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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

Nos. 10

- 4774, 11

- 4587, 12

- 2077

____________

UNITED STATES OF AMERICA

v.

GEORGE GEORGIOU,

Appellan t

______________ Appeal from the United States District Court for the Eastern District of Pennsylvania ( D.C. Crim. No. 2

- 09

- cr

- 00088

- 001 ) District Judge: Honorable Robert F. Kelly

______________ Argued March 19, 2014

______________
Before: CHAGARES, G REENAWAY, JR., and VANASKIE, Circuit Judges

.
(Opinion Filed: January 20 , 2015 )2 Louis D. Lappen, Esq. [ ARGUED ] Office of United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106

Counsel for Appellee

Scott J. Splittgerber, Es q. [ ARGUED ] Bachner & Associates 39 Broadway Suite 1610 New York, NY 10006

Hope C. Lefeber, Esq. 1500 John F. Kennedy Boulevard Two Penn Center Plaza, Suite 1205 Philadelphia, PA 19102

Counsel for Appellant

______________

OPINION

______ ________

GREENAWAY, JR., Circuit Judge

. A federal jury convicted Appellant George Georgiou (“Appellant” or “Georgiou”) of conspiracy, securities fraud, and wire fraud for his participation in planned manipulation of the markets of four publicly traded s toc ks, resulting in3 more than $55,0 00,000 in actual losses. The District Court sentenced him to 300 months ’ imprisonment, ordered him to pay restitution of $55,823,398 and ordered that he pay a special assessment of $900

. The Court also subject ed Georgio u to forfeiture of $26,000,000.

F or the first time on appeal

, Georgiou argues that under Morrison v. National Australia Bank Ltd. , 561 U.S. 247 (2010), his securities and wire fraud convictions were improperly based upon the extraterritorial application of United States law. Thus, we must determine as a matter of first impression whether the purchases and sales of securities issued by U.S. companies t hrough U.S. market makers acting as int ermediaries for foreign entities const itute “domestic transactions ” under Morrison

. For the reasons set forth below, we find that these transactions are “domestic transactions,” and that his conviction was not based upon the improper extraterritorial app lication of United States law. Georgiou also argues that the Distr ict Court erred in denying his motion for a new trial based on purported Brady and Jencks Act violations. He also asserts that the District Court erred on several e v identiary and sentencing issues. We find

no error. Thus , we will affirm the District Cour t’s Judgment of Conviction.

I.

A

. Factual Background

From 2004 through 2008, Georgiou and his

co

- conspirators engaged in a stock fraud s cheme resulting in more than $55 million in actual losses. The scheme centered on manipulating the markets of four stoc ks: Neutron Enterprises, Inc. (“Neutron”), Avicena Group, Inc.4 (“Avicena”), Hydrogen Hybrid Technologies, Inc. (“HYHY”), and Northern Ethanol, Inc. (“Northern Ethanol”) (collectively , “Target Stocks”). At all relevant times, t he Target Stocks were quoted on the OTC Bulletin Board (“OTCBB”) 1 or the Pink OTC Markets Inc. ( “Pink S heets”). 2

In order to facilitate the ir scheme, Georgiou and his

co

- conspirators opened brokerage accounts in Canada, the Bahamas, and Turks and Caicos

. Once opened, the

co

- conspira tors used t hese accounts t o engage in manipulative trading in the Target Stocks

. Specifically, b y trading stocks between the various accounts they controlled, the

co

- conspirators artificially inflated the stock prices and

1 The OTCBB is “[a]n interdealer quotation system for unlisted, over

- the

- counter s ecurities. The OTC Bulletin Board or ‘OTCBB’ allows Market Makers to display firm prices for domestic securities, foreign securities, and [American Depository Receipts] that can be updated on a real

- time basis.” OTCBB Glossary, Financial Industry Regulato ry Authority (“FINRA”), http://www.finra.org/Industry/Compliance/MarketTransparen cy/OTCBB/Glossary/P126264 (last visited Jan. 5, 2015 )

.

2 The Pink S heets , now known as OTC Market Group Inc ., is

“ an electronic inter

- dealer quotation system that displays
q uotes from broker

- deal ers for many over

- the

- counter (OTC ) securities. ” OTC Link LLC , SEC, http://www.sec.gov/ answers/pink.htm (last visited Jan. 5, 2015).5 created the false impression that t here was an active market in each Target Stock

. As a result of this manipulation, Georgiou and his

co

- conspirators were able to sell their shares at inflated prices. In addition , these artificially inflated shares would be used as co llateral to fraud ulently borrow funds on margin and obtain millions of dollars in loans from Caledonia Corporate Management Group Limited (“Caledonia”) and Accuvest Limited (“Accuvest”)

, both brokerage firms based in the Bahamas

. Eventually, these accounts experienced sev ere trading losses since the assets purportedly serving as collateral proved to be worthless. 3

In June 2006, u nbeknownst t o Georgiou

, Kevin Waltzer, 4 one of his co

- conspirators, began cooperating in an FBI sting operation

. Through Waltzer’s cooperation , the FBI monitored G eorgiou’s activities, including many of his emails, phone calls and wire transfers.

