10-2786 (L)

USA v. Wolfson

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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August Term, 2010

(Argued: May 24, 2011 Decided: June 7, 2011)

Docket Nos. 10-2786-cr(L), 10-2878-cr(CON)

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UNITED STATES OF AMERICA,

Appellee,

 -v.-

 

ALLEN WOLFSON,

Defendant-Appellant.

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Before: KEARSE, POOLER, and LYNCH, Circuit Judges.

Defendant-Appellant Allen Wolfson appeals from two judgments of conviction entered

in the United States District Court for the Southern District of New York (Koeltl, J.). On appeal,

Wolfson argues that the first judgment of conviction, entered upon a jury verdict, should be

overturned, either because the evidence was insufficient to permit a jury to find a fiduciary duty,

or because the jury was improperly instructed about how to determine the existence of a

fiduciary duty. Wolfson further argues that the second judgment of conviction should be

overturned because his guilty plea, entered after his conviction in the first trial, was premised on

the outcome of that trial. We reject Wolfson’s challenge to the jury instructions and AFFIRM

both judgments of conviction. 

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JAMES A. COHEN, Michael W. Martin, Fordham University

School of Law, Lincoln Square Legal Services, Inc., New York,

N.Y., for Defendant-Appellant.

RUSSELL CAPONE, Andrew L. Fish, Assistant United States 

Attorneys, Of Counsel, for Preet Bharara, United States Attorney,

Southern District of New York, New York, N.Y., for Appellee.

 __________________
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PER CURIAM:

Defendant-Appellant Allen Wolfson appeals from two judgments of conviction entered

in the United States District Court for the Southern District of New York (Koeltl, J.). The first

judgment was entered after a jury trial, which resulted in Wolfson’s conviction on a number of

different grounds, including securities fraud, relating to Wolfson’s involvement in a “pump and

dump” stock scheme. The second judgment resulted from a guilty plea in connection with a

similar scheme involving different stock. We reject Wolfson’s challenge to the jury instructions,

and affirm both convictions.

The evidence at trial showed that Wolfson artificially inflated the prices of certain

thinly-traded securities in which he had amassed a substantial interest, and then unloaded those

holdings on unsuspecting investors. Of particular relevance to Wolfson’s conviction, the scheme

relied on corrupt stock brokers who sold the securities for prices far above their actual value. In

exchange, Wolfson rewarded the brokers with exorbitant commissions. Some of the brokers

failed to disclose the fact of the commissions to their customers. Others made affirmative

misrepresentations about the size of these commissions.

On appeal, Wolfson argues that the brokers had no duty to disclose their commissions,

and that his fraud convictions, which relied on the breach of that duty to establish a scheme to

defraud, must therefore be overturned. Wolfson also argues that, even if a duty to disclose might

arise in some contexts, the district court gave an improper fiduciary duty instruction. Finally,

Wolfson submits that it was only because a jury had found him guilty in the first instance that he

pled guilty in the second case, so that if we overturn the first judgment of conviction, the second

should be reversed as well. 

In the context of a motion made pursuant to Federal Rule of Criminal Procedure 33, the

district court concluded that Wolfson’s arguments were unavailing in light of our holding in

United States v. Szur, 289 F.3d 200 (2d Cir. 2002). With the issue now before us on direct
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appeal, we agree with the district court. Reviewing the jury instructions for plain error, because

Wolfson did not timely object below, see United States v. Middlemiss, 217 F.3d 112, 121 (2d

Cir. 2000), and taking the evidence in the light most favorable to the Government, we conclude

that the jury was entitled to find that the brokers in this case had a duty to disclose their

exorbitant commissions, just as they had a duty to refrain from making affirmative

misrepresentations regarding the size of their commissions, and that the district court properly

instructed the jury on the elements of that duty.

Although we have long held that there “is no general fiduciary duty inherent in an

ordinary broker/customer relationship,” we have also recognized that “a relationship of trust and

confidence does exist between a broker and a customer with respect to those matters that have

been entrusted to the broker.” Szur, 289 F.3d at 211 (internal quotation marks omitted, emphasis

added). As we explained in United States v. Skelly, 442 F.3d 94 (2d Cir. 2006), “[m]ost

commonly, this relationship exists in situations in which a broker has discretionary authority

over the customer's account.” Id. at 98. However, a discretionary account is not the sole means

by which a fiduciary duty may be created in the context of a broker-customer relationship; we

have “recognized that particular factual circumstances may serve to create a fiduciary duty

between a broker and his customer even in the absence of a discretionary account.” Id.

(emphasis added). Put otherwise, it is well settled in this Circuit that the presence of a

discretionary account automatically implies a general fiduciary duty between a broker and

customer, but the absence of a discretionary account does not mean that no fiduciary duty exists.

