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United States v. Newman and Chiasson



## In the



# United States Court of Appeals

**For the Second Circuit**

________

August Term, 2013

Nos. 13

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U NITED S TATES OF A MERICA

, Appellee

,

v.

T ODD N EWMAN

, A NTHONY C HIASSON

, Defendants

‐ Appellants,

J ON H ORVATH

, D ANNY K UO

, H YUNG G. L IM

, M ICHAEL S TEINBERG

, Defendants

. 1

________

Appeal from the United States District Court

for the Southern District of New York.

No. 12 CR 121(RJS)

― Richard J. Sullivan, Judge

.

________

Argued: April 22, 2014

Decided: December 10, 2014

________

1 The Clerk of Court is directed to amend the caption as set forth above.2 Nos. 13

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Before: W INTER

, P ARKER

, and H ALL

, Circuit Judges

.

________

Defendants

‐ appellants Todd Newman and Anthony Chiasson

appeal from judgments of conviction entered on May 9, 2013, and

May 14, 2013, respectively, in the United States District Court for the

Southern District of New York (Richard J. Sullivan, J. ) following a

six

‐ week jury trial on charges of conspiracy to commit insider

trading and insider trading in violation of 18 U.S.C. § 371, sections

10(b) and 32 of the Securities Exchange Act of 1934, SEC Rules 10b

‐ 5

and 10b5

‐ 2, and 18 U.S.C. § 2. Because the Government failed to

present sufficient evidence that the defendants willfully engaged in

substantive insider trading or a conspiracy to commit insider trading

in violation of the federal securities laws, we reverse Newman and

Chiasson’s convictions and remand with instructions to dismiss the

indictment as it pertains to them with prejudice.

________

S TEPHEN F ISHBEIN (John A. Nathanson, Jason M.

Swergold, on the brief ), Shearman & Sterling LLP,

New York, NY, for Defendant

‐ Appellant Todd

Newman

.

M ARK F. P OMERANTZ (Matthew J. Carhart;

Alexandra A.E. Shapiro, Daniel J. O’Neill, Jeremy

Licht, Shapiro, Arato & Isserles LLP, New York,

NY; Gregory R. Morvillo, Morvillo LLP, New

York, NY on the brief ), Paul, Weiss, Rifkind,

Wharton & Garrison LLP, New York, NY, for

Defendant

‐ Appellant Anthony Chiasson.

A NTONIA M. A PPS (Richard C. Tarlowe, Micah

W.J. Smith, Brent S. Wible, on the brief)

, Assistant3 Nos. 13

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United States Attorneys for Preet Bharara, United

States Attorney, Southern District of New York,

New York, NY, for Appellee.

Ira M. Feinberg, Jordan L. Estes, Hagan Scotten,

Hogan Lovells US LLP, New York, NY; Joshua L.

Dratel, Law Offices of Joshua L. Dratel, P.C., New

York, NY, for Amicus Curiae National Association of

Criminal Defense Lawyers.

________

B ARRINGTON D. P ARKER

, Circuit Judge :

Defendants

‐ appellants Todd Newman and Anthony Chiasson

appeal from judgments of conviction entered on May 9, 2013, and

May 14, 2013, respectively in the United States District Court for the

Southern District of New York (Richard J. Sullivan, J. ) following a

six

‐ week jury trial on charges of securities fraud in violation of

sections 10(b) and 32 of the Securities Exchange Act of 1934 (the

“1934 Act”), 48 Stat. 891, 904 (codified as amended at 15 U.S.C. §§

78j(b), 78ff), Securities and Exchange Commission (SEC) Rules 10b

‐ 5

and 10b5

‐ 2 (codified at 17 C.F.R. §§ 240.10b

‐ 5, 240.10b5

‐ 2), and 18

U.S.C. § 2, and conspiracy to commit securities fraud in violation of

18 U.S.C. § 371.

The Government alleged that a cohort of analysts at various

hedge funds and investment firms obtained material, nonpublic

information from employees of publicly traded technology

companies, shared it amongst each other, and subsequently passed

this information to the portfolio managers at their respective

companies. The Government charged Newman, a portfolio

manager at Diamondback Capital Management, LLC

(“Diamondback”), and Chiasson, a portfolio manager at Level4 Nos. 13

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Global Investors, L.P. (“Level Global”), with willfully participating

in this insider trading scheme by trading in securities based on the

inside information illicitly obtained by this group of analysts. On

appeal, Newman and Chiasson challenge the sufficiency of the

evidence as to several elements of the offense, and further argue that

the district court erred in failing to instruct the jury that it must find

that a tippee knew that the insider disclosed confidential

information in exchange for a personal benefit.

We agree that the jury instruction was erroneous because we

conclude that, in order to sustain a conviction for insider trading, the

Government must prove beyond a reasonable doubt that the tippee

knew that an insider disclosed confidential information and that he

did so in exchange for a personal benefit. Moreover, we hold that

the evidence was insufficient to sustain a guilty verdict against

Newman and Chiasson for two reasons. First

, the Government’s

evidence of any personal benefit received by the alleged insiders

was insufficient to establish the tipper liability from which

defendants’ purported tippee liability would derive. Second

, even

assuming that the scant evidence offered on the issue of personal

benefit was sufficient, which we conclude it was not, the

Government presented no evidence that Newman and Chiasson

knew that they were trading on information obtained from insiders

in violation of those insiders’ fiduciary duties.

Accordingly, we reverse the convictions of Newman and

Chiasson on all counts and remand with instructions to dismiss the

indictment as it pertains to them with prejudice.

BACKGROUND

This case arises from the Government’s ongoing investigation

into suspected insider trading activity at hedge funds. On January

18, 2012, the Government unsealed charges against Newman,5 Nos. 13

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Chiasson, and several other investment professionals. On February

7, 2012, a grand jury returned an indictment. On August 28, 2012, a

twelve

‐ count Superseding Indictment S2 12 Cr. 121 (RJS) (the

“Indictment”) was filed. Count One of the Indictment charged

Newman, Chiasson, and a co

‐ defendant with conspiracy to commit

securities fraud, in violation of 18 U.S.C. § 371. Each of Counts Two

through Five charged Newman and each of Counts Six through Ten

charged Chiasson with securities fraud, in violation of sections 10(b)

and 32 of the 1934 Act, SEC Rules 10b

‐ 5 and 105b

‐ 2, and 18 U.S.C. §

2. A co

‐ defendant was charged with securities fraud in Counts

Eleven and Twelve.

