* The Clerk of the Court is directed to amend the official caption to conform to the names listed above. 08-6211-cr(L) United States v. Ferguson **UNITED STATES COURT OF APPEALS** 1 2 **FOR THE SECOND CIRCUIT** 3 4 August Term, 2010 5 6 7 (Argued: November 17, 2010 Decided: August 1, 2011) 8 9 Docket Nos. 08-6211-cr(L), 09-0121-cr(Con), 09-0313-cr(XAP), 10 09-0507-cr(Con), 09-0881-cr(XAP), 09-1072-cr(Con), 11 09-1120-cr(XAP), 09-1677-cr(Con), 09-1723-cr(XAP), 12 09-2127-cr(Con), 09-2141-cr(XAP) 13 14 - - - - - - - - - - - - - - - - - - - - -x 15 16 UNITED STATES OF AMERICA, 17 18 Appellee , 19 20 - v.- 21 22 RONALD E. FERGUSON, CHRISTOPHER P. GARAND, ELIZABETH A. 23 MONRAD, ROBERT D. GRAHAM, CHRISTIAN M. MILTON, 24 25 Defendants-Appellants

. * 26 27 - - - - - - - - - - - - - - - - - - - -x 28 29 Before: JACOBS, Chief Judge , KEARSE and STRAUB, 30 Circuit Judges

. 31 32 The defendants, four executives of General Reinsurance 33 Corporation (“Gen Re”) and one of American International 34 Group, Inc. (“AIG”), appeal from judgments of the United 35 States District Court for the District of Connecticut 362 (Droney, J. ), convicting them of conspiracy, mail fraud, 1 securities fraud, and making false statements to the 2 Securities and Exchange Commission. The charges arose from 3 an allegedly fraudulent reinsurance transaction between AIG 4 and Gen Re that was intended to cure AIG’s ailing stock 5 price. 6 We vacate the defendants’ convictions and remand for a 7 new trial. 8 SETH P. WAXMAN (Jonathan E. Nuechterlein, 9 Catherine M.A. Carroll, Washington, DC, 10 and Paul A. Engelmayer, Daniel C. 11 Richenthal, Julia M. Lipez, New York, NY, 12 on the brief ), Wilmer Cutler Pickering 13 Hale and Dorr LLP, Washington, DC, for 14 Defendant-Appellant Ronald E. Ferguson. 15 16 ROBERT J. CLEARY (Anthony Pacheco, Keith 17 Butler, Los Angeles, CA, and Mark D. 18 Harris, William C. Komaroff, New York, 19 NY, on the brief ), Proskauer Rose LLP, 20 New York, NY, forDefendant-Appellant 21 Christopher P. Garand. 22 23 IRA M. FEINBERG (Katie M. Lachter, New 24 York, NY, and Dominic F. Perella, 25 Washington, DC, on the brief ), Hogan 26 Lovells US LLP, New York, NY, for 27 Defendant-Appellant Elizabeth A. Monrad. 28 29 ALAN VINEGRAD (Jonathan L. Marcus and 30 Pamela A. Carter, on the brief ), 31 Covington & Burling LLP, New York, NY, 32 forDefendant-Appellant Robert D. Graham. 33 34 FREDERICK P. HAFETZ (Victor J. Rocco, 35 Tracy E. Sivitz, Hafetz Necheles & Rocco, 363 New York, NY, and Kannon K. Shanmugam, 1 George W. Hicks, Jr., Williams & Connolly 2 LLP, Washington, DC, on the brief ), 3 Hafetz & Necheles, New York, NY, for 4 Defendant-Appellant Christian M. Milton. 5 6 ERIC J. GLOVER and RAYMOND E. PATRICCO, 7 JR. (William J. Nardini and David B. 8 Goodhand, on the brief ), Assistant United 9 States Attorneys, forNora R. Dannehy, 10 Acting United States Attorney for the 11 District of Connecticut, New Haven, CT, 12 and Neil H. MacBride, United States 13 Attorney for the Eastern District of 14 Virginia, Alexandria, VA, forAppellee

. 15 16 17 **TABLE OF CONTENTS** 18 19 BACKGROUND ....................... 6 20 21 I - All Defendants’ Claims . . . . . . . . . . . . . . . 22 22 A - Stock Price Data . . . . . . . . . . . . . . . . 23 23 B - Jury Charges . . . . . . . . . . . . . . . . . . 27 24 1 - “Willfully Caused” Instruction . . . . . . 27 25 2 - “Conscious Avoidance” Instruction . . . . . 31 26 3 - “Specific Unanimity” Instruction . . . . . 34 27 4 - “No Ultimate Harm” Instruction . . . . . . 38 28 C - Prosecutorial Misconduct . . . . . . . . . . . . 40 29 1 - Napier’s Potential Perjury . . . . . . . . 40 30 2 - Summation Remarks . . . . . . . . . . . . . 46 31 32 II - Ferguson’s Claims . . . . . . . . . . . . . . . . . 50 33 A - Sufficiency Challenge to Scienter Evidence . . . 51 34 B - Graham’s Email: “[Ferguson] et al[.] have been 35 advised of, and have accepted, the potential 36 reputational risk” . . . . . . . . . . . . . . 52 37 1 - Double-Hearsay . . . . . . . . . . . . . . 53 38 2 - Severance from Graham . . . . . . . . . . . 56 39 3 - Summation . . . . . . . . . . . . . . . . . 60 40 C - Finding that Conspiracy Began with First Call . 61 41 42 III - Graham’s Claim s . . . . . . . . . . . . . . . . . . 63 43 A - Requested Jury Instructions . . . . . . . . . . 64 444 1 - Professional Responsibility Rules . . . . . 64 1 2 - Non-Contractual Understandings . . . . . . 66 2 B - Treatment of Graham’s Boss . . . . . . . . . . . 67 3 4 IV - Milton’s Claims . . . . . . . . . . . . . . . . . . 70 5 A - Admissibility of Recordings Denigrating AIG . . 70 6 B - Severance from Gen Re Defendants . . . . . . . . 73 7 8 V - Monrad’s Claim s . . . . . . . . . . . . . . . . . . . 75 9 10 VI - Garand’s Claims . . . . . . . . . . . . . . . . . . 78 11 12 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 78 13 14 15 16 DENNIS JACOBS, Chief Judge : 17 This criminal appeal arose from a “finite reinsurance” 18 transaction between American International Group, Inc. 19 (“AIG”) and General Reinsurance Corporation (“Gen Re”). 20 That transaction (the “Loss Portfolio Transfer,” or “LPT”) 21 reallocated risk in a way that shored up AIG’s flagging loss 22 reserves, which were feared to be dragging down its stock 23 price. Finite reinsurance transactions, which entail some 24 (usually low) risk, are acceptable accounting measures in 25 the insurance industry, and have their uses; but in this 26 instance it is charged that the transaction entailed no risk 27 at all, and was a fraud. The defendants, four executives of 28 Gen Re and one of AIG, appeal from judgments entered in 2008 295 and 2009 by the United States District Court for the 1 District of Connecticut (Droney, J. ), convicting them of 2 conspiracy, mail fraud, securities fraud, and false 3 statements made to the Securities and Exchange Commission 4 (“SEC”). They were sentenced principally to prison terms 5 ranging from one to four years, and are free on bail pending 6 this appeal. 7 The government’s case depended heavily on testimony 8 from two cooperating witnesses--Richard Napier, a senior 9 executive of Gen Re; and John Houldsworth, a senior 10 executive of Cologne Re Dublin (“CRD”), an Irish subsidiary 11 of Gen Re--who had pled guilty to similar charges. Their 12 testimony was bolstered by contemporaneous recordings of 13 calls involving Houldsworth (a normal business practice in 14 Ireland for derivatives traders). The government also 15 introduced AIG stock-price data to show the LPT’s material 16 effect on investors: The price declined steeply as details 17 about regulatory scrutiny of the deal were released. After 18 a six-week trial, the jury convicted the defendants on all 19

counts. 20 The defendants appeal on a variety of grounds, some in 21 common and others specific to each defendant, ranging from 226 evidentiary challenges to serious allegations of widespread 1 prosecutorial misconduct. Most of the arguments are without 2 merit, but the defendants’ convictions must be vacated 3 because the district court (1) abused its discretion by 4 admitting the stock-price data, and (2) issued a jury 5 instruction that directed the verdict on causation. 6
7

**BACKGROUND** 8 AIG’s announcement of its 3Q earnings in 2000 met 9 analysts’ expectations, but the stock price dropped 10 significantly nevertheless. The cause was thought to be a 11 $59 million decline in loss reserves that quarter. 12 Loss reserves are liabilities on an insurer’s balance 13 sheet that approximate expected claims on insurance 14 contracts. Stock analysts and investors evaluate loss 15 reserves in conjunction with new policies: If loss reserves 16 do not rise when new policies are written (or worse, if they 17 fall), the insurer’s stock may drop notwithstanding better18 than-expected income because a contract of insurance that is 19 not covered by sufficient loss reserves inflates present 20 income at the expense of future income. Thus, 21 counterintuitively, a net decrease in a balance sheet 221 The Financial Accounting Standards are accounting rules that help define Generally Accepted Accounting Principles (“GAAP”), which companies must use for public filings in the United States. 7 liability may cause a stock price to drop. 1 Loss reserves can be transferred between companies 2 through reinsurance arrangements. In an ordinary 3 reinsurance transaction, an insurer purchases coverage from 4 a reinsurer for potential losses on policies it has issued, 5 thus ceding substantial or unlimited risk to the reinsurer. 6 In finite reinsurance, however, a company cedes a smaller, 7 circumscribed (hence, finite) amount of risk to the 8 reinsurer. To over-simplify, traditional reinsurance is 9 primarily used by an insurer to lay off risk, whereas finite 10 reinsurance lends itself to accounting goals because it can 11 be strategically designed but also carefully bounded. 12 An insurer’s creativity with finite reinsurance 13 transactions is not unconstrained: Accounting rules require 14 that each transaction transfer a threshold of risk. Under 15 Financial Accounting Standards (“FAS”) 113, 1a reinsurance 16 transaction must have “significant insurance risk,” so that 17 it is “reasonably possible” that the reinsurer may realize a 18 “significant loss” from the deal. See FAS 113 ¶ 9. An 19 industry rule of thumb provides clearer guidance: A 208 transaction with more than a 10% chance of incurring more 1 than a 10% loss (of the contractual limit) satisfies FAS 2 113, and can be booked as reinsurance. 3 Transactions that fall short of the risk threshold in 4 FAS 113 cannot be treated as reinsurance; any premium paid 5 must be deposit accounted, which has no effect on loss 6 reserves. Each party makes its own determination as to 7 whether a transaction has risk sufficient to qualify as 8 reinsurance. Since risk can be hard to quantify, 9 counterparties’ good-faith determinations may conflict, with 10 one booking the transaction as reinsurance and the other, as 11 a deposit. Such asymmetric accounting may draw the 12 attention of regulators, but is not a violation per se. See 13 FAS 113 **¶** 47 (rejecting symmetrical-accounting requirement). 14
15

