17

‐ 593

United States v. Stewart

UNITED STATES COURT OF APPEALS

F OR THE S ECOND C IRCUIT

_______________

August Term, 2017

(Argued: February 26, 2018 Decided: November 5, 2018)

Docket No. 17

‐ 593

_______________

U NITED S TATES OF A MERICA

,

Appellee,

‐‐ v. ‐‐

S EAN S TEWART

,

Defendant

‐ Appellant

,

R ICHARD C UNNIFFE

, R OBERT S TEWART

, aka Bob,

Defendants

.

_______________

B e f o r e:

K ATZMANN

, Chief Judge

, L EVAL

, Circuit Judge

, and B ERMAN

, District Judge

. *

* Judge Richard M. Berman, United States District Court for the Southern District of

New York, sitting by designation.2 _______________

Defendant

‐ appellant Sean Stewart appeals from a judgment of conviction

entered on February 24, 2017, in the United States District Court for the Southern

District of New York (Swain, J. ). In connection with an insider trading scheme,

the defendant

‐ appellant was found guilty after a jury trial of conspiracy to

commit securities fraud and tender offer fraud, in violation of 18 U.S.C. § 371;

conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349; six counts of

securities fraud, in violation of 15 U.S.C. §§ 78j(b) and 78f; and tender offer fraud,

in violation of 15 U.S.C. §§ 78n(e) and 78ff. On appeal, the defendant

‐ appellant

argues that he was deprived of an opportunity to examine a key witness in light

of that witness’s improper invocation of the Fifth Amendment privilege against

self

‐ incrimination; that his due process rights were violated by the district court’s

decision not to immunize that witness in order to allow the witness to testify

without fear of self

‐ incrimination; and that several evidentiary errors were made.

Although we disagree with the defendant’s constitutional arguments, we

nevertheless find that certain impeachment material that might have influenced

the jury’s deliberations should not have been excluded. Accordingly, the

judgment of the district court is VACATED and REMANDED

.

Judge Berman dissents in a separate opinion.

_______________

B ROOKE E. C UCINELLA (Sarah K. Eddy, Brian Blais, and Margaret

Garnett, on the brief ), Assistant United States Attorneys, for

Geoffrey S. Berman, United States Attorney for the Southern

District of New York, New York, NY.

A LEXANDRA A.E. S HAPIRO

, (Sean Nuttall, on the brief ), Shapiro Arato

LLP, New York, NY, for Sean Stewart

.3 P ER C URIAM :

This is an unusual insider trading case, in that defendant

‐ appellant Sean

Stewart does not contest that he provided material, nonpublic information to his

father, Robert Stewart. Rather, Sean readily acknowledges that “he was very

close to his father, routinely confided in him, and even occasionally mentioned

potential deals,” and that his father and others then invested based upon that

information. Def. Br. 1. The key question facing the jury was whether to believe

Sean when he denied that he knew that his father would trade on the

information that Sean had provided. Evidently they did not, as Sean was

convicted on all counts brought against him.

The government’s case largely hinged on the so

‐ called “silver platter

statement,” in which Sean purportedly told Robert that he expected Robert to

invest based upon information to which Sean had access through his work as an

investment banker. In this matter, a silver platter proved to be the government’s

silver bullet. Because we agree that Sean should not have been precluded from4 impeaching the silver platter statement, however, we VACATE the conviction

and REMAND this matter to the district court for further proceedings. 1

B ACKGROUND

Sean Stewart testified that he was “very close” to his parents growing up

and that he had an “excellent” relationship with his father, Robert Stewart, in

particular. Tr. 1129

‐ 30. Into adulthood, Sean would regularly speak with his

parents several times per week by phone and would see them in person once or

twice per month. Among the topics that they often discussed were Sean’s career

and what he was working on. Although Sean knew that company policy forbade

him from discussing confidential information with anyone other than his

colleagues, he did not abide by that rule. Rather, he admitted that he “spoke very

freely” with his family, explaining that he “grew up in a household where there

were no secrets, and [his family] shared everything about [their] lives.” Id. at

1189.

1 In light of this disposition, the defendant’s procedural reasonableness challenge to his

sentence is now moot.5 Sean began working as an analyst at JP Morgan Chase in 2003. Among the

matters that Sean worked on while at JP Morgan was the sale of a

pharmaceutical research company, Kendle International, Inc. Robert began

purchasing Kendle common stock on February 7, 2011, shortly after Sean had

attended a kick

‐ off meeting for the Kendle project. In addition, Robert asked a

colleague, Mark Boccia, to make further investments in Kendle on Robert’s

behalf. Boccia began doing so in mid

‐ February, with some of the investments

made on his own behalf and some on behalf of Robert. Kendle’s acquisition was

publicly announced on May 4, 2011. The following day, Robert sold his Kendle

securities, and, acting on Robert’s advice, Boccia did the same. Boccia then paid

Robert a share of his trading profits in cash.

At around the same time, JP Morgan was also involved in the sale of

Kinetic Concepts, Inc., a medical device company known as “KCI.” Although

Sean did not work on the KCI transaction directly, he was involved with

ensuring that it was properly staffed. Boccia began purchasing KCI call options

on behalf of both himself and Robert on April 5, 2011, with Robert this time

telling Boccia that Sean “knew that [KCI was] going to merge.” Id. at 371. Robert6 also asked another colleague, Richard Cunniffe, to purchase KCI call options on

his behalf, explaining that he could not do so directly because “he was too close

to the source.” Id. at 623. Cunniffe began purchasing KCI call options on April 21,

2011. In addition, Robert began personally purchasing KCI common stock on

May 5, 2011, the same day on which he had sold his Kendle shares. The KCI

transaction was publicly announced on July 13, 2011, generating significant

profits for Cunniffe and Robert, though Boccia’s options had already expired by

that time.

Meanwhile, on May 25, 2011, Sean was made aware that the Financial

Industry Regulatory Authority (“FINRA”) was investigating suspicious trading

in Kendle securities. In connection with that investigation, Sean was asked

whether he knew any of the individuals whose names appeared on a list

circulated by FINRA. Although Robert appeared on the list, Sean initially denied

recognizing any of the listed names. JP Morgan requested that Sean review the

list again after FINRA inquired further, at which time Sean acknowledged that

the list included his father’s name. JP Morgan’s legal and compliance staff

subsequently arranged to meet with Sean on August 26, 2011.7 The night before that meeting, Sean and Robert met at the Yale Club.

According to Sean, he told Robert about the upcoming meeting and said that

Robert’s name had appeared on FINRA’s list. Sean testified that he confronted

his father about the Kendle trades because he was “confused, ashamed, [and]

taken aback,” and he “wanted to know why [Robert] would do something so

foolish, so stupid,” as Sean knew Robert might have learned of the Kendle

transaction from their conversations. Id. at 1235. Sean described Robert as

“embarrassed” and “nervous” upon being asked about Kendle, claiming to have

invested based upon public information, though Sean did not believe him. Id.

The following day, Sean told JP Morgan compliance and legal personnel

that he had not discussed Kendle with his father. Sean has admitted that he

“lied,” explaining that he “was nervous about [Robert] getting in trouble” and

recognized that his father’s investments “would be potentially damaging for

[his] prospects” professionally. Id. at 1236. Sean claimed that a few days after his

meeting at JP Morgan, he told Robert “to never do that again, and [Robert]

promised that he would not.” Id. at 1237. Sean believed Robert, who Sean

described as having been “pretty shaken up” by the experience. Id. at 1251.8 Although neither FINRA nor JP Morgan took any disciplinary measures

against Sean, FINRA nevertheless referred the matter to the Securities and

Exchange Commission, which conducted its own investigation. The SEC spoke

with Robert, who acknowledged that Sean worked at JP Morgan but denied

having discussed Kendle with Sean either before or after he had purchased the

company’s stock. The SEC subsequently closed its investigation without taking

any enforcement action.

Sean left JP Morgan for Perella Weinberg Partners, a boutique investment

bank, in September 2011. While at Perella Weinberg, Sean worked on the

acquisitions of Gen

‐ Probe, Inc., and CareFusion, both medical device companies,

and learned of the planned acquisition of Lincare Holdings, Inc., a home

healthcare company. Cunniffe purchased the securities of each of these

companies in advance of the acquisitions, doing so at the suggestion of Robert in

each instance, and sold the securities after each acquisition was publicly

announced. Each time, Cunniffe shared the investment proceeds with Robert.

The profits from these five investments totaled $1.15 million. In

approximate terms, Cunniffe received $1 million; Robert received $150,000; and9 Boccia lost money as a result of the expiration of his KCI call options. There is no

evidence that Sean directly profited from the investments.