At trial, the Government presented evidence that a group of

financial analysts exchanged information they obtained from

company insiders, both directly and more often indirectly.

Specifically, the Government alleged that these analysts received

information from insiders at Dell and NVIDIA disclosing those

companies’ earnings numbers before they were publicly released in

Dell’s May 2008 and August 2008 earnings announcements and

NVIDIA’s May 2008 earnings announcement. These analysts then

passed the inside information to their portfolio managers, including

Newman and Chiasson, who, in turn, executed trades in Dell and

NVIDIA stock, earning approximately $4 million and $68 million,

respectively, in profits for their respective funds.

Newman and Chiasson were several steps removed from the

corporate insiders and there was no evidence that either was aware

of the source of the inside information. With respect to the Dell

tipping chain, the evidence established that Rob Ray of Dell’s

investor relations department tipped information regarding Dell’s

consolidated earnings numbers to Sandy Goyal, an analyst at

Neuberger Berman. Goyal in turn gave the information to

Diamondback analyst Jesse Tortora. Tortora in turn relayed the6 Nos. 13

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information to his manager Newman as well as to other analysts

including Level Global analyst Spyridon “Sam” Adondakis.

Adondakis then passed along the Dell information to Chiasson,

making Newman and Chiasson three and four levels removed from

the inside tipper, respectively.

With respect to the NVIDIA tipping chain, the evidence

established that Chris Choi of NVIDIA’s finance unit tipped inside

information to Hyung Lim, a former executive at technology

companies Broadcom Corp. and Altera Corp., whom Choi knew

from church. Lim passed the information to co

‐ defendant Danny

Kuo, an analyst at Whittier Trust. Kuo circulated the information to

the group of analyst friends, including Tortora and Adondakis, who

in turn gave the information to Newman and Chiasson, making

Newman and Chiasson four levels removed from the inside tippers.

Although Ray and Choi have yet to be charged

administratively, civilly, or criminally for insider trading or any

other wrongdoing, the Government charged that Newman and

Chiasson were criminally liable for insider trading because, as

sophisticated traders, they must have known that information was

disclosed by insiders in breach of a fiduciary duty, and not for any

legitimate corporate purpose.

At the close of evidence, Newman and Chiasson moved for a

judgment of acquittal pursuant to Federal Rule of Criminal

Procedure 29. They argued that there was no evidence that the

corporate insiders provided inside information in exchange for a

personal benefit which is required to establish tipper liability under

Dirks v. S.E.C.

, 463 U.S. 646 (1983). Because a tippee’s liability

derives from the liability of the tipper, Newman and Chiasson

argued that they could not be found guilty of insider trading.

Newman and Chiasson also argued that, even if the corporate7 Nos. 13

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insiders had received a personal benefit in exchange for the inside

information, there was no evidence that they knew about any such

benefit. Absent such knowledge, appellants argued, they were not

aware of, or participants in, the tippers’ fraudulent breaches of

fiduciary duties to Dell or NVIDIA, and could not be convicted of

insider trading under Dirks

. In the alternative, appellants requested

that the court instruct the jury that it must find that Newman and

Chiasson knew that the corporate insiders had disclosed confidential

information for personal benefit in order to find them guilty.

The district court reserved decision on the Rule 29 motions.

With respect to the appellants’ requested jury charge, while the

district court acknowledged that their position was “supportable

certainly by the language of Dirks ,” Tr. 3595:10

‐ 12, it ultimately

found that it was constrained by this Court’s decision in S.E.C. v.

Obus

, 693 F.3d 276 (2d Cir. 2012), which listed the elements of tippee

liability without enumerating knowledge of a personal benefit

received by the insider as a separate element. Tr. 3604:3

‐ 3605:5.

Accordingly, the district court did not give Newman and Chiasson’s

proposed jury instruction. Instead, the district court gave the

following instructions on the tippers’ intent and the personal benefit

requirement:

Now, if you find that Mr. Ray and/or Mr. Choi had a fiduciary

or other relationship of trust and confidence with their

employers, then you must next consider whether the

[G]overnment has proven beyond a reasonable doubt that

they intentionally breached that duty of trust and confidence

by disclosing material[,] nonpublic information for their own

benefit.

Tr. 4030.8 Nos. 13

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On the issue of the appellants’ knowledge, the district court

instructed the jury:

To meet its burden, the [G]overnment must also prove beyond

a reasonable doubt that the defendant you are considering

knew that the material, nonpublic information had been

disclosed by the insider in breach of a duty of trust and

confidence. The mere receipt of material, nonpublic

information by a defendant, and even trading on that

information, is not sufficient; he must have known that it was

originally disclosed by the insider in violation of a duty of

confidentiality.

Tr. 4033:14

‐ 22.

On December 17, 2012, the jury returned a verdict of guilty on

all counts. The district court subsequently denied the appellants’

Rule 29 motions.

On May 2, 2013, the district court sentenced Newman to an

aggregate term of 54 months’ imprisonment, to be followed by one

year of supervised release, imposed a $500 mandatory special

assessment, and ordered Newman to pay a $1 million fine and to

forfeit $737,724. On May 13, 2013, the district court sentenced

Chiasson to an aggregate term of 78 months’ imprisonment, to be

followed by one year of supervised release, imposed a $600

mandatory special assessment, and ordered him to pay a $5 million

fine and forfeiture in an amount not to exceed $2 million. 2 This

appeal followed.

2 The district court subsequently set the forfeiture amount at $1,382,217.9 Nos. 13

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DISCUSSION

Newman and Chiasson raise a number of arguments on

appeal. Because we conclude that the jury instructions were

erroneous and that there was insufficient evidence to support the

convictions, we address only the arguments relevant to these issues.