**A** 16 In view of the defendants’ convictions, we summarize 17 the facts in the light most favorable to the government. 18 United States v. Riggi , 541 F.3d 94, 96 (2d Cir. 2008). 19 Maurice “Hank” Greenberg, CEO of AIG, was convinced 20 that AIG’s decreased loss reserves were depressing the 21 stock. On October 31, 2000, he called Ronald Ferguson, the 229 CEO of Gen Re, to discuss ways to shore up AIG’s reserves. 1 AIG was Gen Re’s largest client, so Ferguson was eager to 2 assist. (Greenberg was named as an unindicted co3 conspirator; Ferguson is a defendant.) 4 Greenberg requested a particular deal: AIG wished to 5 “borrow” a specific range of loss reserves ($200 million to 6 $500 million) over a six- to nine-month time period. This 7 was unusual in several respects. Cooperating witness 8 Napier, who had worked on hundreds of reinsurance deals, had 9 never encountered a deal premised on a request for a 10 specific amount of loss reserves. To the contrary, loss 11 reserves are typically calculated through a detailed 12 actuarial analysis, after a deal has been negotiated. It 13 was also uncommon for AIG to act as the reinsurer; it 14 typically sought reinsurance from Gen Re. The deal was to 15 be largely funds-withheld, meaning that the ceding party 16 would retain a large percentage of the premium it owes and 17 only claim such losses as exceed the premium. A funds18 withheld arrangement may not be irregular, but the 19 insistence upon it is suggestive: AIG could register a 20 substantial change in loss reserves without Gen Re remitting 21 a comparably large payment. 2210 An important question for this case is whether the call 1 between Ferguson and Greenberg initiated a conspiracy. It 2 may have been a high-level brainstorming session about using 3 accounting rules aggressively--but lawfully--to achieve an 4 accounting objective; but it may (instead or also) have been 5 an unlawful agreement to deceive AIG stockholders by booking 6 a no-risk transaction (which by definition would not satisfy 7 FAS 113) as reinsurance. 8 9

**B** 10 Shortly after the call from Greenberg, Ferguson created 11 a deal team at Gen Re. He briefed Napier, a senior VP and 12 the manager of Gen Re’s relationship with AIG, and asked him 13 to spearhead the effort. Ferguson suggested that Napier 14 contact: (1) Christian Milton, the VP of reinsurance at AIG, 15 to discuss specific requirements of the deal; and (2) Joe 16 Brandon, the president of Gen Re. (Milton is a defendant; 17 Brandon was named as an unindicted co-conspirator.) 18 Napier spoke with Brandon the same day, and Milton the 19 next. Milton confirmed that AIG only wanted reserve impact 20 to address criticism from stock analysts, and he and Napier 21 began preliminary discussions about the particulars of the 222 **Defendants** : • Ronald Ferguson : CEO of Gen Re • Christopher Garand : Senior VP and the Head and Chief Underwriter of Gen Re’s finite reinsurance operations • Robert Graham : Legal counsel and Senior VP at Gen Re • Christian Milton : VP of Reinsurance at AIG • Elizabeth Monrad : CFO of Gen Re **Co-operating Witnesses** : • Richard Napier : Senior VP at Gen Re, who managed its relationship with AIG • John Houldsworth : CEO of Cologne Re Dublin , a Gen Re subsidiary **Unindicted Co-Conspirators** : • Maurice “Hank” Greenberg : CEO of AIG • Timothy McCaffrey : General Counsel of Gen Re • Joseph Brandon : President of North American Operations at Gen Re 11 deal. Brandon suggested that defendant Chris Garand, a 1 senior VP and Chief Underwriter of Gen Re’s finite 2 reinsurance operations, would be a good resource. 3 It is unclear when Napier first contacted Garand. 4 Emails reflect that within a week, defendant Elizabeth 5 Monrad, the Chief Financial Officer of Gen Re, became 6 involved. Napier claims that he contacted Garand that same 7 week, and that Garand pitched a “no risk” transaction in a 8 November 13 meeting with Monrad and him. 9 For convenience, the role and affiliation of each 10 player referenced in this opinion are listed in the margin. 2 113Houldsworth was not in his office when he fielded this after-business-hours call. It therefore was not recorded like most of his other calls. The description of 12 Napier’s testimony concerning Garand is suspicious. 1 Garand was added as a defendant in a superseding indictment, 2 filed more than seven months after the other defendants were 3 charged. On the same day the superseding indictment was 4 filed, Napier confidently named Garand as the source of the 5 no-risk idea **.** This identification contradicted Napier’s 6 previous identifications (recanted at trial) of Milton and 7 Ferguson as the source. He made that identification of 8 Milton while he was looking at the same undated page of 9 notes that he later attributed to a meeting with Garand and 10 Monrad (which he does not contend that Milton attended). 11 Garand calls this allegation a perjurious attempt to curry 12 favor with the government, and argues that the government 13 was complicit in the perjury, or complacent. 14 The documentary evidence bearing on the November 13 15 meeting does not show what happened. Late in the morning on 16 November 13, Monrad emailed a warning to Ferguson about 17 asymmetric accounting, which suggests that the no-risk idea 18 had been hatched. Later that day, defendant Monrad called 19 cooperating witness Houldsworth, 3the CEO of CRD, to solicit 20the call comes from Houldsworth’s testimony. (Phone records confirm that the call was made, however.) 13 his help with the transaction. She cautioned that AIG would 1 not be charged any losses on the deal, and that Ferguson 2 requested strict confidentiality. The next day, Houldsworth 3 called Garand about the transaction, broaching the subject 4 delicately because of the confidentiality warning. But 5 Garand showed no familiarity with it, presuming instead that 6 Houldsworth was referring to another AIG deal: 7

**HOULDSWORTH** : AIG, uh, you may have heard about 8 this, I, I presume it’s highly confidential - 9 well, it’s definitely high - [Monrad] told me not 10 to tell anyone. . . . Do you know anything about 11 this - or not? 12 **GARAND** : No, only to the extent that Milan 13 mentioned it and -- 14 **HOULDSWORTH** : Okay. 15 **GARAND** : -- Tad had a meeting with AIG. 16 **HOULDSWORTH :**  Okay. Well, it’s nothing to do with 17 [your other AIG deal]. 18 **GARAND** : Okay. 19 **HOULDSWORTH** : Um, the - the issue is, and I, for I, 20 don’t know why you don’t know in that case. I 21 mean, maybe it’s, - I don’t know how these things 22 work. Anyway, I’m gonna tell you anyway. If I get 23 in trouble, heigh ho, uh, we have to work 24 together, so it’s stupid otherwise. 25 Joint Appendix at 1959-60. Garand claims that this call on 26 November 14 was the first he heard of the LPT. 27 28

**C** 2914 The Gen Re team continued designing the transaction. 1 On November 15, Houldsworth circulated a draft slip contract 2 of the LPT to Monrad, Garand, Napier, and two others. 3 (Ferguson did not receive the email, but he reviewed a hard 4 copy of the email and slip. The draft contract contemplated 5 Gen Re paying AIG $10 million for assuming $100 million of 6 risk. The premium was $500 million on a 98% funds-withheld 7 basis, meaning that Gen Re would pay only $10 million but 8 could charge AIG only for losses beyond the $500 million 9 premium (up to a $600 million cap on losses, yielding $100 10 million of risk). 11 The slip omitted two key terms of the transaction, 12 however, which were discussed frankly in the cover email: 13 First, in selecting contracts for AIG to reinsure, 14 Houldsworth designated over $300 million in contracts that 15 had already been reinsured, leaving “no possibility” (or 16 making it “virtually impossible”) for the remaining 17 contracts to have claimable losses (i.e., over the $500 18 million premium). Trial Tr. at 2286. This accommodated 19 AIG’s request, which Houldsworth characterized as seeking 20 loss reserves “with the intention that no real risk is 21 transferred.” Joint Appendix at 1978 **.** 2215 Second, Gen Re was to receive a fee for the deal as 1 well as reimbursement for the portion of the premium it 2 would pay: 3 Contract we provide must give A[IG] a potential 4 upside in entering the transaction. Given that we 5 will not transfer any losses under this deal it 6 will be necessary for A[IG] to repay any fee plus 7 the margin they give us for entering this deal. 8 Joint Appendix at 1978 (emphasis added) (Houldsworth’s cover 9 email). Houldsworth confirmed at trial that the exclusion 10 of these fees from the slip was intentional, because AIG 11 wanted a piece of paper that would allow the contract to be 12 booked as a reinsurance deal. At one point, Napier clumsily 13 suggested that fees be written into the contract. 14 Houldsworth replied: 15 But I think to give them a deal with no risk in 16 it, and just charge them a fee, I, you know, I 17 mean, you can assume their auditors are, you know, 18 are being, you know, pushed in one direction, but 19 I think that’s just going too far. . . . I’d be 20 staggered if they would get away with that. 21 Joint Appendix at 2003. Similarly, Monrad rejected the idea 22 of memorializing the fees in a separate written agreement: 23 “Those always get a little tricky because sometimes 24 firms . . . feel obliged to show their auditors them.” 254Houldsworth also rejected the idea of treating the fee as a non-contractual “handshake.” We discuss handshake deals below in connection with Graham’s argument that a jury instruction on handshakes should have been given. 16 Joint Appendix at 2015. 4 1 By November 17, Ferguson had secured Hank Greenberg’s 2 agreement to the rough contours of the deal, including the 3 no-risk aspect, the repayment of the $10 million premium, 4 and Gen Re’s $5 million net fee. Greenberg tapped Milton as 5 a point person for the transaction at AIG. Napier then 6 forwarded the slip contract to Milton, describing in his 7 cover email the fee and premium repayment (which remained 8 conspicuously absent from the contract). 9 10

**D** 11 With a preliminary agreement in place, Gen Re began 12 internal discussions about the accounting treatment of the 13 deal. At some point during these discussions, defendant 14 Robert Graham, an in-house lawyer at Gen Re, joined the 15 team. The Gen Re side understood that AIG wished to book 16 the transaction as reinsurance to invigorate its loss 17 reserves. But recognizing that the deal lacked the 18 necessary risk, they wanted to protect Gen Re by booking the 1917 transaction using deposit accounting. 1 Ferguson asked his team to alert AIG that Gen Re was 2 contemplating asymmetric accounting. On November 20, 3 defendants Monrad, Graham, and Garand (and co-conspirator 4 Napier) of Gen Re called defendant Milton of AIG to advise 5 that Gen Re would be booking the LPT as a deposit 6 transaction. Milton confirmed that Gen Re’s deposit 7 accounting would not be an issue for AIG. Napier relayed 8 the good news to Ferguson. 9 10

**E** 11 Milton accepted the deal on AIG’s behalf on December 7, 12 but he asked Gen Re to create a paper trail to disguise the 13 transaction’s origin. On December 18, Houldsworth 14 circulated an offer letter to AIG suggesting that the deal 15 had first been solicited by Gen Re . Milton at AIG 16 circulated the offer letter and draft contract to AIG 17 accountants and informed them that it would be booked as 18 reinsurance, thus ensuring that the usual underwriting and 19 actuarial due diligence on such a large transaction would 20 not be performed. 21 Gen Re’s in-house counsel Graham drafted the final 2218 contracts for the deal. They omitted the $5 million fee and 1 $10 million premium repayment. As he drafted, Graham 2 expressed some discomfort with the accounting of the deal to 3 his boss, Tim McCaffrey, the General Counsel of Gen Re: 4 Tim - 5 6 The AIG project continues. . . . 7 8 Our group will book the transaction as a deposit. 9 How AIG books it is between them, their 10 accountants and God; there is no undertaking by 11 them to have the transaction reviewed by their 12 regulators. 13 14 [Ferguson] et al[.] have been advised of, and have 15 accepted, the potential reputational risk that US 16 regulators (insurance and securities) may attack 17 the transaction and our part in it. 18 Rob 19 Joint Appendix at 2192. The discomfort must have been 20 fleeting, however, because the contracts were shortly 21 thereafter finished and sent off to Milton. 22 In January 2000, the offer letter (annotated with 23 written instructions from Milton) and draft slip contract 24 were routed to Lawrence Golodner, an assistant comptroller 25 at AIG. (The documents were sent by Golodner’s boss, John 26 Blumenstock, but their route from Milton to Blumenstock is 27 not entirely clear.) Golodner followed Blumenstock’s 28 instructions, booking $250 million in loss reserves for each 295The parties decided to split the deal into two $250 million tranches.