Unbeknownst to Robert, the Federal Bureau of Investigation approached

Cunniffe sometime in the spring of 2015, after all of the investments at issue.

Cunniffe decided to cooperate with the FBI, and subsequently recorded several

conversations with Robert. Most relevant to this litigation is a conversation

between Robert and Cunniffe that occurred on March 24, 2015, during which

they had the following exchange regarding Robert’s Kendle investments:

Robert : And then like about a year later I get a call from the SEC

questioning me on that transaction. [Indiscernible] 5,000 dollar

transaction. What are they gonna do? And then nothing happened. I

don’t know what they’re doing now. I figure it’s a 3 year statute, 4

year, 5 year whatever it it’s way way over that. But it pretty much put

a fear in me that a [indiscernible].

Cunniffe : Would scare the shit out of me [indiscernible] that’s for

sure.

Robert : Yeah. I mean I still, I still remember being [indiscernible] years ago.

Sean would always say, ah I can’t believe you [indiscernible]. Said I can’t

believe it. I handed you this on a silver platter and you didn’t invest in this

, and you know. I said, Sean, did you ever get a call from the SEC, like

I’m gonna actually do this [indiscernible], and he says [indiscernible].

I mean [Laughter]. Yeah, that is something.10 Supp. App. 143

‐ 44 (alterations in original, emphasis added). The district court

referred to the italicized portion of this conversation as the “silver platter

statement,” nomenclature which we hereby adopt. 2

Robert was arrested and interviewed by the FBI shortly thereafter. During

the attendant questioning, Robert claimed that Sean only learned of the Kendle

trades “after the fact,” at which point Sean became “[s]urprised and ang[ry],”

prompting Robert to acknowledge that “it was stupid” for him to have invested.

S.D.N.Y. Dkt. No. 120

‐ 2 at 11, 16. When asked why Sean told Robert about other

deals that he was working on following the Kendle episode, Robert speculated

that Sean “figured I probably wouldn’t do it again—you know—in his eyes,

y’know—I’m his father—I’m—y’know—on a pedestal.” Id. at 16. Robert

repeatedly denied that Sean was aware of any of the other investments or that

Sean had intended that Robert would trade on any of the information that Sean

had provided.

2 At trial, Sean expressly denied having said “anything like that” to Robert. Tr. 1328.11 The FBI asked Robert twice about the silver platter statement. The

following colloquy occurred near the start of the interview:

FBI : [H]ow do you explain a comment you made to Rick [Cunniffe],

that Sean got angry with you when he gave you this information on a

silver platter and you didn’t invest.

Robert : I think I was just saying to Rick because Sean said, “Uh

y’know, all these deals—if you were trading—you could have made

like millions of dollars[,]” and I said, “Sean nobody’s going to trade

and make millions of dollars on this stuff.” That wasn’t his intention.

FBI : So why was Sean giving you this information?

Robert : I think he was just proud of the fact that he was doing deals

and y’know, almost like [“]hey, this deal is going to go way up[,”] not

intending that somebody was going to trade on it.

Id. at 1

‐ 2. Subsequently, the interview returned to the same topic:

FBI : So why did he get mad at you? Why did he get mad at you and

say, “I served this up to you on a silver platter and you didn’t invest

in it.” Why did he get mad at you about that?

Robert : Um, I think that—that day, he was clearly drinking.

FBI : You remember that day specifically?

Robert : I remember—y’know—during that period, because he was

getting divorced, he’s—y’know—and um, he just said[,] I think he

might’ve said, “Y’know, Uh, y’know, I said I was working on this

deal—gee, if you had invested, you would’ve made millions of

dolars.” And I said, “Sean, y’know, people[,] y’know[.]”12 FBI : Get arrested for that?

Robert : “Get arrested for making millions and millions of dollars on

confidential information.”

FBI : Mmhm.

Robert : And that was the end of the conversation.

Id. at 11.

The operative indictment was filed in the Southern District of New York

on July 15, 2015, charging both Sean and Robert with conspiracy to commit

securities fraud and tender offer fraud, conspiracy to commit wire fraud, tender

offer fraud, and six counts of securities fraud. Robert pleaded guilty to a single

conspiracy count on August 12, 2015, while Sean proceeded to trial. The parties

engaged in extensive motion practice before that trial commenced. The following

recitation reflects only those motions and rulings as are relevant to this appeal.

First, Sean moved to preclude introduction of the silver platter statement

as hearsay. The district court denied that motion, reasoning that Robert’s

relaying of the statement to Cunniffe was against Robert’s penal interest.

Having failed to exclude the silver platter statement, Sean subsequently

moved for leave to introduce Robert’s post

‐ arrest statements to the FBI in order13 to impeach the credibility of the silver platter statement. That, too, was denied,

on the ground that Robert did not specifically state that the silver platter

statement had not been made.

Next, Sean sought to compel Robert’s testimony via subpoena. Robert

responded by invoking his Fifth Amendment right against self

‐ incrimination in

response to each topic on which either Sean or the government hoped to inquire,

after which the district court conducted an in camera proceeding with only Robert

and his counsel present to assess the viability of Robert’s claimed privilege. The

district court thereafter sustained Robert’s invocation of the Fifth Amendment.

As a last resort, Sean sought to have Robert immunized in order to allow

him to testify without the risk of self

‐ incrimination. The district court denied that

request as well, finding an absence of extraordinary circumstances that would

merit providing Robert with immunity for his testimony.

Sean’s trial began on July 27 and concluded on August 9, 2016. The

cornerstone of his defense was his professed belief that he could trust his father,

who Sean not did intend or expect would misappropriate his confidences for

pecuniary gain. To rebut that argument, the government relied heavily on the14 silver platter statement. The jury convicted Sean on all counts on August 17,

2016. This appeal followed.

D ISCUSSION

I. Privilege Against Self

‐ Incrimination

In relevant part, the Fifth Amendment provides that “[n]o person

. . . shall

be compelled in any criminal case to be a witness against himself.” U.S. Const.

amend. V. “The privilege afforded not only extends to answers that would in

themselves support a conviction under a

. . . criminal statute but likewise

embraces those which would furnish a link in the chain of evidence needed to

prosecute the claimant for a

. . . crime.” Hoffman v. United States

, 341 U.S. 479, 486

(1951). “To sustain the privilege, it need only be evident from the implications of

the question, in the setting in which it is asked, that a responsive answer to the

question or an explanation of why it cannot be answered might be dangerous

because injurious disclosure could result,” the assessment of which requires that

the trial judge “‘be governed as much by his [or her] personal perception of the

peculiarities of the case as by the facts actually in evidence.’” Id. at 486

‐ 87

(quoting Ex Parte Irvine

, 74 F. 954, 960 (C.C.S.D. Ohio 1896) (Taft, J. )).15 The danger that Robert’s potential testimony posed to him is evident from

the subject

‐ matter on which the parties sought to question him. Those topics

were submitted in advance to the district court and clearly related to both his

trading activities and the veracity of his prior statements to the FBI and SEC.

Robert expressly invoked his Fifth Amendment privilege against self

‐

incrimination with respect to each such topic, after which the district court

discussed these issues further with Robert’s counsel in camera

. Moreover, the

government made clear that it believed Robert had engaged in additional insider

trading for which he had not been charged and that he had also violated 18

U.S.C. § 1001(a) by making false statements to federal law enforcement officials.

Although trial judges must engage in a “particularized inquiry as to

whether each of [a witness’s] claims of privilege could provide evidence that

would tend to incriminate him” if the danger of self

‐ incrimination “is not readily

apparent from the implications of the questions asked or the circumstances

surrounding the inquiry,” this is not such a case. Estate of Fisher v. Comm’r of

Internal Revenue

, 905 F.2d 645, 649, 651 (2d Cir. 1990). Where the hazards of self

‐

incrimination are readily apparent, a witness’s invocation of the privilege against16 self

‐ incrimination need not be tested by the rote recitation of questions that have

obvious answers of which the judge is already aware.

II. Procedural Due Process

“The government is under no general obligation to grant use immunity to

witnesses the defense designates as potentially helpful to its cause but who will

invoke the Fifth Amendment if not immunized.” United States v. Ebbers

, 458 F.3d

110, 118 (2d Cir. 2006). Nevertheless, “under ‘extraordinary circumstances,’ due

process may require that the government confer use immunity on a witness for

the defendant.” United States v. Praetorius

, 622 F.2d 1054, 1064 (2d Cir. 1979). A

defendant requesting such relief must make a two

‐ pronged showing:

First, the defendant must show that the government has used

immunity in a discriminatory way, has forced a potential witness to

invoke the Fifth Amendment through overreaching, or has

deliberately denied immunity for the purpose of withholding

exculpatory evidence and gaining tactical advantage through such

manipulation.