3 Indeed, Caledonia was forced to liquidate its business,

resu lting in approximately $25 million in losses. These losses were sustained by the firm’s clients, many of whom lost their entire retirement savings.

4 Waltzer pled guilty to one count of wire fraud, one count of mail fraud, and one count of money laundering, pursuant to a written plea agreem ent. He was sentenced to a term of imprisonment of 132 months, followed by a term of supervised release, and ordered to pay $40,675,241.55 in restitution.6 1

. Georgiou’s Four Manipulation Schemes: Neu t ron , Avicena, HYHY, and Northern Ethanol

Georgiou and his co

- conspirators manipulat ed the
pr ice s of the Target Stocks by creating matched trades, 5 wash sales, 6 and misleading email blasts. They used various alias

acco unts, nominees, and offshore brokerage accounts to conceal both their ownership of the Target Stocks and their involv ement in the fraudulent scheme.

At least some of the manipulative trades were transacted through market makers 7 located in the Un ited

5 “A ‘matched trade’ is an order to buy or sell securities that is entered with knowledge that a matching order on the opposite side of the transaction has been or will be entered for the purpose of: (1) creating a false or misleading appearance of active trading in any publicly traded security; or (2) creating a false or misleading appearance with re spect to the market for any such security. ” (Indictment ¶ 9.)

6 “A ‘wash sale’ is an order to buy or sell securities resulting in no change of beneficial ownership for the purpose of: (1) creating a false or misleading appearance of active trading in
any publicly traded security; or (2) creating a false or misleading appearance with respect to the market for any such security. ” (Indictment ¶ 10.)

7 “ A market maker is a firm that facilitates trading in a stock

, provides quotes [for] both a buy and sell pri ce for a stock, and potentially profits from the price spread. ” ( I ndictment ¶ 33.) ; see also 15 U.S.C. § 78c(38) ( A “market maker means any specialis t permitted to act as a dealer

. . . and any dealer who,7 States. Georgiou communicated via phone and e

- mail with Waltzer about the ir plans , and also had occasional in

- person meetings with Waltzer and others in the United States about these schemes

. In these communications, Georgiou provided direction on how to implement the manipulative schemes, and demonstrated his role and culpability in orchestra ting and perpetrating the fraud. After f ourteen months, Georgiou wired $5,000 to the account of an undercover FBI agent as part of a test transaction. Six days later, Georgi ou was arrested.

2

. The Caledonia Fraud

In December 2006, Georgiou opened a margin

- eligible account in his wife’s nam e at Caledonia

. As a result, Georgiou was able to obtain loans and purchase stock without using his own funds. Georgiou represented to the principals at Caledonia that the margin in his account would be collateralized by approximately $15 million worth o f Avicena and Neutron stock, but did not disclose that the value of these securities had been artificially inflated.

In March 2007, Georgiou borrowed approximate ly $3,394,000 from Caledonia to purchase 1,697,000 s hares of Avicena from Waltzer. That loan was secured by Avicena and Neutron sto ck held in the name of Georgiou ’s wife at another brokerage firm , and was never repaid.

with respect to a security, holds himself out (by entering quotations in an inter

- dealer communications system or otherwise) as being willing to buy and sell such security for his own account o n a regular or continuous basis. ” )8 During the same month, Georgiou borrowed approximately $2.8 million from Caledonia to pur chase Neutron stock and to provide fi nancing to Neutron. The loan was ostensibly secured by Avicena and Neutron stock held in a different name at another brokerage firm. Th is loan was also never repaid. Caledonia was unable to cover th e substantial deficits incurred as a result of Georgiou ’s activities . U ltimately , Caledonia suffered approximately $25 million in losses. The firm was later dissolved and liquidated.