6 The scheme entailed (1) offsetting $15 million from the $30 million that a Gen Re subsidiary held for an AIG entity under an existing contract, and (2) concealing the offset with a sham reinsurance contract. 19 of 4Q 2000 and 1Q 2001. 5 1
2

**F** 3 The deal worked, up to a point. AIG announced 4 increased loss reserves in 4Q 2000 and 1Q 2001 that, without 5 the LPT, would have been declines. 6 Meanwhile, Gen Re sought to enforce the unwritten fee 7 agreements. It refused to deliver the $10 million premium 8 (that it was contractually obliged to pay) until it had 9 collected the $15 million that it was owed under the secret 10 side deal. Garand orchestrated a scheme to effect the 11 payment without directly transferring funds (which could 12 have attracted regulatory scrutiny). 6Milton agreed. On 13 December 28, the final steps of Garand’s scheme were 14 executed; the same day, Gen Re wired the $10 million premium 15 to an AIG subsidiary. 16 The matter was dormant for several years. In a typical 17 reinsurance arrangement, the ceding company files claims 187 Garand was first charged in the superseding indictment filed in September 2006; the rest of the defendants were indicted back in February 2006. All defendants were charged with one count of 20 with the reinsurer, which pays the claims and, over time, 1 reduces loss reserves commensurately. But Gen Re made no 2 claims, AIG paid no claims, and there were no adjustments to 3 AIG’s loss reserves (excluding a $250 million reduction in 4 AIG’s loss reserves in late 2004, when the parties commuted 5 half of the deal). 6 Beginning in February 2005, the SEC and the Office of 7 the New York Attorney General began investigating the 8 transaction **.** News articles about the investigations 9 trickled out for several months, while AIG’s stock price 10 declined steadily. On May 31, 2005, AIG concluded that the 11 LPT did not transfer sufficient risk for reinsurance 12 accounting, and restated its financials for the duration of 13 the LPT’s existence. 14 15

**G** 16 The defendants were charged with conspiracy, mail 17 fraud, securities fraud, and making false statements to the 18
SEC. 7The trial began in January 2008. The government’s 19conspiracy under 18 U.S.C. § 371 and three counts of mail fraud under 18 U.S.C. § 1341. All defendants except Garand were also charged with seven counts of securities fraud, 15 U.S.C. §§ 78j(b) & 78ff, and five counts of making false statements to the SEC, 15 U.S.C. §§ 78m(a) & 78ff; Garand was also charged with three counts of securities fraud and three counts of making false statements.

8Certain findings are necessary to admit coconspirator statements under Fed. R. Evid. 801(d)(2)(E). SeeUnited States v. Geaney , 417 F.2d 1116, 1120 (2d Cir. 1969). The court conditionally admitted co-conspirator statements during the government’s presentation of its case; after the government rested, the court made the necessary Geaneyfindings and admitted the statements. 21 two cooperating witnesses, Napier and Houldsworth, provided 1 critical testimony that narrated the events of the deal and 2 was used to argue the parties’ fraudulent intent. The 3 particulars of much of their testimony were corroborated by 4 contemporaneous emails and Houldsworth’s recorded phone 5 conversations . (Much of this corroboration was admitted 6 into evidence as co-conspirator statements, the court having 7 found that the conspiracy began with the Ferguson-Greenberg 8 call. 8 ) The testimony was not uncontroverted, however. The 9 cross-examination of Napier was especially fierce: He 10 acknowledged some mistaken recollection, but refused to 11 recant his allegedly perjurious claim that Garand conceived 12 the idea of doing a no-risk deal. 13 After four days of deliberations, the jury convicted 149 Prior to submission to the jury , the defendants had moved for acquittal pursuant to Fed. R. Crim. P. 29(a) and renewed their motions for severance under Fed. R. Crim. P. 14(a). (Only Ferguson, joined by Garand, submitted motion papers.) The court reserved decision. After the verdict, the defendants moved for a new trial under Rule 33 only if the court granted their Rule 29(a) motions for any of the counts. They submitted skeletal memos without substantive argument, declined to file Rule 29(c) motions, and declined oral argument despite the court’s request. (Ferguson initially requested oral argument on his motions, but then withdrew his request.) The district court denied the defendants’ pre-verdict motions for severance (Rule 14) and acquittal (Rule 29(a)), thus mooting their conditional motions for a new trial (Rule 33). United States v. Ferguson , 553 F. Supp. 2d 145, 163-64 (D. Conn. 2008). 22 the defendants of all charges. The court denied the 1 defendants’ perfunctory Fed. R. Crim. P. 33 motions for a 2 new trial. 9 3 In hundreds of pages of briefing, the defendants raise 4 numerous issues on appeal, ranging from evidentiary 5 challenges to serious allegations of widespread 6 prosecutorial misconduct. 7 8

**I** 9 Several arguments affect all five defendants. We 10 consider each in turn. 11 1223 **A** 1 Materiality is an element of most of the charged 2 offenses. There must have been a “substantial likelihood” 3 that the LPT-related misstatements would be important to a 4 reasonable investor. SeeBasic Inc. v. Levinson , 485 U.S. 5 224, 231 (1988). As evidence of materiality, the government 6 introduced (inter alia ) articles about the LPT’s 7 impropriety, which it connected to contemporaneously 8 declining stock prices. Excluded as overly prejudicial was 9 a line graph tracing AIG’s stock price from February to 10 March 2005 (as it declined by 12%). However, the court 11 permitted the government to show a functionally identical 12 chart to the jury during opening statements, and it admitted 13 into evidence three bar-charts showing single-day stock 14 prices for the days following each publication. 15 The charts were prejudicial because the LPT was one of 16 several problems besetting AIG at that time. Unrelated 17 allegations of bid-rigging, improper self-dealing, earnings 18 manipulations, and more, had to be redacted from the 19 articles about the LPT, to avoid prejudicing the defendants. 20 The stock-price evidence presented the defendants with a 21 dilemma: [i] allow the jury to attribute the full stock- 2224 price decline to the LPT, or [ii] introduce prejudicial 1 evidence of the other besetting scandals, wrongdoing, and 2 potentially illegal actions at AIG. The defendants sought 3 to sidestep by stipulating to materiality, but the 4 government refused. 5 We conclude that the district court abused its 6 discretion in admitting the three bar-charts and that the 7 defendants’ substantial rights were affected. Marcic v. 8 Reinauer Transp. Cos. , 397 F.3d 120, 124 (2d Cir. 2005). 9 The district court’s rulings on the stock-price charts 10 were inconsistent. The chart showing the full decline in 11 stock price was excluded as overly prejudicial, but it was 12 functionally identical to the chart shown during the 13 government’s opening argument. In any event, the court’s 14 solution, to allow only isolated ranges of stock-price data, 15 did not mitigate the prejudice: Instead of a downward line, 16 there were three dropping sets of dots; it is inevitable 17 that jurors would connect them. So the risk that jurors 18 would attribute the full 12% decline to the LPT was unabated 19 by the court’s precaution. 20 The government may of course reject a proposed 21 stipulation in order to present a “coherent narrative” of 2225 its case. Old Chief v. United States , 519 U.S. 172, 191-92 1 (1997). But the charged offenses here do not require a 2 showing of loss causation (“a causal connection between the 3 material misrepresentation and the loss”). Dura Pharms., 4 Inc. v. Broudo , 544 U.S. 336, 342 (2005). The stock-price 5 evidence therefore fell “outside the natural sequence of 6 what the defendant[s] [were] charged with thinking and 7 doing.” Old Chief , 519 U.S. at 191. Although the evidence 8 was admitted only to show materiality, the government 9 exploited it to emphasize the losses caused by the 10 transaction. For example, the government reminded the jury 11 during rebuttal summation that: 12 [B]ehind every share of [AIG] stock is a living 13 and breathing person who plunked down his or her 14 hard-earned money and bought a share of stock, 15 maybe [to] put it in their retirement[] accounts, 16 maybe to put it in their kids’ college funds, or 17 maybe to make a little extra money for the family. 18 Trial Tr. at 4584. The prosecution’s use of the evidence, 19 while aggressive, was not “egregious misconduct” that “so 20 infect[ed] the trial with unfairness as to make the 21 resulting conviction a denial of due process.” United 22 States v. Shareef , 190 F.3d 71, 78 (2d Cir. 1999) (internal 23 quotation marks omitted). Still, the government used this 24 evidence to humanize its prosecution, not to complete the 2510 The government’s other materiality evidence wassubstantial: Two stock analysts and an AIG investorrelations manager testified about the importance of loss reserve information to investors and analysts.

11 If expert testimony were used, the probative value of the evidence would be reinforced because confounding factors could be excluded. Cf., e.g. , United States v. Schiff , 538 F. Supp. 2d 818, 836 (D.N.J. 2008) (deeming stock-price data irrelevant for materiality in the absence of expert testimony). The expert could, for example, estimate the extent of the 12% drop attributable to the LPT.

26 narrative of its case. 1 If no offer to stipulate were forthcoming, the 2 government could have relied upon the sufficiency of its 3 other materiality evidence 10or offered expert testimony 4 about the LPT’s effect on the stock price. 11The charts 5 suggested that this transaction caused AIG’s shares to 6 plummet 12% during the relevant time period, which is 7 without foundation, and (given the role of AIG in the 8 financial panic) prejudicially cast the defendants as 9 causing an economic downturn that has affected every family 10 in America. 11 12

**B** 13 The defendants challenge the particulars of the 14 “willfully caused” jury instruction, as well as the district 1527 court’s refusal to give certain instructions and insistence 1 upon giving others. We review the jury charge de novo , 2 examining “the entire charge to see if the instructions as a 3 whole correctly comported with the law.” United States v. 4

Jones , 30 F.3d 276, 283 (2d Cir. 1994). A defendant 5 challenging jury instructions must show that he was 6 prejudiced by a charge that misstated the law. See United 7 States v. Goldstein , 442 F.3d 777, 781 (2d Cir. 2006). 8 9
**1** 10 A defendant commits an offense if he “willfully causes 11 an act to be done which if directly performed by him or 12 another would be an offense against the United States.” 18 13 U.S.C. § 2(b). In seeking to accommodate the reasonable 14 phrasings offered by the various parties, the court ended up 15 with a charge that allowed the jury to convict without 16 finding causation. The court instructed the jury about 17 “willfully causing” liability through a similar pair of 18 questions for each offense: 19 The meaning of the term “willfully caused” can be 20 found in the answers to the following questions: 21 22 With regard to securities fraud: 23 First, did the defendant act knowingly, 24 willfully, and with an intent to defraud as I 2512 The first question in the government’s proposed instruction enunciated the causation requirement: The meaning of the term “willfully caused” can be found in the answers to the following questions: First, did the defendant take some action without which the crime would not have occurred? Second, did the defendant intend that the crime would be actually committed by others? Joint Appendix at 300 (emphasis added). 28 defined those terms for you in my instructions 1 about securities fraud? 2 3 Second, did the defendant intend that this 4 crime, as explained to you in my earlier 5 instructions, would actually be committed by 6 others? 7 8