. . . Second, the defendant must show that the evidence

to be given by an immunized witness will be material, exculpatory

and not cumulative and is not obtainable from any other source.

Ebbers

, 458 F.3d at 119 (internal quotation marks and citations omitted). “We

review the court’s factual findings about government actions and motive for17 clear error, but its ultimate balancing for abuse of discretion,” although the

situations in which conferring immunity would be required are “[s]o few and

exceptional” that “we have yet to reverse a failure to immunize.” United States v.

Ferguson

, 676 F.3d 260, 291 (2d Cir. 2011). This case is no exception.

Sean first argues that the district court engaged in discriminatory tactics by

conferring immunity on Boccia while declining to immunize Robert. The district

court did not abuse its discretion in rejecting that argument. “Our Circuit’s

approach to defense witness immunity

. . . recognizes the essential unfairness of

permitting the Government to manipulate its immunity power to elicit testimony

from prosecution witnesses who invoke their right not to testify, while declining

to use that power to elicit from recalcitrant defense witnesses testimony” that

might exculpate a defendant. United States v. Dolah

, 245 F.3d 98, 106 (2d Cir. 2001),

abrogated on other grounds by Crawford v. Washington

, 541 U.S. 36 (2004). Yet such

decisions are not discriminatory if they are “consistent with legitimate law

enforcement concerns.” Ebbers

, 458 F.3d at 119.

Robert and Boccia were not similarly situated from a law enforcement

perspective. For instance, Boccia and Sean never met, whereas Robert spoke with18 Sean regularly and served as a conduit for the material nonpublic information

provided by Sean. In addition, Boccia traded in securities for only two of the five

companies at issue in this action, and actually lost money doing so, whereas

Robert profited by trading, directly and indirectly, in the securities of all five

companies. Relatedly, Boccia last traded on information provided by Sean in June

2011, whereas Robert did so in 2014, just a few short months before his arrest.

These distinctions provide ample justification for their disparate treatment.

Nor was it an abuse of discretion for the district court to find that the

government did not overreach. “Prosecutorial ‘overreaching’ can be shown

through the use of ‘threats, harassment, or other forms of intimidation.’” Id.

(quoting Blissett v. Lefevre

, 924 F.2d 434, 442 (2d Cir. 1991)). That is simply not

borne out by the record here. The prosecutors in question submitted declarations

asserting that they did not state, suggest, or imply that Robert would face adverse

consequences based on whether or not he chose to testify at Sean’s trial. In

response, all that Sean musters are vague statements made by Robert’s counsel to

the district court that summarize communications between himself and the

government at a high level of generality. The record before us is otherwise barren19 as to the substance of any representations made by the government to Robert. In

light of the minimal evidence submitted, the facts adduced are insufficient to

establish prosecutorial overreach.

Because Sean has not satisfied the first prong of the requisite showing, we

need not consider the second.

III. Admissibility of Robert’s FBI Interview

For present purposes, we assume arguendo that the silver platter statement

was admissible. The questions then become (1) whether the exclusion of Robert’s

post

‐ arrest statements to the FBI was erroneous and, if so, (2) is it sufficient,

standing on its own, to require that Sean’s conviction be vacated. For the reasons

set forth in this section, we answer those questions in the affirmative. This

narrow ground mandates that Sean be given a new trial, regardless of whether or

not the silver platter statement was itself hearsay. 3

3 The dissent focuses primarily on the ʺ powerful ʺ and ʺ overwhelming ʺ evidence

mustered by the government, as compared to the ʺ feeble ʺ defense offered by Sean.

Dissent at 1. But Sean does not challenge the sufficiency of the evidence against him,

and the crux of the dispute is not whether there was an adequate basis for the jury ʹ s

verdict. Rather, the key question is whether Sean ʹ s defense was prejudiced by

preclusion of impeachment evidence. We find that it was. That does not mean, of20 We review the exclusion of Robert’s post

‐ arrest interview “deferentially”

for “abuse of discretion,” as we do with all evidentiary rulings. United States v.

Dupree

, 706 F.3d 131, 135 (2d Cir. 2013). “A district court ‘abuses’ or ‘exceeds’ the

discretion accorded to it when (1) its decision rests on an error of law (such as

application of the wrong legal principle) or a clearly erroneous factual finding, or

(2) its decision—though not necessarily the product of a legal error or a clearly

erroneous factual finding—cannot be located within the range of permissible

decisions.” Zervos v. Verizon N.Y., Inc.

, 252 F.3d 163, 169 (2d Cir. 2001).

A. Inconsistent Statements

Following the district court’s ruling that the silver platter statement was

admissible, Sean moved for leave to introduce excerpts from Robert’s post

‐ arrest

FBI interview in which Robert was asked about the silver platter statement. The

district court did not grant such leave, reasoning that “Robert never specifically

denie[d] that [Sean] made the ‘silver platter’ statement itself,” Special App. 3

‐ 4,

course, that we are somehow second

‐ guessing the jury’s assessment of the evidence

presented, or that we necessarily believe in Sean’s innocence. Those questions are not

for this panel to answer. Rather, we find only that Sean was deprived of the opportunity

due him to defend himself against the evidence introduced at trial.21 such that the FBI interview and the silver platter statement were not “inconsistent”

for purposes of Federal Rule of Evidence 806. 4

4 In the interest of clarity, we reiterate that Robert stated as follows to the FBI:

FBI: [H]ow do you explain a comment you made to Rick [Cunniffe], that

Sean got angry with you when he gave you this information on a silver

platter and you didn’t invest.

Robert: I think I was just saying to Rick because Sean said, “Uh y’know, all

these deals—if you were trading—you could have made like millions of

dollars”[,] and I said, “Sean nobody’s going to trade and make millions of

dollars on this stuff.” That wasn’t his intention.

. . . I think he was just proud

of the fact that he was doing deals and y’know, almost like [“]hey, this deal

is going to go way up[,”] not intending that somebody was going to trade

on it.

. . .

FBI: So why did he get mad at you? Why did he get mad at you and say, “I

served this up to you on a silver platter and you didn’t invest in it.” Why

did he get mad at you about that?

Robert: Um, I think that—that day, he was clearly drinking.

. . . I

remember—y’know—during that period, because he was getting divorced,

he’s—y’know—and um, he just said[,] I think he might’ve said, “Y’know,

Uh, y’know, I said I was working on this deal—gee, if you had invested,

you would’ve made millions of dollars.” And I said, “Sean, y’know,

people[,] y’know[,]

. . . Get arrested for making millions and millions of

dollars on confidential information.”

. . . And that was the end of the

conversation.

S.D.N.Y. Dkt. No. 120

‐ 2 at 1

‐ 2, 11. Furthermore, we also reiterate that the silver platter

statement refers specifically to the following recollection by Robert: “I mean I still, I still

remember being [indiscernible] years ago. Sean would always say, ah I can’t believe22 “A hearsay declarant may

. . . be impeached by showing that the declarant

made inconsistent statements,” based upon the theory that such a declarant “‘is in

effect a witness’” and therefore “‘[h]is credibility should in fairness be subject to

impeachment

. . . as though he had in fact testified.‘” United States v. Trzaska

, 111

F.3d 1019, 1024 (2d Cir. 1997) (quoting Fed. R. Evid. 806 advisory committee’s

note). “[S]tatements need not be diametrically opposed to be inconsistent.” United

States v. Agajanian

, 852 F.2d 56, 58 (2d Cir. 1988) (quoting United States v. Jones

, 808

F.2d 561, 568 (7th Cir. 1986)). As our sister Circuit has recognized in a related

context, “explanations and denials run the gamut of human ingenuity, ranging

from a flat denial, to an admitted excuse, to a slant, to a disputed explanation, or to

a convincing explanation”; a statement could fall at any point on this spectrum

and still be inconsistent. United States v. Meza

, 701 F.3d 411, 426 (5th Cir. 2012).

Accordingly, we apply “two tests to determine inconsistency,” asking whether

there is “any variance between” the impeachment material and the hearsay

statement “that has a reasonable bearing on credibility” or whether a jury could

you [indiscernible]. Said I can’t believe it. I handed you this on a silver platter and you

didn’t invest in this

. . . .” Supp. App. 143.23 “reasonably find that a witness who believed the truth of the facts” asserted in the

hearsay statement “would have been unlikely to make a statement” of the

impeachment material’s “tenor.” Ebbers

, 458 F.3d at 123 (quoting Trzaska

, 111 F.3d

at 1024

‐ 25). We need only consider the first of these tests.

