by affiliates of the Company)." GA.816. In other words, once all Black Elk bonds held by affiliates of Black Elk were removed from consideration, the proposed amendments would pass only if more than half of the remaining Black Elk bondholders t endered their bonds or consented to the proposed amendments. The Consent Solicitation further provided that, as of July 16, 2014 : [PPVA] and its affiliates , which own approximately 85% of our outstanding voting membership interests, own approximately $18,321,000 principal amount of the outstanding N otes. Otherwise, neither we, nor any person directly or indirectly controlled by or under direct or indirect common control with us, nor, to our knowledge, any person directly or indirect ly controlling us, held any Notes. GA.819

. Shearer testified that, in preparing the Consent Solicitation, he relied on Small's representations as to the amount of Platinum

- owned bonds. At trial, this language in the Solicitation Consent was central to the government's allegations of fraud. d) The Defendants Vote Beechwood and Platinum 's Black Elk Bonds to Ensure that the Amendments Would Pass Bruno testified tha t , after the C onsent S olicitation Statement was sent, he participated in a Black Elk management meeting with Shulse, Levy, andNo s . 19 - 3207 - cr/19

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31 Hoffman whe re they discussed the status of the C onsent S olicitation

. At that meeting, according to Bruno, Shulse indicated that they had not yet heard anything and Hoffman commented that he did not think anyone in their right mind would do it and said , " [Y] ou're not going to hear anything." GA.243

- 45. Levy was visibly agitated in response, and Bruno overheard Levy say to Shulse: "It's covered." GA.245. Consistent with Levy's representation to Shulse , Levy, Nordlicht, and Small collaborated to ensure that Platinum and Beechwood voted their bonds so that the amendments would pass. On July 28, 2014, Beechwood employee Samuel Adler wrote to Wilmington Trust , with a copy to Levy, stating that the Black Elk bonds held by BAM and BBIL were voting " consent without tendering. " GA.750. The same day, Adler wrote to Nomura , with a blind copy to Levy, also stating that the Black Elk bonds held by BAM and BBIL were voting

" consent without tendering. " GA.753. On July 29, 2014, at 9:29 a.m., Nordlicht wrote to himself with the subject heading, " To do today " : " Black elk

– 1
– need budget for post renaissance properties. We need immediate p and a [ ( plugging and abandonment ) ] plan. We need plan as to how to distribute money to the right place s (preferred, preferred,No s . 19 - 3207 - cr/19

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32 preferred )

. " GA.757 (emphasis added)

. That afternoon, Nordlicht wrote to Small with a c opy to Levy: " [H]ow is partial close renaissance talks going? " GA.75 9 . Small replied to Nordlicht and Levy: " CEO of Renaissance on vacation. Jeff [Shulse] texted him last night and this morning . . . and if balance doesn ' t close we can unwind deal and keep deposit if it is Renaissance ' s fault. We are waiting for a respon se. " GA.758. Nordlicht replied to Small and Levy: " David [Levy]

– I have Beechwood at 36,422,400 in terms of ownership of bee [ ( Black Elk ) ] bonds.
Dan

– Do u know respective funds? " Id . Small responded to Nordlicht and Levy by sending a table of Black Elk's bond holdings. The table Small sent to Nordlicht and Levy provided a breakdown of how many Black Elk bonds were owned by each of the Platinum and Beechwood entities. The table li sted the " BlackElk Bond Holders " as PPCO Nomura ($29,582,000), PPVA Credit Suisse ($18,321,000), PPLO Credit Suisse ($13,711,000), BAM Wilmington Trust ($13,360,000) , and BBIL Wilmington Trust ($23,657,000), for a total of $98,631,000. GA.764. The table also provided a calculation of the aggregate principal amount of bonds that were needed to consent to ensure that the amendments passed , assuming that only PPVA Credit Suisse's $18 , 321,000 in bonds were ineligible to vote. In particular, the tableNo s . 19 - 3207 - cr/19

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33 listed the total outstanding Black Elk bonds ($150,000,000), subtracted PPVA ' s holdings ($18,321,000) from that number to get $131,679,000, and then listed $65,839,500 (half of $131,679,000)

— i.e., the number of bonds necessary to pass the Consent Solicitation , assuming that the bonds held by PPCO, PPVA, PPLO, BAM , and BBIL would not be disclosed as affiliates and would be voted. Id. On August 1, 2014, after the votes were cast, Shearer emailed Small a draft Officer 's Certificate, setting forth the $18,321,000 w orth of bonds that Small had disclosed as controlled by Platinum. On August 13, 2014, Shearer followed up, asking Small to review and complete the certificate so that Black Elk could issue a press release. Shortly thereafter, Small emailed Nordlicht and Levy with the subject heading " Officer Certificate, " seeking their approval for his email response to Shearer. GA.770

. Small wrote : " See attached wording and let me know if you are ok. Below is a table that shows under all three scenarios there is 50% approval. " Id. These three scenarios included counting (1) all $110 million consenting votes ($11.4 million tendered bonds plus the $98.6 million Platinum

controlled bonds that voted to consent only); (2) all consenting votes except the approximately $18 million PPVA

- owned bonds; and (3) all consenting votes except the approximately $18 million PPVA

- owned bonds and theNo s . 19 - 3207 - cr/19

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34 approximately $43 million PPCO

- and PPLO

- owned bonds (which Small classified as "PPVA and Possible Affil"). Id. None of these three scen arios disclosed that the Black Elk bonds that Beechwood owned were bonds that should be excluded

. Id. At 8:51 a.m. the next day , August 14, 2014, Small resent his email to Nordlicht and Levy , writing : " Trustee wants to see this this morning
in order to finalize results of tender/consent which ended last night. U ok with language? " Id. Nordlicht responded to Small and Levy : " K. " Id. Later that day , at 12:36 p.m., Small sent the Officer 's Certificate to Shearer with a c opy to Shulse. Small w rote : " Rob, see attached officer ' s certificate and below analysis which is also set forth on the attached spreadsheet. Let me know if you have any comments and we will have executed. " GA.772

- 73 . The email contained a table outlining the same three scen arios Small had shared with Nordlicht and Levy, except that Small referred to the PPCO

- and PPLO

- owned bonds as "Not Deemed Affil

. " GA.772. Shearer testified that, after receiving this email, he had a telephone
conversation with Shulse and Small because he had questions regarding the newly disclosed information. In response to Shearer's questions, Small indicated that there was a different group of bonds held by entities that Platinum hadNo s . 19 - 3207 - cr/19

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35 relationships with and that they could be considered affiliates, but that he did
not think that they were affiliates like PPVA was . In light of the lack of clear information regarding these entities and their relationship to PPVA and Black Elk, Shearer co uld not conclude that the PPCO

- and PPLO

- owned bonds were eligible to be counted. Shearer therefore decided to exclude the PPCO

- and PPLO

- owned bonds from the consent calculation in the Officer 's Certificate. Despite the exclusion from the consent cal culation of the bonds held by PPVA, PPLO, and PPCO, t he amendments to the Indenture ultimately passed. As a result of the exclusion of the Platinum fund

- held bonds, $61 million ($18.3 million PPVA

- held bonds, plus $43 million PPLO

- and PPCO

- held bonds) wo rth of the $150 million outstanding bonds were ineligible to vote, leaving only $89 million worth of the bonds that were eligible

. I n order to receive a majority, only $44.5 million worth of the bonds needed to consent to the amendments . Shearer determin ed that the Consent Solicitation had passed based on the following
votes: $37,017,000 held by the Beechwood funds (which had consented and not tendered); $600,000 of bonds held by unidentified bondholders (which had also consented and not tendered); and $ 11,333,000 of bonds held by unidentified bondholders (which had tendered and thus consented). Over 99% of the bondsNo s . 19 - 3207 - cr/19

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36 that voted to consent but not tender were controlled by Platinum and Beechwood, which was Platinum

- affiliated and controlled. The Consent Solicitation would not have passed without the Beechwood

- held bonds that voted to consent. See GA.541

- 43. e) Black Elk Uses the Proceeds from the Renaissance Sale to Pay the Preferred Equity Holders Three days after the Consent Solicitation vote closed, on August 16, 2014, Manela emailed Levy, asking "did Black Elk sale [i.e., the Renaissance Sale] go thru yesterday??" Levy responded seven minutes later: "Sale closed. 135 mln Cash will be in the account at black elk Monday am." GA.779

. On the morning of August 18, 2014, PPVA CFO Joseph SanFilippo sent an email to Nordlicht , c opy ing Levy and Manela , with the subject heading " Series E as of August 18. " GA.780. The email contained a list of the B lack Elk p referred

e quity holders, which included PPVA, PPLO, PPCO , and PPVA Black Elk Equity
LLC. On August 18, 2014, Shearer advised that Texas law might prohibit distribution of the proceeds of the Renaissance Sale. He wrote to Shulse and Black Elk General Counsel Stephen Fuerst advising them to rev iew Texas Business Organizations Code s ection 101.206. The statute prohibits a limitedNo s . 19 - 3207 - cr/19

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37 liability company from making distributions to its members if such a distribution would render the company insolvent. Tex. Bus. Org. § 101.206

. Shulse forwarded Sheare r ' s email to Nordlicht, Small, Levy , and Samuel Salfati and stated: " Advice of counsel . . . we need to be mindful of this in our planning. " GA.781

. At 4:23 pm that same day, Nordlicht forwarded Shulse ' s email to Levy, changing the subject heading of the email to " urgent " and writing:

" David

– get these wires out!!!!! Call him right now please!!!! " Id. Twenty minutes later, at 4:43 p.m. on August 18, 2014, Small wrote to Shulse with a c opy to Salfati

— who had recently joined Small on the three

- person Black Elk Board of Directors

— with the subject heading " Wires " : " Jeff, on behalf of Sam Salfati and myself constituting a majority of the board of managers you are hereby authorized to wire $70MM in part ial payment of Preferred E units. " GA.783

. Between August 18 and August 21, 2014, Black Elk transferred proceeds from the Renaissance Sale to the defendants and the Platinum

- related entities. Black Elk transferred : (1) on August 18, 2014, approximately $32.5 million to PPVA ' s " Black Elk " Sterling account and $15.3 million to PPVA ' s Sterling account; (2) on August 20, 2014, $24.6 million to PPCO 's Capital One account ; and (3) on August 21, 2014, $5 million to PPLO 's Sterling account

. In addition,No s . 19 - 3207 - cr/19

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38 on Augu st 21, 2014, PPCO transferred

– through various accounts

– approximately $7.7 million to Mark Nordlicht ' s parents, Jules and Barbara Nordlicht, including approximately $500,000 to the Jules and Barbara Nordlicht Family Foundation; $256,679 to Levy ; $102,672 to Small ; and approximately $1 million to the Huberfeld Family Foundation. After the Platinum entities received the proceeds from the Renaissance
S ale, Levy informed Platinum CFO Daniel Mandelbaum that Platinum would not be providing any more financing to Black Elk. In light of Black Elk's outstanding bills, Mandelbaum asked Le vy if Black Elk would be declaring bankruptcy. Levy indicated that Black Elk had to wait twelve months to declare bankruptcy to avoid the risk that the proceeds from the Renaissance Sale could be clawed back during the bankruptcy proceedings. A year late r, in August
2015, Black Elk 's creditors initiated an involuntary bankruptcy proceeding against the company

. Procedural History On December 14, 2016, a grand jury returned an eight

- count i ndictment in the United States District Court for the Eastern Dist rict of New York against seven individuals, including Nordlicht and Levy, relating to their allegedNo s . 19 - 3207 - cr/19

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39 participation in two fraudulent schemes