In Szur, which presented analogous facts and a nearly identical jury instruction, we

upheld a fraud conviction premised on a “deprivation of honest services” theory of wire fraud

under 18 U.S.C. § 1343 as modified by 18 U.S.C. § 1346. Jeffrey Szur, the owner and president

of J.S. Securities, had convinced brokers to market stock in exchange for unusually large

commissions, sometimes as much as 50 percent of the proceeds of the sale. Szur, 289 F.3d at
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212. These brokers failed to disclose the size of the commissions to their customers. We held

that, although the brokers owed no “general fiduciary duty resulting from discretionary authority

. . . JSS was under a duty to disclose these exorbitant commissions because the information

would have been relevant to a customer's decision to purchase the stock.” Id. (emphasis added). 

This holding was an outgrowth of our pronouncement in SEC v. First Jersey Securities, Inc., 101

F.3d 1450, 1469 (2d Cir. 1996), where we explained that “[s]ales of securities by broker-dealers

to their customers carry with them an implied representation that the prices charged in those

transactions are reasonably related to the prices charged in an open and competitive market.” 

Wolfson argues that United States v. Skelly, which was factually similar in that it arose in

the context of securities fraud, effectively limited the duty to disclose identified in Szur to claims

of honest services fraud. This is simply not the case. The error we identified in Skelly was not

that the brokers involved in the pump and dump scheme in that case had no fiduciary

relationship with their customers, but that the district court omitted a key element of what it

means to be a fiduciary from the jury charge. The instruction in Skelly was limited to a single

sentence: “One acts in a fiduciary capacity when the business which he transacts or the money or

property which he handles is not his or for his own benefit, but is for the benefit of another

person as to who[m] he stands in relation implied and necessitating great confidence and trust on

the one part, and a high degree of good faith on the other part.” Id. at 98 (internal quotation

marks and footnote omitted). The problem we identified with the charge was the fact that it

“omitted the elements of ‘reliance and de facto control and dominance,’ which are required to

establish a fiduciary relationship.” Id. at 99 (quoting Szur, 289 F.3d at 210). In reaching that

conclusion, Skelly favorably cited to the jury instruction in Szur, which included those elements. 

Id. (citing Szur, 289 F.3d at 210). As a result, Skelly stands for the proposition that a properly

instructed jury may find that stock brokers have a duty to disclose material commissions to their

customers, and can convict brokers who breach that duty of violating “the general antifraud
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provisions of the securities laws” as well as the “comparable provisions of the wire fraud

statute.” Id. at 97. Skelly therefore reinforces, rather than undermines, the holding of Szur.

The controlling question in this case, then, is whether the jury was properly instructed. 

The district court instructed the jury in relevant part as follows:

Whether a fiduciary relationship exists is a matter of fact for you,

the jury, to determine. At the heart of the fiduciary relationship

lies reliance and de facto control and dominance. The relationship

exists when confidence is reposed on one side and there is

resulting superiority and influence on the other. One acts in a

fiduciary capacity when the business which he or she transacts or

the money or property which he or she handles is not his own or

for his or her own benefit but for the benefit of another person, as

to whom he or she stands in a relation implying and necessitating

great confidence and trust on the one part and a high degree of

good faith on the other part.

If you find that the government has shown beyond a reasonable

doubt that a fiduciary relationship existed, such as between any

one of the brokers and the customers you next consider whether

there was a breach of the duties incumbent upon the fiduciary in

the fiduciary relationship and specifically whether the defendant

caused the broker or brokers to breach their fiduciary duties to

customers. I instruct you that a fiduciary owes a duty of honest

services to his customer, including a duty to disclose all material

facts concerning the transaction entrusted to him or her. The

concealment by a fiduciary of material information which he or

she is under a duty to disclose to another, under circumstances

where the nondisclosure can or does result in harm to the other is a

[b]reach of the fiduciary duty and can be a violation of the federal

securities laws, if the government has proven beyond a reasonable

doubt the other elements of this offense, as I explained them to

you.

That instruction is identical in all material respects to the charge given in Szur. See Szur, 289

F.3d at 210. Because we find no principled basis on which to distinguish this case from Szur, we
1

 Wolfson also argues that his trial counsel was ineffective for failing to object to the

district court’s jury instruction on fiduciary duty. “[I]n most cases a motion brought under §

2255 is preferable to direct appeal for deciding claims of ineffective assistance,” because the

collateral attack allows for additional fact finding. Massaro v. United States, 538 U.S. 500, 504

(2003). Here, however, we have found no error in the jury instruction, and therefore, counsel

could not have been ineffective for failing to object to it—no additional fact finding could alter

this conclusion. 

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conclude that there was no error in the charge, and affirm Wolfson’s first conviction.1 That

conclusion necessarily defeats Wolfson’s argument challenging his subsequent guilty plea and so

we also affirm his second judgment of conviction.

CONCLUSION

We have considered Appellant's remaining contentions and find them to be without merit. 

We AFFIRM both judgments of the district court in their entirety.