Robert need not have explicitly denied the silver platter statement to render

his discussions with the FBI admissible. Although Robert has consistently

acknowledged that some exchange took place between himself and Sean, the

precise contents and the import of those discussions have not been similarly

uniform. To render the statements inconsistent for purposes of Rule 806, it was

enough that excerpts from his FBI interview varied from his earlier recitation of

the silver platter statement in a manner such that they cast a different meaning on

his discussions with Sean. We find that there is a material difference between the

possibility that Sean might have said “I can’t believe

. . . you didn’t invest,” Supp.

App. 143, as opposed to Sean having said “if you were trading—you could have

made like millions of dollars,” S.D.N.Y. Dkt. No. 120

‐ 2 at 2. The former suggests

that Sean expected that Robert would trade, while the latter does not.

That distinction has a reasonable bearing on the credibility of the silver24 platter statement. See Ebbers

, 458 F.3d at 123. Regardless of which version of the

conversation between Sean and Robert was correct, if either, “the fact of the

inconsistency gives the jury an insight into the witness’s state of mind; the

inconsistency shows that the witness is either uncertain or untruthful. In either

event, the inconsistency calls into question the witness’s believability.” Robert P.

Mosteller, et al.

, 1 M C C ORMICK ON E VIDENCE § 34 (7th ed.).

B. Harmless Error Review

The government argues that even if the impeachment materials are

admissible, their exclusion was harmless error. “In order to uphold a verdict in the

face of an evidentiary error, it must be ‘highly probable’ that the error did not

affect the verdict.” United States v. Dukagjini

, 326 F.3d 45, 61 (2d Cir. 2003) (quoting

United States v. Forrester

, 60 F.3d 52, 64 (2d Cir. 1995)). Put another way, an

“erroneous admission of evidence is harmless ‘if the appellate court can conclude

with fair assurance that the evidence did not substantially influence the jury.’”

United States v. Al

‐ Moayad

, 545 F.3d 139, 164 (2d Cir. 2008) (quoting United States v.

Garcia

, 291 F.3d 127, 142 (2d Cir. 2002)). When assessing the importance of

improperly excluded evidence, we consider the following factors:25 (1) the importance of the unrebutted assertions to the government’s

case; (2) whether the excluded material was cumulative; (3) the

presence or absence of evidence corroborating or contradicting the

government’s case on the factual questions at issue; (4) the extent to

which the defendant was otherwise permitted to advance the defense;

and (5) the overall strength of the prosecution’s case.

United States v. Oluwanisola

, 605 F.3d 124, 134 (2d Cir. 2010). Based upon these

considerations, excluding Robert’s post

‐ arrest FBI interview was not harmless.

The government contends that the impeachment material would have been

cumulative of evidence that was already before the jury in the form of Robert’s

April 16, 2015, conversation with Cunniffe, in which Robert claimed that Sean was

unaware of his investment activities. 5 But that argument does not address the full

5 In relevant part, Robert and Cunniffe had the following dialogue on April 16, 2015:

Cunniffe: In terms of Sean, do you ever throw him money? Or no?

Robert: No.

Cunniffe: No you don’t. That is what I thought. I thought it was just out of the

goodness and kindness of his heart.

Robert: No, it’s just, you know, it’s just stuff he mentions as he goes around,

you know, ‘Oh, I am working on this, I am working on that.’

Cunniffe: That is what I figured.26 breadth of Robert’s post

‐ arrest statements. Indeed, it ignores their most salient

feature: Robert’s FBI interview offered fundamentally distinct recollections of the

silver platter exchange that cast a different light on Sean’s intentions. Such

evidence is not cumulative, “particularly where the case revolved around what

[Sean] told [Robert] and what [Robert] told him,” because “stray bits” of evidence

touching upon similar subject matter, such as Robert’s statements exculpating

Sean, “do not substitute for [Robert’s] direct account” of his discussion with Sean.

United States v. Scully

, 877 F.3d 464, 475 (2d Cir. 2017).

The only other argument offered by the government is its conclusory

assertion that “[t]here is no reasonable possibility that

. . . [the jury] would have

reached a different result” if it had heard Robert’s post

‐ arrest statements to the

FBI. Gov’t Br. 38. We cannot say the same. “We have repeatedly held that the

Robert: I never told him like, I’ve done anything.

Cunniffe: Okay. Okay.

. . . So you never told him you even invested.

. . .

Robert: No. No.

Jt. App. 680

‐ 81 (ellipses in original).27 strength of the government’s case is the most critical factor in assessing whether

error was harmless.” United States v. McCallum

, 584 F.3d 471, 478 (2d Cir. 2009).

Given the difficulty of objectively evaluating this factor, appellate courts often look

to the length of jury deliberations and the necessity of a modified Allen charge as

useful proxies. See, e.g.

, Parker v. Gladden

, 385 U.S. 363, 364 (1966) (“[T]he jurors

deliberated for 26 hours, indicating a difference among them as to the guilt of the

petitioner.”); Zappulla v. New York

, 391 F.3d 462, 471 (2d Cir. 2004) (“The length

and deliberative conduct by the jury

. . . suggests that a conviction was not

assured, at least without the [erroneously admitted] confession.”); United States v.

Grinage

, 390 F.3d 746, 752 (2d Cir. 2004) (“After brief deliberations, the jurors sent a

note that they were hung and, only after a modified Allen charge did they reach a

verdict.

. . . This was a close case.” (internal citation omitted)).

Here, the trial lasted only eight days, yet the jury deliberated for five.

Moreover, the jurors reported that they were at an impasse and believed

themselves to be deadlocked on the third day of deliberation, prompting the

district court to provide a modified Allen charge in the hopes of spurring them to

reach consensus. This cuts strongly against the government’s unsupported28 assertion that admission of Robert’s post

‐ arrest interview would have made no

difference to the jury.

We must also consider “the importance of the unrebutted assertions to the

government’s case.” Oluwanisola

, 605 F.3d at 134. “As a general matter, the

prosecution knows intimately the strengths and weaknesses of its case.” Zappulla

,

391 F.3d at 471. The silver platter statement was quite literally the first thing

mentioned in the government’s opening statement to the jury, and it was the

very last thing discussed in the government’s rebuttal summation. In its closing

arguments, the government referred to the silver platter statement as

“devastating” no fewer than three times, Tr. 1558, 1559, 1561, describing it as a

“candid admission [that] put the lie to Sean Stewart’s testimony,” id. at 1443, for

which “Sean Stewart couldn’t come up with an explanation,” id. at 1561. Such

“heavy reliance

. . . expose[s] its central role in persuading the jury to convict,” as

the government “clearly understood that [the silver platter] statement was a

powerful weapon” in its arsenal. Wood v. Ercole

, 644 F.3d 83, 96

‐ 97 (2d Cir. 2011). 6

6 The dissent argues that the strength of the evidence is such that Sean may well have

been convicted even absent the silver platter statement. However, that possibility does29 To be clear, we do not mean to suggest that the government’s emphasis on

the silver platter statement was improper. The district court ruled that the silver

platter statement was admissible. Under those circumstances, it is

understandable that the government would introduce and rely on it. But the

government’s apparent recognition regarding “the impact [the] statement would

have on the jury” nevertheless confirms our belief that it was, in fact, important

to the prosecution’s case. Id. at 98; see also Zappulla

, 391 F.3d at 472 (“The fact that

the prosecutor relied on the confession, thereby running the risk of reversal on

appeal, tends to show that the prosecutor understood

. . . that the confession was

not “render[] harmless” the exclusion of Robert’s post

‐ arrest statements once the silver

platter statement was introduced, Dissent at 20, because neither we nor the dissent can

know what result would have obtained had the government not introduced it in the

first place. Indeed, the heavy emphasis the government placed on the silver platter

statement, as well as the government’s concession at oral argument that the statement’s

introduction would not have been harmless (assuming arguendo that it had been

erroneous), both suggest that it did not only ʺ add[]incrementally ʺ to the prosecution’s

case. Id. Much of the evidence marshaled by the dissent is undisputed, see id. at 11

‐ 19,

but the silver platter statement is by far the most compelling evidence contradicting

Sean ʹ s own testimony that he did not intend for Robert to benefit from the information

Sean was relaying to him. As intent to benefit the tippee is an element of securities

fraud, we cannot know whether Sean would have been convicted if the silver platter

statement had not been introduced—or, alternatively, if it had been introduced but

impeached.30 a crucial piece of evidence.”). In light of the silver platter statement’s importance,

that it went unrebutted is a critical strike against the notion that exclusion of

Robert’s post

‐ arrest statements to the FBI might have been harmless error.