– one of which was the Black Elk Scheme. Count Six (conspiracy to commit securities fraud), Count Seven (conspiracy to commit wire fraud ), and Count Eight (securities fraud) all related to the Black Elk Scheme.
Tr ial began on April 23, 2019 , before Judge Cogan. On July 9, 2019, the jury returned its verdict, acquitting Nordlicht and Levy on Counts One through Five, 4 and convicting them o n Counts Six through Eight. Following the verdict, Nordlicht and Levy both m oved for judgments of acquittal pursuant to Federal Rule of Criminal Procedure 29 , and , in the alternative , for new trial s pursuant to Federal Rule of Criminal Procedure 33. On September 27, 2019, the district court issued an opinion and order granting L evy's motion for a judgment of acquittal, and conditionally granting his motion for a new trial "in the event that the judgment of acquittal is later

4 Counts One through Five related to a different alleged scheme involving the Platinum entities. The i ndictment alleged , inter alia , that Platinum fraudulently overvalued its investment assets in order to attract new investors and obtain unearned management fees from its investors ; that the overvaluation led to a liquidity crisis that Platinum concealed from its investors ; and that the defendants made material misrepresentations and omissions to current and prospective investors to keep the scheme from being exposed. In conn ection with this alleged scheme, Levy and Nordlicht were charged with conspiracy to commit securities fraud and i nvestment adviser fraud (Count One); conspiracy to commit wire fraud (Count Two); two counts of securities fraud (Count s Three and Four ); and investment advis e r fraud (Count Five).No s . 19 - 3207 - cr/19

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40 vacated or reversed." United States v. Nordlicht , No. 16

- cr - 00640 (BMC), 2019 WL 4736957, at *18 (E.D.N.Y . Sept. 27, 2019)

. The district court denied Nordlicht's motion for a judgment of acquitta l but granted his motion for a new trial. Id. at

* 9 - 14, 16

- 18

. In granting Levy's motion for a judgment of acquittal, the court concluded that "[e]ven making reasonable inferences in favor of the Government, and deferring to the role of the jury in weighing evidence and assessing credibility, the Government failed to meet its bur den of proving beyond a reasonable doubt that Levy had criminal intent." Id. at *14

. The district court explained that the evidence "f[ell] into the following categories: testimony from Bruno and Mandelbaum; evidence that Levy was involved in processing wire transfers after the Renaissance [ S ] ale; and evidence that Levy received emails about Black Elk bonds and the consent solicitation." Id

. The district court considered each category of evidence and found it either "too speculative" or insufficient to sustain a guilty verdict. Id. at *14

- 16

. The district court emphasized that there was nothing inherently unlawful about structuring a transaction to avoid a claw

back or "processing wire transfers, which are a routine aspect of transactions like the Rena issance [S] ale." Id. at *15

. Similarly, the district court reasoned that theNo s . 19 - 3207 - cr/19

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41 emails on which Levy was copied had limited probative value because "even assuming Levy read these emails, the[y] . . . merely show that Levy knew or should have known that Beec hwood held Black Elk bonds." Id. Lastly, the court found that the government had "adduced no evidence that Levy: considered Beechwood to be an affiliate of Platinum; played any role in shifting Black Elk bonds to Beechwood; or played any role in Beechwood voting its bonds." Id. The district court also emphasi zed witness testimony that Levy had been present during a meeting where individuals discussed how Beechwood was not a Platinum affiliate. Id. The district court therefore concluded that there was insufficient evidence of Levy's criminal intent. Id. at * 15 - 16

. The district court also conditionally grant ed Levy's motion for a new trial. Id. at *18

. The court stated that, for the same reasons it granted Levy's Rule 29 motion, " the jury's guilty verdict was a manifest injustice because there was insufficie nt evidence that Levy possessed criminal intent." Id. With respect to Nordlicht 's motion for a judgment of acquittal, the district
court conclud ed that "when viewed in the light most favorable to the
G overnment, the G overnment adduced sufficient evidence

. . . to make a judgment of acquittal under Rule 29 inappropriate." Id. at *9

. The court reasonedNo s . 19 - 3207 - cr/19

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42 that there was sufficient evidence for the jury to conclude that : Nordlicht knew about the Affiliate Rule ; Beechwood was an affiliate under the Indenture and that Nordlicht knew or should have known that Beechwood was an affiliate ; and that the defendants' disclosures regarding the amount of affiliate

- held bonds

w ere material misrepresentation s . Id. at *9

- 1 4 . As to Nordlicht's motion for a new trial, however, the district court concluded that "[a]lthough the Government adduced sufficient evidence for a judgment of acquittal to be unwarranted, letting the verdict stand against Nordlicht would be a manifest injustice." Id. at *16

. The court reasoned that while the evidence suggested that Nordlicht knew about the Affiliate Rule, " he and Beechwood went to great lengths to comply with [ it ]

. " Id. The court also found that even if the jury could fairly conclude that the Beechwood entities were affiliates, there was "insufficient evidence that Nordlicht was on notice of their affiliate status." Id. at *17

. The court also concluded that it would be a manifest injustice to sustain Nordlicht's conviction based on his failure to disclose that PPCO and PPLO were affiliates, because "[u]nder all of the facts and circumstances of the case, Black Elk provided Shearer with sufficient informationNo s . 19 - 3207 - cr/19

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43 that the jury could not fairly conclude that Nordlicht intended to conceal PPCO's and PPLO's affiliate status from Shearer." Id. at *18

. The government timel y appealed. DISCUSSION I. Standard of Review
"We review de novo a district court's grant of a Rule 29 motion based on a finding that the trial evidence was insufficient to support the jury's verdict, applying the same standard the district court applies in review of the evidence." United States v. Pauling , 924 F.3d 6 49, 656 (2d Cir. 2019). "We review a district court's grant of a new trial for abuse of discretion." United States v. Truman , 688 F.3d 129, 141 (2d Cir. 2012); see also United States v. Polouizzi , 564 F.3d 142, 159 (2d Cir. 2009) ("[Rule 33] 'confers br oad discretion upon a trial court to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.'" ( quoting United States v. Sanchez , 969 F.2d 1409, 1413 (2d Cir. 1992 )). A district court "abuses its discretion when its de cision rests on an error of law or a clearly erroneous factual finding, or when its decision . . . cannot be located within the range of permissible decisions." Truman , 688 F.3d at
141 (ellipsis in original) ( quoting United States v. Gonzalez , 647 F.3d 4 1, 57 (2d Cir.No s . 19 - 3207 - cr/19

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44 2011) ). It does not, however, "abuse[] [its] discretion simply because [it] has made a different decision than we would have made in the first instance." United States v. Robinson , 430 F.3d 537, 543 (2d Cir. 2005) (quoting United States v. Ferguson , 246 F.3d 129, 133 (2d Cir. 2001)). II. Levy's Rule 29 Motion A. Legal Standard Federal Rule of Criminal Procedure 29 provides that "[i]f the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal." Fed. R. Crim. P. 29(c)(2). "[A] defendant challenging the sufficiency of the evidence 'bears a heavy burden.'" United States v. Martoma , 894 F.3d 64, 72 (2d Cir. 2017) (quoting United States v. Coplan , 703 F.3d 46, 62 (2d Cir. 2012))

. We "must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt." United
S tates v. Autuori , 212 F.3d 105, 114 (2d Cir. 2000) (quoting United States v. Mariani , 725 F.2d 862, 865 (2d Cir. 1984)). In so doing, we " view the evidence presented in the light most favorable to the government[,]" and "[a]ll permissible inferencesNo s . 19 - 3207 - cr/19

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45 must be drawn in the government's favor." United States v. Guadagna , 183 F.3d 122, 129 (2d Cir. 1999). Moreover, "the evidence must be viewed in its totality, 'as each fact may gain color from others,'" United States v. Cassese , 428 F.3d 92, 98

- 99 (2d Cir. 20 05) ( internal citations omitted), and "the Government need not negate every theory of innocence , " United States v. Lorenzo , 534 F.3d 153, 159 (2d Cir. 2008) (internal quotation marks omitted). "[I]f the court concludes that either of the two results, a re asonable doubt or no reasonable doubt, is fairly possible, [the court] must let the jury decide the matter." Autuori , 212 F.3d at 114 (alterations in original) (internal quotation marks omitted). The verdict "must [therefore] be upheld if ' any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Guadagna , 183 F.3d at 130 (emphasis in original) (quoting United States v. Resto , 824 F.2d 210, 212 (2d Cir. 1987))

. A court must "defer to the jury 's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence." Klein , 913 F.3d at 78 (quoting United States v. Reifler, 446 F.3d 65, 94 (2d Ci r. 2006)) . This "high degree of deference we afford to a jury verdict is 'especially important when reviewing a conviction of conspiracy.'" United States v. Anderson , 747 F.3d 51, 72

- 73 (2d Cir.No s . 19 - 3207 - cr/19

- 3209 - cr United States of America v. Levy

46 2014) ( quoting United States v. Pitre , 960 F.2d 1112, 1121 (2d Cir. 1992) ). " This is so because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon's scalpel." Id. at 73 (internal quotatio n marks omitted). The "agreement [to participate in the conspiracy] may be inferred from the facts and circumstances of the case[,]" and "[b]oth the existence of the conspiracy and the defendant's participation in it with the requisite criminal intent may be established through circumstantial evidence." United States v. Wexler, 522 F.3d 194, 207

- 08 (2d Cir. 2008) ( internal quotation marks omitted). Moreover, "[s]eemingly innocent acts taken individually may indicate complicity when viewed collectively an d with reference to the circumstances in general." Mariani , 725 F.2d at 865

- 66. The jury's inferences, however, must be reasonable. "[ S ] pecious inferences [ should ] not [ be ] indulged , because it would not satisfy the Constitution to have a jury determin e that the defendant is probably guilty." United States v. Valle , 807 F.3d 508, 515 (2d Cir. 2015) (emphasis in original) (quoting United States v.
Lorenzo , 534 F.3d 153, 159 (2d Cir. 2008)); see also United States v. D ' Amato , 39 F.3d 1249, 1256 (2d Cir. 1994) ("[A] conviction based on speculation and surmise aloneNo s . 19 - 3207 - cr/19

- 3209 - cr United States of America v. Levy

47 cannot stand."). "An inference is not a suspicion or a guess. It is a reasoned, logical decision to conclude that a disputed fact exists on the basis of another fact that is know n to exist." Pauling , 924 F.3d at 656 (internal quotation marks omitted). "Impermissible speculation, on the other hand, is 'a complete absence of probative facts to support the conclusion reached.'" Id. (quoting Lavender v.
Kurn , 327 U.S. 645, 653 (194 6)).