We review jury instructions de novo with regard to whether the jury

was misled or inadequately informed about the applicable law. See

United States v. Moran

‐ Toala

, 726 F.3d 334, 344 (2d Cir. 2013).

I. The Law of Insider Trading

Section 10(b) of the 1934 Act, 15 U.S.C. § 78j(b), prohibits the

use “in connection with the purchase or sale of any security

. . . [of]

any manipulative or deceptive device or contrivance in

contravention of such rules and regulations as the Commission may

prescribe

. . . .” Although Section 10(b) was designed as a catch

‐ all

clause to prevent fraudulent practices, Ernst & Ernst v. Hochfelder

,

425 U.S. 185, 202

‐ 06 (1976), neither the statute nor the regulations

issued pursuant to it, including Rule 10b

‐ 5, expressly prohibit

insider trading. Rather, the unlawfulness of insider trading is

predicated on the notion that insider trading is a type of securities

fraud proscribed by Section 10(b) and Rule 10b

‐ 5. See Chiarella v.

United States

, 445 U.S. 222, 226

‐ 30 (1980).

A. The “Classical” and “Misappropriation” Theories of

Insider Trading

The classical theory holds that a corporate insider (such as an

officer or director) violates Section 10(b) and Rule 10b

‐ 5 by trading

in the corporation’s securities on the basis of material, nonpublic

information about the corporation. Id

. at 230. Under this theory,

there is a special “relationship of trust and confidence between the

shareholders of a corporation and those insiders who have obtained

confidential information by reason of their position within that10 Nos. 13

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corporation.” Id

. at 228. As a result of this relationship, corporate

insiders that possess material, nonpublic information have “a duty

to disclose [or to abstain from trading] because of the ‘necessity of

preventing a corporate insider from

. . . tak[ing] unfair advantage of

. . . uninformed

. . . stockholders.’” Id

. at 228

‐ 29 (citation omitted).

In accepting this theory of insider trading, the Supreme Court

explicitly rejected the notion of “a general duty between all

participants in market transactions to forgo actions based on

material, nonpublic information.” Id. at 233. Instead, the Court

limited the scope of insider trading liability to situations where the

insider had “a duty to disclose arising from a relationship of trust

and confidence between parties to a transaction,” such as that

between corporate officers and shareholders. Id

. at 230.

An alternative, but overlapping, theory of insider trading

liability, commonly called the “misappropriation” theory, expands

the scope of insider trading liability to certain other “outsiders,”

who do not have any fiduciary or other relationship to a corporation

or its shareholders. Liability may attach where an “outsider”

possesses material non

‐ public information about a corporation and

another person uses that information to trade in breach of a duty

owed to the owner. United States v. O’Hagan

, 521 U.S. 642, 652

‐ 53

(1997); United States v. Libera

, 989 F.2d 596, 599

‐ 600 (2d Cir. 1993). In

other words, such conduct violates Section 10(b) because the

misappropriator engages in deception by pretending “loyalty to the

principal while secretly converting the principal’s information for

personal gain.” Obus

, 693 F.3d at 285 (citations omitted).

B. Tipping Liability

The insider trading case law, however, is not confined to

insiders or misappropriators who trade for their own accounts. Id

.

at 285. Courts have expanded insider trading liability to reach

situations where the insider or misappropriator in possession of11 Nos. 13

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material nonpublic information (the “tipper”) does not himself trade

but discloses the information to an outsider (a “tippee”) who then

trades on the basis of the information before it is publicly disclosed.

See Dirks

, 463 U.S. at 659. The elements of tipping liability are the

same, regardless of whether the tipper’s duty arises under the

“classical” or the “misappropriation” theory. Obus

, 693 F.3d at 285

‐

86.

In Dirks

, the Supreme Court addressed the liability of a tippee

analyst who received material, nonpublic information about possible

fraud at an insurance company from one of the insurance company’s

former officers. Dirks

, 463 U.S. at 648

‐ 49. The analyst relayed the

information to some of his clients who were investors in the

insurance company, and some of them, in turn, sold their shares

based on the analyst’s tip. Id

. The SEC charged the analyst Dirks

with aiding and abetting securities fraud by relaying confidential

and material inside information to people who traded the stock.

In reviewing the appeal, the Court articulated the general

principle of tipping liability: “Not only are insiders forbidden by

their fiduciary relationship from personally using undisclosed

corporate information to their advantage, but they may not give

such information to an outsider for the same improper purpose of

exploiting the information for their personal gain.” Id

. at 659

(citation omitted). The test for determining whether the corporate

insider has breached his fiduciary duty “is whether the insider

personally will benefit, directly or indirectly, from his disclosure.

Absent some personal gain, there has been no breach of duty

. . . .” Id. at

662 (emphasis added).

The Supreme Court rejected the SEC’s theory that a recipient

of confidential information (i.e. the “tippee”) must refrain from

trading “whenever he receives inside information from an insider.”

Id

. at 655. Instead, the Court held that “[t]he tippee’s duty to12 Nos. 13

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disclose or abstain is derivative from that of the insider’s duty.” Id

.

at 659. Because the tipper’s breach of fiduciary duty requires that he

“personally will benefit, directly or indirectly, from his disclosure,”

id

. at 662, a tippee may not be held liable in the absence of such

benefit. Moreover, the Supreme Court held that a tippee may be

found liable “only when the insider has breached his fiduciary duty

.

. . and the tippee knows or should know that there has been a

breach.” Id

. at 660 (emphasis added). In Dirks

, the corporate insider

provided the confidential information in order to expose a fraud in

the company and not for any personal benefit, and thus, the Court

found that the insider had not breached his duty to the company’s

shareholders and that Dirks could not be held liable as tippee.