To find Sean guilty, the jury had to conclude that Sean intended that his

father would trade, thus personally benefitting from the misappropriation of his

employer’s material nonpublic information. See Dirks v. SEC

, 463 U.S. 646, 663 n.23

(1983) (“ Scienter —‘a mental state embracing intent to deceive, manipulate, or

defraud’—is an independent element of a Rule 10b

‐ 5 violation.” (quoting Ernst &

Ernst v. Hochfelder

, 425 U.S. 185, 193 n.12 (1976)); United States v. Martoma

, 894 F.3d

64, 76 (2d Cir. 2018) (“[T]he personal benefit element can be met by evidence that

the tipper’s disclosure of inside information was intended to benefit the tippee.”).

That conclusion was powerfully supported by evidence that Sean had said to

Robert, “I can’t believe it. I handed you this on a silver platter and you didn’t

invest in this.” Supp. App. 143. While other evidence of Sean’s guilt was proffered,

the silver platter statement was the most suggestive evidence of Sean’s intent that

Robert should trade on the tips Sean supplied.31 The jury’s decision on the crucial question of Sean’s intent might well have

been influenced by a doubt as to whether Sean had truly said that he served up

information on a silver platter or that he could not believe Robert had not traded

on it. Robert’s post

‐ arrest statements did not repeat those critical details, the

absence of which might have supported inferences that Sean did not know,

expect, or intend that his father would invest based upon their discussions. If the

silver platter statement is “damning proof” that Sean “acted with deliberate

intent that his father trade on material nonpublic information,” as argued by the

government, S.D.N.Y Dkt. No. 101 at 20, then it hardly seems unlikely that

Robert’s alternative versions of the same conversation between himself and Sean

might have influenced the jury’s deliberations. Although Robert never expressly

denied the silver platter statement, his post

‐ arrest recollections offer a potentially

different interpretation that could, at minimum, have tempered the statement’s

“devastating” effect.

On this record, we cannot conclude with fair assurance that the admission

of Robert’s post

‐ arrest FBI interview might not have substantially influenced the

jury. See Al

‐ Moayad

, 545 F.3d at 164. The dissent is surely correct that evidence32 supporting several elements of the counts against Sean was “overwhelming,”

Dissent at 1; indeed, much of it was undisputed. Nevertheless, Sean ʹ s intent was

the central point of contention between the parties. On that issue, the

government ʹ s evidence was at its weakest. The dissent’s compelling recitation of

evidence relating to other elements of the crimes alleged does not make the

evidence of intent any stronger. Because the impeachment material might have

undermined the silver platter statement in the eyes of the jury, it risked leaving the

government “with a substantially weaker case” as to Sean ʹ s intent such that “a

guilty verdict would be far from assured.” Wood

, 644 F.3d at 96.

With great respect for the district court, because this evidentiary error was

not harmless, we are compelled to vacate Sean’s conviction. We therefore need not

reach the question whether the silver platter statement was admissible under a

hearsay exception—either the penal interest or the co

‐ conspirator exception.

Nonetheless, because the district court will need to rule of the admissibility of the

silver platter statement upon retrial, we think it desirable to give the court

guidance on this question. The district court did not rule on whether the silver

platter statement was admissible under the co

‐ conspirator exception to the33 hearsay rule as codified at Federal Rule of Evidence 801(d)(2)(E). If the district

court had decided that it was admissible under the co

‐ conspirator exception, we

would have affirmed that ruling. There is ample evidence in the record to show by

a preponderance that a conspiracy existed between Robert and Sean with the

objective that Robert trade on the information Sean provided, and that Robert’s

silver platter statement to Cunniffe furthered the objective of the Robert

‐ Sean

conspiracy. 7 This may prove a stronger basis for admission of the silver platter

7 We note that the co

‐ conspirator exception looks not to whether the declarant (Robert)

made the statement to one who conspired with him (Cunniffe)—which the district court

appeared to treat as the test—but rather whether the declarant (Robert) conspired with

the defendant against whom the statement is offered (Sean), and that the statement was

made during the course of their conspiracy and in furtherance of its objective. United

States v. Farhane

, 634 F.3d 127, 161 (2d Cir. 2011) (citation omitted). The co

‐ conspirator

exception stems from the theory that persons in a conspiracy with one another act as

each other’s partners or representatives in carrying out the objectives of the conspiracy.

2 M C C ORMICK O N E VIDENCE

, supra

, § 259; see also Edmund M. Morgan, The Rationale of

Vicarious Admissions

, 42 Harv. L. Rev. 461, 464 (1929). The McCormick treatise explains:

Conspiracies to commit a crime

. . . are analogous to partnerships.

. . . If A

and B are engaged in a conspiracy, the acts and declarations of B

occurring while the conspiracy is actually in progress and in furtherance

of the design

. . . . may

. . . be introduced against A as representative

admissions to prove the truth of the matter asserted.

. . . Federal Rule

801(d)(2)(E) is consistent with the foregoing analysis, treating as [a34 statement than the penal interest exception. Of course, we express no view on Sean

Stewart’s ultimate guilt or innocence, which must be decided by a jury of his peers

if he is retried.

C ONCLUSION

For the foregoing reasons, we VACATE Sean Stewart’s conviction and

REMAND this matter to the district court for further proceedings.

party’s] admission a statement ‘made by the party’s co

‐ conspirator during

and in furtherance of the conspiracy.

2 M C C ORMICK O N E VIDENCE

, supra

, § 259 (footnotes omitted).1 B ERMAN

, District Judge, dissenting:

I. Overview

Defendant Sean Stewart was fairly tried and convicted of all nine insider

trading related counts in the Indictment. The Government’s case against Sean

consisted of powerful direct and circumstantial evidence and was

“overwhelming.” See United States v. Dowdell

, 737 F. App’x 577, 583 (2d Cir. 2018)

(“[T]he government’s evidence would have been overwhelming even if [the

excluded evidence had been admitted.]”), cert. petition docketed sub nom. Derrick

Wilson v. United States

, No. 18

‐ 6417 (U.S. Oct. 24, 2018). It included Sean’s own

incriminating admissions, the testimony of 20 witnesses one of whom was a

cooperator, recorded conversations, and written trading records and emails

reflecting illegal securities trades.

Sean’s defense, by contrast, was feeble. Sean took the stand and admitted

that he knowingly and regularly disclosed details of confidential deals that he

was working on at JPMorgan Chase (JPMorgan) and Perella Weinberg Partners

(Perella) to his father Robert Stewart (a certified public accountant and former2 chief financial officer). 1 Robert Stewart, together with his associates, made over

$1.1 million trading on Sean’s inside information. Sean admitted that he knew

that Robert purchased and sold shares of Kendle International Inc. (Kendle) after

Robert had learned from Sean that Sean was working on a deal at JPMorgan

involving the acquisition of Kendle. Sean also confirmed that he intentionally

(and regularly) violated “bedrock” finance industry confidentiality norms and

obligations and lied to JPMorgan and to Perella

– and to industry regulators,

including the Financial Industry Regulatory Authority (FINRA)

– by consistently

discussing his deal work with Robert (and other family members). Perhaps most

tellingly, Sean testified that he lied about disclosing inside information because

he “ knew it would be potentially damaging for my prospects at the time. I had worked

extremely hard to get to the position I was in at that point, and I thought anything might

potentially derail my future .” 2 Tr. 1236. “Intent elements are everywhere in our law

and are generally proved with circumstantial evidence. Insider trading is no

1 The majority acknowledges that “although Sean knew that company policy

forbade him from discussing confidential information with anyone other than his

colleagues, he did not abide by that rule.” Op. at 4 (citation omitted).

2 Sean also testified that his father, Robert Stewart, lied to a Securities and

Exchange Commission (SEC) investigator about Sean’s disclosures of inside information

to him. Id. at 1350. Sean explained that his father protected him the same way he

protected his father. Id

.3 different. A factfinder may infer the tipper intended to benefit the tippee from

the sort of objective evidence that is commonly offered in insider trading cases.”

United States v. Martoma

, 894 F.3d 64, 76 (2d Cir. 2017) (rehearing en banc denied)

(citations omitted).

Sean’s unpersuasive and inconsistent excuses for improperly disclosing

confidential business matters to Robert and other family members were that he

“grew up in a household where there were no secrets, and we shared everything

about our lives”; and that his father lied when he said to Sean that he would

never trade based on anything they had ever discussed (following the unlawful

insider Kendle trades). Tr. 1189, 1251. It is no surprise that Sean’s jury

– whose

task it was to assess witness credibility and to decide what the facts were

– used

common sense and rejected Sean’s “tight knit family” story. See United States v.