" Where a fact to be prove d is also an element of the offense

. . . it is not enough that the inferences in the government's favor are permissible , " but rather, the court "must also be satisfied that the inferences are sufficiently supported to permit a rational juror to find that the element, like all elements, is established beyond a reasonable doubt.” Id. at 657 (internal quotation marks and alteration omitted); see also D'Amato , 39 F.3d at 1256 ("[T]he government must introduce sufficient evidence to allow the jury to reasonably infer that each essential element of the crime charged has been proven beyond a reasonable doubt."). "Direct evidence is not required; '[i]n fact, the government is entitled to prove its case solely through circumstantial evidence, provided, of course, that the government still demonstrates each element of the charged offense beyond a reasonable doubt.'" Lorenzo , 534 F.3d at 159 (alteration in original) ( quotingNo s . 19 - 3207 - cr/19

- 3209 - cr United States of America v. Levy

48 United States v. Rodriguez , 392 F.3d 539, 544 (2d Cir. 2004) ). " I f the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, then a

reaso nable jury must necessarily entertain a reasonable doubt." United States v. Hawkins , 547 F.3d 66, 71 (2d Cir. 2008) (alteration omitted) (quoting United States v. Glenn , 312 F.3d 58, 7 0 (2d Cir. 2002))

. B. A Rational Jury Could Have Concluded that Levy Participated in the Black Elk Scheme with Criminal Intent Counts Six, Seven, and Eight , on which Levy was convicted, charged him with , respectively, conspiracy to commit securit ies fraud, conspiracy to commit wire fraud, securities fraud , and aiding and abetting securities fraud. The district court granted Levy's motion for a judgment of acquittal because it concluded that , even viewing the evidence in the light most favorable to the government , the government failed to prove beyond a rea sonable doubt that Levy acted with criminal intent. The district court also concluded that there was insufficient evidence to establish "that Levy was a member of a conspiracy , " as "evidence of his alleged co

- conspirators' intent [did] not constitute evid ence of Levy's intent." Nordlicht , 2019 WL 4736957, at *15 n.4. To establish intent for purposes of the substantive securities fraud charge,No s . 19 - 3207 - cr/19

- 3209 - cr United States of America v. Levy

49 the government was required to prove that Levy " acted willfully and knowingly and with the intent to defraud." United States v. Rosen , 409 F.3d 535, 549 (2d Cir. 2005)

. For purposes of aiding and abetting liability, the government was required to prove that " [the defendant] willfully and knowingly associate [ d ] himself in some way with the crime , and [sought] by some act to help make the crime succeed." United States v. Prado , 815 F.3d 93, 100 (2d Cir. 2016) ; see Rosemond v. United States , 572 U.S. 65, 76 (2014) ("[A] person aids and abets a crime when (in addition to taking the requisite act) he inte nds to facilitate that offense's commission."). T o sustain the conspiracy charge, the government was required to prove that Levy "willfully and knowingly became a member of the conspiracy, with intent to further its illegal purposes

– that is, with the in tent to commit the object of the charged conspiracy." Archer, 977 F.3d at 190 (internal quotation marks omitted). In other words, "the government was required to show that [Levy] had 'at least the degree of criminal intent necessary for the substantive o ffense itself,' but was not required to show that he 'knew all of the details of the conspiracy, so long as he knew its general nature and extent.'" Id. ( internal citations omitted). And lastly, "[t]o sustain a conviction for . . . conspiracy to commit . . . wire fraud, the government must prove that [Levy]No s . 19 - 3207 - cr/19

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50 acted with specific intent to obtain money or property by means of a fraudulent scheme that contemplated harm to the property interests of the victim." United States v. Carlo , 507 F.3d 799, 801 (2d Ci r. 2007). The government argues that the district court erred in granting Levy's motion for a judgment of acquittal because the court failed to consider all the relevant evidence in context and improperly rel ied on isolated pieces of evidence. For the r easons explained below, w e agree . We conclude that a rational jury could reasonably infer from the circumstantial evidence presented at trial that Levy was a member of the charged conspiracy and acted with the requisite intent.

1. The Scope and Purpose o f the Black Elk Scheme Criminal intent "may be proven entirely through circumstantial evidence

. " United States v. Romano , 794 F.3d 317, 335 (2d Cir. 2015). " W hen the necessary result of the [defendant]'s scheme is to injure others, fraudulent intent may be inferred from the scheme itself." Id. (alteration in original) (quoting D ' Amato , 39 F.3d at 1257)

. At trial, the government adduced evidence that : the Bla ck Elk scheme benefitted Platinum investors to the detriment of the Black Elk bondholders ; theNo s . 19 - 3207 - cr/19

- 3209 - cr United States of America v. Levy

51 outcome of the vote was inconsistent with the actions of a rational bondholder ; and the Consent Solicitation would not have passed without the votes of Beechwood , a Black Elk affiliate. Prior to the Consent Solicitation, Black Elk was headed to wards bankruptcy, and PPVA

– which had heavily invested in Black Elk

– was in the midst of a liquidity crisis. The Consent Solicitation Statement 's proposed amendments all owed Black Elk to pay Black Elk's preferred equity holders

– which consisted of a significant number of Platinum

- controlled entities and associates, including PPVA

– with proceeds from the Renaissance Sale before paying the Black Elk bondholders. Black E lk bondholders could respond to the Consent Solicitation in one of three ways: (1) tender their bonds at par (thereby consenting to the proposed amendments); (2) consent to the proposed amendments without tendering, thereby continuing to own their bonds; o r (3) neither tender nor consent. Government witnesses Todd Pulvino and Dixon Yee

– bondholders who lost money as a result of the Black Elk scheme

– testified that the "consent only" option in the Consent Solicitation Statement (the option to consent to t he amendment s without tendering the bonds) was not a rational choice for a bondholder to select. Pulvino explained that it made no financial sense for aNo s . 19 - 3207 - cr/19

- 3209 - cr United States of America v. Levy

52 bondholder to consent and retain his or her bonds because the bondholder would be giving up protection s and allowing the preferred equity holders to have priority over the bondholders' interests without getting anything in exchange for giving up those protections. Yee similarly testified that it would have been "kind of stupid" for a bondholder to agree to the changes without tendering his or her bonds, because the bondholder would be giving up his or her rights without getting anything in return
. GA.289

- 90 . Yet, the consent

- only option received the majority of votes. Notably, that majority comprised $37 million worth of bonds held by Beechwood, which voted
to consent but declined to tender. In addition to the $37 million of Beechwood

held bonds that voted to consent but not tender, approximately $43 million of the PPCO

- and PPLO

- held bonds voted to consent but not tender. Aside from the bonds owned by the Platinum

- related entities, only $600,000 in bonds voted to
consent but declined to tender. Thus, of all the bon ds that voted to consent but not tender, over 99% were controlled by Platinum and Beechwood, which was Platinum

- affiliated and controlled . And ultimately, the Consent Solicitation was only able to pass because the Beechwood

- held bonds voted to consent.No s . 19 - 3207 - cr/19

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53 As the district court did not dispute, Nordlicht , 2019 WL 4736957, at *10

- 14, this evidence could have led a rational jury to conclude beyond a reasonable doubt that the scheme was fraudulent and that those involved in it acted with criminal intent to def rau d the bondh olders.

2. Levy ' s Involvement and Role in the Black Elk Scheme Having determined that the government presented sufficient evidence from which a rational jury could conclude beyond a reasonable doubt that the goal of the Black Elk scheme was to defraud bondholders, we consider whether there was sufficient evidence from which a rational jury could have concluded beyond a reasonable doubt that Levy willfully participated in the Black Elk scheme with criminal intent . We conclude that there was. The evidence adduced at trial established that Levy was aware of Black Elk's dire financial straits and that a Black Elk bankruptcy would have negative ramifications for PPVA. As a portfolio manager at Platinum and later, as Beechwood's CIO , Levy oversa w PPVA's investments in Black Elk and knew that PPVA was heavily invested in the company

. E ven after Levy left Platinum to become CIO of Beechwood, he continued to work for Platinum to manage PPVA's investment in Black Elk. Levy continued to participate in meetings withNo s . 19 - 3207 - cr/19

- 3209 - cr United States of America v. Levy

54 Black Elk management and received updates regarding Black Elk's financial status. For example, Levy knew that there were major problems with Black Elk's oil production and that Black Elk was struggling to pay its bills. Levy also participated in a Black Elk management meeting at which the prospect of Black Elk filing for bankruptcy was discussed

. At that meeting, Levy s aid : "We cannot do that. It's a lot of money to lose." GA.238

. Although motive is not an element o f the crimes charged, it is probative of whether the defendant acted with criminal intent. Here, Levy's knowledge of Black Elk's impending bankruptcy and its negative ramifications for PPVA provided Levy with a motive to seek to amend the Indenture to ens ure that the proceeds of the Renaissance Sale would go to the preferred equity holders , which included the Platinum

- related entities

. The evidence presented at trial also established that Levy was notified of the Affiliate Rule on several occasions. On March 5, 2014, in connection with the private consent solicitation process, Shulse forwarded an email from Shearer to Nordlicht, Levy, Small, and Hoffman, commenting, "We need to be mindful of this provision when assuming we control the bonds or not

. . . . " GA.587

. The email from Shearer indicated that under s ection 316(a) of the TIA , " securitiesNo s . 19 - 3207 - cr/19

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55 owned by any obligor . . . or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with any such obligor " must be excluded from the consent calculation. Id. (emphasis omitted). On July 3, 2014, Small forwarded an email exchange with Black Elk attorneys Shearer and Sakowitz to Nordlicht and Levy

. Sakowitz , citing section 316(a) of the TIA , confirmed that "[ s ] ecurities owned by the obligor or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the obligor must be disregarded for purposes of calculating the vote required to approve the proposal." GA.636

. And on July 7, 2014, Small again emailed Nordlicht and Levy, exp laining that "[t]he company must disclose how many bonds are owned by affiliates in order to establish the requisite number to constitute a majority." GA.641

. Levy was also involved in the private consent solicitation process. He was

c opi ed on correspond ence relating to the consents that were submitted as a part of the private consent solicitation process, supporting an inference that Levy was involved in Black Elk's initial efforts to amend the Indenture. This inference is further supported by the fact that, after the private consent solicitation process failed , Nordlicht demanded that Levy explain "what the hell is going on

. "No s . 19 - 3207 - cr/19

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56 GA.625

- 26

. After Shulse explained that the trustee wanted to move forward with a public consent solicitation process because of concerns about the way in which the consents had been obtained, Nordlicht blamed Levy : "David, u f ' d this one up bad for no reason. We will have one pager signed by 51% of bondholders, no trustee necessary. It ' s fine. We don ' t need any process. Bondh olders are being taken out, this is all moot. " GA.625. This evidence establishes that Levy was : aware of Black Elk's efforts to amend the Indenture ; actively involved in the private consent solicitation process ; aware that they might have to proceed with a public consent solicitation process because of concerns about the way in which the consents were obtained ; and aware of Nordlicht's desire to circu mvent the bondholders in order to ensure that Black Elk's proposed amendments to the Indenture quickly passed. The evidence further appears to demonstrate that Levy remained involved in Black Elk's efforts to amend the Indenture through the public consen t solicitation process after the private process failed . On June 23, 2014, for example, Small emailed Shearer Black Elk's proposed a mendments to the Indenture

– which included modification of the asset sale proceeds provision to allow Black Elk to pay the preferred equity holders before the bondholders

– andNo s . 19 - 3207 - cr/19

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57 c opied Levy

. And i n a July 7, 2014 email , Small forwarded a draft of the Consent Solicitation Statement to Nordlicht and Levy, explaining that they would have to disclose how many bonds were owned by affiliates for purposes of calculating whether a majority of the bondholders had consented to the proposed amendments to the Indenture . Small stated : "Let's discuss asap in order to finalize and launch by Thursday." GA.641

. Two days later, on July 9, 2014, Small wrote to Shearer and Sakowitz, disclosing only that the $18.3 million bonds controlled by PPVA should be excluded from the consent calculation. This email correspondence supports an inference that Levy was involved in the preparation of the Consent Solicitation S tatement and the determination to disclose only the $18.3 million of PPVA

- controlled bonds to Shearer. In addition, viewed in the light most favorable to the government, the evidence supports an inference that Levy was aware of Beechwood's role in the Black Elk scheme and was actively involved in that scheme

. By early 2014, Levy was CIO of Beechwood. Naftali Manela

– who was CFO of PPCO through late
2014
– testified that , as CIO at Beechwood, Levy made th e "final decision on which investments were made." GA.205

- 06

. And although there were no writings reflecting Levy himself direct ing Beechwood's purchase of Black ElkNo s . 19 - 3207 - cr/19

- 3209 - cr United States of America v. Levy

58 bonds, he was aware of Beechwood 's purchases of a significant number of Black Elk bonds from Platinum, supporting an inference that he , as Beechwood's CIO , had signed off on those transactions