3

. The Accuvest Fraud

In June 2007, Georgiou met with representatives of Accuvest in the Bahamas to discuss opening a broke rage account. In September 2007, Georgiou opened an account at Accuvest in a different name . The trading in the account was handled through William Wright Associates (“Wright”), an Accuvest affiliate based in California. From October 2007 through Februa ry 2008

, Georgiou deposited HYHY and Norther n Ethanol stock into this account, an d in return, Accuvest provided a margin loan of ten percent of the value of the account. Georgiou did not disclose that t he value of these securities had been artificially in flated. On several occasions in 2008, Georgiou directed Wright, via emai l, to wire cash from this account to Avicena, or Team One Marketing, a Canadian company associated with Georgiou

. In August 2008, Georgiou instructed Wright to open a second Accuvest account, which was funded with 10 million shares of Northern Ethanol. As had happened before

, Georgiou did not disclose that t he value of these securities had been artificially inflated. Georgiou failed to repay the money that he had borrowed on margin and in cash loans9 from Accuvest . T he artificially inflate d stock did not cover the loans and Accuvest lost at least $4 million.

B

. Procedural History

F ollowing a three

- week trial, a jury found Georgiou guilty of one count of conspiracy

, in violation o f 18 U.S.C. § 371, four counts of securities fraud

, in violation of Section 10(b) of the Securities Exchange Ac t of 1934 (the “Act”) , 15 U.S.C. §§ 78j(b) and 78ff, and four counts of wire fraud

, in violation of 18 U.S.C. § § 1343 and 1349.

Georgiou was s entenced to 300 months’ imprisonment

, and ordered to pay over $55 million in restitution.

II.

The District Court had juri sdiction under 15 U.S.C. § 78aa and 18 U.S.C. § 3231

. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

III.

A

. Extrat err itorial Effect of United States Securities Law

1

. Standard of Review

For the first time on appeal, Georgiou argues that his securities fraud convictions are improperly based on an exterritorial application of United States law. H e asserts that wit hout proof that any securities transactions occurred in the United States, the jury lacked sufficient evidence up on which
to convict hi m. He further asserts that the District Court erred in failing to require that the jury base it verdicts so lely on10 domes tic transactions. Georgiou relies on Morrison , which held that Section 10(b) of the Act only proscribes “deceptive conduct [made] ‘ in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered. ’ ” 561 U.S. at 266 (quoting 15 U.S.C. § 78j(b))

.

B ecause Georgiou raised neither argument below, we review for plain error. Fed. R. Crim. P. 52(b ) ; Henderson v. United States , 133 S. Ct. 1121, 1124

- 25 (2013); United States v. Riley , 621 F.3 d 312, 321

- 22 (3d Cir. 2010). 8 A finding of “plain error” is warranted if: “(1) there is an ‘ error ’ ; (2) the error is ‘ clear or obvious, rather than subject to reasonable dispute ’ ; (3) the error ‘ affected the appellant’s substantial rights, which in the o rdinary case means ’ it affected the outcome of the district court proceedings ’ ; and (4) ‘ the error seriously affect [s] the fairness, integrity or public reputation of judicial proceedings. ’ ” United States v. Marcus

, 560 U.S.

8 Although Morrison was decided after Georgiou’s trial, t he standard of re view remains the same. See Griffith v. Kentucky , 479 U.S. 314, 328 (1987) (“[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception f or cases in which the new rule constitutes a ‘clear break’ with the past.”); see also United States v. Vilar , 729 F.3d 62, 70 (2d Cir. 2013) (“Plain error review applies equally where the defendant did not object before the trial court because he failed to recognize an error, and where the defendant did not object because the trial court’s decision was correct at the time but assertedly became erroneous due to a supervening legal decision.”); United States v. Asher

, 854 F.2d 1483, 1487 (3d Cir. 1988).11 258, 262 (2010) ( quoting Pucke tt v. United States, 556 U.S. 129, 135 (2009) ); see also United States v. Andrews , 681 F.3d 509, 517 (3d Cir. 2012). Georgiou bears the burden of showing that the error a ffected his substantial rights. Andrews , 681 F.3d at 517.

2

. Morrison and Extraterr itoriality

Georgiou was convicted of s ecurities fraud pursuant to Section 10(b) of the Act and Section 10(b)’s implementing regulation, SEC Rule 10b

- 5 (“Rule 10b

- 5”) . 15 U.S.C. § 78j(b); 17 C.F.R. § 240.10b

- 5; see also 15 U.S.C. § 78ff (prescribing pena lties for willful violations of the Act). Section 10(b) makes it unlawful :
[t]o use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered . . . any manipulative o r deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.