**. . .** 9 10 If you are persuaded beyond a reasonable doubt 11 that the answer to both of these questions is 12 “yes,” then the defendant is guilty of the crime 13 charged just as if he or she had actually 14 committed it. 15 Trial Tr. at 4760-61. 16 It appears the judge was led into error. The original 17 instruction submitted by the government contained a proper 18 causation standard; 12the defendants challenged a vague 19 phrase (“take some action”) in the government’s instruction 20 and proposed a lengthier instruction that tracked the actual 21 elements of each offense (but that also properly charged on 2213The second question from the defendants’ proposed charge instructed on causation: Second, as to each count and each Defendant, did the Defendant (a) intentionally cause other people to use a deceptive device in connection with the purchase or sale of AIG stock, that is to say, did he or she, in connection with the purchase or sale of AIG stock, intentionally cause other people to make either a deliberate affirmative misstatement of material fact or a deliberate omission of material fact by one who had a legal duty to disclose that fact, and , (b) intentionally cause some other person to knowingly use, or cause to be used, an instrumentality of communication in interstate commerce ( i.e. , the mails) in furtherance of such fraudulent scheme or conduct? Joint Appendix at 556 (emphases added). 29 causation). 13The court fashioned a compromise from the 1 parties’ submissions, but neglected to include either side’s 2 causation instruction: The court’s first question instructs 3 about both the requisite act (“did the defendant act”) and 4 the requisite mental state (“knowingly, willfully, and with 5 an intent to defraud”); the second question merely refines 6 the mental state requirement (“did the defendant intend that 7 this crime . . . would actually be committed by others?”). 8 The instruction is not saved by the plain meaning of 9 “willfully caused,” which is the term the court undertook to 10 define. The word “cause” should convey a causation 11 requirement. But the jury was not invited or permitted to 1230 rely on the phrase’s plain meaning, given the superseding 1 definition provided in the charge: “The meaning of the term 2 ‘willfully caused’ can be found in the answers to the 3 following questions . . . .” Trial Tr. at 4760. 4 Although the defendants objected to the instruction, 5 they did not “specific[ally] object[]” about causation; the 6 objection on that ground was thus not preserved, and we 7 review for plain error. SeeFed. R. Crim. P. 30(d)

. But 8 the error is plain enough. “Where an instruction defining 9 one of [multiple] alternative grounds is legally erroneous, 10 a court must reverse unless it can determine with absolute 11 certainty that the jury based its verdict on the ground on 12 which it was correctly instructed.” United States v. 13 Joseph , 542 F.3d 13, 18 (2d Cir. 2008). The government 14 argued for guilt on a causation theory. See, e.g. , Trial 15 Tr. at 4203 (“[Did defendants] document a false 16 [transaction] in order to deceive AIG’s internal auditors 17 and their external auditors and accountants[?]”). Moreover, 18 “willfully causing” was a likely theory of liability, given 19 that the AIG accountants who actually filed the false forms 20 were not named as co-conspirators. Vacatur is thus 21 warranted, because it is improbable, let alone “absolute[ly] 2214The Supreme Court appears to now prefer the appellation “willful blindness.” Global-Tech Appliances, Inc. v. SEB S.A. , 131 S. Ct. 2060, 2070 & n.9 (2011) (citing United States v. Svoboda , 347 F.3d 471, 477-78 (2d Cir. 2003), which uses the term “conscious avoidance,” as an example of this Court’s “articulat[ion of] the doctrine of willful blindness”); see alsoUnited States v. Reyes , 302 F.3d 48, 54 (2d Cir. 2002) (“The doctrine of conscious avoidance, also known as deliberate ignorance or willful blindness . . . .”). We retain the designation “conscious avoidance” in order to conform to the briefs and the district court opinion. 31 certain[],” that the jury based its verdict on a properly 1 instructed ground. 2 3
**2** 4 The district court instructed the jury that the 5 government could prove that a defendant acted knowingly if 6 he “was aware of a high probability that [a] statement was 7 false” but “deliberately and consciously avoided confirming 8 that fact, unless the evidence show[s] that [he] actually 9 believed the statement was true.” Trial Tr. at 4730. Such 10 a conscious avoidance instruction 14may be given only 11 (i) “when a defendant asserts the lack of some 12 specific aspect of knowledge required for 13 conviction,” and 14 15 (ii) “the appropriate factual predicate for the 16 charge exists, i.e. , the evidence is such that a 17 rational juror may reach the conclusion beyond a 18 reasonable doubt that the defendant was aware of a 1932 high probability of the fact in dispute and 1 consciously avoided confirming that fact.” 2 United States v. Quattrone , 441 F.3d 153, 181 (2d Cir. 2006) 3 (internal citations and quotation marks omitted). The 4 government need not choose between an “actual knowledge” and 5 a “conscious avoidance” theory. United States v. Kaplan , 6 490 F.3d 110, 128 n.7 (2d Cir. 2007). 7 The defendants claim not to have known (1) that the LPT 8 contained insufficient risk transfer or (2) how AIG would 9 account for the LPT. The government argues that the factual 10 predicate for the charge is the same evidence that 11 establishes scienter. (The government emphasizes the 12 November 20 call ordered by Ferguson in which Monrad, 13 Napier, Graham, and Garand told Milton that Gen Re would use 14 deposit accounting for the LPT.) 15 Red flags about the legitimacy of a transaction can be 16 used to show both actual knowledge and conscious avoidance. 17
SeeUnited States v. Nektalov , 461 F.3d 309, 312, 317 (2d 18 Cir. 2006). In Nektalov , a jeweler was convicted of money 19 laundering for repeatedly selling gold to a government 20 informant posing as a narcotics dealer. Id. at 312. We 21 upheld a conscious avoidance instruction because the prior 22 dealings between the parties (cash payments using small 2333 bills) and the statements about the transactions (“moving 1 gold” to Colombia; money from selling “product” “in the 2 streets”) provided the factual predicate for the charge. 3 Id. at 317. Similarly, several red flags are waving here, 4 including: the secret side agreements, the fake offer 5 letter, the accounting pretext for the reinsurance 6 transaction, and the insistence on strict confidentiality. 7 The defendants claim they could not have consciously 8 avoided present knowledge of how AIG would book the LPT on 9 some future date. It is true that, “in general, conscious 10 avoidance instructions are only appropriate where knowledge 11 of an existing fact, and not knowledge of the result of 12 defendant’s conduct, is in question.” United States v. 13 Gurary , 860 F.2d 521, 526 (2d Cir. 1988). In Gurary , the 14 defendants sold fake invoices that were commonly used by 15 purchasers to fraudulently reduce taxable income. Id. at 16 523. The defendants challenged the conscious avoidance 17 instruction on the ground that they could not know the 18 nefarious ends of the purchasers. We upheld the instruction 19 because the repeated (subsequent) frauds provided sufficient 20 “‘proof of notice of high probability’” of purchasers’ tax 21 fraud. Id. at 527. But we also noted that a “future 2215 SeePinkerton v. United States , 328 U.S. 640, 646-48 (1946) (ruling that liability for reasonably foreseeable acts within the scope and in furtherance of a conspiracy is attributable to all conspirators). 34 conduct” challenge to a conscious avoidance instruction 1 “might hold water if th[e] case involved the sale of 2 invoices on a single occasion.” Id. at 526. 3 Although the LPT was a single transaction, it is 4 dissimilar to the “single occasion” theory in Gurary . The 5 parameters of the deal were developed over a number of 6 months, and there were numerous forward-looking meetings, 7 emails, and negotiations. Moreover, AIG’s accounting 8 decisions informed Gen Re’s accounting decisions to some 9 extent, which brought AIG’s accounting into the 10 transaction’s purview (even if asymmetric accounting in 11 general is unobjectionable). 12 The conscious avoidance instruction was not error. 13 14
**3** 15 The jurors were presented with four theories of 16 liability: principal, aiding and abetting, willfully 17 causing, and Pinkerton

. 15The district court denied the 18 defendants’ request for a “specific unanimity” instruction, 19 which would have ensured that, as to each defendant, the 2035 jurors unanimously agreed on the theory for conviction. “A 1 general instruction on unanimity is sufficient to insure 2 that such a unanimous verdict is reached, except in cases 3 where the complexity of the evidence or other factors create 4 a genuine danger of jury confusion.” United States v. 5 Schiff , 801 F.2d 108, 114-15 (2d Cir. 1986) (internal 6 citations omitted). 7 In dicta, we have suggested that a jury is unanimous 8 even if some jurors convicted on a theory of principal 9 liability and others on aiding and abetting. United States 10

v. Peterson , 768 F.2d 64, 67 (2d Cir. 1985); accord, e.g. , 11 United States v. Garcia , 400 F.3d 816, 820 (9th Cir. 2005) 12 (“It does not matter whether some jurors found that [the 13 defendant] performed these acts himself, and others that he 14 intended to help someone else who did, because either way, 15 [his] liability is the same. . . .”). Just as there is “no 16 general requirement that the jury reach agreement on the 17 preliminary factual issues which underlie the verdict,” 18 neither must it agree on “alternative mental states.” Schad 19 v. Arizona , 501 U.S. 624, 631-32 (1991) (internal quotation 20 marks omitted) (holding that specific unanimity not required 21 for theories of Arizona first-degree murder--premeditated 2216 The defendants argue that Petersoncannot be extended because the four theories of liability have “clearly different elements that the jury must find.” Garand Br. at 56 n.14. But even Pinkertonliability--which requires the jury to find certain facts such as participation in the conspiracy--is premised on a mental state. See Pinkerton , 328 U.S. at 647 (“The criminal intent to do the act is established by the formation of the conspiracy.”); United States v. Thirion , 813 F.2d 146, 153 (8th Cir. 1987) (“In the Pinkertonanalysis . . . . [t]he mens reanecessary to transform the act into a criminal offense is evidenced by the defendant’s participation in the conspiracy.”). All four theories are thus various mental states in which the same crime may be committed; they may differ in “brute facts” underlying the mental state element, but none requires proof of other “factual elements” of the crime (which must be found unanimously by the jury). Richardson v. United States , 526 U.S. 813, 817 (1999); cf. United States v. Sanchez , 917 F.2d 607, 612 (1st Cir. 1990) (“As with the ‘aiding and abetting’ theory, vicarious co-conspirator liability under Pinkertonis not in the nature of a separate offense.”). 36 and felony murder). 1 Nothing limits the Petersonanalysis to principal 2 versus aiding-and-abetting liability. The four theories are 3 compatible--they are zones on a continuum of awareness, all 4 of which support criminal liability. 16This view is 5 consistent with case law maintaining distinctions among 6 mental states where different mental states form elements of 7 different offenses

. Compare, e.g. , Schad , 501 U.S. at 630- 8 31 (“[P]etitioner’s real challenge is to Arizona’s 9 characterization of first-degree murder as a single crime” 10 that encompasses “premeditated murder and felony murder”), 1137 with, e.g. , People v. Gonzalez , 1 N.Y.3d 464, 467 (2004) 1 (affirming the reversal of depraved indifference murder 2 conviction for defendant acquitted of intentional murder 3 count, because “only reasonable view of the evidence here 4 was that defendant intentionally killed the victim”). 5 Even assuming that the jury had to agree on the theory 6 of liability, the general unanimity instruction--“it is 7 necessary that each juror agrees to [the verdict],” Trial 8 Tr. at 4788--was sufficient to remove any genuine danger 9 that the jury would convict on disparate theories. The 10 accounting and insurance concepts in the case may have been 11 complicated, but they did not add significant complexity to 12 the theories of liability. At the same time, the assurance 13 of a just result would have been reinforced if the 14 instruction were given. 15
**4** 16 The court instructed the jury that “[n]o amount of 17 honest belief on the part of a defendant that the scheme 18 will ultimately make a profit for the investors, or not 19 cause anyone harm, will excuse fraudulent actions or false 20 representations by him or her.” Trial Tr. at 4730. Graham 21 claims that this “no ultimate harm” instruction lacked a 2238 factual basis and undermined his defense of good faith. 1 Our leading precedent on the “no ultimate harm” 2 instruction is United States v. Rossomando , 144 F.3d 197, 3 200-03 (2d Cir. 1998), which rejected the instruction in a 4 case in which a former firefighter underreported his post5 retirement income on pension forms. Rossomando believed 6 that he was causing noharm to the pension fund, which 7 distinguished him from a person for whom the instruction is 8 proper: 9 [W]here some immediate loss to the victim is 10 contemplated by a defendant, the fact that the 11 defendant believes (rightly or wrongly) that he 12 will “ultimately” be able to work things out so 13 that the victim suffers no loss is no excuse for 14 the real and immediate loss contemplated to result 15 from defendant’s fraudulent conduct