. In April 2014, for example, Platinum trader Nicholas Marzella emailed Small and Levy a breakdown of the Black Elk bonds held by PPVA, PPCO, PPLO, an d Beechwood, respectively. As of April 2014, Beechwood held only $5 million in Black Elk bonds. Later, on July 2, 2014, Small forwarded Nordlicht and Levy a summary of Platinum and Beechwood's Black Elk bond holdings , which indicated that Beechwood now o wned around $30 million worth of bonds. And on July 23, 2014, Manela emailed Levy a chart en titled "Beechwood Investment related to Platinum." GA.749. These investments included $31,051,000 in " Black Elk Energy Public Debt 13.75%, " with the comment:

" Purchased 3,335,000 each from PPCO and PPLO and 24,381,000 from PPVA. " GA.749

. While there was no direct evidence that Levy "played any role in shifting Black Elk bonds to Beechwood," Nordlicht , 2019 WL 4736957, at *15, circumstantial evidence from which the jury could draw rational inferences is sufficient. See Wexler , 522 F.3d at 207 - 08 ; Lorenzo , 534 F.3d at 159 . The district
court therefore was mistaken when it found that the government "adduced noNo s . 19 - 3207 - cr/19

- 3209 - cr United States of America v. Levy

59 evidence" of Levy's role in transferring Black Elk b onds to Beechwood. Nordlicht , 2019 WL 4736957, at *15 (emphasis added). Levy's dual role working at Beechwood and Platinum , coupled with his position as Beechwood's CIO and the email correspondence demonstrating that he was apprised of Beechwood's purcha ses of Black Elk bonds , support s an inference that he understood Beechwood's role in the Black Elk scheme, was a part of the conspiracy, and was acting in furtherance of the conspiracy as Beechwood's CIO. Levy's involvement in the Black Elk scheme is further corroborated by the circumstantial evidence suggesting that he was responsible for directing the voting of Beechwood's Black Elk bonds. On July 28, 2014, Beechwood employee Samuel Adler wrote to Wilmin gton Trust, with a copy to Levy, stating that the Black Elk bonds held by BAM and BBIL were voting " consent without tendering. " GA.750

. The same day, Adler, with a blind copy to Levy, wrote to
Nomura also stating that the Black Elk bonds held by BAM and BBIL were voting " consent without tendering. " GA.753

. Adler's open and blind cop ies to Levy, respectively, considered together with the evidence establishing that Levy

was simultaneously working on Platinum's Black Elk investment while acting as Beechwoo d's CIO and that he was actively monitoring Beechwood's investmentNo s . 19 - 3207 - cr/19

- 3209 - cr United States of America v. Levy

60 in Black Elk , supports an inference that Adler was voting Beechwood's Black Elk bonds "consent without tendering" based on instructions given to him by Levy. Circumstantial evidence also supports an inference that Levy was aware, and was actively working to ensure, that Platinum controlled a sufficient number of bonds to ensure that the amendments would pass. O n June 29, 2014, during the pendency of the public c onsent s olicitation process , Nordlicht wrote to Small and Levy: " David [Levy]

— I have Beechwood at 36,422,400 in terms of ownership of [Black Elk] bonds. Dan

— Do u know respective funds? " GA.758. In response to that message, Small responded to Nordlicht and Levy and sent the following table:

GA.764

. The table shows the Black Elk bonds collectively held by Beechwood and Platinum and set s forth the vote analysis that underlies the Black Elk Scheme

.No s . 19 - 3207 - cr/19

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61 First, in the second column from the right, under the " Total" heading, the chart subtracts the $18,321,000 in PPVA

- held bonds that were disclosed in the Consent Solicitation Statement and excluded from the vote, resulting in $80,310,000 bonds held by Platinum and Beechwood. The calculation in the far

- right column subtracts the same $18,321,000 in excluded PPVA

- held bonds from the total number of outstanding bonds (150,000,000), yielding $131,679,000. The chart the n divides the latter figure in half, yielding $65,839,500

– the number of " yes "
votes needed in order for the Consent Solicitation to pass. The district court minimized this email evidence, concluding that it merely "show[s] that Levy knew or should have known that Beechwood held Black Elk bonds." Nordlicht , 2019 WL 4736957, at *15. But it also illustrates that Levy knew that Platinum and Beechwood controlled enough of the bonds to determine the outcome of the
vote
. Moreover, the fact that the table only excludes the $18.3 million bonds held by PPVA supports an inference that Levy knew the PPCO

- , PPLO

- , and Beechwood

- held bonds had been concealed from Shearer and the bondholders and were being voted to ensure that the amendment would pass.
T h e government did not present this evidence to the jury in isolation. As noted above, email correspondence illustrates that in July 2014, Small consultedNo s . 19 - 3207 - cr/19

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62 with Nordlicht and Levy about which bonds to disclose to Shearer for purposes of the Consent Solicitation Statement. There was also trial testimony that during the public consent solicitation process, Black Elk CEO John Hoffman was skeptical about the notion that Black Elk bondholders would consent to the amendments to the Indenture. In response, Levy said to Shulse: "It's covered." GA.245. And on August 14, 2014, immed iately following the bondholders' vote, Small wrote to Nordlicht , copying Levy , to ask for their approval of the language to send to Shearer regarding the consent calculation for the Officer 's Certificate. Small's proposed language identified the $18.3 mi llion in PPVA bonds as "affiliated," and for the first time also flagged the PPCO

- and PPLO

- controlled bonds as "[ p ] ossible [ a ] ffil [ iates ]" to be excluded from the final vote count. GA.770

. Small emphasized that regardless of whether they chose to then disclose the PPCO

- and PPLO

- controlled bonds, Black Elk had received a majority vote due to the votes cast by Beechwood. The jury could reasonably infer from t he context and timing of Levy's comment to Shulse, considered together with the voluminous emai l evidence presented, that Levy knew that the PPCO, PPLO, and Beechwood

- held bonds had not been disclosed to Shearer or the bondholders; knew that the PPCO

- , PPLO

- , and Beechwood

- held bonds wereNo s . 19 - 3207 - cr/19

- 3209 - cr United States of America v. Levy

63 voted to ensure that the amendments to the Indenture would pa ss; and was deeply involved in the Black Elk S cheme. Levy's role in disbursing the proceeds of the Black Elk S cheme , coupled with his efforts to ensure that these proceeds were protected from a claw

- back in Black Elk's bankruptcy proceedings , provide s f urther circumstantial evidence of Levy's knowledge of, involvement in, and intent to further the objectives of the Black Elk S cheme. O n August 18, 2014, Shearer advised Shulse that Texas law might prohibit the distribution of the proceeds of the Renaissan ce Sale if that distribution would render Black Elk insolvent. Shulse forwarded this email to Nordlicht, Small, and Levy, writing: "Advice of counsel . . . we need to be mindful of this in our planning." GA.781

. Immediately thereafter, Nordlicht forwar ded this email to Levy, changing the subject heading to "urgent" and instructing Levy to "get these wires out!!!!! Call him right now please!!!!" Id. Twenty minutes later, Small wrote to Shulse with a c opy to S a lfat i

— who had just joined Small on the three

- person Black Elk Board of Directors

— authoriz ing a wire transfer of $70 million "in partial payment" to Black Elk's preferred equity holders. GA.783

. Nordlicht's email to Levy , co mbined with the rapid sequence

o f events , supports a permissible inference that Levy subsequently spoke toNo s . 19 - 3207 - cr/19

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64 Small and direct ed him to initiate the wire transfer of the proceeds from the Renaissance Sale. The fact that Nordlicht did not have to explain to Levy what needed to be done, or w hy it needed to be done with such urgency, suggests that Levy was aware of and supported the object of the fraud. Moreover, Nordlicht and Levy's willingness to disburse the proceeds of the Renaissance Sale rapidly , notwithstanding the possible legal risks , supports a finding that both Nordlicht and Levy were willing to circumvent governing legal restrictions to ensure that the proceeds from the Renaissance Sale were paid to Black Elk's preferred equity holders. Furthermore, after the proceeds from the Re naissance Sale were distributed, Levy had a conversation with Platinum CFO Daniel Mandelbaum regarding the timeline of Black Elk's bankruptcy. Levy indicated that, to prevent the proceeds from the Renaissance Sale from being clawed back during the bankrup tcy proceedings, Black Elk would not declar e b 0 ankruptcy for a year. This provides further support for the government's theory of the case because it illustrates that Levy apparently understood the importance to Platinum of securing the proceeds from the Renaissance Sale and was taking steps inNo s . 19 - 3207 - cr/19

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65 furthe rance of the Black Elk S cheme to ensure that th is money w ould be protected. The district court discounted the evidence of Levy's involvement in disbursing the Renaissance Sale proceeds and delaying Black Elk's bankruptcy, reasoning that there could have been innocent explanations for these acts. Nordlicht , 2019 WL 4736957, at *14

- 15. The district court explained that "[t]here is nothing unlawful about processing wire transfers, which are a routine aspect of transactions like the Renaissance [S] ale." Id

. at *15. Similarly , in dismissing the evidence that Levy sought to avoid a bankruptcy claw

- back, the district court explained that "businesses may legitimately consider the risk of a claw

- back when deciding when to conduct a certain transaction." Id. at *14. But the government did not contend that the wire transfer or Levy's efforts to avoid a claw

- back were inherently inculpatory standing alone . R ather, the government argued that this evidence , considered in context alongside the other evidence establishing Levy's knowledge of, and involvement in, the Black Elk S cheme , could have given rise to a rational inference of Levy's intent to defraud the bondholders. See Mariani , 725 F.2d at 865

- 66 ("Seemingly innocent acts taken indiv idually may indicate complicity when viewed collectively and withNo s . 19 - 3207 - cr/19

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66 reference to the circumstances in general."). The district court's analysis suggests that it erroneously viewed the evidence in isolation, weighed the evidence, and drew inferences against the government. See United States v. Tocco , 135 F.3d 116, 123 (2d Cir. 1998) ( cautioning that c ourts must " defer to the jury's resolution of witness credibility and, where there is conflicting testimony, to its selection between competing inferences"). Viewing the evidence as a whol e and in the light most favorable to the government, we conclude that a rational jury could have found , beyond a reasonable doubt , that Levy participated in the Black Elk S cheme with criminal
intent.
3. The Exculpatory Evidence C ited by Levy Does Not Support the District Court ' s Decision Levy argues that despite the foregoing , there is insufficient evidence to support a conclusion that he acted with criminal intent because there was no evidence that he understood that Beechwood was an affiliate and other evidence in the record showed that he lacked the requisite criminal inten t. In particular, Levy contends that he was told that Beechwood and Platinum were not affiliates , and that he was informed by the lawyers during the private consent solicitationNo s . 19 - 3207 - cr/19

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67 process that Platinum was permitted to vote all of its Black Elk bonds

. Levy 's arguments are without merit

. As an initial matter , we find no evidence to support Levy's assertion that he was told during the private consent solicitation process that Platinum was permitted to vote the bonds held by PPVA, PPCO, and PPLO, nor do we find evidence that the lawyers involved in the transaction knew and approved of Platinum vo ting these bonds. To the contrary, Shearer testified that he did not know that the Platinum entities were voting their bonds, and that he did not believe the truste e's counsel or anyone else at BakerHostetler knew either

. Shearer explained that the lawyers involved in the private consent solicitation process did not learn that Platinum was voting the Black Elk bonds held by PPVA, PPCO, and PPLO until after Platinum voted them and transmitted the consents to counsel for purposes of demonstrating that a majority of the bondholders had consented to the proposed amendments