E. Mens Rea

Liability for securities fraud also requires proof that the

defendant acted with scienter, which is defined as “a mental state

embracing intent to deceive, manipulate or defraud.” Hochfelder

, 425

U.S. at 193 n.12. In order to establish a criminal violation of the

securities laws, the Government must show that the defendant acted

“willfully.” 15 U.S.C. § 78ff(a). We have defined willfulness in this

context “as a realization on the defendant’s part that he was doing a

wrongful act under the securities laws.” United States v. Cassese

, 428

F.3d 92, 98 (2d Cir. 2005) (internal quotation marks and citations

omitted); see also United States v. Dixon

, 536 F.2d 1388, 1395 (2d Cir.

1976) (holding that to establish willfulness, the Government must

“establish a realization on the defendant’s part that he was doing a

wrongful act

. . . under the securities laws” and that such an act

“involve[d] a significant risk of effecting the violation that

occurred.”) (quotation omitted).

II. The Requirements of Tippee Liability

The Government concedes that tippee liability requires proof

of a personal benefit to the insider. Gov’t Br. 56. However, the13 Nos. 13

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Government argues that it was not required to prove that Newman

and Chiasson knew that the insiders at Dell and NVIDIA received a

personal benefit in order to be found guilty of insider trading.

Instead, the Government contends, consistent with the district

court’s instruction, that it merely needed to prove that the

“defendants traded on material, nonpublic information they knew

insiders had disclosed in breach of a duty of confidentiality

. . . .”

Gov’t Br. 58.

In support of this position, the Government cites Dirks for the

proposition that the Supreme Court only required that the “tippee

know that the tipper disclosed information in breach of a duty .” Id. at

40 (citing Dirks

, 463 U.S. at 660) (emphasis added). In addition, the

Government relies on dicta in a number of our decisions post

‐ Dirks

,

in which we have described the elements of tippee liability without

specifically stating that the Government must prove that the tippee

knew that the corporate insider who disclosed confidential

information did so for his own personal benefit. Id

. at 41

‐ 44 (citing,

inter alia

, United States v. Jiau

, 734 F.3d 147, 152

‐ 53 (2d Cir. 2013);

Obus

, 693 F.3d at 289; S.E.C. v. Warde

, 151 F.3d 42, 48

‐ 49 (2d Cir.

1998)). By selectively parsing this dictum, the Government seeks to

revive the absolute bar on tippee trading that the Supreme Court

explicitly rejected in Dirks

.

Although this Court has been accused of being “somewhat

Delphic” in our discussion of what is required to demonstrate tippee

liability, United States v. Whitman

, 904 F. Supp. 2d 363, 371 n.6

(S.D.N.Y. 2012), the Supreme Court was quite clear in Dirks

. First

, the tippee’s liability derives only from the tipper’s breach of a

fiduciary duty, not from trading on material, non

‐ public

information. See Chiarella

, 445 U.S. at 233 (noting that there is no

“general duty between all participants in market transactions to

forgo actions based on material, nonpublic information”). Second

,

the corporate insider has committed no breach of fiduciary duty14 Nos. 13

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unless he receives a personal benefit in exchange for the disclosure.

Third

, even in the presence of a tipper’s breach, a tippee is liable only

if he knows or should have known of the breach.

While we have not yet been presented with the question of

whether the tippee’s knowledge of a tipper’s breach requires

knowledge of the tipper’s personal benefit, the answer follows

naturally from Dirks

. Dirks counsels us that the exchange of

confidential information for personal benefit is not separate from an

insider ’ s fiduciary breach; it is the fiduciary breach that triggers

liability for securities fraud under Rule 10b

‐ 5. For purposes of

insider trading liability, the insider’s disclosure of confidential

information, standing alone, is not a breach. Thus, without

establishing that the tippee knows of the personal benefit received

by the insider in exchange for the disclosure, the Government

cannot meet its burden of showing that the tippee knew of a breach.

The Government’s overreliance on our prior dicta merely

highlights the doctrinal novelty of its recent insider trading

prosecutions, which are increasingly targeted at remote tippees

many levels removed from corporate insiders. By contrast, our prior

cases generally involved tippees who directly participated in the

tipper’s breach (and therefore had knowledge of the tipper’s

disclosure for personal benefit) or tippees who were explicitly

apprised of the tipper’s gain by an intermediary tippee. See, e.g.

, Jiau

, 734 F.3d at 150 (“To provide an incentive, Jiau promised the

tippers insider information for their own private trading.”); United

States v. Falcone

, 257 F.3d 226, 235 (2d Cir. 2001) (affirming

conviction of remote tipper where intermediary tippee paid the

inside tipper and had told remote tippee “the details of the

scheme”); Warde

, 151 F.3d at 49 (tipper and tippee engaged in

parallel trading of the inside information and “discussed not only

the inside information, but also the best way to profit from it”);

United States v. Mylett

, 97 F.3d 663 (2d Cir. 1996) (tippee acquired15 Nos. 13

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inside information directly from his insider friend). We note that the

Government has not cited, nor have we found, a single case in which

tippees as remote as Newman and Chiasson have been held

criminally liable for insider trading.

Jiau illustrates the importance of this distinction quite clearly.

In Jiau

, the panel was presented with the question of whether the

evidence at trial was sufficient to prove that the tippers personally

benefitted from their disclosure of insider information. In that

context, we summarized the elements of criminal liability as follows:

(1) the insider

‐ tippers

. . . were entrusted the duty to protect

confidential information, which (2) they breached by

disclosing [the information] to their tippee

. . . , who (3) knew

of [the tippers’] duty and (4) still used the information to trade

a security or further tip the information for [the tippee’s]

benefit, and finally (5) the insider

‐ tippers benefited in some

way from their disclosure.

Jiau

, 734 F.3d at 152

‐ 53 (citing Dirks

, 463 U.S. at 659

‐ 64; Obus

, 693 F.

3d at 289). The Government relies on this language to argue that

Jiau is merely the most recent in a string of cases in which this Court

has found that a tippee, in order to be criminally liable for insider

trading, need know only that an insider

‐ tipper disclosed

information in breach of a duty of confidentiality. Gov’t Br. 43.