Payne

, 591 F.3d 46, 60 (2d Cir. 2010) (“Assessments of witness credibility and

choices between competing inferences lie solely within the province of the

jury.”). 3

3 The key question facing the jury, according to the majority, “was whether to

believe Sean when he denied that he knew that his father would trade on the

information that Sean had provided.” Op. at 3

. The majority acknowledges that

“[e]vidently, they did not, as Sean was convicted on all counts brought against him.”

Id.4 In sum, this case is about a sophisticated, Yale educated mergers and

acquisitions investment banker, Sean Stewart, who knew to a certainty that he

was obligated not to “tip off” family and friends about companies and corporate

deals that he was working on. Yet, he did exactly that. And, almost immediately

after Robert Stewart received inside deal information from his son Sean, Robert

and his associates traded in securities of companies involved in those deals.

When the Stewarts were caught, Robert pled guilty to one count of

conspiracy to commit securities fraud based upon inside information. One of

Robert’s associates, Richard Cunniffe (“Cunniffe”), who also traded upon Sean’s

inside information, pled guilty to insider trading and wire fraud.

Sean pled not guilty and was the principal defense witness at his trial.

(Robert refused to testify at Sean’s trial.) Sean’s testimony clearly was not

persuasive to the jury, as he was convicted of all nine counts charged in the

Indictment, i.e.

, one count of conspiracy to commit securities fraud and tender

offer fraud; one count of conspiracy to commit wire fraud; six counts of securities

fraud; and one count of securities fraud in connection with a tender offer.5 II. The Majority Opinion

In analyzing Robert Stewart’s May 14, 2015 post arrest statements and the

doctrine of “harmless error,” the majority fails to acknowledge the

overwhelming evidence of the Defendant’s guilt, although it is clearly laid out in

the trial transcript. See pp. 9

‐ 14 infra

. The majority also ignores longstanding

Second Circuit precedent, including Perkins v. Herbert

, 596 F.3d 161, 179 (2d Cir.

2010) and United States v. Reifler

, 446 F.3d 65, 87 (2d Cir. 2006), which hold that

“the strength of the prosecution’s case [is] the most important factor in our

inquiry.” This factor compels a finding that any error in this case was harmless.

And, in remanding for a new trial, the majority fails to defer to the jury in

Sean Stewart’s case. “Because we accord a high degree of deference to the jury’s

evaluation of witnesses credibility, jury verdicts should be disturbed with great

infrequency.” See Maureen Christensen v. Cty. of Dutchess, N.Y.

, 548 F. App’x 651,

653 (2d Cir. 2013).

III. Sean’s Conviction

The jurors in Sean’s case appear to have been thorough and professional

throughout their deliberations, as the ten (10) notes sent by the jury to the district

judge confirm. Because this was a financial crimes case, the jury was required to6 sort through well over 1,000 trial exhibits, including securities trading records,

emails, phone call recordings, and the JPMorgan and Perella employee codes of

conduct. The jury also had to assess the credibility of the 20 witnesses at trial,

including the Defendant and cooperating witness Richard Cunniffe. The jury

started its deliberations on Tuesday, August 9, 2016 at 12:20 p.m., and reached its

verdict on Wednesday, August 17, 2016 at 9:59 a.m., a total of 4.5 days. Jurors

deliberated from 9:30 a.m. to no later than 4:30 p.m.; did not sit on weekends;

and did not sit at all on Monday, August 15, 2016.

IV. Silver Platter Statement

District Judge Laura T. Swain was at all times thorough and fair to the

parties in this criminal litigation. 4 Judge Swain correctly admitted into evidence

4 Two of Judge Swain’s substantive instructions to the jury were as follows:

(1) “In order to establish the third [insider trading] factor that Mr. Stewart

anticipated that his father would trade on the information, the

government must prove beyond a reasonable doubt that, at the time the

information was disclosed, Mr. Stewart anticipated that his father

would use the information to trade in securities or cause others to use

the information to trade in securities. The government cannot prevail by

establishing only that Mr. Stewart shared information that he was

required to keep confidential. The government must, instead, prove

beyond a reasonable doubt that at the time the information was

disclosed, Mr. Stewart anticipated that his father would use that

information to trade in securities.” Tr. 1605

‐ 06

.7 the silver platter statement, after having determined that it was “probative of

Robert’s alleged collusion with Sean.” S.D.N.Y. Dkt. 153. She also stated that the

Government had made a “strong” argument for admission under Federal Rule of

Evidence 801(d)(2)(E) because the silver platter statement involved “a discussion

between admitted co

‐ conspirators.” S.D.N.Y. Dkt. 153. Admission of the silver

platter statement, as the majority acknowledges, is consistent with United States

v. Farhane

, 634 F.3d 127, 161 (2d Cir. 2011), because the statement was made

during the course of and in furtherance of a conspiracy.

Post Arrest Statements

Following briefing and oral argument, Judge Swain denied Sean Stewart’s

motion to admit the post arrest statements made by Robert Stewart. She did so

(2) “Because an essential element of the crime charged is intent to defraud,

good faith on the part of Mr. Stewart is a complete defense to the charge

of insider trading. That is, the law is not violated if the defendant held

an honest belief that his actions were not in furtherance of any unlawful

scheme. Thus, it is a complete defense to the charge of insider trading if

Mr. Stewart believed, in good faith, that any information that he

provided to his father would not be used for trading purposes. A person

who acts on a belief or opinion honestly held that turns out to be wrong,

is not punishable under these statutes.” Tr. 1608

.

The jury obviously concluded by its verdict that Sean anticipated and intended that his

father would use the inside information provided by Sean to trade in securities, and that

Sean had acted in bad faith.8 because she found “no inconsistency” between Robert’s post arrest statements

and the silver platter statement. 5 S.D.N.Y. Dkt. 136.

In concluding that the post arrest statements were not inconsistent with

the silver platter statement, Judge Swain may have been persuaded by the facts

that the post arrest statements appear to be a desperate attempt to minimize

Sean’s illegal behavior and that they do not include a disavowal or revocation of

the silver platter statement. Rather, the post arrest statements seek to explain

away Sean’s unlawful behavior by reference to his “divorce,” his “bragging,” his

“drinking problem,” and his unawareness of “what he’s saying.” See S.D.N.Y.

Dkt. 120, Ex. B.

Robert’s post arrest statements include the following quotations: “I

remember

– y’know

– during that period, because he was getting divorced, he’s–

y’know

‐‐ and um, he just said... I think he might’ve said, ‘Y’know, Uh, y’know, I said I

was working on this deal

– gee, if you had invested, you would’ve made millions of

dollars[’] ”; “I think [Sean] was just

– you know

– kind of bragging. Sean’s

5 The majority describes two tests for inconsistency: (1) “any variance between

the statement and testimony that has a reasonable bearing on credibility;” and (2)

“could the jury reasonably find that a witness who believed the truth of the facts

testified to would have been unlikely to make a statement of this tenor.” United

States v. Trzaska

, 111 F.3d 1019, 1025 (2d Cir. 1997) (citations omitted)).9 bragging about, ‘Hey, I’m working on this deal, that deal’”; “I think that

– that

day [Sean] was clearly drinking.

. . . [H]e’s got a drinking problem”; and

“Y’know

– I think

– sometimes he [Sean] doesn’t realize what he’s saying.” Id

.

(emphasis added). Although the majority believes that the post arrest statements

may have left the Government “with a substantially weaker case,” Op. at 32, it

seems at least equally likely that Robert’s comments may further have convinced

the jury of Sean’s guilt.

In analyzing harmless error, the majority errs when it concludes that jury

deliberations were exceptionally long and that the jury was deadlocked. Four

and one half days of deliberations over nine counts in a securities fraud case is

not

, in my experience, excessive. Trial judges routinely advise jurors

– as Judge

Swain did at Sean’s trial

– that they may take as much time as they need for full

review, discussion and consideration of the evidence. And, a careful review of

the trial transcript and the jury notes presented to the district judge on Thursday,

August 11, 2016 and Friday, August 12, 2016, shows that the majority incorrectly

concludes that the jury was “deadlocked.” Op. at 27. The records show only that

the jury may have been temporarily stuck or at impasse as to one particular

count

– out of the nine counts in the Indictment. S.D.N.Y. Dkt 181, Court Ex. 1510 (Jury Note, dated August 11, 2016: “If it is a split vote on a count and the jury is

stuck

. . . ?); id.

, Court Ex. 22 (Jury Note, dated August 12, 2016: “If the jury is at

an impasse on a particular count

. . . ?”); Tr. 1705 (District court: “You’ve

indicated in your note that you’re at an impasse with respect to a particular

count.”). The jury was able to reach unanimous agreement as to that particular

count

– and to reach a verdict of guilty on all nine counts

– following a routine

instruction from Judge Swain to return to the jury room and review and continue

to discuss the evidence and their views with each other.