. And we find no evidence in the record that Levy or Nordlicht provided any information to the lawyers regarding PPVA, PPCO, or PPLO's relationship with Black Elk or their possible status as affiliates, nor do we find evidence that any of the lawyers working on the private consent solicitation provided Levy with lega l adviceNo s . 19 - 3207 - cr/19

- 3209 - cr United States of America v. Levy

68 regarding whether these entities qualified as affiliates. While it is true that neither Shearer nor any one else at BakerHostetler raised any concerns about PPVA, PPCO, or PPLO voting their Black Elk bonds after they received the consents, Shearer testified that they had not focused on the Affiliate Rule at the time and had mistakenly overlooked it. Moreover, Levy was aware that the
trustee ultimately terminated the p rivate consent solicitation process in light of concerns about the way in which t he consents were obtained. By contrast, in connection with the public consent solicitation process, Shearer and the other lawyers working on the transaction recognized that the Affiliate Rule applied and informed Black Elk that affiliate s could not vote their bonds . And Small repeatedly notified Levy and Nordlicht, on July 3 and 7, 2014, that Black Elk was required to disclose how many bonds were owned by affiliates. Levy was therefore aware of the A ffiliate R ule and Black Elk's obligation to disclose a ny bonds owned by affiliates

— which included the Platinum and Beechwood entities

. Notwithstanding this legal advice, we are not aware of any evidence in the record that Levy, Nordlicht, or Small disclosed the PPLO

- , PPCO

- , or Beechwood

- owned bonds to Shea rer prior to the dissemination of the ConsentNo s . 19 - 3207 - cr/19

- 3209 - cr United States of America v. Levy

69 Solicitation, or sought Shearer's

– or any other attorney's

– advice regarding whether PPCO, PPLO, or Beechwood qualified as affiliates and should therefore be excluded from the consent calculation. Levy argues that, because none of the lawyers objected to PPVA, PPLO , or PPCO voting their Black Elk bonds during the private consent solicitation process, he had no reason to believe that Platinum could not vote the PPVA

- , PPLO

- , or PPCO

- owned bonds. But the private consent solicitation process ultimately failed, and Levy was subsequently made aware on several occasions that bonds under direct or indirect common control with Black Elk had to be excluded from the consent calculation. Moreover, the fact that

– after discussion with Levy and Nordlicht

– Small ultimately disclosed the $18.3 million PPVA

- owned bonds to Shearer undercuts Levy's argument that he believed, based on the private consent solicitation process, that the Platinum entities could lawfully vot e their bonds. Additionally , Small's August 13, 2014 email to Levy and Nordlicht

– after the Consent Solicitation had passed

– referred to the PPCO

- and PPLO

- held bonds as "Possible Affil" to be excluded from the consent calculation, and asked for Levy an d Nordlicht's permission to disclose these bonds to Shearer now that they knew they had acquired sufficient votes to pass the amendments using solely the Beechwood

- held bonds. Notably,No s . 19 - 3207 - cr/19

- 3209 - cr United States of America v. Levy

70 the approximately $37 million of Beechwood

- held bonds were included in Small's email as consent votes to be counted, not excluded. Th e email evidence support s an inference that Levy understood the Platinum

- controlled bonds, including those owned by PPCO, PPLO, and Beechwood , likely qualified as affiliates, and that they had concealed this information to ensure the amendment s would pass.
T here was also sufficient circumstantial evidence to support the conclusion that Levy knew Platinum controlled Beechwood. Most notably, Levy was working for Platinum on the Black Elk inves tment and assisting with the public consent solicitation process while he was working a s Beechwood 's CIO. As CIO, Levy controlled and exercised final authority over Beechwood's investment decisions. When Beechwood was first created, for example, Nordlicht and Levy jointly decided wh ich investments would be purchased and transferred from Platinum to Beechwood, and Beechwood invested in many portfolio companies and securities in which Platinum was already invested, including Black Elk. Levy knew th at Nordlicht was keeping tabs on how many Black Elk bonds were owned by Beechwood, was kept aware of Beechwood's purchases of Black Elk bonds from Platinum, and was actively monitoring the number of Beechwood

- ,No s . 19 - 3207 - cr/19

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71 PPVA

- , PPCO

- , and PPLO

- held bonds to ensure t hat Platinum secured a sufficient number of votes to pass the amendments. In addition, Nordlicht gave Levy instructions while he was working at Beechwood, and Levy was aware that Nordlicht also directed and received reports from other Beechwood employees. As mentioned above, t here was also evidence supporting an inference that Levy directed Beechwood's voting of Black Elk's bonds while he was simultaneously CIO of Beechwood and working for Platinum on Black Elk, and that Beechwood employees deferred to Le vy and Nordlicht when voting Beechwood's Black Elk bonds. This evidence, viewed collectively, provides an ample basis to conclude that Levy understood that Black Elk and Beechwood were under the common control of Platinum and that Beechwood therefore like ly qualified as an affiliate. Levy points out that he was involved in a conversation with Feuer and Taylor where they indicated that Beechwood was not an affiliate of Platinum. In particular, on cross - examination, Manela testified that Feuer and Taylor were very concerned about ensuring that Beechwood and Platinum were not "the technical word affiliates," and that Feuer told Manela that he was working to ensure that Beechwood was not a Platinum affiliate. SA.55, GA.220

. Manela agreed that "Beechwood ha d lawyers reviewing everything about the structureNo s . 19 - 3207 - cr/19

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72 of Beechwood so it would not be an affiliate of Platinum." SA.55

. Manela also recalled "multiple conversations" with Feuer and Taylor where they discussed Beechwood's affiliate status , and specifically r ecalled that Levy was present at one of those meetings. GA.220

. According to Manela , Feuer and Taylor told him and Levy that Beechwood was not a Platinum affiliate. Manela, however, could not recall what went into the definition of "affiliate" or what the term "affiliate" meant in the context of that conversation. SA.60

. Manela was not privy to , and did not testify to , the specifics of any of the legal advice that Feuer and Taylor purportedly received regarding Beechwood's affiliat e status. And it is unclear what, if any, facts Beechwood's lawyers were provided to determine whether Beechwood was an affiliate of Platinum. In light of the substantial evidence indicating that Levy knew that Platinum exercised control over Beechwood (and that Levy, in fact, played a pivotal role in the exercis e of such control), a jury could have rationally discounted Manela's vague recollection of Feuer and Taylor's conversation with him and Levy regarding Beechwood's status as a Platinum affiliate, particularly
since there was no evidence that Feuer and Taylor were referring to Beechwood's status as an affiliate within the meaning of the Indenture. Viewing the evidenceNo s . 19 - 3207 - cr/19

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73 as a whole, a rational jury could have concluded (as this jury apparently did) th at Levy understood that Platinum controlled Beechwood and that Beechwoo d likely qualified as an affiliate for purposes of the Indenture

. W e conclude that the district court erred in granting Levy's Rule 29
motion. III. The Rule 33 Motions A. Legal Standard Rule 33 provides that, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). "Although a trial court has broader discretion to grant a new trial pursuant to Rule 33 than to grant a motion for a judgment of acquittal pursuant to Fed. R. Crim. P. 29, where the truth of the prosecution's evidence must be assumed, that discretion shoul d be exercised sparingly" and only in the most extraordinary circumstances. Sanchez , 969 F.2d at 1414 ( internal citation omitted); see also Ferguson , 246 F.3d at 134. "In evaluating a Rule 33 motion, the court must 'examine the entire case, take into acc ount all facts and circumstances, and make an objective evaluation,' keeping in mind that the 'ultimate test' for such a motion is 'whether letting a guilty verdict stand would be a manifestNo s . 19 - 3207 - cr/19

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74 injustice.'" United States v. Alston , 899 F.3d 135, 146 (2d Cir. 2018) (quoting United States v. Aguiar , 737 F.3d 251, 264 (2d Cir. 2013))

. District courts have a duty to assure "that 'competent, satisfactory and sufficient evidence' in the record supports the jury verdict," Ferguson , 246 F.3d at 134 (quoting Sanchez , 969 F.2d at 1414), and "a district court may [therefore] grant a new trial if the evidence does not support the verdict , " Archer , 977 F.3d at 187.
W hile the district court " may weigh the evidence and c redibility of witnesses," United States v. Cote , 544 F.3d 88, 101 (2d Cir. 2008), it must take care "not to usurp the role of the jury , " United States v. Canova , 412 F.3d 331, 349 (2d Cir. 2005). And w e have long recognized that courts should " generally

. . . defer to the jury's resolution of conflicting evidence and assessment of witness credibility." Ferguson , 246 F.3d at 133

. It is accordingly o nly in exceptional circumstances, where there is " a real concern that an innocent person may have been convicted, " that a court "may intrude upon the jury function of credibility assessment" and grant a Rule 33 motion. United States v. McCourty , 562 F.3d 458,
475 - 76 (2d Cir. 2009) (internal quotation marks omitted)

. Although w e have not defined exactly what constitu tes an "extraordinary
circumstance" sufficient to warrant Rule 33 relief , we recently provided furtherNo s . 19 - 3207 - cr/19

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75 guidance : " [A] district court may not grant a Rule 33 motion based on the weight of the evidence alone unless the evidence preponderates heavily against the verdict to such an extent that it would be manifest injustice to let the verdict stand." Archer, 977 F.3d at 188 (internal quotation marks omitted); see Sanchez , 969 F.2d at 1415 ("It surely cannot be said in this case that the evidence 'preponderates heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.'" (alteration omitted) ( quoting United States v. Martinez , 763 F.2d 1297, 131 3 (11th Cir. 1985) )). We note that the district court did not have the benefit of our decision in Archer when it granted Levy and Nordlicht's Rule 33 motions. Under the "preponderates heavil y" standard, which was first articulated in Sanchez and later applied in Archer , "a district court may not reweigh the evidence and set aside the verdict simply because it feels some other result would be more reasonable." Archer, 977 F.3d at 188 (internal quotation marks omitted) . "To the contrary, absent a situation in which ," for example, " the evidence was 'patently incredible or defie[d] physical realities,' . . . where an evidentiary or instructional error compromised the reliability of the verdict," id. (internal citation omitted) (quoting Ferguson , 246 F.3d at 134), or where the government's case dependsNo s . 19 - 3207 - cr/19

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76 upon strained inferences drawn from uncorroborated testimony , "a district court must 'defer to the jury's resolution of conflicting eviden ce.'" I d. (quoting McCourty , 562 F.3d at 475

- 76) ; see also Ferguson , 246 F.3d at 136

- 37 ( affirming district court's grant of Rule 33 motion where , among other things, there was no evidence that the defendant participated in the gang's activities and the o nly evidence supporting his gang membership was the speculative testimony of one of the government's witnesses). Of course, in Archer we provided the clearest examples of when it would be appropriate to grant a Rule 33 motion, but they were merely example s, and not an exhaustive list. Moreover, in applying the "preponderates heavily" standard, a district court "must be careful to consider any reliable trial evidence as a whole, rather than on a piecemeal basis." Archer, 977 F.3d at 189; see also Sanchez , 969 F.2d at 1414 ( explaining that w hen considering whether sufficient evidence "supports the jury's finding that th [ e ] defendant is guilty beyond a reasonable doubt," the district court must objectively "examine the totality of the case , " taking "[a]ll the facts and
circumstances" into account (internal quotation marks omitted)).
B. Levy ' s Motion for a New Trial The district court conditionally granted Levy's motion for a new trial forNo s . 19 - 3207 - cr/19

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77 the same reasons it granted Levy's motion for a judgment of acquittal, explaining that "the jury's guilty verdict was a manifest injustice because there was insufficient evidence that Levy possessed criminal intent." Nordlicht , 2019 WL 4736957, at *18