However, we reject the Government’s position that our cursory

recitation of the elements in Jiau suggests that criminal liability may

be imposed on a defendant based only on knowledge of a breach of

a duty of confidentiality. In Jiau

, the defendant knew about the

benefit because she provided it. For that reason, we had no need to

reach the question of whether knowledge of a breach requires that a

tippee know that a personal benefit was provided to the tipper.

In light of Dirks

, we find no support for the Government’s

contention that knowledge of a breach of the duty of confidentiality16 Nos. 13

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without knowledge of the personal benefit is sufficient to impose

criminal liability. Although the Government might like the law to

be different, nothing in the law requires a symmetry of information

in the nation’s securities markets. The Supreme Court explicitly

repudiated this premise not only in Dirks

, but in a predecessor case,

Chiarella v. United States

. In Chiarella

, the Supreme Court rejected

this Circuit’s conclusion that “the federal securities laws have

created a system providing equal access to information necessary for

reasoned and intelligent investment decisions

. . . . because [material

non

‐ public] information gives certain buyers or sellers an unfair

advantage over less informed buyers and sellers.” 445 U.S. at 232.

The Supreme Court emphasized that “[t]his reasoning suffers from

[a] defect.

. . . [because] not every instance of financial unfairness

constitutes fraudulent activity under § 10(b).” Id

. See also United

States v. Chestman

, 947 F.2d 551, 578 (2d Cir. 1991) (Winter, J.,

concurring) (“[The policy rationale [for prohibiting insider trading]

stops well short of prohibiting all trading on material nonpublic

information. Efficient capital markets depend on the protection of

property rights in information. However, they also require that

persons who acquire and act on information about companies be

able to profit from the information they generate

. . . .”). Thus, in

both Chiarella and Dirks

, the Supreme Court affirmatively

established that insider trading liability is based on breaches of

fiduciary duty, not on informational asymmetries. This is a critical

limitation on insider trading liability that protects a corporation’s

interests in confidentiality while promoting efficiency in the nation’s

securities markets.

As noted above, Dirks clearly defines a breach of fiduciary

duty as a breach of the duty of confidentiality in exchange for a

personal benefit. See Dirks

, 463 U.S. at 662. Accordingly, we

conclude that a tippee’s knowledge of the insider’s breach

necessarily requires knowledge that the insider disclosed17 Nos. 13

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confidential information in exchange for personal benefit. In

reaching this conclusion, we join every other district court to our

knowledge

– apart from Judge Sullivan 3

– that has confronted this

question. Compare United States v. Rengan Rajaratnam

, No. 13

‐ 211

(S.D.N.Y. July 1, 2014) (Buchwald, J .); United States v. Martoma

, No.

12

‐ 973 (S.D.N.Y. Feb. 4, 2014) (Gardephe, J .); United States v.

Whitman

, 904 F. Supp. 2d 363, 371 (S.D.N.Y. 2012) (Rakoff, J. ); United

States v. Raj Rajaratnam

, 802 F. Supp. 2d 491, 499 (S.D.N.Y. 2011)

(Holwell, J .); State Teachers Retirement Bd. v. Fluor Corp

., 592 F. Supp.

592, 594 (S.D.N.Y. 1984) (Sweet, J .), 4 with United States v. Steinberg

,

No. 12

‐ 121, 2014 WL 2011685 at *5 (S.D.N.Y. May 15, 2014) (Sullivan,

J .), and United States v. Newman

, No. 12

‐ 121 (S.D.N.Y. Dec. 6, 2012)

(Sullivan, J .). 5

3 Although the Government argues that district court decisions in S.E.C. v. Thrasher

, 152

F. Supp. 2d 291 (S.D.N.Y. 2001) and S.E.C. v. Musella

, 678 F. Supp. 1060 (S.D.N.Y. 1988)

support their position, these cases merely stand for the unremarkable proposition that a

tippee does not need to know the details of the insider’s disclosure of information. The

district courts determined that the tippee did not have to know for certain how

information was disclosed, Thrasher, 152 F. Supp. 2d at 304

‐ 05, nor the identity of the

insiders, Musella

, 678 F. Supp. at 1062

‐ 63. This is not inconsistent with a requirement that

a defendant tippee understands that some benefit is being provided in return for the

information.

4 See also United States v. Santoro

, 647 F. Supp. 153, 170

‐ 71 (E.D.N.Y. 1986) (“An allegation

that the tippee knew of the tipper’s breach necessarily charges that the tippee knew that

the tipper was acting for personal gain.”) rev’d on other grounds sub nom. United States v.

Davidoff

, 845 F.2d 1151 (2d Cir. 1988); Hernandez v. United States

, 450 F. Supp. 2d 1112,

1118 (C.D. Cal. 2006) (“[U]nder the standard set forth in Dirks ” a tippee can be liable

under Section 10(b) and Rule 10(b)

‐ 5 “if the tippee had knowledge of the insider

‐ tipper’s

personal gain.”).

5 We note that Judge Sullivan had an opportunity to address the issue in Steinberg only

because the Government chose to charge Matthew Steinberg in the same criminal case as

Newman and Chiasson by filing a superseding indictment. Notably, the Government

superseded to add Steinberg on March 29, 2013, after the conclusion of the Newman trial,

after Judge Sullivan refused to give the defendants’ requested charge on scienter now at

issue on this appeal, and at a time when there was no possibility of a joint trial with the

Newman defendants.18 Nos. 13

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‐ cr; 13

‐ 1917

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Our conclusion also comports with well

‐ settled principles of

substantive criminal law. As the Supreme Court explained in Staples

v. United States

, 511 U.S. 600, 605 (1994), under the common law,

mens rea, which requires that the defendant know the facts that make

his conduct illegal, is a necessary element in every crime. Such a

requirement is particularly appropriate in insider trading cases

where we have acknowledged “it is easy to imagine a

. . . trader who

receives a tip and is unaware that his conduct was illegal and

therefore wrongful.” United States v. Kaiser

, 609 F.3d 556, 569 (2d Cir.