V. The Overwhelming Strength of the Prosecution’s Case Against Sean

The majority contends that Judge Swain’s post arrest statement ruling was

error and an abuse of her discretion. It requires that the jury’s guilty verdict be

vacated, and directs that there be a new trial. In my view, even assuming,

arguendo

, that the post arrest statements were legally inconsistent with the silver

platter statement, Judge Swain’s failure to admit the post arrest statements was

harmless error because the strength of the Government’s case (i.e., the evidence

of Sean’s guilt) was overwhelming. See Reifler

, 446 F.3d at 87 (“ In assessing [an]

error’s likely impact

. . . the strength of the prosecution’s case is probably the

single most critical factor’”) (quoting Latine v. Mann, 25 F.3d 1162, 1167–68 (2d11 Cir. 1994)); United States v. Rolle

, 631 F. App’x 17, 21 (2d Cir. 2015) (“[A] ny error

was harmless in light of the overall strength of the government ʹ s case.”) ; United

States v. Gupta

, 747 F.3d 111, 136

‐ 37 (2d Cir. 2014); United States v. Miller

, 626 F.3d

682, 690 (2d Cir. 2010) (“Here, there can be no serious claim that the district

court’s evidentiary ruling had any likelihood of affecting the outcome of the case.

The government’s evidence of guilt was overwhelming.”).

The direct and circumstantial evidence of Sean’s guilt was overwhelming

and included substantial evidence that Sean intended that Robert trade upon

Sean’s tips.

A. Evidence of Sean’s Intent

1. Sean admitted at trial that in violation of his ethical obligations he

had often disclosed inside information to his father, Robert Stewart,

about deals and companies he was working on at JPMorgan (2003 to

2011). The inside information included details about mergers and

acquisitions involving Kendle International Inc. (“Kendle”) and

Kinetic Concepts, Inc. (“KCI”). Sean also knew that Robert “may

have picked up the name Kendle and traded in [the] stock” from

their unlawful discussion. Tr. 1235.

2. Sean also admitted that he continued to disclose inside information

to his father after leaving JPMorgan to join Perella and after he knew

Robert had traded in Kendle stock. At Perella, the inside information

disclosed related to mergers and acquisitions involving Lincare

Holdings, Inc. (“Lincare”), CareFusion Corp. (“Carefusion”), and

Gen

‐ Probe Inc. (“Gen

‐ Probe”).12 3. Sean’s explanation for disclosing confidential information to his

family included: “[Sean:] Yeah, with [my wife] and with my parents

we had a very, very close relationship, and I spoke very freely with

them. I grew up in a household where there were no secrets, and we

shared everything about our lives.”). Id. at 1185. Sean: “I’ve come to

know now that [Robert] traded in these stocks and, unfortunately,

the only way he could have gotten that information is from our

discussions.” Id. at 1252. Sean’s wife was a mergers and acquisitions

attorney at a prominent New York City law firm.

4. Sean also admitted at trial that he had violated the JPMorgan and

Perella codes of conduct by disclosing confidential client

information. Surprisingly, this does not seem to be of great concern

to the majority who observe: “Although Sean knew that company

policy forbade him from discussing confidential information with

anyone other than his colleagues, he did not abide by that rule.” See

Op. at 4 (citation omitted).

5. Sean testified that immediately after JPMorgan’s compliance officers

reached out to him in August 2011 to schedule an interview

regarding the FINRA list of persons who suspiciously traded in

Kendle stock, Sean met with his father at the Yale Club and told

Robert that Robert’s name was on the list.

6. But Sean lied to JPMorgan when he said his father’s name was not

on the FINRA list. Sean’s email to JPMorgan, dated August 2, 2011,

falsely stated “don’t know anyone [on the list].” Supp. App. 77. At

his August 26, 2011 interview with JPMorgan’s compliance officers

about the FINRA list, Sean lied again when he denied that his father

could have gotten information from him regarding Kendle. Id ; see p.

11 infra

. After the interview, Sean “called [his] dad and let him know

that the investigation had been concluded. I told him to never do that

again, and he promised that he would not.” Tr. 1237.

7. Sean admitted that apart from discussing the names of companies

involved in mergers and acquisitions he was working on, he also13 provided his father with details about the timing of public

announcements related to those deals. Id

. at 1188 (Defense counsel:

“And did you ever tell your father anything about the timing of the

Kendle deal?” Sean: “Only that the expected or targeted

announcement [of Kendle’s acquisition] date conflicted with our

wedding.” Defense Counsel: “So you did talk to him about the timing.”

Sean: “Yes.” ) (emphasis added).

8. At his guilty plea on August 12, 2015, Robert stated: “I obtained

material, nonpublic information about a number of securities from

my son, who I understand had access to this information in the

course of his job. For certain of these securities, I provided the

information to another individual, Rick Cunniffe, so that he could

trade in these securities and share trading profits with me.” S.D.N.Y.

Dkt. 33.

9. At Sean’s trial, the Government introduced into evidence the

following April 16, 2016 recorded conversation between Robert

Stewart and cooperator Richard Cunniffe:

Cunniffe: Did Sean, uh did Sean do this [provide inside

information] out of the goodness and kindness of his heart

for you?

Robert: No, you know what? I think he gets angry at times.

Angry at the industry.

Cunniffe: Oh, yeah?

Robert: And it was only

. . . I think it was only three—three

times. He has actually told me some other ones and I just

discounted them and just sa[id] that you know what, I don’t

want to know about it[.] App. 678

‐ 79. 6

6 See also p. 6 supra where Robert, in his post arrest statements, also attributes

Sean’s disclosures of inside information to Sean’s drinking problem; Sean’s divorce;

Sean’s bragging; and Sean’s lack of awareness.14 B. Sean’s Full Awareness of the Requirement of Confidentiality

10. Sean went to work at JPMorgan after he graduated from Yale in 2003.

He started as an analyst in the mergers and acquisitions group. In

2006, he was promoted to “associate.” Tr. 133. In 2010, he was

promoted to “vice president.” Id. at 1135. Sean testified that he “knew

everything that was going on” when working on a “particular

transaction,” id. at 1334, and that the majority of the deals he worked

on involved public companies. Id. at 1136.

11. Sean testified that he knew that “confidentiality was the bedrock

principle of [his] job.” Id. at 1359 (emphasis added). He understood

that “we were not expected to talk about confidential information

with anyone not involved in a particular deal team.” Id. at 1188. Sean

testified that he received “extensive” compliance training at

JPMorgan, id. at 1188, i.e.

, at least once a year from 2003 to 2011. Sean

also testified that he also “underwent new employee compliance

training” when he joined Perella in October of 2011. Id. at 1358.

12. Sean admitted at trial that he lied when he affirmed to JPMorgan on

July 26, 2011 that he was “in compliance with [JPMorgan’s] code of

conduct,” because he had disclosed confidential information about

JPMorgan’s clients, including Kendle, to his parents and his wife. Id.

at 1356

‐ 58.

13. Sean also admitted at trial that he disclosed confidential information

to his father about the Lincare, CareFusion, and Gen

‐ Probe deals

which he either learned about or worked on at Perella, id. at 1252;

and that he lied to Perella when he “affirmed that [he] was in

compliance with [its] confidentiality policies.” Id. at 1360.

14. At Sean’s trial, the Government presented as an exhibit JPMorgan’s

Code of Conduct which states: “Do not disclose confidential

information to anyone outside the firm unless you are authorized to

do so. Where such disclosure is authorized, the confidentiality or15 privacy agreement may be required. Check with the legal and

compliance department.” Id. at 1357.

15. The Government also presented as an exhibit at Sean’s trial Perella’s

written policy on confidential information which states: “Existing or

potential client or investor information, information about the

existence of or the potential for a client, client assignment, investor

or investment should be considered confidential information.

. . . You

may not disclose confidential information to any person outside the

firm, including family members

, except as required in the performance

of the firm’s business activities.” Id. at 1359

‐ 60 (emphasis added).

C. Sean’s Lies During the FINRA and SEC Investigations

16. Sean learned of a FINRA inquiry into suspicious Kendle stock

trading on May 25, 2011, when he was forwarded an email from a

colleague. The Government presented phone records at Sean’s trial

showing that Sean spoke to Robert that same day and many more

times in the days and weeks shortly afterward. Supp. App. 16

‐ 28; see

also pp. 1

‐ 2 supra

.

17. The Government presented at trial an August 2, 2011 email from

JPMorgan to Sean and other JPMorgan employees which contained

a list of names of persons who traded in Kendle stock (provided to

JPMorgan by FINRA). JPMorgan requested that its employees

review the list to see if there were any familiar names on it so that

JPMorgan could notify FINRA. The list included “Robert Stewart.”