15 U.S.C. § 78j(b). 9

9 Rul e 10b

- 5, promulgated pursuant to Section 10(b), makes it unlawful “for any person . . . (a) [t]o employ any device, sche me, or artifice to defraud . . . or (c) [t]o engage in any act, practice, or course of business which operates or would operate as a fra ud or deceit upon any person, in connection with the purchase or sale of any security. ” 17 C.F.R. § 240.10b

– 5. “ Rule 10b

- 5 . . . was promulgated under12 The Supreme Court has limited the application of Section 10(b) to actors who employ “ manipulative or deceptive device [ s ]” in two contexts: (1) transactions involving “ the purchase or sale of a security listed on an American stock exchange

, ” and (2) transactions involving

“ the purchase or sale of any other security in the United States.” Morrison , 561 U.S. at 273. Indeed, Section 10(b) has no extraterritorial reach. Id. at 26 2, 26 6

- 67 (determining that Section 10(b) and Rule 10b

- 5 had no extraterritorial effect in civil context) ; see als o Vilar

, 729 F.3d at 74 (making the same determination in the criminal context, reasoning that “[a] statute either applies extrat erritorially or it does not”). Thus, we consider here whether any of the relevant transactions Georgiou is charged with have t he requisite

nexu s to the United States under Morrison to subject him to liability under Section 10(b).

It is un disputed that t h e Target Stocks were listed or traded o n the OTCBB or Pink Sheets. However, w hether the OTCBB or the Pink S heets constitute “n ational securities exchange [s] ” under Morrison , and whether the securities at issue were purchased or sold in the United States

, are both dispute d

. 10 The Supreme Court has not addressed either issue

§ 10(b), and ‘ does not extend beyond conduct encompassed by § 10(b)’ s prohibition. ’ ” Morrison , 561 U.S. at 261

- 62 (quoting United State s v. O’ Hagan, 521 U.S. 642, 651 (1997)).

10 The Indictment defines the Pink Sheets as “an inter

- dealer electronic quotation and trading system in the over

- the

counter (‘OTC’ ) securities market,” (Indictment ¶ 2) and provides no definition of the OTCBB. The I ndictment further states that “[t] he United States Securitie s and Exchange13 in this context

, i.e., whether a foreign entity ’s purchas e of securities listed on the OTCBB or Pink Sheets through American market makers ought be considered a “domestic transaction” for the purposes of Section 10(b)

.

a
. “National Securities Exchange”

Under the first prong of Morrison

, Section 10(b) applies to “the purchase or sale of a security listed on an American stock exchange

. ” Morrison , 561 U.S. at 273

. Securities listed on the OTCBB and the Pink Sheet s are not within these parameters. According to the SEC, there are eighteen registered national sec urity exchanges; the Pink Sheets and the OTCBB are not among them. 11 See SEC

Commission (the ‘SEC’ ) was an independent agency of the United States which was charged by law with protecting investors by regulating and monitori ng, among other things, the purchase and sale of publicly traded securities, including securities traded on the Pink Sheets and the OTCBB. Federal securities laws prohibited fraud in connectio n with the purchase and sale of securities . . .” (Indictment ¶ 8.)

11 Indeed, the OTCBB is, by definition, a quotation service for “securities which are not listed or traded on NASDAQ or any other national securities exchange.” OTCBB Frequently Asked Questions , FINRA, http://www.finra.org/Industry/Compliance/MarketTr ansparency/O TCBB/FAQ/index.htm (“OTCBB FAQ”) (emphasis added) (last visited Jan. 5, 2015). Likewise, the Pink Sheets may include securities that “[have] been delisted from an exchange.” Frequently Asked Questions

, http://www.otcmarkets.com/learn/otc101

- f aq (last visited Jan. 5, 2015). Unlike companies listed on a national securities14 Website, http://www.sec.gov/divisions/marketreg/mrexchanges.shtml ( hereinafter “SEC Webpage on National Securities Exchanges”) ( last visited Jan. 5, 2015 ) ; see also 15 U.S.C. § 78f(b) (requiring that exchanges register with the SEC and comply with various requirements to constitute a “national securities exchange” ).

Further , the stated purpose of the Act refers to “securities exchanges” and “over

- the

- counter markets”
sep arately, which suggests that one is not inclusive of the other

. See Securities Exchange Act of 1934, 48 Stat. 881, as amended, 15 U.S.C. § 78a et seq.
, ( described as “[ a ] n Act [t]o provide for the regulation of securities exchanges and of

over

- the

- counter markets

. . . [and] to prevent inequitable and unfair practices on such exchanges and market s ” ) (emphasis added).