2010). This is also a statutory requirement, because only “willful”

violations are subject to criminal provision. See United States v.

Temple

, 447 F.3d 130, 137 (2d Cir. 2006) (“‘Willful’ repeatedly has

been defined in the criminal context as intentional, purposeful, and

voluntary, as distinguished from accidental or negligent”).

In sum, we hold that to sustain an insider trading conviction

against a tippee, the Government must prove each of the following

elements beyond a reasonable doubt: that (1) the corporate insider

was entrusted with a fiduciary duty; (2) the corporate insider

breached his fiduciary duty by (a) disclosing confidential

information to a tippee (b) in exchange for a personal benefit; (3) the

tippee knew of the tipper’s breach, that is, he knew the information

was confidential and divulged for personal benefit; and (4) the

tippee still used that information to trade in a security or tip another

individual for personal benefit. See Jiau

, 734 F.3d at 152

‐ 53; Dirks

,

463 U.S. at 659

‐ 64.

In view of this conclusion, we find, reviewing the charge as a

whole, United States v. Mitchell

, 328 F.3d 77, 82 (2d Cir. 2003), that the

district court’s instruction failed to accurately advise the jury of the

law. The district court charged the jury that the Government had to

prove: (1) that the insiders had a “fiduciary or other relationship of

trust and confidence” with their corporations; (2) that they

“breached that duty of trust and confidence by disclosing material,19 Nos. 13

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‐ cr

nonpublic information”; (3) that they “personally benefited in some

way” from the disclosure; (4) “that the defendant

. . . knew the

information he obtained had been disclosed in breach of a duty”;

and (5) that the defendant used the information to purchase a

security. Under these instructions, a reasonable juror might have

concluded that a defendant could be criminally liable for insider

trading merely if such defendant knew that an insider had divulged

information that was required to be kept confidential. But a breach

of the duty of confidentiality is not fraudulent unless the tipper acts

for personal benefit, that is to say, there is no breach unless the

tipper “is in effect selling the information to its recipient for cash,

reciprocal information, or other things of value for himself.

. . .”

Dirks

, 463 U.S. at 664 (quotation omitted). Thus, the district court

was required to instruct the jury that the Government had to prove

beyond a reasonable doubt that Newman and Chiasson knew that

the tippers received a personal benefit for their disclosure.

The Government argues that any possible instructional error

was harmless because the jury could have found that Newman and

Chiasson inferred from the circumstances that some benefit was

provided to (or anticipated by) the insiders. Gov’t Br. 60. We

disagree.

An instructional error is harmless only if the Government

demonstrates that it is “clear beyond a reasonable doubt that a

rational jury would have found the defendant guilty absent the

error[.]” Neder v. United States, 527 U.S. 1, 17

‐ 18 (1999); accord Moran

‐

Toala

, 726 F.3d at 345; United States v. Quattrone

, 441 F.3d 153, 180 (2d

Cir. 2006). The harmless error inquiry requires us to view whether

the evidence introduced was “uncontested and supported by

overwhelming evidence” such that it is “clear beyond a reasonable

doubt that a rational jury would have found the defendant guilty

absent the error.” Neder, 527 U.S. at 18. Here both Chiasson and

Newman contested their knowledge of any benefit received by the20 Nos. 13

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‐ cr; 13

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tippers and, in fact, elicited evidence sufficient to support a contrary

finding. Moreover, we conclude that the Government’s evidence of

any personal benefit received by the insiders was insufficient to

establish tipper liability from which Chiasson and Newman’s

purported tippee liability would derive.

III. Insufficiency of the Evidence

As a general matter, a defendant challenging the sufficiency of

the evidence bears a heavy burden, as the standard of review is

exceedingly deferential. United States v. Coplan

, 703 F.3d 46, 62 (2d

Cir. 2012). Specifically, we “must view the evidence in the light

most favorable to the Government, crediting every inference that

could have been drawn in the Government’s favor, and deferring to

the jury’s assessment of witness credibility and its assessment of the

weight of the evidence.” Id

. (citing United States v. Chavez

, 549 F.3d

119, 124 (2d Cir. 2008)). Although sufficiency review is de novo

, we

will uphold the judgments of conviction if “any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.” Id

. (citing United States v. Yannotti

, 541 F.3d 112,

120 (2d Cir. 2008) (emphasis omitted); Jackson v. Virginia

, 443 U.S.

307, 319 (1979)). This standard of review draws no distinction

between direct and circumstantial evidence. The Government is

entitled to prove its case solely through circumstantial evidence,

provided, of course, that the Government still demonstrates each

element of the charged offense beyond a reasonable doubt. United

States v. Lorenzo

, 534 F.3d 153, 159 (2d Cir. 2008).

However, if the evidence “is nonexistent or so meager,” United

States v. Guadagna

, 183 F.3d 122, 130 (2d Cir. 1999), such that it “gives

equal or nearly equal circumstantial support to a theory of guilt and

a theory of innocence, then a reasonable jury must necessarily

entertain a reasonable doubt,” Cassese

, 428 F.3d at 99. Because few

events in the life of an individual are more important than a criminal21 Nos. 13

‐ 1837

‐ cr; 13

‐ 1917

‐ cr

conviction, we continue to consider the “beyond a reasonable

doubt” requirement with utmost seriousness. Cassese

, 428 F.3d at

102. Here, we find that the Government’s evidence failed to reach

that threshold, even when viewed in the light most favorable to it.

The circumstantial evidence in this case was simply too thin to

warrant the inference that the corporate insiders received any

personal benefit in exchange for their tips. As to the Dell tips, the

Government established that Goyal and Ray were not “close”

friends, but had known each other for years, having both attended

business school and worked at Dell together. Further, Ray, who

wanted to become a Wall Street analyst like Goyal, sought career

advice and assistance from Goyal. The evidence further showed

that Goyal advised Ray on a range of topics, from discussing the

qualifying examination in order to become a financial analyst to

editing Ray’s résumé and sending it to a Wall Street recruiter, and

that some of this assistance began before Ray began to provide tips

about Dell’s earnings. The evidence also established that Lim and

Choi were “family friends” that had met through church and

occasionally socialized together. The Government argues that these

facts were sufficient to prove that the tippers derived some benefit

from the tip. We disagree. If this was a “benefit,” practically

anything would qualify.