. The government conten ds that there is no legal basis upon which to affirm the district court's decision granting Levy a new trial because , if we agree that the district court erred in granting Levy's Rule 29 motion, our rejection of the district court's reasoning in the Rule 2 9 context must necessarily exten d to the Rule 33 motion. We disagree. While both the Rule 29 and Rule 33 analyses in this context require an assessment of evidentiary sufficiency, they have different governing legal standards. As explained, the Rule 33 inquiry requires an objective evaluation of the evidence and an assessment of whether the evidence preponderates heavily against the verdict. Accordingly, a Rule 33 motion may properly be granted

even where a Rule 29 motion is denied.
W e conclude , however, that application of the " preponderates heavily " standard does not warrant a new trial here. In light of the wealth of evidence , circumstantial and otherwise, detailed above, there was ample basis for the jury to conclude that Levy acted with the requisite criminal intent. We thereforeNo s . 19 - 3207 - cr/19

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78 conclude that t he district court erred in granting Levy a new trial.
C. Nordlicht's Motion for a New Trial In ruling on Nordlicht's Rule 33 motion, the district court noted that "[ t ] he heart of the G overnme nt's case against Nordlicht is that he knew

– but concealed from the bondholders

– that, under the A ffiliate R ule, bonds held by BAM, BBIL, PPCO, and PPLO should be excluded from the consent solicitation." Nordlicht , 2019 WL 4736957, at *16

. The district court concluded that it would be a manifest injustice to let the verdict stand because (1) "although Nordlicht knew about the affiliate rule, he and Beechwood went to great lengths to comply with [it] "; (2) there was "insufficient evidence that Nordlicht was on notice of [Beechwood's] affiliate status" ; and (3) there was " insufficient evidence that the affiliate status of PPCO and PPLO was

. . . concealed from BakerHostetler " or " that Nordlicht intended to conceal PPCO 's and PPLO's affiliate status from Shearer. " Id. at *16

- 18. Applying the " preponderates heavily " standard here, we conclude that letting the verdict stand as to Nordlicht would not result in manifest injustice.
T he district court's factual findings in connection with Nordlicht's Rule 29 motion, as well as the ample record evidence illustrating Nordlicht's knowledgeNo s . 19 - 3207 - cr/19

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79 and intent, undermine the district court's conclusions in the Rule 33 context and demonstrate that the evidence d id not preponderate heavily against the verdict. The district court therefore abused its discretion in granting Nordlicht's motion for a new trial.

1. Nordlicht Did Not Endeavor to Comply with the Affiliate Rule The district court concluded , based on a March 2014 email in which Nordlicht stated that he would be "fully compliant with the affiliate rule , " that Nordlicht actually " went to great lengths to comply with the a ffiliate r ule. " Nordlicht , 2019 WL 4736957, at *16

. In particular, in connection with the private consent solicitation process, Shearer emailed Shulse , explaining that , in calculating consent , bonds owned "by any person directly or indirectly controlling or controlled by or under direct or indirect common control with any

su ch obligor" must be excluded. GA.587

. Shulse forwarded this email to Nordlicht, Levy, and others, stating: " We need to be mindful of this provision when assuming we control the bonds or not. " Id. Nordlicht responded: " I see u accidentally forgot to i nclude Marizza and label this attorney client privilege. I have corrected . . . . But when we say we have friendly holders we will be fully compliant with this provision. " Id. While Nordlicht's email could be subject toNo s . 19 - 3207 - cr/19

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80 innoc uous interpretations, the ju ry was entitled to conclude that it was, in fact, a self

- serving exculpatory statement that was intended to conceal, rather than reveal, his intentions. Nordlicht did not identify his "friendly holders" or explain why the y were not considered "affiliates" ; he did not ask any questions or seek further advice regarding the application of the Affiliate Rule; and he reprimanded Shulse for failing to label the email "attorney client privilege" and then changed the subject heading to "Atty client privilege" in w hat a rational jury could have concluded was an effort to shield this email from discovery. Indeed, as the district court noted in denying Nordlicht's Rule 29 motion, the jury could have reasonably concluded that under the circumstances , Nordlicht's email "indicated a desire to create a favorable paper tra i l, rather than a good faith desire to comply with the affiliate rule." Nordlicht , 2019 WL 4736957, at *9 ; id. at *16 (acknowledging that Nordlicht may have been "dissembling" to create a "favorable paper trail") . It was not , we think, the province of the district court to grant a new trial "simply because it believes other inferences and conclusions are more reasonable." Van Steenburgh v. Rival Co. , 171 F.3d 1155, 11 60 (8th Cir. 1999) ;

s ee also Archer, 977 F.3d at 188

. Moreover, the trial evidence as a whole undercuts any notion thatNo s . 19 - 3207 - cr/19

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81 Nordlicht was acting in good faith to comply with the Affiliate Rule

. For example, after the private consent solicitation process was terminated based on concerns about the manner in which the consents had been obtained , Nordlicht expressed disdain for the rules and urged Shulse, Small, and Levy to cut out the lawyers and circumvent the bondholders. Nordlicht wrote: "No more talking to lawyers. . . . We w ill have one pager signed by 51% of bondholders, no trustee necessary. It’s fine. We don ' t need any process. Bondholders are being taken out, this is all moot. " GA.625. Similarly, once the amendments to the Indenture passed, Nordlicht was apprised tha t distribution of the proceeds from the Renaissance Sale might violate Texas law. Instead of seeking further guidance from Black Elk's lawyers , Nordlicht immediately emailed Levy, directing him to "get th[o]se wire s out !! !!!" GA.781. This email evidence, viewed collectively, supports an inference that Nordlicht intended to secur e the passage of the amendments to the Indenture, regardless of whether he violated any laws or harmed the bondholders in the proces s. In addition, Nordlicht had a habit of labeling sensitive emails relating to Black Elk's impending bankruptcy "attorney client privilege" even when they did not involve advice of counsel. Specifically, on May 20, 2013, Shulse emailedNo s . 19 - 3207 - cr/19

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82 Nordlicht, Small, and Levy about Black Elk's precarious financial situation and the need to generate liquidity through asset sales. Nordlicht responded, with a

c opy to Pich è , Black Elk's in

- house counsel, calling Shulse "hysterical" and reprimanding him for failing to label his email "atty client privilege." GA.614

. Nordlicht also changed the subject heading of the email to "atty client privilege." Id. As Shulse noted, it is not clear why "a business issue such as cash flow would need to be covered by attorney client privilege." Id. This email exchange fu rther supports the inference that Nordlicht likely knew he was engaged in wrongful conduct and was seeking to cover his tracks. Taken together, these emails can reasonably be interpreted to demonstrate that Nordlicht did not intend to comply with the A ff iliate R ule (or , for that matter, any other legal restriction preventing the distribution of the proceeds from the Renaissance Sale to the preferred equity holders). And viewed in context, there was ample support for a jury to conclude that Nordlicht's March 2014 email was simply a part of a cover

- up to conceal the fraud perpetrated against the bondholders.

2. Sufficient Evidence Supports the Conclusion that Beechwood Was a n Affiliate and that Nordlicht Was on Notice of its Affiliate Status The district court also concluded that it would be a manifes t injustice to letNo s . 19 - 3207 - cr/19

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83 the verdict stand, because

– even assuming that the Beechwood entities (BBIL and BAM) were considered Platinum entities and therefore Black Elk affiliates under the Affiliate Rule

– there was insufficient evidence that Nordlicht was on

n otice of the Beechwood entities' affiliate status. Nordlicht , 2019 WL 4736957, at *17

. Nordlicht contends that the district court did not abuse its discretion in granting his motion for a new trial because (1) the record does not support the conclusion t hat Beechwood was an affiliate ; and (2) the district court correctly concluded that Nordlicht did not believe Beechwood was a n affiliate. We disagree. Under the terms of the Indenture, in determining whether there is consent to any proposed amendment, b onds held "by the Permitted Holders, the Issuers or any Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Permitted Holders , the Issuers or any Guarantor , will be considered as though not outstanding." GA.888

. In other words, Black Elk

– as the issuer

– as well as entities that controlled, or were under common control with, Black Elk , were not entitled to have their votes counted in determining whether a majority of bonds

co nsented to any proposed amendment. The Indenture defined the termsNo s . 19 - 3207 - cr/19

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84 "affiliate" and "control" as follows:

" Affiliate " of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition,

" control , " as used with respect to any Person, mean s the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% o r more of the Voting Stock of a Person will be deemed to be control. For purposes of this definition, the terms " controlling , "

" controlled by " and " under common control with " have correlative meanings. GA.861 (emphasis in original)

. These definitions of affiliate and control mirror those found in the TIA

. See 17 C.F.R. § 260.0

- 2(b) ( " The term ' affiliate ' means a person controlling, controlled by, or under common control with, another person."); id. § 260.0

- 2(f) ("The term ' control ' means the power to di rect the management and policies of a person, directly or through one or more intermediaries, whether through the ownership of voting securities, by contract, or otherwise.")

. It is undisputed that Platinum , through PPVA , controlled Black Elk, because PPVA owned 85% of the common equity of Black Elk. Accordingly, as the parties note, the relevant question is whether Beechwood was also under the common control of Platinum , such that it constitute d an affiliate of Black Elk

.No s . 19 - 3207 - cr/19

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85 Whether Beechwood was under Platinum's control, in turn, depends on whether Platinum could in effect direct Beechwood's management and policies. Here, as the district court found in denying Nordlicht's Rule 29 motion, there was sufficient evidence to sup port the jury's conclusion that Beechwood was under the common control of Platinum and therefore was a Black Elk affiliate. See Nordlicht , 2019 WL 4736957, at * 11 . The government presented evidence that Nordlicht founded Beechwood with the sam e partners with whom he founded Platinum (Huberfeld and Bodner), as well as two additional
investors

– Mark Feuer and Scott Taylor. Upon the creation of Beechwood, Nordlicht filled several critical positions at Beechwood with Platinum employees. Levy (who had serve d as a portfolio manager at Platinum and had been heavily involved in managing Platinum's investments in Black Elk) joined Beechwood as its CIO and worked at Beechwood while continuing his work related to Black Elk at Platinum . Naftali Manela (who had ser ved as Chief Financial Officer of PPCO from 2008 through 2014, and Chief Operating Officer of Platinum from late 2014 through 201 5 ) was asked in early 2014 to assist in "set[ting] up [Beechwood's] reporting , " determ ining how much money could be invested by Beechwood into Platinum, and assessing how those investments inNo s . 19 - 3207 - cr/19

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86 Platinum could be made. GA.198

- 201 . Will Slota

– another Platinum employee

– also worked at Beechwood, and Huberfeld acted as an advisor to Beechwood. A nd Beechwood investment manager Wallach , whom Nordlicht had assisted in obtaining a position at Beechwood , followed Nordlicht's instructions regarding the track ing and purchase of Black Elk bonds

. 5 Nordlicht also occasionally worked out of Beechwood's of fice s to take phone calls and participate in meetings. Moreover, pursuant to an email from Huberfeld outlining Beechwood's corporate terms, the "Nordlicht group" was responsible for "run[ning] the investment allocation side" of Beechwood, while the "Feue r group w[ould] run the insurance end." GA.582

. Similarly, Manela testified that Feuer and Taylor

5 Nordlicht relies on Wallach's testimony for the proposition that Nordlicht merely held an advisory role at Beechwood and did not have the authority to direct Wallach to buy a particular position. But Wallach's statements on cross