Given that a “national securities exchange” is explicitly listed in Section 10(b)

— to the exclusion of the OTC markets

— and coupled with the absence of the Pink Sheets and the OTCBB on the list of registered national security exchanges on the SEC Webpage on Exchanges, we

exchange, those quoted on the OTCBB and the Pink Sheets are not subject to “ listing and maintenance standards, which are stri ngently monitored and enforced . . . . [and do no t] have reporting obligations to the m arket.” OTCBB FAQ

.15 are persuaded that those exchanges are not national securities exchanges within the scope of Morrison

. 12

b

. Domestic Tran sacti ons in Securities not Listed on Domestic Exchanges

I n this case, foreign entities purchased and sold

se curities quoted on the OTCBB and the Pink Sheets. Several of these purchases were executed by market makers operating within the United States

. In contrast, the Court in Morrison considered a “ foreign cubed action

. . . in which (1) foreign plaintiffs [ we re ] suing (2) a foreign issuer in an American court for violations of American securities laws based on securities transactions in (3) foreign countries.” Morrison

, 561 U.S. at 283 n.11 ( Stevens , J., concurring in the judgment) (internal quotation marks omitted). 13 In that case, a ll aspec ts

12 But see SEC v. Ficeto , 839 F. Supp. 2d 1101, 1108 (C.D. Cal. 2011) (“ hold [ing] that Morrison does not bar the territorial application of § 10(b) to manipulative trading on the do mestic over

- the

- counter market”); see also United States v. Isaacson

, 752 F.3d 1291, 1299 (11th Cir. 2013) (securities traded on the OTCBB or Pink Sheets “meet [] Morrison’s requirement for a U.S. nexus”).

13 In Morrison

, Australian investors purchased shares of an Austra lian bank whose stock shares were listed on the Australian Stock Exchange Limited. 561 U.S. at 251

- 52. In 1998, the Australian bank purchased an Amer ican mortgage servicing company and for three years touted the success of the American company’s business in its annual reports and public documents and statements. Id. at 251

- 52. But in 2001, the Australian b ank wrote down the value of the American company’s assets by more than $2 billion, which resulted in a16 of the trades at issue occurred abroad, and thus, it was determined that Section 10(b) did not apply. Th ere are two key distinctions between Morrison and the instant case: (1) the transactions in this case involve stocks of U.S. companies, (2) that were executed through American market makers.

To determine whether the transactions at issue were “domestic tr ansactions,” under Morrison

, id. at 267 , we consider “not . . . the place where the deception originated, but [the place where ] purchases and sales of securities” occurred. Id. at 266. It is the “location of the transaction that establishes (or reflects the presumption of) the [Security Exchange ] Act’s in applicability.” Id. at 268.

Several of our sister circuits interpret this to mean that “a securities transaction is domestic when the parties incur irrevocable liability to carry out the transaction wi thin the United States or when title is passed within the United States

. ” Absolute Activist Value Master Fund Ltd v. Ficeto

, 677 F.3d 60, 69 (2d Cir. 2012 ) ; see also Quail Cruise Ship Mgmt Ltd. v. Agencia de Viagens , 645 F.3d 1307, 1310

- 11 (11th Cir. 2011 ) (allegation that closing in Florida precipitated transfer of title sufficient to satisfy Morrison at motion to dismiss) ; SEC v. Levine , 462 Fed. App’x 717, 719 (9th Cir. 2011) ( “[T] he Securities Act governs the [] sales because the actual sales closed in Nevada when [a defendant] received completed stock purchase agreements and payments.” ); United States v. Isaacson , 752 F. 3d 1291, 1300

drop in the value of the Austr alian bank’s stoc k. Id. at 252. The Australian investors sued the bank in the Southern District of New York alleging violations of the Securities Exchange Act, 15 U.S.C. §§ 78j(b) and 78t(a). Id. at 253

- 54.17 (11th Cir. 2013) (fund at issue “was ‘run out of New York City’ and [] [defendant’ s] office was lo cated in Florida, whic h support[] the inference that the [] [f]und purchased the securities in the United States.”)

We agree that “ ‘ [c] ommitment ’ is a simple and direct way of designating the point at which . . . the parties obligated themselv e s to perform what they had agre ed to perform even if the formal performance of their agreement is to be after a lapse of time. ’ ” Absolute Activist , 677 F.3d at 68 (quoting Radiation Dynamics, Inc. v. Goldmuntz, 464 F.2d 876 , 891 (2d Cir. 1972) ) (internal quotation marks omitted) . Thus, “the point of i rrevoca ble lia bility can be used to determine the locus of a securities purchase or sale.” Id. Accordingly

, territoriality under Morrison turns on “ where, physically, the purchaser or seller committed him or herself ” to pay for or deliver a security. Vilar , 729 F.3d at 77 n.11.