We have observed that “[p]ersonal benefit is broadly defined

to include not only pecuniary gain, but also, inter alia

, any

reputational benefit that will translate into future earnings and the

benefit one would obtain from simply making a gift of confidential

information to a trading relative or friend.” Jiau

, 734 F. 3d at 153

(internal citations, alterations, and quotation marks deleted). This

standard, although permissive, does not suggest that the

Government may prove the receipt of a personal benefit by the mere

fact of a friendship, particularly of a casual or social nature. If that

were true, and the Government was allowed to meet its burden by22 Nos. 13

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‐ cr; 13

‐ 1917

‐ cr

proving that two individuals were alumni of the same school or

attended the same church, the personal benefit requirement would

be a nullity. To the extent Dirks suggests that a personal benefit may

be inferred from a personal relationship between the tipper and

tippee, where the tippee’s trades “resemble trading by the insider

himself followed by a gift of the profits to the recipient,” see 643 U.S.

at 664, we hold that such an inference is impermissible in the

absence of proof of a meaningfully close personal relationship that

generates an exchange that is objective, consequential, and

represents at least a potential gain of a pecuniary or similarly

valuable nature. In other words, as Judge Walker noted in Jiau

, this

requires evidence of “a relationship between the insider and the

recipient that suggests a quid pro quo from the latter, or an intention

to benefit the [latter].” Jiau

, 734 F. 3d at 153.

While our case law at times emphasizes language from Dirks

indicating that the tipper’s gain need not be immediately pecuniary, it

does not erode the fundamental insight that, in order to form the

basis for a fraudulent breach, the personal benefit received in

exchange for confidential information must be of some consequence.

For example, in Jiau

, we noted that at least one of the corporate

insiders received something more than the ephemeral benefit of the

“value[] [of] [Jiau’s] friendship” because he also obtained access to

an investment club where stock tips and insight were routinely

discussed. Id

. Thus, by joining the investment club, the tipper

entered into a relationship of quid quo pro with Jiau, and therefore

had the opportunity to access information that could yield future

pecuniary gain. Id ; s ee also SEC v. Yun

, 327 F.3d 1263, 1280 (11th Cir.

2003) (finding evidence of personal benefit where tipper and tippee

worked closely together in real estate deals and commonly split

commissions on various real estate transactions); SEC v. Sargent

, 229

F.3d 68, 77 (1st Cir. 2000) (finding evidence of personal benefit when23 Nos. 13

‐ 1837

‐ cr; 13

‐ 1917

‐ cr

the tipper passed information to a friend who referred others to the

tipper for dental work).

Here the “career advice” that Goyal gave Ray, the Dell tipper,

was little more than the encouragement one would generally expect

of a fellow alumnus or casual acquaintance. See, e.g

., J. A. 2080

(offering “minor suggestions” on a resume), J.A. 2082 (offering

advice prior to an informational interview). Crucially, Goyal

testified that he would have given Ray advice without receiving

information because he routinely did so for industry colleagues.

Although the Government argues that the jury could have

reasonably inferred from the evidence that Ray and Goyal swapped

career advice for inside information, Ray himself disavowed that

any such quid pro quo existed. Further, the evidence showed Goyal

began giving Ray “career advice” over a year before Ray began

providing any insider information. Tr. 1514. Thus, it would not be

possible under the circumstances for a jury in a criminal trial to find

beyond a reasonable doubt that Ray received a personal benefit in

exchange for the disclosure of confidential information. See

, e.g.

, United States v. D’Amato

, 39 F.3d 1249, 1256 (2d Cir. 1994) (evidence

must be sufficient to “reasonably infer” guilt).

The evidence of personal benefit was even more scant in the

NVIDIA chain. Choi and Lim were merely casual acquaintances.

The evidence did not establish a history of loans or personal favors

between the two. During cross examination, Lim testified that he

did not provide anything of value to Choi in exchange for the

information. Tr. 3067

‐ 68. Lim further testified that Choi did not

know that Lim was trading NVIDIA stock (and in fact for the

relevant period Lim did not trade stock), thus undermining any

inference that Choi intended to make a “gift” of the profits earned

on any transaction based on confidential information.24 Nos. 13

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‐ cr; 13

‐ 1917

‐ cr

Even assuming that the scant evidence described above was

sufficient to permit the inference of a personal benefit, which we

conclude it was not, the Government presented absolutely no

testimony or any other evidence that Newman and Chiasson knew

that they were trading on information obtained from insiders, or

that those insiders received any benefit in exchange for such

disclosures, or even that Newman and Chiasson consciously

avoided learning of these facts. As discussed above, the

Government is required to prove beyond a reasonable doubt that

Newman and Chiasson knew that the insiders received a personal

benefit in exchange for disclosing confidential information.

It is largely uncontroverted that Chiasson and Newman, and

even their analysts, who testified as cooperating witnesses for the

Government, knew next to nothing about the insiders and nothing

about what, if any, personal benefit had been provided to them.

Adondakis said that he did not know what the relationship between

the insider and the first

‐ level tippee was, nor was he aware of any

personal benefits exchanged for the information, nor did he

communicate any such information to Chiasson. Adondakis

testified that he merely told Chiasson that Goyal “was talking to

someone within Dell,” and that a friend of a friend of Tortora’s

would be getting NVIDIA information. Tr. 1708, 1878. Adondakis

further testified that he did not specifically tell Chiasson that the

source of the NVIDIA information worked at NVIDIA. Similarly,

Tortora testified that, while he was aware Goyal received

information from someone at Dell who had access to “overall”

financial numbers, he was not aware of the insider’s name, or

position, or the circumstances of how Goyal obtained the

information. Tortora further testified that he did not know whether

Choi received a personal benefit for disclosing inside information

regarding NVIDIA.25 Nos. 13

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‐ cr; 13

‐ 1917

‐ cr

The Government now invites us to conclude that the jury

could have found that the appellants knew the insiders disclosed the

information “for some personal reason rather than for no reason at

all.” Gov’t Br. 65. But the Supreme Court affirmatively rejected the

premise that a tipper who discloses confidential information

necessarily does so to receive a personal benefit. See Dirks

, 463 U.S.

at 661

‐ 62 (“All disclosures of confidential corporate information are

not inconsistent with the duty insiders owe to shareholders”).