. 16 Id. at 201. 17 Rossomandois “limited to the quite peculiar facts that 18 compelled [its] result,” United States v. Gole , 158 F.3d 19 166, 169 (2d Cir. 1998) (Jacobs, J. , concurring), so 20 Graham’s analogy is not persuasive. The “no ultimate harm” 21 instruction given in the present case ensured that jurors 22 would not acquit if they found that the defendants knew the 23 LPT was a sham but thought it beneficial for the stock price 24 in the long run. It may well have been proven beneficial to 2539 AIG stockholders, but the immediate harm in such a scenario 1 is the denial of an investor’s right “to control [her] 2 assets by depriving [her] of the information necessary to 3 make discretionary economic decisions.” Rossomando , 144 4 F.3d at 201 n.5 (citing United States v. DiNome , 86 F.3d 5 277, 280, 284 (2d Cir. 1996)). Moreover, the jury charge 6 given here could not have undermined Graham’s good-faith 7 defense; the instructions made clear that “[a] defendant who 8 acted in good faith cannot be found to have acted knowingly, 9 willfully, and with the unlawful intent required for the 10 charge you are considering,” Trial Tr. at 4711, and that 11 “[h]owever misleading or deceptive a plan may be, it is not 12 fraudulent if it was devised or carried out in good faith,” 13 id. at 4729. 14 15

**C** 16 The defendants argue that prosecutorial misconduct-- 17 ranging from intentional grammatical errors to eliciting 18 perjury--warrants reversal because the ensuing “substantial 19 prejudice” “so infect[ed] the trial with unfairness as to 20 make the resulting conviction a denial of due process.” 21 United States v. Shareef , 190 F.3d 71, 78 (2d Cir. 1999) 2240 (internal quotation marks omitted). Certain factual 1 inconsistencies in Napier’s testimony are sufficiently 2 obvious to raise an eyebrow, but most of the arguments are 3 meritless. 4 5
**1** 6 Compelling inconsistencies suggest that Napier may well 7 have testified falsely. Napier provided important testimony 8 (i) that he attended a meeting with Monrad at which AIG’s 9 CFO was warned that Gen Re would book the LPT on a deposit 10 basis; and (ii) that Garand first proposed a no-risk deal. 11 (i) Napier testified that Monrad, at Ferguson’s 12 behest, led a meeting at AIG in late November or early 13 December 2000, in which she informed Howie Smith and Mike 14 Castelli (AIG’s CFO and Controller, respectively) that Gen 15 Re would book the LPT as a deposit. The disclosure ensured 16 that AIG could not later claim to be surprised by Gen Re’s 17 accounting. The testimony was thus strong evidence of 18 Monrad’s scienter. 19 Neither Napier nor the government could produce “one 20 scrap of paper” showing that the meeting actually took place 21 (Trial Tr. at 1274): no preparatory documents or emails, no 2241 AIG sign-in or security records confirming that Monrad and 1 Napier had visited the office at that time; no records of 2 the Gen Re car (and drivers) that Napier claimed provided 3 their transportation. Napier’s calendar entries could not 4 confirm the meeting, because none of his historic calendar 5 data was recoverable. No one sent an email summarizing the 6 discussion for those not in attendance or memorializing it 7 for those who were. 8 Monrad’s counsel cross-examined Napier about an email 9 describing an earlier meeting he had with Howie Smith at AIG 10 on an unrelated matter. The earlier meeting--which Monrad 11 did not attend--contradicted Napier’s testimony that the 12 purported LPT meeting was the first time that he had met 13 Smith. Napier admitted that he may have confused the LPT 14 meeting with this meeting. 15 (ii) Garand challenges as perjury (and relatedly, as 16 government misconduct) Napier’s belated recollection (with 17 “certain[ty],” Trial Tr. at 1670) that it was Garand who 18 originated the idea of a no-risk transaction. Among the 19 circumstances he cites as suspicious are: Napier did not 20 recollect Garand’s role as originator until the day that the 21 government filed the superseding indictment in which Garand 2242 was first named as a defendant; Napier’s certainty is 1 incompatible with his concession on cross-examination that 2 he was “having a hard time remembering the events of [that 3 day]” and was “drawing a blank on the entire date”; Napier 4 had earlier been uncertain about Garand’s first involvement 5 (he had suggested that Garand may not have been involved 6 until Gen Re collected on the side deal in 2001); the 7 identification contradicted Napier’s previous identification 8 (recanted at trial) of Milton as the source; and his 9 identification of Milton was made while looking at the same 10 undated page of notes that he attributed at trial to a 11 meeting with Garand and Monrad (which he does not contend 12 that Milton attended). Moreover, when Houldsworth 13 delicately broached the LPT in a call with Garand the next 14 day, Garand evinced no recognition of the transaction. 15 Houldsworth formed the impression that Garand “didn’t appear 16 to know anything about it.” (Garand claims to have first 17 learned about the transaction during this call with 18 Houldsworth.) 19 The government argues that we should not review these 20 arguments at all because the defendants waived them; but 21 where a defendant does not “intentional[ly] relinquish[] or 2243 abandon[]” a known right, but simply “fail[s] to make the 1 timely assertion of [it],” the result is not waiver but 2 forfeiture. United States v. Olano , 507 U.S. 725, 733 3 (1993) (internal quotation marks omitted). We review such 4 forfeited arguments for plain error. If these arguments had 5 been presented to the trial court, a factual record about 6 Napier’s potential perjury (and the extent of the 7 government’s awareness and diligence) could have been made. 8 The district court requested substantive briefing and 9 argument on the issue, but was not taken up. The defendants 10 may have had their reasons for sidestepping the issue of 11 Napier’s possible perjury and the government’s alleged 12 responsibility for it; but “our review for plain error [is] 13 more rigorous” where the failure to object was a “strategic 14 decision” that “resulted in an incomplete record or 15 inadequate findings.” United States v. Brown , 352 F.3d 654, 16 665 (2d Cir. 2003). 17 There are ambiguities in our case law regarding the 18 proper standard to use, which could not have helped the 19 district judge in sorting this out. The parties appear to 20 agree that the two-part test from United States v. Wallach 21 applies: 2217Two standards of review are set, based upon the prosecution’s knowledge. If the prosecution knew or should have known of the perjury, the conviction must be set aside “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Id. (internal quotation marks omitted). But where the government was unaware of the perjury, a new trial “is warranted only if the testimony was material and the court [is left] with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted.” Id. (internal quotation marks omitted).

18 See United States v. Helmsley , 985 F.2d 1202, 1205 (2d Cir. 1993); United States v. Blair , 958 F.2d 26, 29 (2d Cir. 1992)

.
19In Wallach , the government conceded that the witness had committed perjury. See935 F.2d at 455. 44 (1) Whether the perjury was material to the jury’s 1 verdict; 2 (2) The extent to which the prosecution knew or 3 should have known about the perjury; 17 4 935 F.2d 445, 456 (2d Cir. 1991). But that test is in 5 tension with the four-part test from United States v. 6 Zichettello , which supplements the Wallachfactors with two 7 factors from precedent 18(italicized): 8 (i) “the witness actually committed perjury” ; 19 9 (ii) “the alleged perjury was material”; 10 (iii) “the government knew or should have known of 11 the alleged perjury at the time of trial”; and 12 (iv) “the perjured testimony remained undisclosed 13 during trial.” 14 208 F.3d 72, 102 (2d Cir. 2000) (internal quotation marks 1520 The government in essence collapses the Zichettello factors into the two Wallachfactors, arguing that the perjury (if any) was immaterial because it was disclosed at trial and fully corrected by the defendants’ forceful attack on Napier’s credibility during cross-examination and summation, yet the jury nevertheless convicted Monrad and Garand.

21For example, Garand argues that a subset of Napier’s notes produced by the government was in rough chronological order, suggesting that the undated notes page was from between November 15 and 17, rather than from November 13. The government’s use at trial of an identical copy of the notes from elsewhere in the production (rather than the version from the chronological subset), he argues, shows intent to obscure the correct date for the notes. 45 omitted). Later cases add to the confusion by applying 1 Wallachwithout referencing Zichettello . See, e.g. , United 2
States v. Stewart , 433 F.3d 273, 297 (2d Cir. 2006). The 3 tests are not necessarily incompatible, however. 20 4 Since we are vacating the judgments on the grounds 5 discussed above, we need not reconcile these cases or decide 6 whether the prosecution’s actions amounted to misconduct. 7 (Our decision would have been hindered by the defendants’ 8 gamesmanship; and their fact-intensive arguments 21are 9 blunted by the underdeveloped record.) No doubt it is 10 dangerous for prosecutors to ignore serious red flags that a 11 witness is lying, and the government will doubtless approach 12 Napier’s revised recollections with a more skeptical eye on 13 remand. At the same time, Napier’s inconsistent statements 1446 concern facts that could not have been conclusively verified 1 by the government, and the potential that Napier had lied in 2 these respects was fully presented in cross-examination and 3 summation to the jury, which resolved the credibility issue 4 against the defendants. 5 6
**2** 7 The remainder of the misconduct claims involve the 8 government’s comments at opening statement, in summation, 9 and on rebuttal. “It is a ‘rare case’ in which improper 10 comments . . . are so prejudicial that a new trial is 11 required.” United States v. Rodriguez , 968 F.2d 130, 142 12 (2d Cir. 1992) (quoting Floyd v. Meachum , 907 F.2d 347, 348 13 (2d Cir. 1990)). Such comments do not amount to a denial of 14 due process unless they constitute “egregious misconduct.” 15 Shareef , 190 F.3d at 78 (internal quotation marks omitted). 16 In assessing a claim, we consider: (1) “the severity of the 17 misconduct”; (2) “the measures adopted to cure it”; and (3) 18 “the certainty of conviction in the absence of the 19 misconduct.” Id. (internal quotation marks omitted). 20 The defendants did not contemporaneously object to the 21 statements they now claim constitute misconduct. (The one 2222Several of the misconduct arguments are discussed elsewhere, including the alleged misuse of (1) stock-price data, (2) the recordings with derogatory comments about AIG, and (3) Graham’s email to McCaffrey. The argument about characterizing the deal as “no risk” from the start duplicates Ferguson’s argument about co-conspirator statements discussed below. 47 objection was made a day after the challenged statement was 1 made.) They were thus able to pore at leisure over the 2 transcript, hunting for any plausible (or nearly plausible) 3 claims. The remarks do not amount to misconduct, separately 4 or in the aggregate. 22 5 First, Graham challenges two mistakes that the 6 prosecution made when quoting his email: 7 In quoting the line that “regulators (insurance and 8 securities) may attack the transaction,” the prosecutor 9 repeatedly used “would” rather than “may.” However, the 10 distinctions among “may,” “might,” “will” and “would” are 11 among the slipperiest in the English language. The 12 distinction should have been preserved, but it cannot be 13 said that a slip--even a recurring slip--was misconduct. It 14 is easy to make such mistakes, but there is reason to think 15 that there will be heightened vigilance on retrial. 16 The prosecution also misquoted “potential reputational 17 risk” as “potential risk” in two slides shown to the jury 1848 (and referenced by the prosecutor twice). Graham failed to 1 object to the omitted word; he chose instead to correct the 2 government’s mistake in his closing argument, which 3 dovetailed nicely with an argument that the email’s use of 4 “reputational” was pregnant. Having tried that (and having 5 called the miscue a “good faith” mistake in closing 6 argument, Trial Tr. at 4508), he now argues that was 7 reversible misconduct. We conclude that the omissions were 8 honest mistakes, and any harm was cured by Graham’s tactical 9 discussion of the error. 10 These misstatements were “minor aberrations in a 11 prolonged trial,” rather than misconduct. United States v. 12 Modica , 663 F.2d 1173, 1181 (2d Cir. 1981) (internal 13 quotation marks omitted). 14 Second, the defendants contend that the government 15 oversimplified the case by emphasizing Gen Re’s lack of need 16 for reinsurance and AIG’s acquiescence to paying a $5 17 million fee despite accepting risk. These features of the 18 transaction, it is claimed, are irrelevant because they may 19 also inhere in any lawful finite reinsurance transaction. 20 It is true that these facts alone are insufficient to 21 support a conviction, but neither are they irrelevant: It 2249 was within the province of the jury to determine whether 1 these were incidents of fraud or incidental to a lawful 2 transaction of that specialized kind. 3 Third, the defendants claim that the government 4 knowingly invited a false inference. One defense theory was 5 that the LPT could not have been fraudulent because Warren 6 Buffet--the CEO of Berkshire Hathaway, Gen Re’s parent 7 company--vetted aspects of the deal. Defendants attack the 8 prosecution statement that there was no evidence Warren 9 Buffet knew anything significant about the deal. No false 10 inference was invited: Although the government led with its 11 inference that Buffett knew nothing of significance, it then 12 described in detail all of the Buffett evidence. The jury 13 could assess the evidence as it saw fit; the prosecution was 14 free to offer its assessment as well. 15 Finally, the defendants challenge the government’s 16 rebuttal assertion that Milton’s delivery of the fake slip 17 and offer letter successfully deceived two AIG employees, 18 who therefore booked the transaction as reinsurance. They 19 claim the statement was intended to paper over the 20 government’s missing proof of causation. But this single 21 sentence had an insignificant (if any) effect on the 2250 prosecution’s causation evidence, especially in view of the 1 court’s later reminder to the jury that statements from 2 summations are not evidence. The statement fell far short 3 of misconduct. 4
5