Supp. App. 99

. Sean testified that he knew that the purpose of a

FINRA cross check was to “look out for potential insider trading.”

Tr. 1151.

Sean’s response email to JPMorgan, also dated August 2, 2011, stated

“don’t know anyone [on the list].” Supp. App. 77. Sean testified that

he lied to JPMorgan about the FINRA list because, as noted, he

“knew it would be potentially damaging for my prospects at the

time. I had worked extremely hard to get to the position I was in at16 that point, and I thought anything might potentially derail my

future.” Tr. 1236 (emphasis added).

18. JPMorgan’s compliance officer, Ryan Hickey, testified at Sean’s trial

that after Sean denied knowing anyone on the FINRA list (that

included his father’s name), and after a FINRA examiner followed

up with Hickey by asking to see Sean’s response, JPMorgan, in turn,

asked Sean about the list a second time. Following the second

inquiry, Sean admitted to JPMorgan that his father’s name was,

indeed, on the FINRA list.

19. JPMorgan’s compliance officer also testified that Sean told him that

he (Sean) had “no work discussions” with his father. Tr. 902, 1338.

20. Sean testified that, at his August 26, 2011 meeting with JPMorgan’s

compliance officials about the FINRA list, he also lied about his

father’s trading: “I lied. I told them that there was no way that my

dad could have gotten that information from me regarding the

purchase of Kendle.” Id. at 1236

‐ 37.

21. An SEC investigator, Michael Watson, testified at Sean’s trial that in

May 2013 he interviewed Robert about his 2011 Kendle trading.

Robert told Watson that his Kendle trades had been based on his own

research, and that “he did not talk to his son about any work

‐ related

matters.” Id. at 217.

22. Sean testified that his father “lied about [his and Sean’s] conduct

when he spoke to the SEC.” Sean said that Robert “protected [Sean] the

same way [Sean] had protected him.” Id. at 1350 (emphasis added); see

also p. 1 n.1 supra

.

D. Robert Stewart and His Associates’ Unlawful Trades

23. Robert Stewart, Richard Cunniffe, and Mark Boccia (“Boccia”)

traded securities and profited from the inside information provided17 by Sean. They engaged in trades in Kendle, KCI, Lincare, Carefusion

and Gen

‐ Probe.

24. The Government presented trading records at trial that showed that

– even after their Kendle trades

– Robert Stewart and his associates

continued to make trades in companies during the time periods that

Sean was working on deals involving those same companies,

namely, KCI, Lincare, CareFusion Corp., and Gen

‐ Probe. See ¶¶ 28

‐

37 infra

. These records corroborated testimony from Robert Stewart’s

associates that Robert was passing along insider stock tips to them

from Sean. See, e.g., Tr. 531, 775; Supp. App. 30, 32; see also ¶¶ 28

‐ 37

infra

.

25. At his guilty plea on May 15, 2015, Richard Cunniffe admitted that

he had unlawfully traded in stock options of KCI, Gen

‐ Probe,

Lincare, and Carefusion, based upon insider information he received

from Robert. Cunniffe agreed to cooperate with the Government and

to record conversations with Robert. Tr. 625. Cunniffe testified that

Robert told him that “it was [Sean] who was giving [Robert] the

information on the stocks[.]” Tr. 733 (emphasis added); 623

‐ 624

(Cunniffe: “He told me that his son Sean had given him the

information.”).

Cunniffe also testified that when Robert told him he was getting

information from Sean, Cunniffe told Robert that he “didn’t want to

know anything about it[.] I wanted to keep as much distance from

any knowledge of the information. I knew [Robert] was an

accountant and a CFO of some firms in the past[.]

. . . I wanted to

keep as much distance as possible.” Id. at 662.

26. At Sean’s trial, the Government questioned Cunniffe as follows:

Government Attorney: “Do you know why [Robert] asked you to

make those trades in your account as opposed to his account?” Id. at

623. Cunniffe replied: “I had asked him why he didn’t do it in his

own account, and he had mentioned that he was too close to the source .”

Id. (emphasis added).18 27. Mark Boccia testified at Sean’s trial that Robert had asked him to

purchase Kendle stock options on Robert’s behalf in 2011. As noted,

Kendle was a company which Sean was advising in confidential

acquisition negotiations.

E. Additional Trades Based on Inside Information

28. Cunniffe testified that in or about March 2012, when Sean was

representing Hologic, Inc. in negotiations towards an acquisition of

Gen

‐ Probe, Robert told Cunniffe that he “should take a look at

GPRO, the ticker symbol for Gen

‐ Probe” because it was “going to be

a takeover target.” Tr. 711

‐ 12. Cunniffe purchased Gen

‐ Probe call

options and made $181,000 in profits which he split with Robert.

Supp. App. 29.

29. Boccia and Cunniffe each testified that in or about the summer of

2013, when JPMorgan was representing KCI (Kinetic Concepts, Inc.)

in negotiations concerning KCI’s acquisition by Apax Partners,

Robert asked them to purchase KCI call options on his behalf. Tr. 368

‐

69 (Government Attorney: “What prompted you to buy KCI on April

5th?” Boccia: “Bob came to me and says, Mark, I’ve got another stock

I just want to get a few units in, can you buy them for me, I think it’s

going to be another short

‐ term thing. So I bought them.”); id. at 645

(Cunniffe: “Bob said he was interested in buying some call options,

and I asked him at what strike [price] and at what maturity date he

wanted to make the purchase.”).

30. Cunniffe testified that in or about June 2012 (which was soon after

Sean had learned that Linde AG was seeking to acquire Lincare,

Supp. App. 54, Robert told Cunniffe that “he had received another

tip and that [Cunniffe] should look at LNCR, which is Lincare.” Tr.

725. Cunniffe invested in Lincare stock, and thereafter, split profits

of approximately $414,000 with Robert.19 31. Cunniffe testified that in the summer of 2014 (when Sean was

representing Carefusion in negotiations concerning Carefusion’s

acquisition by Becton, Dickinson & Co.), Robert told Cunniffe that

“he should take a look at CFN [ i.e.

, Carefusion].” Id. at 755. Cunniffe

then made trades in Carefusion stock options which generated

approximately $444,000 in profit. Supp. App. 32. He split the profit

with Robert.

32. The Government presented at trial Robert Stewart’s trading records

which show that he traded in Kendle stock from February 2011

through May 2011. App. 588. At the time, Sean was working on the

Kendle acquisition deal at JPMorgan. The Government presented

Boccia’s trading records which show that he traded in Kendle stock

options during the same time period. Supp. App. 37

‐ 38.

33. The Kendle stock options which Boccia purchased had strike prices

timed throughout May 2011 (the same month in which Kendle’s

acquisition was announced). Kendle’s stock price was then at a high

point. See Tr. 367

‐ 77 (Government Attorney: “Why did you sell all of

your Kendle holdings on May 5th?” Boccia: “Because Bob had said

to me, hey, Mark, I think I want to get out of the options, I don’t think

it’s going to go any higher.”).

34. The Government presented trading records which show that both

Boccia and Cunniffe traded in KCI stock options from February

through July 2011. Supp. App. 37

‐ 41. This was the time period that

JPMorgan was representing KCI in its acquisition negotiations.

35. The Government presented trading records which show that

Cunniffe traded in Gen

‐ Probe options in April and May 2012. Supp.

App. 42. This was the time period that Sean was working on the Gen

‐

Probe acquisition deal at Perella.

36. The Government presented emails which show that Sean received an

update about the Lincare acquisition by Linde AG on June 12, 2012.20 Supp. App. 42

‐ 45. Cunniffe testified that he purchased Lincare stock

options at the end of June 2012 after getting a tip from Robert.

37. The Government presented trading records which show that

Cunniffe traded in Carefusion stock options from September

through October 2014. Supp. App. 32

‐ 34. This was a few months after

Sean worked on the Carefusion acquisition deal at Perella.

Paragraphs 1

‐ 37 above clearly demonstrate the overwhelming strength of

the Government’s case against Sean. And, these paragraphs do not include the

silver platter statement. The point is that even without the silver platter

statement, the Government would have presented powerful evidence of Sean’s

intent to commit insider trading and benefit his father. See ¶¶ 28

‐ 37. The silver

platter statement made the Government’s case even stronger, i.e.

, adding

incrementally to the overwhelming evidence of Sean’s guilt. The evidence

renders harmless any error by the district court in excluding the post arrest

statements.

Respectfully, I believe the majority errs in vacating Sean’s conviction and

ordering a new trial.