F acts that demonstrate “irrevocable liability” include the “formation of the contracts, the placement of purchase orders, the passing of title, or the exchange of money

. ” A bsolute Activist

, 677 F.3d at 69, 70 ; s ee also Vilar

, 729 F.3d
at 78

. 14 In Vilar , the Second Circuit concluded that Section 10(b) applied where: (1) some victims entered into investment agreement s in the United States; (2) another

14 On the other hand, heavy marketing in the United States, a
p arty’s residency or citizenship, and the fact that the deception may have originated in the United States were insufficient to support a Section 10(b) claim. Absolute Activist

, 677 F.3d at 70

.18 victim “executed the documents necessary to invest

. . . in her own New York apartment and handed those documents to a New York messenger”; and (3) one victim sent t he money required for opening her account from New York. 729 F.3d at 76

- 78 (internal quotation marks and citation omitted)

. Here, at least one of the fraudulent transactions in each of the Target Stocks was bought and sold th rough U.S.

- based market maker s. Government witness and SEC employee Daniel Koster testified that all of the manipulative trad es were “facilitate[d]” by U.S.

- based market makers, i .e., a n American market maker bought the stock from the seller and sold it to the buyer. (App. 1890

- 96, 1904

- 05, 1968) ; see also 15 U.S.C. § 78c(38) . Therefore, some of the relevant transactions required the involvement of a purchaser or seller working w ith a market maker and committing to a transaction in the United States, incurring irrevocable liability in the United States, or passi ng title in the United States. The record also contains evidence of specific instances in which the Target Stocks were b ought or sold at Georgiou ’s direction from entities located in the United States. 15

15 For instance: (1) o n November 3, 2005, Waltzer , who was l ocated in Pennsylvania, sold 69,150 shares of Neutron stock from one of his accounts to another of his accounts ; (2) o n May 9, 2006, from within the United States, Waltzer sold 100,000 shares of Avicena stock from one of his accounts to another of his ; (3) Georgiou deposited 2.5 million HYHY shares into an account in California; (4) on September 3, 2008, an undercover FBI agent purchased 16,000 shares of Northern Ethanol stock from within the United States ; and (5) Georgiou wired $5,000 to a bank account in Philadelphia for19 W e now hold that i rrevocable liability establishes the locat i on of a securities transaction

. Here, the evidence is sufficient to demonstrate that Georgiou engaged in “d omestic transactions” under the second prong of Morrison , i.e., transactions involving “the purchase or sale of any [] s ecurity in the United States. ” S ee Morrison , 561 U.S. at 273. T h us, th e District Court’s application of Section 10(b) to Georgiou’s tr ansactions was proper.

c
. Jury Instructions

Georgiou argues that under the District Court’s instruction s , all four of the securities fraud counts may have been based exclusively on foreign margin loan transactions

. H owever, Georgiou fails to demonstra te that the jury relied

o n a legally insufficient theory. T he District Court’s jury instructions track the statutory language of Rule 10b

- 5. See United States v. Syme , 276 F.3d 131, 146

- 47 (3d Cir. 2002). “[T]he longstanding rule [is] that general verdi cts will stand even if one of the possible grounds for conviction was unsupported by the evidence. ” Id. at 145. The “ ‘invalid legal theory’ exception ” to this rule applies “if the indictment or the district court’s jury instructions are based on an erron eous interpretation of law or contain a mistaken description of the law.” Id

. Here, there wa s no such d eficiency in the instruction.

the undercover FBI agent, in furtherance of the manipulative trading scheme.20 Further, t he District Court properly instructed the jury on the elements of securities fraud pursuant to Section 10(b)

a nd Rule 10b

- 5, including the jurisdictional elements relating to conduct in the United States. (App. 2972

- 73) (requiring the jury to find beyond a reasonable doubt that “the defendant used or caused to be used the facilities of a national securities excha nge or any means or instrumentality of interstate commerce in furthe rance of the fraudulent conduct ”)

. The District Court was not required to preclude the jury from considering foreign activity in evaluating the evidence

. Furthermore

, Georgiou’s fraudulen t activity in the United Sta tes is not rendered lawful because some transactions occurred outside of the United States or because some victims are located in foreign countries

.

B

. Extraterritoriality of United States Wire Fraud Statute

Appellant also ar gues that his wire fraud convictions are improperly base d on the extraterritorial application of United States law, and that these convictions are legally insufficient because the Government failed to demonstrate that his conduct violated foreign law. As Georgiou raises this argument for the first time on appeal, we apply plain error review. Henderson, 133 S.Ct. at 1124

.