- examination were inconsi stent with his direct testimony and contemporaneous email communications with Nordlicht, which demonstrate that , on multiple occasions, Nordlicht directed Wallach to purchase Black Elk bonds from the Platinum funds, and that Wallach deferred to Nordlicht r egarding how to vote Beechwood's Black Elk bonds. Wallach also testified that he frequently communicated with Nordlicht about his work at Beechwood, and that Nordlicht told Wallach how much money Wallach and his partner could invest on behalf of BAM. In light of the documentary evidence and testimony suggesting that Nordlicht exercised significant control over Wallach and Beechwood, the jury was entitled to weigh Wallach's testimony and discount Wallach's statements that contradicted the documentary and o ther evidence presented at trial.No s . 19 - 3207 - cr/19

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87 were running the " insurance side " of the business , while Levy was "running the investment side [ of the business ] " and making the decisions regarding the "pr ivate equity type investments." Supp

. GA.04

- 06

. A fter Beechwood was founded , Nordlicht and Levy directed Beechwood's investments into portfolio companies and securities in which Platinum had already invested , and transferred certain investments from Platinum to Beechwood to benefit Platinum. And Nordlicht had sufficient control over Beechwood to be able to direct the trading of over $37 million in Black Elk bonds from the Platinum funds to Beechwood over a th ree - month period prior to the public consent solicitation
process. Nordlicht himself acknowledged that Platinum exercised control over Beechwood. In a May 2 2 , 2014 email chain, Nordlicht wrote to Peter Muehlsiegl

– a potential business partner

– regarding investment opportunities: "Get me good risk adjusted opportunity!! I feel like I sh[oul]d do some more due diligence on co before I answer rate. . . . On this on e I w[oul]d do whole piece by splitting up between our fund [PPVA] and our reinsurance mandate [(Beechwood)] so it's [P]latinum or designees ." GA.620 (emphasis added)

. After Muehlsiegl notified Nordlicht of a potential investment, Nordlicht wrote to him: " Do you mind if INo s . 19 - 3207 - cr/19

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88 have my pm [(portfolio manager)] who handles specifics on these kind of trades, Bernie Hutman call u? Obviously it ' s large amount, don ' t want to miss anything. The issue is besides Platinum we have reinsurance mandate and I ' d like to split it among entities, though all controlled by us

. " GA.618 (emphasis added)

. Later in the email chain, Nordlicht wrote to Hutman: " If it helps we sh[oul]d be b asset manager [ ( BAM ) ] as opposed to [P]latinum on these things. " GA.617

. Nordlicht's email correspondence confirms that Platinum exercised significant control over Beechwood's investment decisions. Viewed collectively with the other record evidence, there appears to have been ample evidence from which t he jury could conclude that Platinum had "the power to direct or cause the direction of the management or policies of" Beechwood and that therefore Beechwood and Black Elk w ere under the common control of Platinum. Accordingly, the evidence does not preponderate heavily agains t a finding that Beechwood was an affiliate. 6

6 The civil cases cited by Nordlicht do not compel a different result. Unlike in Waldman ex rel. Elliott Waldman Pension T r. v. Riedinger , 423 F.3d 145, 151

- 52 (2d Cir. 2005), where there was no evidence that Riedinger a ctually exercised control over any of the relevant entities and his actions were subject to veto, there is no evidence that Nordlicht ' s decisions were subject to veto by anyone, either pursuant to Beechwood's corporate terms or in practice, and there is si gnificant evidence in the record supporting the conclusion that Platinum had the power to cause the direction of Beechwood'sNo s . 19 - 3207 - cr/19

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89 In addition , based on all the foregoing evidence, the re was sufficient evidence for the jury to conclude that Nordlicht knew Beechwood was an affiliate of Black Elk . Indeed, as the district court noted i n connection with Nordlicht's Rule 29 motion, there was ample evidence "to suggest that Nordlicht knew about the affiliate rule" and did not have a "good faith desire to comply with" it. Nordlicht , 2019 WL 4736957, at *9 . A s reflected in the May 2014 ema il chain , Nordlicht recognized that Platinum exercised control over Beechwood and that Beechwood's relationship to Platinum could potentially implicate the A ffiliate R ule

. Nordlicht could have disclosed Beechwood's relationship with Platinum to Shearer and sought legal advice

. But instead, "Nordlicht and his

management and policies. Similarly, in contrast to Rothstein v. AIG , 837 F.3d 195, 207

- 09 (2d Cir. 2016), where we found that AIG lacked control over several employee benefit plans because the Employe e Retirement Income Security Act of 1974 ("ERISA") imposed stringent limitations on AIG's authority to manage the plans, here there was no complicated regulatory scheme that restricted P latinum's ability to control Beechwood. In Grail Semiconductor, Inc. v. Stern , No. 2:13

- cv - 03687

- SJO

- AGR , 2014 WL 12647935, at *4

- 5 (C.D. Cal. Feb. 27, 2014), the court merely denied a motion for summary judgment because it concluded that there were mater ial disputes of fact as to the defendant's affiliate status for purposes of section 4(1) of the Securities Act ; the court there made no determination as to what was necessary to qualify for affiliate status. Moreover, Grail did not involve a company, like Platinum, whose executives (here, Nordlicht and Levy) ran a core part of the alleged affiliate company's business, controlled the alleged affiliate company's investment decisions, and controlled the way in which the alleged affiliate company voted in conn ection with its investments. And lastly, Emerson v. Mut. Fund Series Tr. , 393 F. Supp. 3d 220 (E.D.N.Y. 2019), did not discuss in what circumstances an entity may qualify as an "affiliate" and therefore has no relevance here.No s . 19 - 3207 - cr/19

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90 colleagues played their cards close to their vests by providing limited and potentially contradictory information to Shearer about PPCO and PPLO whi le concealing the extent of Beechwood's ties to Platinum." Id. at *10. The district court discounted th e May 2014 email exchange , concluding that "[t]here i s no reason to believe Nordlicht meant 'controlled' in the technical sense of 'control' under the TIA or the bond indenture , " and noted that there "would have been nothing unlawful about Nordlicht simply attempting to persuade individuals at Beechwood to vote in a certain manner" just like any stakeholder in the consent solicitation. Id. at *17. But it was reasonable for the jury to conclude that, in light of Nordlicht's express statements recognizing that Platinum controlled Beechwood, Nordlicht understood that Beechwood likely qualified as an affiliate. While the language in th e May 2014 email "cou ld be subject to both legitimate and nefarious interpretations, the jury did not misinterpret [] the email[] in concluding the latter." Archer , 977 F.3d at 191 (first alteration in original) (internal quotation marks omitted)

. This conclusion is buttre ssed by the wealth of other circumstantial evidence supporting an inference that Nordlicht knew Beechwood was an affiliate and intended to use Beechwood to defraud the Black Elk bondholders.No s . 19 - 3207 - cr/19

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91 As discussed above, Nordlic h t was notified of the Affiliate Rule on several
occasions. Nordlicht expressed disdain for amending the indenture through any formal process and directed his co

- conspirators not to talk to the lawyers working on the transaction

. Nordlicht went out of his way to label communications with his alleged co - conspirators regarding the Affiliate Rule, Black Elk, and the Renaissance Sale "attorney client privilege" in what the jury could have reasonably concluded was an effort to cover his tracks

. A s one of the
f ounders of both Platinum and Beechwood, Nordlicht actively monitored the number of Black Elk bonds collectively and individually held by the Platinum and Beechwood entities, and exercised control over Beechwood's investment s , including in Black Elk. And N ordlicht decided to inform Shearer of the affiliate status of the two other Platinum entities

– PPCO and PPLO

– only after confirming th at the amendments would pass with just Beechwood's votes. The trial evidence , taken together, does not preponderate hea vily against the conclusion that Nordlicht knew Beechwood was an affiliate and acted with criminal intent in concealing this information from the bondholders

. 3. Nordlic h t Concealed Platinum ' s Ownership of Black Elk Bonds The district court further conclude d that it would be a manifest injustice toNo s . 19 - 3207 - cr/19

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92 sustain Nordlicht's conviction because it found that there was insufficient evidence for the jury to conclude that Platinum intended to conceal PPCO and PPLO's affiliate status from Shearer. Nordlicht , 2019 WL 4736957, at *17

. In reaching this conclusion , the district court noted that (1) in or around May 2014, when Black Elk submitted its consents in connection with the private consent solicit ation process, Shearer was made aware that PPCO, PPLO, and PPVA collectively owned about $100 million of the Black Elk bonds; (2) a BakerHostetler memorandum , dated July 1, 2014, indicat ed that approximately $90 million of Black Elk bonds were owned by com panies that were "friendly" to Platinum; and (3) Small informed Shearer on August 14, 2014 about PPLO 's and PPCO's bonds. Id. We have , however, several problems with the district court's analysis.
First , even if the district court were correct that the evidence demonstrates that Nordlicht never intended to conceal PPCO and PPLO's affiliate status from Shearer (which we conclude it is not), there is, as we have discussed , substantial circumstantial evidence from which a jury could conclude that Nordlicht understood that Beechwood was an affiliate and intended to conceal its affiliate status from the bondholders in order to ensure that the proceeds from theNo s . 19 - 3207 - cr/19

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93 Renaissance Sale would go to the preferred equity holders. Because Beechwood's Black Elk bonds were independently sufficient to fraudulently secure the passage of the amendments to the Indenture, any disclosures made by Nordlicht regarding the PPCO

- and PPLO

- held Black Elk bonds do not undermine the jury's verdict or lead us to conclude that the evidence preponderates heavily against the verdict. Moreover, the purported disclosures upon which the district court relie d do not preponderate heavily a gainst the conclusion that Nordlicht acted with criminal intent. T he May 2014 disclosure related solely to the private consent solicitation process and occurred three months prior to the public consent solicitation process. T his alleged disclosure was no t made by Nordlicht in the course of a discussion with Shearer about the Affiliate Rule

. Instead , it simply consisted of an email sent to Shearer and Shulse

– from outside counsel, not Nordlicht

– towards the end of the private consent solicitation proce ss for the
purpose of demonstrating that the consents Black Elk had received "constitute[d] a majority of the outstanding [n]otes." SA.1402

- 08

. To that end, the email disclosed the number of bonds held by PPVA, PPCO, and PPLO at that time and indicated t hat those bondholders had consented to the proposed amendments

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94 See id. T here is no evidence of which we are aware that after being notified of the Affiliate Rule in March 2014 , Nordlicht disclosed the PPCO

- or PPLO

- held bonds as having a relationship with Platinum and Black Elk that could render them affiliates . Nor is there any evidence that Nordlicht solicited guidance from Shearer regarding PPCO or PPLO's affiliate status. The email also disclosed the
P latinum entities' bond holdings as of May 2014, and Platinum transferred many of these bonds to Beechwood after this date . T h e May 2014 disclosure therefore did not accurately reflect the number of P PCO

- and PPLO

- held bonds prior to the public consent sol icitation process. In addition , in connection with the later public consent solicitation process, Shearer asked Small on several occasions to verify Platinum 's and its affiliates' ownership of Black Elk bonds, and

– after consulting with Nordlicht and Le vy
– Small repeatedly told Shearer that only PPVA's $18.3 million bonds should be disclosed and excluded from the calculation. Nordlicht was aware of how many Black Elk bonds PPCO and PPLO owned, and Small's email disclosure of the PPCO

- and PPLO

- owned bo nds to Shearer only after the Consent Solicitation had passed

– when they knew they had enough votes to secure the pass age of the amendments based on the Beechwood

- held bonds

– supports an inferenceNo s . 19 - 3207 - cr/19

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95 that Nordlicht understood that PPCO and PPLO would likely be deemed affiliates and chose not to disclose them . This inference is further corroborated by the email evidence that Nordlicht discouraged involving the lawyers and expressed a desire to circumvent the bondholders. The BakerHostetler memo upon which the district court relied also does not render the verdict a manifest injustice. T he memo was not admitted into evidence and is therefore not a part of the record ; the district court excluded it as hearsay. On cross