**II** 6 Ronald Ferguson, the CEO of Gen Re, and Hank Greenberg 7 envisioned a creative and unusual deal, but Ferguson claims 8 that he was unaware that the deal would be fraudulent. He 9 cautions that the jury may have disregarded the flimsy 10 evidence of his scienter (some of which he claims was 11 admitted in error) and convicted him merely because he was 12 in charge as CEO. 13 14

**A** 15 Ferguson argues that the jury finding of his scienter 16 was supported by insufficient evidence. He has the “heavy 17 burden” of showing that “no rational juror could have found 18 [his scienter] beyond a reasonable doubt.” United States v. 19 Bryce , 208 F.3d 346, 352 (2d Cir. 1999) (internal quotation 20 marks omitted). For a sufficiency challenge, we view “all 21 of the evidence in the light most favorable to the 2223 Ferguson attempts to distinguish “no real risk” from “no risk,” arguing that the former is simply a reference to a legitimate finite reinsurance transaction with low risk. He introduced CRD materials that arguably use “no real risk” in this manner. However, the evidence is inconclusive, and in any event the potential distinction was before the jury. A rational juror could have, but need not have, credited the distinction. 51 government and draw all reasonable inferences in its favor.” 1 Id. 2 Napier testified extensively about Ferguson’s knowledge 3 of the no-risk aspect of the deal and his insistence on 4 disclosing Gen Re’s deposit accounting to AIG; that 5 testimony alone was likely sufficient to support the jury’s 6 finding. See United States v. Parker , 903 F.2d 91, 97 (2d 7 Cir. 1990) (“The fact that a conviction may be supported 8 only by the uncorroborated testimony of a single accomplice 9 is not a basis for reversal if that testimony is not 10 incredible on its face and is capable of establishing guilt 11 beyond a reasonable doubt.”). 12 In any event, that testimony, taken together with other 13 evidence--Ferguson’s unusual request for internal 14 confidentiality, his review of the Houldsworth email noting 15 that “no real risk” 23would be transferred and that “[CRD] 16 w[ould] not transfer any losses under this deal” (Joint 17 Appendix at 1978), and his proactivity with the tortuous fee 1852 recovery (which was not in the LPT documents)--were 1 sufficient for a rational juror to have found his scienter 2 beyond a reasonable doubt. 3
4

**B** 5 Ferguson challenges the admissibility of a December 6 2000 email from Graham, which assured Gen Re’s General 7 Counsel, Timothy McCaffrey, that: 8 [Ferguson] et al[.] have been advised of, and have 9 accepted, the potential reputational risk that US 10 regulators (insurance and securities) may attack 11 the transaction and our part in it. 12 Joint Appendix at 2192. The email was admitted as a co13 conspirator statement under Rule 801(d)(2)(E). Ferguson 14 argues that the email: (1) was inadmissible double-hearsay; 15 (2) mandated severance because it created tension between 16 his lack-of-scienter defense and Graham’s good-faith 17 defense; (3) and led the government to invite the inference 18 that Graham himself told Ferguson about the potential 19 reputational risk, which it knew to be false. 20
2124As Ferguson notes, statements admitted under Rule 801(d)(2)(E) are technically nonhearsay, rather than hearsay exceptions. Ferguson’s argument is thus a first-order hearsay issue (which happens to be embedded in a nonhearsay co-conspirator statement). The distinction is irrelevant for present purposes. We therefore use “double-hearsay” for ease of reference and to conform to the framing of the arguments in the district court.

25See, e.g. , United States v. Fell , 531 F.3d 197, 231 (2d Cir. 2008) (reviewing statement admitted as excited utterance under Rule 803(2) for abuse of discretion) ; United States v. Padilla , 203 F.3d 156, 161 (2d Cir. 2000)(reviewing district court’s findings for admitting co53 **1** 1 Double-hearsay 24is a potential issue because the 2 December email is written in the passive voice: Ferguson and 3 others have been advisedabout the potential reputational 4 risk by some unidentified person. Whether this statement 5 constitutes double-hearsay is a legal issue, which we review 6 de novo . See, e.g. , Biegas v. Quickway Carriers, Inc. , 573 7 F.3d 365, 378 (6th Cir. 2009) (“Whether a statement is 8 hearsay is a question of law, which we review de novo .”); 9 United States v. Collicott , 92 F.3d 973, 978 (9th Cir. 1996) 10 (“Whether the district court correctly construed the hearsay 11 rule is a question of law reviewable de novo .”). (However, 12 a district court’s hearsay rulings based upon factual 13 findings or the exercise of its discretion warrant 14 additional deference. 25 ) 15conspirator statements under Rule 801(d)(2)(E) for clear error).

26Such a formulation would raise a problem as to the speaker’s competence to say what is in the mind of another person, however. It is unclear whether Graham knewthat Ferguson had been informed or whether some degree of conjecture was involved. We have never explicitly held that co-conspirator statements admitted under Rule 801(d)(2)(E) need not satisfy Rule 602’s personal knowledge requirements. The government argues that personal knowledge is not required, noting that several other Circuits have so held, see, e.g. , United States v. Lindemann , 85 F.3d 1232, 1237-38 (7th Cir. 1996), and that we have rejected such a requirement for a similar provision (for admissions by a party’s agents under Rule 801(d)(2)(D), see United States v. Lauersen , 348 F.3d 329, 340 (2d Cir. 2003), vacated and remanded on other grounds , 543 U.S. 1097 (2005)). The potential personal knowledge issue was waived, however, because double-hearsay is what was argued and there was no ruling on personal knowledge in the first place. See Norton v. Sam’s Club , 145 F.3d 114, 117 (2d Cir. 1998). 54 The phrase “have been advised of” is used to convey the 1 idea that they “know”; if the email said “Ferguson et al. 2 know the potential reputational risk” there would be no 3 double-hearsay issue. 26Without indicia of evasiveness, it 4 is not necessary to look for the speaker behind every 5 sentence written in the passive voice. It is unlikely that 6 the email was carefully drafted for hearsay subterfuge, 7 especially in view of the incautious discussion about AIG 8 answering to God about its accounting practices. This is 9 not an instance in which a sentence is carefully manipulated 1055 to smuggle hearsay evidence into pending litigation. See, 1

e.g. , Official Comm. of Unsecured Creditors v. Hendricks , 2 No. 1:04-cv-066, 2008 U.S. Dist. LEXIS 116318, at *12 (S.D. 3 Ohio Aug. 1, 2008) (striking passive-voice sentence in 4 affidavit submitted with motion for summary judgment). 5 In any event, the unnamed speaker need not be 6 identified to conclude that the statement is nonhearsay. 7 First, the statement was not offered for its truth; it was 8 offered solely for the purpose of showing that the statement 9 was made to Ferguson. See, e.g. , George v. Celotex Corp. , 10 914 F.2d 26, 30 (2d Cir. 1990) (“[A]n out of court statement 11 offered not for the truth of the matter asserted, but merely 12 to show that the defendant was on notice of a danger, is not 13 hearsay.”). Second, no nonmember of the conspiracy could 14 have given Ferguson the advice about potential reputational 15 risk, because only co-conspirators would have been aware of 16 the particular reputational risk that the conspiracy’s 17 object entailed (especially in view of Ferguson’s order for 18 an unusual level of internal secrecy about the deal). The 19 statement, made in furtherance of the conspiracy, is thus 20 also a nonhearsay co-conspirator statement under Rule 21 801(d)(2)(E). 2256 **2** 1 Ferguson wished to keep Graham’s email out of evidence, 2 but Graham wanted it in--as evidence that he acted in good 3 faith by soliciting his supervisor’s imprimatur on a legally 4 questionable transaction. Ferguson and Graham claim that 5 the email created unavoidable tension between Ferguson’s 6 lack-of-scienter defense and the good-faith defense mounted 7 by Graham, and that severance was therefore warranted. 8 Ferguson claims additional prejudice from his inability-- 9 without infringing Graham’s rights--to place before the jury 10 an exculpatory statement from Graham’s proffer session. 11 “Motions to sever under Rule 14 are committed to the 12 sound discretion of the trial judge”; to compel reversal, 13 the defendant has the “heavy burden” to “show prejudice so 14 severe that his conviction constituted a miscarriage of 15 justice.” United States v. Rittweger , 524 F.3d 171, 179 (2d 16 Cir. 2008) (internal quotation marks omitted). 17 It was well within the district court’s discretion to 18 conclude that any tension between defenses was insufficient 19 to warrant severance. If the jury concluded that both 20 Graham and Ferguson feared reputational risk because the LPT 21 was objectionable but non-fraudulent--like, for example, an 2257 aggressive (but defensible) offshore tax position--it could 1 have credited both defense theories. 2 Nor was severance necessary to permit Ferguson to 3 introduce evidence from Graham’s proffer session, in which 4 Graham denied personally informing Ferguson about the 5 reputational risk of the transaction. Ferguson argues that 6 in a joint trial, he was hamstrung: He could not introduce 7 the government’s notes containing the statement, because 8 Graham was given limited-use immunity; nor could he compel 9 Graham to testify, because of Graham’s Fifth Amendment right 10 against self-incrimination. 11 We have identified several factors for determining 12 whether to grant severance based on a defendant’s need to 13 call a co-defendant as a witness: 14 (1) the sufficiency of the showing that the 15 co-defendant would testify at a severed trial and 16 waive his Fifth Amendment privilege; 17 (2) the degree to which the exculpatory testimony 18 would be cumulative; 19 (3) the counter arguments of judicial economy; and 20 (4) the likelihood that the testimony would be 21 subject to substantial, damaging impeachment. 22 United States v. Finkelstein , 526 F.2d 517, 523-24 (2d Cir. 23 1975) (internal citations omitted). Although the district 2427 Ferguson’s motion to sever based on this email was made on the eve of trial, because it was prompted by the government’s eleventh-hour Brady /Jencks disclosures. The district court thus had to decide the motion on an expedited basis, and did so orally (before the government was even able to file a written response). The court later provided a written explanation for the denial of Ferguson’s renewed motion to sever (raised in connection with his Rule 29 motions), but that too omitted any reference to the Finkelsteinfactors. (Ferguson had once previously renewed the motion to sever, which was also denied orally.)