Un like securities fraud, the statute govern ing wire fraud “ prohibits ‘any scheme or artifice to defraud,’

— fraud simpliciter, without any requirement that it be ‘in connection with’ any particular transaction or event.” Morrison, 561 U.S. at 271

- 72 (quoting 18 U.S.C. § 1343). Thus, a wire fraud offense is “complete the moment [a party] executed the scheme inside the United States. . . .” Pasquantino v. United States

, 544 U.S. 349, 371 (2005). Moreover, unlike the21 Securities Exchange Act, Section 1343 applies extraterritorially. Id. at 371

- 72

. Indeed, the explicit statutory language indicates that “ it punishes frauds executed in ‘int erstate or foreign commerce,’” and “ is surely not a statute in which Congress had only domestic concerns in mind.” Id

. (quoting 18 U.S.C. § 1343).

Here, the record contains ample evidence that Geo rgiou used interstate wires to e ffect a “scheme or artific e to defraud.” 18 U.S.C. §1343. Georgiou regularly used e

mail to direct Waltzer’s participation in the fraud and wired money from a Canadian bank to an undercover FBI agent’s account in Pen nsylvania

. ( See, e.g.

, App. 3800

- 04, 3778

- 82

, 3930

- 34

, 4019.)

In addition, Appellant’s argument that Pasquantino requires the Government to prove that Georgiou’s conduct was illegal in the Bahamas fails . The footnote that Georgiou relies on in Pasquantino references foreign tax law for the sole purpose of dete rmin ing whether the victim had “ valuable property interests as defined by foreign law.” 544 U.S. at 371 n.13. Here

, it is undisputed that the foreign victims had a property interest in the money a nd property that Georgiou fraudulently obtained from them . He nce, the wire fraud
statute is properly applied

. Finally, Georgiou’s argument s that the District Court erred because it did not require the jur y to limit its consideration to domestic transactions only and permitted the jury to consider invalid legal theo ries, also fail with respect to wire fraud

. As discussed, t he text of the re levant statute, 18 U.S.C. § 1343 , does not expressly require that a verdict be based on e ntirely domestic transactions. Pasquantino , 544 U.S. at 372

- 73 (Ginsburg, J., dissenting)

. Instead, the22 statute’s only jurisdictional requirement is that a communication be transmitted through interstate or foreign commerce for the purpose of executing a scheme to defraud. 18 U.S.C. § 1343.

The District Court properly instructed the jury on this issue , explaining that interstate or foreign commerce is “to

sen d from one state to another

, or to or from the United States

. . . . ” (App. 2985.) This instruction did not impermissibly allow the jury to convict Georgiou based solely o n foreign a c tivity. T hus, the District Court did not err with respect to its jury instruction on wire fraud

. Georgiou’s argument that the jury may have reli ed on a legally invalid theory also fails. Here, the District Court’s instructions on the elements of wire f raud were proper, and the evidence was sufficient to convict on the market manipulation theory. Thus, the jury was not presented with a legally invalid theory of guilt, and the District Court did not

err.

C

. Violations of Brady and Jen c ks Act Disclosure Requirement s
Georgiou contends that the G overnment suppressed evidence concerning cooperating witness Kevin Waltzer’s history of mental illness and substance abuse, as well as statements Waltzer made to the SEC, in violation of Brady v. Mar yland

, 373 U.S. 83 (1963)

, and the Jencks Act, 18 U.S.C. § 3500

.23 1

. Brady Violations

“O ur review of the denial of a motion for new trial on the basis of a Brady argument is de novo with respect to the district court’s conclusions of law and is based on the ‘clearly erroneous’ standard with respect to its findings of fact.” United States v. Milan , 3 04 F.3d 273, 286 (3d Cir. 2002) (citing United States v. Perdomo

, 929 F.2d 967, 969 (3d Cir. 1991) )

. Under Brady , t he G overnment is required, upon request , to produce “evid ence favorable to an accused.” 373 U.S. at 87

. The failure to do so will result in a due process violation if the suppressed evidence “is material either to guilt or to punishment, irrespective of the good faith or bad faith of the pros ecution.” Id

. To establish a Brady violation, a defendant must demonstrate that: “ ‘ (1) evidence was suppressed; (2) the suppressed evidence was favorable to the defense; and (3) the suppressed evidence was material either to guilt or to punishment. ’ ” Un ite d States v. Pel ul l o , 399 F.3d 197 , 209 (3 d Cir. 2005) (quoting United States v. Dixon , 13 2 F.3d 192, 199 (5th Cir.1997))

. Evidence is favorable if it is impeaching or exculpatory. Banks v. Dretke , 540 U.S. 668, 691 (2004 ); Johnson v. Folino

, 705 F.3d 117 , 128 ( 3d Cir. 2013). “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘ reasonable probability’ is a probability suffic ient to undermine confidence in the outcome ” of the trial. United States v. Bagley

, 473 U.S. 667, 682 (1985); see also Kyles v. Whitley

, 514 U.S. 419

, 441

- 54 (1995). Thus,

“ [t]he materiality of Brady material depends almost entirely on the value of the evidence24 relative to the other evidence mustered by the
state

. ” Suppressed evidence that would be cumulative of other evidence or would be used to impeach testimony of a witness whose account is strongly corroborated is generally not considered material f or Brady purposes. Conversely, however, undisclosed evidence that would seriously undermine the testimony of a key witness may be considered material when it relates to an essential issue or the testim ony lacks strong corroboration.