- examination, Shearer testified that after the public consent solicitation process terminated, he later learned of a n internal BakerHostetler

memo (dated July 1, 2014) that disclosed that Platinum, along wit h companies friendly to it, owned $90 million of Black Elk bonds. That information, however, was not disclosed to Shearer at the time of the public consent solicitation process. Moreover, there i s no evidence in the record that Nordlicht provided the inf ormation that formed the basis for this memo, that this memo was completed at Nordlicht's request, or that the memo opined on the affiliate status of any of the Platinum

- related entities . Nor is there any evidence that Nordlicht received or relied on any such memo in formulating his views about the Affiliate Rule. It is unclear how a memo unrelated to Nordlicht, undisclosed (at the time) toNo s . 19 - 3207 - cr/19

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96 Shearer and sent to lawyer s who were not working on the public consent solicitation process negates Nordlicht's inte nt to conceal the PPCO

- and PPLO

owned bonds , particularly where, as here, Nordlicht affirmatively concealed information related to PPCO, PPLO, and Beechwood in response to Shearer's inquiries related to the Affiliate Rule. While we agree with the distric t court that

" BakerHostetler attorneys could have communicated better internally . . . and externally" and that Shearer could have been more proactive in "spot[ting] and explor[ing] a significant legal issue," Nordlicht , 2019 WL 4736957, at *18 , we do not agree , in light of the record evidence as a whole, that Shearer's perhaps less

than

- exemplary legal work in this instance preponderates heavily against a finding that Nordlicht ha rbored criminal intent

. We find t he district court's reliance on Small' s August 14, 2014 email to Shearer disclosing the PPLO

- and PPCO

- owned bonds also to be misplaced . At this point, the public consent solicitation process had closed and Nordlicht and Levy had successfully obtained the votes necessary to secure the passage of the amendments to the Indenture notwithstanding the PPCO

- and PPLO

- owned bonds. Moreover, Small's email gave no indication that Platinum also controlled the bonds held by Beechwood. The jury was entitled to infer that Small's email

–No s . 19 - 3207 - cr/19

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97 sent after the t ransaction closed and Platinum had secured a sufficient number of votes to ensure the amendments' passage
– was simply an effort to cover their tracks, rather than an act in good faith. Viewing the evidence as a whole, a reasonable jury could have concluded , we think, that Nordlicht acted with the intent to conceal the PPCO

- and PPLO

- owned bonds from Shearer. "[T ] he mere fact that competing inferences existed does not compel a finding that the evidence preponderated heavily against the verdict." A rcher, 977 F.3d at 195.
4. Nordlicht's Alternative Grounds for Affirming the District Court's Decision Are Unpersuasive On appeal, Nordlicht raises several additional bases for affirming the district court's decision. First, Nordlicht argues that a new tria l is warranted because the government asked the jury to convict on a theory of "affiliate" that has no basis in law . Second, Nordlicht contends that the record does not support the inference that the $ 18.3 million bond disclosure in the Consent Solicitati on was material. Lastly, Nordlicht argues that the evidence weighed overwhelmingly against the conclusion that he had criminal intent. For all the

reasons set forth above, the evidence does not preponderate against theNo s . 19 - 3207 - cr/19

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98 conclusion that Nordlicht had crimi nal intent. We therefore turn to Nordlicht's first two arguments, which we also conclude lack merit. 7 a) The Government Did Not Improperly Argue the Affiliate Rule Nordlicht argues that letting the verdict stand would result in manifest injustice because "the government openly encouraged the jury to apply a version of the affiliate rule that was entirely unmoored from the applicable legal definition." Nordlicht Br. at 51

. Nordlicht points out that the government argued and elicited test imony from Shearer and Dixon Yee , a Black Elk bondholder , that the purpose of the Indenture's Affiliate Rule was to ensure that "affiliated" bondholders who were not looking out for the best interests of the bondholders could not vote in the consent solici tation process. Id. Nordlicht also faults the government for urging the jury

– during its closing argument

– to use

7 The government argues that we should not reach Nordlicht's alternative grounds for affirmance because an appellate court may not affirm "the grant of a new trial under Rule 33 on a basis other than that identified by the district court." But as the gove rnment itself acknowledges, we have long held that "we may affirm on any basis for which there is sufficient support in the record, including grounds not relied on by the [d]istrict [c]ourt." Havlish v. 650 Fifth Ave. Co. , 934 F.3d 174, 183 n.10 (2d Cir. 2019) (quoting Ferran v. Town of Nassau , 471 F.3d 363, 365 (2d Cir. 2006)). We therefore reject the government's argument.No s . 19 - 3207 - cr/19

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99 common sense in evaluating the evidence of control. We find Nordlicht's arguments to be unpersuasive. As the district court noted in rejecting Nordlicht's c hallenges to the
g overnment's summation in connection with his Rule 29 motion, in addition to urging the jury to use their "common sense , " the g overnment "also informed jurors that they 'will have the definition of affiliate' and 'sh ould ask for it, it is in the indenture, but it is the power to control.'" Nordlicht , 2019 WL 4736957, at *12 ; see also GA.568

. The g overnment further told the jury that " control " was "defined in the indenture, Government's Exhibit 9507, page seven." GA.525

. As the district court explained : " T here is nothing improper about the Government directing the jury to use the proper standard but also remin d ing the jury not to leave its c ommon sense at the door." Nordlicht , 2019 WL 4736957, at *12

. Nor was the g overnment's argument or witness testimony regarding the purpose of the Affiliate Rule and the TIA so prejudicial that it would be a manifest injustice to let the verdict stand. The government's evidence concerning the Affiliate Rule was based on the text of t he Indenture, the Consent Solicitation , and the T IA . Shearer testified that the TIA seeks to make sure the bondholders who are voting[] are looking out for the best interest of the bondholders, not looking out for the best interest of BlackNo s . 19 - 3207 - cr/19

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100 Elk. So if Black Elk held bonds, you wouldn't count those bonds in a vote. In other words, Black Elk couldn't vote its own bonds to amend the indenture to help itself and, by the same to ken, entities that controlled Black Elk and held bonds, you couldn't vote those bonds either. . . . [A]nybody that was under a common control with Black Elk, would be picked up by th[e Affiliate] [R]ule. GA.432

– 33. Yee testified that " affiliated " or " int erested " bondholders were not permitted to vote in the c onsent s olicitation process . SA.119

– 20 . Similarly, the government argued in summation that "the whole point" of the Affiliate Rule is that a person who is "an insider who's voting for their own separate interests and not the bondholders' interest" cannot be counted. GA.525

. There was nothing improper about this line of testimony or argument . I t merely conveyed the obvious fact that , under the Black Elk Indenture , affiliated bondholders who are looking out for the interests of Black Elk, instead of the larger interests of the Black Elk bondho lders, are not permitted to vote on something that alters the rights of all the bondholders. b) The Defendants' Fraudulent Disclosures and Omissions Were Material Nordlicht also argues that the government failed to prove that the misrepresentation in the Consent Solicitation that PPVA and its affiliates held $18.3 million Black Elk bonds was material, because the evidence does notNo s . 19 - 3207 - cr/19

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101 establish that a reasonable investor would find it important in making an investment decision. We disagree. Whether a given omission or misrepresentation is material " is a mixed question of law and fact that the Supreme Court has identified as especially ' well suited for jury determination. ' " United States v. Litvak , 808 F.3d 160, 175 (2d Cir. 2015) ( quoting TSC Indus., Inc. v. Northway, Inc. , 426 U.S. 438, 450 (1976) ). To fulfill the materiality requirement, the defendant must show "a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the total mix of information made available. " Basic Inc. v. Levinson , 485 U.S. 224, 231

- 32 (1988) (internal quotation marks omitted) ; see also Litvak , 808 F.3d at 175 ( finding that a misrepresentation is material " where there is a substantial like lihood that a reasonable investor would find the

. . . misrepresentation important in making an investment decision. " (ellipsis in original) (internal quotation marks omitted)). Here, there was ample evidence t o support the conclusion that the defendants ' misrepresentation in the Consent Solicitation Statement was material. The Consent Solicitation Statement provided that the proposed amendments would pass only if a majority of the outstanding bonds, excludingNo s . 19 - 3207 - cr/19

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102 any bonds affiliated with Black Elk, voted in favor of the amendments. Yet the defendants and their co

- conspirators disclosed only th e $18.3 million bonds owned by PPVA and otherwise indicated that "neither we, nor any person directly or indirectly contro lled by or under direct or indirect common control with us, nor, to our knowledge, any person directly or indirectly controlling us, held any Notes." GA.819. By misrepresenting the number of bonds held by affiliates under common control with Black Elk , t he defendants misled the bondholders into thinking that the outcome of the public consent solicitation
process would be a product of a legitimate vote when, in fact , it was predetermined based on the votes of the PPCO

- , PPLO

- , and Beechwood

- held bonds, ove r which Platinum exercised control. The number of affiliated bonds was " material to [ the ] bondholders because it altered the calculus of consent." Nordlicht , 2019 WL 4736957, at *12

. As the district court explained in rejecting Nordlicht's argument in connection with his Rule 29 motion : T he bondholders knew the total number of bonds involved in the vote

– $150 million. If no bonds were held by Platinum affiliates, then the consent solicitation would only pass if the bondholders representing over $75 million in bonds voted in favor of it. But the more bonds held by Platinum affiliates, the lower the threshold forNo s . 19 - 3207 - cr/19

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103 the consent solicitation to pass since fewer bondholders have to vote in favor of the amendment for it to pass. If the bondholders who opposed the amendment but thought it would fail had known that PPCO, PPLO, BAM, or BBIL

– in addition to PPVA

– were Platinum affiliates, they would have inferred that the amendment would be more likely to pass. The probability that the amendment would pass mattered to Black Elk bondholders because of the stakes of the amendment: the bondholders gave up their rights to get paid before the preferred equity holders from the Renaissance [S] ale. If the bondholders who opposed the amendment knew the amendment was more likely to pass, they would then be more likely to tender their bonds in the consent solicitation if they decided it would not be worth investing in Black Elk in light of the amended indenture. Id. This conclusion is buttressed by testimony from victim bondholders who explained at trial that accurate information regarding the number of bonds controlled by Platinum would have been important to them in deciding whether to tender their bonds. Yee, for example, testified that he would have found that information to be important. Pulvi no, another Black Elk bondholder, similarly testified that the number of affiliated bondholders "had a lot of significance

. . . because [he] w[as] trying to figure out the probability that the consents would pass" and that probability increased based on t he number of affiliated bonds that were excluded from the vote. GA.487

- 88. Pulvino reasoned that if only $18.3 million bonds were affiliates "that meant there were 132 million [bonds] leftNo s . 19 - 3207 - cr/19

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104 outstanding, 150 million minus the 18," and therefore, in order t o get a majority
vote , Black Elk would need "66 million bonds to vote in favor" of the amendments. Id. Based on this calculus, Pulvino concluded that "that was too many bonds to convince to remove the restricted covenants on the bonds" and he therefore t hought that the likelihood of the amendments' passage was slim. GA.488

- 89. If , instead, he had known that a much larger number of bonds were affiliates and would therefore be excluded from the vote , the probability of the amendments' passage would have i ncreased and he "would have thought more about tendering [his] notes" because he "wouldn't have wanted to hold th[o]se notes without the protective covenants that were in place." GA.501

- 02. The trial evidence as to materiality leads us to conclude that the evidence does not preponderate heavily against the verdict. CONCLUSION We have considered the parties ' remaining arguments on appeal and conclude that they are without merit. For the reasons explained above, w e VACATE the district court's orde r and judgment and REMAND for further proceedings consistent with this opinion

.