28Ferguson argues that the proffer session statement would be admissible under Rule 804(b)(3) as a statement 58 court did not recite or explicitly apply these factors, 27 1 its discretion is not conditioned upon reciting or 2 considering them. Rather, the factors are what the district 3 court “properly couldhave considered”; they were announced 4 “[w]ithout purporting to delimit the trial court’s field of 5 inquiry.” Id. at 523 (emphasis added). 6 In any event, the factors weigh in favor of the 7 district court’s ruling. Only the second factor favors 8 Ferguson: Graham’s testimony about the email would not have 9 been cumulative, because there is no adequate substitute for 10 further clarification from the drafter himself. But the 11 other factors favor the government: first, Ferguson merely 12 assumes Graham would testify, and it is unclear whether the 13 conflicting statement from the proffer session would even be 14 admissible if he did not; 28second, the exculpatory value of 15against interest or under the Rule 807 residual exception. But “only those declarations . . . that are individually self-inculpatory” are admissible under Rule 804(b)(3), and a court could exclude the statement for “d[oing] little to subject [Graham] himself to criminal liability.” See Williamson v. United States , 512 U.S. 594, 599, 604 (1994) (emphasis added). As for the residual exception, it is unclear that the notes have the necessary “equivalent circumstantial guarantees of trustworthiness,” Fed. R. Evid. 807, because Graham was not cross-examined and there was no transcript from the hearing. 59 the statement would be hugely outweighed by staging another 1 multi-week trial (with another potential appeal) for 2 Ferguson alone; third, the cross-examination of Graham would 3 elicit testimony damaging to Ferguson about Graham’s qualms 4 concerning the deal, and the basis for his statement that 5 Ferguson knew of the reputational risk. 6

*** 7 At bottom, “Rule 14 does not require severance even if 8 prejudice is shown”; instead, “the tailoring of the relief 9 to be granted, if any, [is in] the district court’s sound 10 discretion.” Zafiro v. United States , 506 U.S. 534, 538-39 11 (1993). Ferguson and Graham have not made a showing that 12 justifies upending the district court’s exercise of its 13 discretion. 14 1560 **3** 1 The government’s closing statement juxtaposes Napier’s 2 comment that the LPT is Ferguson’s deal with a description 3 from Graham’s email that Ferguson was advised of the 4 potential reputational risk. Ferguson argues that this 5 sequence (and a similar one in the government’s opening 6 statement) amounted to prosecutorial misconduct, because it 7 advanced the inference that Graham hadpersonally discussed 8 reputational risk with Ferguson, which the government knew 9 to be false. 10 Prosecutors are well advised to tread carefully when it 11 comes to arguing for inferences that are fair in terms of 12 evidence but are doubtful (if not foreclosed) based on what 13 they were told in proffer sessions. However, any inference 14 arose from the structure of the government’s argument, 15 rather than its substance. Although it is possible that the 16 misleading structure of a prosecutor’s argument could amount 17 to misconduct, the misconduct here (if any) was insufficient 18 to create the “substantial prejudice” necessary to warrant 19 vacatur. United States v. Valentine , 820 F.2d 565, 570 (2d 20 Cir. 1987). 21
2229Extrajudicial statements made among co-conspirators during and in furtherance of a conspiracy (whose existence is established by a preponderance of the evidence) are admissible against co-conspirators. See Fed. R. Evid. 801(d)(2)(E); United States v. Tellier , 83 F.3d 578, 580 (2d Cir. 1996). The court conditionally admitted the statements during the government’s case, but admitted the statements only after conducting a hearing after the government rested; the court found that the government satisfied its burden of proving the necessary Rule 801(d)(2)(E) elements by a preponderance. See United States v. Geaney , 417 F.2d 1116, 1120 (2d Cir. 1969). 61 **C** 1 The government insists that the deal was tainted from 2 the very first call between Ferguson and Greenberg, when AIG 3 asked to rent a specific amount of reserves for a defined 4 period. Yet it also theorized that the idea of a no-risk 5 deal did not surface until Garand suggested it in mid6 November. Ferguson claims that this is a contradiction that 7 renders untenable the district court’s finding that the 8 conspiracy began with the Greenberg-Ferguson call on October 9 31, a ruling that allowed the government to introduce co10 conspirator statements made starting on October 31 (rather 11 than starting from mid-November). 29The district court’s 12 decision to admit the co-conspirator statements under Fed. 13 R. 801(d)(2)(E) is reviewed for clear error. See United 1430The government presented evidence that Ferguson andGreenberg ratified the transaction even after it became norisk. 62 States v. Farhane , 634 F.3d 127, 160-61 (2d Cir. 2011). 1 The government’s theories are not irreconcilable. 2 Although the details of the plan were not settled during the 3 October 31 call, Greenberg and Ferguson agreed to a highly 4 unusual deal: The transaction was prompted predominately by 5 stock market concerns; it inverted their customary 6 commercial roles as cedant and reinsurer, even though there 7 was no evidence that Gen Re wanted reinsurance; and AIG 8 requested a specific dollar range of loss reserves for a 9 specific term. 10 Even if Greenberg and Ferguson had hoped to accomplish 11 their objectives legally, execution of a no-risk transaction 12 was not unforeseeable. These very senior executives agreed 13 to pursue specific parameters. And their objective 14 predictably exerted pressure on their subordinates on the 15 deal team to get the transaction done that way no matter 16 what. 30Under these circumstances, we cannot say that it 17 was clearly erroneous for the district court to find that 18 the conspiracy began on October 31. 19 2063 **III** 1 The defense of Robert Graham, in-house lawyer for Gen 2 Re and the only attorney among the defendants, is that he 3 acted in good faith throughout, was unaware of the true 4 nature of the deal, and vetted his ethical concern with Gen 5 Re’s General Counsel, Timothy McCaffrey. Graham argues that 6 (1) his requests for certain jury instructions were 7 improperly denied, and (2) government conduct rendering 8 McCaffrey unavailable was a hindrance to Graham’s good faith 9 defense. 10
11

**A** 12 Graham claims that the district court improperly denied 13 his request for jury instructions about professional 14 responsibility rules for attorneys, and non-contractual 15 understandings (i.e., handshake deals). Although a criminal 16 defendant is entitled to a jury instruction when there is 17 “any foundation in the evidence” for it, an instruction that 18 “divert[s] the attention of the jury to questions of little 19 significance” and that would “have confused, if not misled, 20 the jury” are properly rejected. United States v. Russo , 74 21 F.3d 1383, 1393-94 (2d Cir. 1996) (internal quotation marks 2231This is the same email that Ferguson challenged (discussed above) for asserting that he had been advised of the potential reputational risk of the transaction. 64 omitted). 1 2
**1** 3 Graham sought a jury instruction explaining that an 4 attorney confronted with “an arguable question of 5 professional duty” may discharge his ethical 6 responsibilities by consulting with a supervisory lawyer and 7 relying on his resolution of the matter. Joint Appendix at 8
2844-45. He argues that his email to his boss, 31which the 9 government says is a basis for liability, was in fact and 10 effect compliance with his ethical responsibilities: 11 Tim - 12 13 The AIG project continues. It is now a two step 14 loss portfolio deal between Cologne Re Dublin and 15 National Union of Pittsburgh, with $250 million 16 booked in the 4th quarter of 2000 and $250 million 17 more to be booked in 2001 (probably 1st quarter). 18 While it will be booked in the third quarter, it 19 is retroactive to 1/12/2000. 20 21 Our group will book the transaction as a deposit. 22 How AIG books it is between them, their 23 accountants and God; there is no undertaking by 24 them to have the transaction reviewed by their 25 regulators. 26 27 [Ferguson] et al[.] have been advised of, and have 2865 accepted, the potential reputational risk that US 1 regulators (insurance and securities) may attack 2 the transaction and our part in it. 3 4 Rob 5 Joint Appendix at 2192 (emphasis added). 6 The professional responsibility rules shed no light, 7 however: A memo reporting on what is being done, without 8 more, is not the kind of consultation contemplated by the 9 rules. See Conn. Rules of Prof’l Conduct 5.2. Nor was 10 there a foundation for the instruction in the record, 11 because Graham presented no evidence implicating the rules. 12 (He evidently decided not to call the ethics expert witness 13 he had considered. See United States v. Ferguson , No. 06- 14 cr-137, 2007 WL 4539646, at *2 (D. Conn. Dec. 14, 2007).) 15 16
**2** 17 The government emphasized that Graham drafted the 18 contracts to omit the $15 million in payments to Gen Re. 19 Graham countered that the payments were non-contractual 20 “handshake” deals and thus needed not be included in a 21 written contract. He sought a jury instruction about 22 handshake deals to bolster this argument. 23 There was no foundation for the instruction; and the 2466 instruction only would have created confusion about an 1 unimportant collateral issue. The testimony on handshake 2 deals was that they are “agreement[s] over many years, often 3 decades” in which “one party may or may not make up losses 4 to the other party if they do particularly well,” Trial Tr. 5 at 3435, and that such arrangements are common in the 6 insurance industry. But numerous comments in the record 7 confirm that the $15 million payment was not a handshake. 8 (The only comment to the contrary was a stray remark by 9 Houldsworth that appears to have been a misstatement). 10 Moreover, the money trail does not suggest that the parties 11 were dealing on the trustful basis of a handshake: Gen Re 12 withheld the payment it was contractually obligated to make 13 until AIG had routed the $15 million from the side-deal 14 (premium repayment and fee) to Gen Re. 15 16