Moreover, it is inconceivable that a jury could conclude, beyond a

reasonable doubt, that Newman and Chiasson were aware of a

personal benefit, when Adondakis and Tortora, who were more

intimately involved in the insider trading scheme as part of the

“corrupt” analyst group, disavowed any such knowledge.

Alternatively, the Government contends that the specificity,

timing, and frequency of the updates provided to Newman and

Chiasson about Dell and NVIDIA were so “overwhelmingly

suspicious” that they warranted various material inferences that

could support a guilty verdict. Gov’t Br. 65. Newman and Chiasson

received four updates on Dell’s earnings numbers in the weeks

leading up to its August 2008 earnings announcement. Similarly,

Newman and Chiasson received multiple updates on NVIDIA’s

earnings numbers between the close of the quarter and the

company’s earnings announcement. The Government argues that

given the detailed nature and accuracy of these updates, Newman

and Chiasson must have known, or deliberately avoided knowing,

that the information originated with corporate insiders, and that

those insiders disclosed the information in exchange for a personal

benefit. We disagree.

Even viewed in the light most favorable to the Government,

the evidence presented at trial undermined the inference of

knowledge in several ways. The evidence established that analysts

at hedge funds routinely estimate metrics such as revenue, gross26 Nos. 13

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‐ cr; 13

‐ 1917

‐ cr

margin, operating margin, and earnings per share through

legitimate financial modeling using publicly available information

and educated assumptions about industry and company trends. For

example, on cross

‐ examination, cooperating witness Goyal testified

that under his financial model on Dell, when he ran the model in

January 2008 without any inside information, he calculated May

2008 quarter results of $16.071 billion revenue, 18.5% gross margin,

and $0.38 earnings per share. Tr. 1566. These estimates came very

close to Dell’s reported earnings of $16.077 billion revenue; 18.4%

gross margin, and $0.38 earnings per share. Appellants also elicited

testimony from the cooperating witnesses and investor relations

associates that analysts routinely solicited information from

companies in order to check assumptions in their models in advance

of earnings announcements. Goyal testified that he frequently spoke

to internal relations departments to run his model by them and ask

whether his assumptions were “too high or too low” or in the “ball

park,” which suggests analysts routinely updated numbers in

advance of the earnings announcements. Tr. 1511. Ray’s supervisor

confirmed that investor relations departments routinely assisted

analysts with developing their models

Moreover, the evidence established that NVIDIA and Dell’s

investor relations personnel routinely “leaked” earnings data in

advance of quarterly earnings. Appellants introduced examples in

which Dell insiders, including the head of Investor Relations, Lynn

Tyson, selectively disclosed confidential quarterly financial

information arguably similar to the inside information disclosed by

Ray and Choi to establish relationships with financial firms who

might be in a position to buy Dell’s stock. For example, appellants

introduced an email Tortora sent Newman summarizing a

conversation he had with Tyson in which she suggested “low 12%

opex [was] reasonable” for Dell’s upcoming quarter and that she27 Nos. 13

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was “fairly confident on [operating margin] and [gross margin].”

Tr. 568:18

‐ 581:23.

No reasonable jury could have found beyond a reasonable

doubt that Newman and Chiasson knew, or deliberately avoided

knowing, that the information originated with corporate insiders. In

general, information about a firm’s finances could certainly be

sufficiently detailed and proprietary to permit the inference that the

tippee knew that the information came from an inside source. But in

this case, where the financial information is of a nature regularly and

accurately predicted by analyst modeling, and the tippees are

several levels removed from the source, the inference that

defendants knew, or should have known, that the information

originated with a corporate insider is unwarranted.

Moreover, even if detail and specificity could support an

inference as to the nature of the source, it cannot, without more,

permit an inference as to that source’s improper motive for

disclosure. That is especially true here, where the evidence showed

that corporate insiders at Dell and NVIDIA regularly engaged with

analysts and routinely selectively disclosed the same type of

information. Thus, in light of the testimony (much of which was

adduced from the Government’s own witnesses) about the accuracy

of the analysts’ estimates and the selective disclosures by the

companies themselves, no rational jury would find that the tips were

so overwhelmingly suspicious that Newman and Chiasson either

knew or consciously avoided knowing that the information came

from corporate insiders or that those insiders received any personal

benefit in exchange for the disclosure.

In short, the bare facts in support of the Government’s theory

of the case are as consistent with an inference of innocence as one of

guilt. Where the evidence viewed in the light most favorable to the

prosecution gives equal or nearly equal circumstantial support to a28 Nos. 13

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‐ cr

theory of innocence as a theory of guilt, that evidence necessarily

fails to establish guilt beyond a reasonable doubt. See United States

v. Glenn

, 312 F.3d 58, 70 (2d Cir. 2002). Because the Government

failed to demonstrate that Newman and Chiasson had the intent to

commit insider trading, it cannot sustain the convictions on either

the substantive insider trading counts or the conspiracy count.

United States v. Gaviria

, 740 F.2d 174, 183 (2d Cir. 1984) (“[W]here the

crime charged is conspiracy, a conviction cannot be sustained unless

the Government establishes beyond a reasonable doubt that the

defendant had the specific intent to violate the substantive statute.”)

(internal quotation marks omitted). Consequently, we reverse

Newman and Chiasson’s convictions and remand with instructions

to dismiss the indictment as it pertains to them.

CONCLUSION

For the foregoing reasons, we vacate the convictions and

remand for the district court to dismiss the indictment with

prejudice as it pertains to Newman and Chiasson.