**B** 17 In a government interview, Graham’s boss, Tim 18 McCaffrey, recalled that when he received Graham’s email, he 19 saw nothing that warranted questioning or follow up, and 20 presumed that Graham would have been more explicit if truly 21 concerned about legal or ethical issues. Graham subpoenaed 2232Graham argues that the reference to McCaffrey as a co-conspirator in the indictment should have been stricken. Motions to strike surplusage from an indictment are granted only when the challenged phrases are “not relevant to the crime charged and are inflammatory and prejudicial.” United States v. Hernandez , 85 F.3d 1023, 1030 (2d Cir. 1996) (internal quotation marks omitted). The phrase was relevant because, as discussed below, McCaffrey was legitimately being investigated; he had to be referenced because he was the only recipient of Graham’s infamous email. 67 McCaffrey to testify about these matters (and Graham’s good 1 character), but McCaffrey, who was changed to an “unindicted 2 co-conspirator” in the superseding indictment, 32declined to 3 testify unless immunized **.** The government refused. Graham 4 claims that McCaffrey should have been immunized so that he 5 could testify on Graham’s behalf or, failing that, he should 6 have had the benefit of a missing witness instruction. 7 “The situations in which the United States is required 8 to grant statutory immunity to a defense witness are few and 9 exceptional.” United States v. Praetorius , 622 F.2d 1054, 10 1064 (2d Cir. 1979). So few and exceptional are they that, 11 in the nearly thirty years since establishing a test for 12 when immunity must be granted, we have yet to reverse a 13 failure to immunize. The test requires three findings: 14 (1) “[T]he government has engaged in 15 discriminatory use of immunity to gain a tactical 16 advantage or, through its own overreaching, has 17 forced the witness to invoke the Fifth Amendment”; 1868 (2) “[T]he witness’ testimony will be material, 1 exculpatory and not cumulative”; and 2 (3) The testimony “is not obtainable from any 3 other source.” 4 United States v. Burns , 684 F.2d 1066, 1077 (2d Cir. 1982). 5 We review the court’s factual findings about government 6 actions and motive for clear error, but its ultimate 7 balancing for abuse of discretion. United States v. Ebbers , 8 458 F.3d 110, 118 (2d Cir. 2006). 9 Graham’s claim fails on two grounds. As to the first 10 part, a prosecutor does not overreach by refusing to 11 immunize a legitimate target of an ongoing investigation, 12 and the district court’s finding that McCaffrey was a target 13 was not clearly erroneous: He failed to act following 14 Graham’s remark that “[h]ow AIG books [the LPT] is between 15 them, their accountants and God,” and he annotated a list of 16 transactions in his personal files to indicate a hidden 17 letter for the LPT. 18 As for the second part, McCaffrey’s interpretation of 19 Graham’s email was not material because it was non20 contemporaneous and self-serving: It would have been 21 disadvantageous for McCaffrey to concede that the email had 22 raised red flags that he subsequently ignored. Moreover, 2369 McCaffrey’s assumption, that Graham would have been more 1 explicit if he had a qualm, was conjectural. 2 Similarly, the district court did not abuse its 3 discretion by omitting a missing witness instruction. Such 4 an instruction need not be given “in the absence of 5 circumstances that indicate the government has failed to 6 immunize an exculpatory witness.” United States v. Myerson , 7 18 F.3d 153, 160 (2d Cir. 1994). For the reasons discussed 8 above, it was within the court’s discretion to conclude that 9 McCaffrey’s potential testimony was insufficiently 10 exculpatory to warrant the instruction. 11
12

**IV** 13 Christian Milton, a Vice President of Reinsurance at 14 AIG, was the only AIG employee who was indicted in this 15 case. His primary defense is that the trial was a 16 vilification of AIG, and he was convicted by association. 17 18

**A** 19 Milton argues that the court abused its discretion by 20 admitting comments from the recordings of the Gen Re 2133 Milton challenges the admission of four passages: 1) HOULDSWORTH : [I]f there’s enough pressure on at [AIG’s] end, they’ll, they’ll find ways to cook the books, won’t they? 2) MONRAD : I’m not sure [AIG] use[s] all the same rules we use. 3) HOULDSWORTH : . . . I mean, how much cooking goes on in, in there [at AIG]?

. . . .

. . . GARAND : They’ll do whatever they need to make their numbers look right. 4) GRAHAM : [AIG’s] organizational approach to compliance issues has always been, pay the speeding ticket. 70 defendants that impugned AIG generally. 33The statements 1 are undeniably prejudicial to AIG, but they are also highly 2 probative of the scienter of the Gen Re defendants. The 3 district court conscientiously conducted extensive 4 balancing, evaluating and redacting recordings on a line-by5 line basis. See United States v. Ferguson , 246 F.R.D. 107, 6 121-23 (D. Conn. 2007) (excluding comments that 7 sarcastically referenced the “lovely people” and “nice 8 people” at AIG, that there were good reasons to avoid doing 9 business with AIG, and that “Ferguson doesn’t like it 10 because it’s AIG”). Moreover, the court gave a charge 11 that guilt could not be conferred 1234 Milton argues that no limiting instruction could cure the prejudice, by analogy to cases where plea allocutions were introduced, see, e.g. , United States v. Riggi , 541 F.3d 94 (2d Cir. 2008). The analogy is not apt.

35 It is easy to see why the defendant did not seek further limiting instructions. Confusion abounded when the first limiting instruction was given, causing the jury to hear the prejudicial statement three times in short succession. Nevertheless, the option to seek further instructions was available.

36Two aspects of the district court’s treatment of Houldsworth’s “cook the books” comment give pause. First, the court excluded the comment from evidence after 71 based solely on [the defendants’] senior position 1 or positions that he or she held within their 2 respective companies. 3 . . . [Y]ou may not infer that any of the 4 defendants, based solely on his or her position at 5 Gen Re . . . or AIG, had any knowledge of the 6 alleged fraud. 7 Trial Tr. at 4766-67. The instruction is easy to follow, 8 and “juries are presumed to follow their instructions.” 34 9 Richardson v. Marsh , 481 U.S. 200, 211 (1987). Although 10 fortified limiting instructions for each recording could 11 have provided additional (perhaps redundant) protection, 12 Milton’s strategy was to forgo additional instructions to 13 avoid drawing unnecessary attention to the recordings. 35 14 Under these circumstances, we cannot say that the 15 district court abused its discretion in admitting the 16

statements. 36At the same time, some of the phrases (from 17previously allowing the jury to hear it during the government’s opening. But the statement was not so explosively prejudicial as to taint the jury after one hearing; nor was it irrational for the district court to revisit its Rule 403 balancing and exclude the comment. Second, excluding the comment seems inconsistent with admitting Houldsworth’s other comment that asked how much cooking goes on at AIG. But the “cooking the books” metaphor was not the only objectionable part of the excluded comment; Houldsworth also explained that “ We won’t help them do that too much. We won’t, we’ll do nothing illegal.”

37 Milton moved for a severance both before and after trial. The pretrial motion was based on the above recordings and evidence of a similar transaction, which was 72 the recordings) that denigrated AIG were exploited 1 rhetorically by the government. Although “cook the books” 2 is a cliche that comes easily to the lips, the government 3 pushed its luck by harping on it twenty-three times (by 4 Milton’s count)--after a recording containing that phrase 5 was excluded. Such conduct draws appellate scrutiny, and 6 could neutralize the effect of an otherwise sufficient 7 limiting instruction. We need not consider this further; 8 but the government would be well served to avoid gratuitous 9 prejudice of that kind at retrial. 10
11

**B** 12 The recordings denigrating AIG did not require that 13 Milton’s trial be severed. 37Joint trials “play a vital 14excluded before trial. The post-verdict motion for severance lacked supporting legal arguments. 73 role in the criminal justice system” by promoting efficiency 1 and avoiding the “scandal and inequity of inconsistent 2 verdicts.” Zafiro v. United States , 506 U.S. 534, 537 3 (1993) (internal quotation marks omitted). As discussed, 4 the decision whether to sever is confided to the “sound 5 discretion” of the district court and is “virtually 6 unreviewable” unless the conviction “constituted a 7 miscarriage of justice,” United States v. Yousef , 327 F.3d 8 56, 149-50 (2d Cir. 2003) (internal quotation marks 9 omitted). 10 There was substantial other evidence to convict Milton 11 besides the recordings denigrating AIG. He spoke frequently 12 with Napier--sometimes a couple of times a day, and other 13 times “almost daily”--to “keep the pressure” on Gen Re to 14 get the deal done. Joint Appendix at 789. He also spoke 15 candidly with Napier about the no-risk nature of the deal **,** 16 and their discussions are memorialized in at least one 17 email. He orchestrated the circulation of deal documents 18 within AIG to avoid the customary actuarial and underwriting 19 due diligence. He signed the final contracts on behalf of 2038(The content of the recordings is discussed above, seesupra note 32.) Although the first recording was permitted to be played in the government’s opening, the court did not allow the government to bring it out in Houldsworth’s testimony. The second passage is not inflammatory, but in any event, the court instructed the jury that it “may not consider this statement at all as to any of the other defendants” besides Monrad, the speaker. The court offered to give a limiting instructions to the jury for the third recording “if requested by Milton,” 246 F.R.D. at 120, but Milton did not request one. Milton expressly requested that the court not give a limiting instruction for the fourth recording.

74 AIG, which omitted the $15 million fee, and then helped 1 effect (and disguise) the payment of the fee, including by 2 signing the relevant paperwork on AIG’s behalf. 3 Even if the recordings were likely inadmissible had 4 Milton been tried alone (they were admitted for the limited 5 purpose of showing scienter of the Gen Re defendants), we 6 cannot say--in view of the line-by-line redaction of the 7 recordings, the court’s steps to minimize each recording’s 8 effect on Milton, 38and the jury charge rejecting conviction 9 based upon corporate title--that the district court abused 10 its discretion in denying severance. 11 12

**V** 1339Monrad argues in general about improper lay opinions by Napier and Houldsworth, but focuses on four interpretations: 1) Testimony by Houldsworth and Napier concerning her statement that “We told AIG that there would not be symmetrical accounting here.” Joint Appendix at 2094. 2) Houldsworth’s testimony about Napier’s statement that “The accounting does not appear to be an issue for AIG.” Joint Appendix at 2067. 3) Houldsworth’s testimony about his comment that “to me it sounds like [Monrad’s] got something in mind.” Joint Appendix at 1957. 4) Testimony by Houldsworth and Napier concerning her statement that AIG “may have a tough time getting the accounting they want.” Joint Appendix at 1997. 75 Elizabeth Monrad, the Chief Financial Officer of Gen 1 Re, argues principally the prosecutorial misconduct and 2 other issues discussed above. In addition, she argues that 3 testimony by Houldsworth and Napier about what others 4 (sometimes she herself) meant by certain statements was 5 equivalent to asking what she knew , which improperly 6 prejudiced the jury as to her scienter. 39Such testimony, 7 she claims, was neither “rationally based” on the witnesses’ 8 perception nor helpful to the jury. See Fed. R. Evid. 701. 9 Monrad relies heavily upon United States v. Kaplan , 490 10 F.3d 110 (2d Cir. 2007). In Kaplan , conspirators from a 1140 Monrad’s analogy to “drug code” cases is unpersuasive. See, e.g. , United States v. Grinage , 390 F.3d 746 (2d Cir. 2004). Attributing highly inculpatory meaning to otherwise innocuous phrases (e.g., “I need something bad, bad, bad,” and “I need about nearly four” interpreted as needing four ounces of PCP) differs from providing context for obscure accounting terminology. 76 medical office and a law firm set up auto accidents to 1 collect insurance. Id. at 114-16. A cooperating witness, a 2 lawyer involved in the ring, testified that when a successor 3 lawyer in the ring claimed experience with “these kinds of 4 cases,” the witness “understood” the cases as auto insurance 5 scams. Id. at 117. That was held to be improper lay 6 opinion testimony because the government did not establish 7 that it was “rationally based” on the perception of the 8 witness (who was extremely vague when explaining the basis 9 for his testimony). Id. at 119. 10 Those concerns are absent here. Napier and Houldsworth 11 testified only about calls or emails they were involved 12 with, and their testimony was rationally based on the 13 perceptions that they formed from those communications and 14 as key players in the LPT deal. The testimony was helpful 15 to the jury because of the jargon, 40the heavy involvement 16 by Napier and Houldsworth in the LPT, and their experience 17 in the reinsurance industry. 1877 Although this Court has “suspect[ed] that in most 1 instances a proffered lay opinion will not meet the 2 requirements of Rule 701” when the issue is a party’s 3 knowledge, we have advised that, like here, “[l]ay opinion 4 testimony will probably be more helpful when the inference 5 of knowledge is . . . from such factors as the defendant’s 6 history or job experience.” United States v. Rea , 958 F.2d 7 1206, 1216 (2d Cir. 1992). The district court therefore did 8 not abuse its discretion in admitting the testimony about 9 these statements. 10 11

**VI** 12 All of the arguments raised by Chris Garand, a Senior 13 VP and Chief Underwriter of Gen Re’s finite reinsurance 14 operation in the U.S., are raised by other defendants and 15 are discussed above. 16 17

**CONCLUSION** 18 For the foregoing reasons, the defendants’ convictions 19 are vacated and the case is remanded to the district court 20 for a retrial. 21