Johnson

, 705 F.3d at 1 29 ( quoting Rocha v. Thaler

, 619 F.3d 387, 396

- 97 (5th Cir. 2010) ).

Georgiou argues that the Government suppressed Waltzer’s b ail report (“Bail Report”) and the minutes from Waltzer’s arraignment a nd guilty plea (“Minutes”). Both t he Bail Report and th e Minutes contain evidence of Walt z er’s cocaine use an d mental health history

. Specifically, t he Bail Report reference s Waltzer ’s history of treatment for psychiatric disorders and substance abuse

. The Minutes include Waltzer’s statements about his treat ment for depression and anxiety and his use of Paxil , a prescription medication

, to treat those conditions.

a
. Waltzer’s Substance Abuse

Georgiou argues that the Government failed to disclose evidence of Waltzer’s substance abuse in the Minutes and th e Bail Report in violation of its Brady obligations. However

, Appellant receive d statements concerning Waltzer’s drug use in the Government’s pretrial production , including note s showing a statement from Waltz er that he “did drugs and25 drank alcohol . . . and developed an addiction to cocaine . . . [and] las t used cocaine six months ago.” ( Supp. App. 1338

. ) Indeed, Waltzer testified on direct and cro ss

- examination about his cocaine use. ( A pp

. 502

- 04, 848

- 49.) T hus, additional evidence of his substance abu se would have been cumulative. Johnson , 705 F.3d at 129; see also United States v. Barraza Cazares , 465 F.3d 327, 335 (8th Cir. 2006) (no Brady violation where “all that was unknown to the defendant and his attorney was the fact of Lopez’s statement, not the

content of that statement”). Because evidence of Waltzer’s substance abuse was provided to Appellant prior to trial

, this material was not suppressed, and the first prong of Brady is not satisfied.

Moreover

, assuming arguendo that evidence of Waltze r’s former drug use had been suppressed, such evidence is not favorable to the Appellant for purposes of our Brady analysis

. At trial , Waltzer testified that his cocaine use did not impact his ability to understand, remember or testify about his inte racti o ns with Appellant. (App. 503

. ) Appellant chose not to probe this issue more fully on cross

- examination. ( App. 848

- 49

. ) T here is no evidence

— in the pretrial discovery, trial testimony, Minutes, or Bail Report

— to suggest that Waltzer’s former substance abu se impact ed the rel iability o f his testimony. Thus, because this evidence neither constitutes impeachment nor exculpatory material

, it is not favorable to the Appellant.

Finally, evidence of Waltzer’s substance abuse cannot be deemed material because t h ere is no t a “reasonable
pr obability” that this evidence would have changed the outcome of the trial. Bagley

, 473 U.S. at 682 ; see also Kyles

, 514 U.S. at 4 5 4

. Indeed, evidence of Waltz er’s substance abuse was considered at trial on both direct and cross

-26 examination

. To the extent Appellant argues that additional information about the intensity or duration of Waltz er’s substance abuse may have impact ed the trial’s outcome , he explains neither why he did not probe these issues more fully

on cross examinat ion , nor why such new information would have changed the trial’s outcome when the substance abuse evidence that was set out at trial did not

. Thus, it cannot be deemed material.

Because evidence of Waltzer’s substance abuse in the Minutes and the Bail R eport was neither suppressed

, favorable nor material, Appellant’s Brady arguments concerning this evidence must fail.

b

. Waltzer’s Mental Health History and Treatment

Georgiou also argues that information regarding Waltzer’s mental health was sup pressed in both the Bail Report and the Minutes. In the Minutes, Waltz er stated that he had seen a mental health provider for depression and anxiety, and was taking Paxil for depression. However, in response to questioning from the court, he agreed that his “head [has] always been clear,” a nd that his medication did
not a ffect “how [he] think[s].” (App. 4249

- 50, 4245, 4355. ) The Bail Report also includes information that Waltzer had “been diagnosed in the past with Anxiety Disorder, Panic Disorder and S ubstance Abuse Disorder

. ” (App. 4187

. )

T he Minutes and Bail Report were not suppressed under the first prong of Brady because they were accessible to Appella n t . “ Brady does not oblige the [G] ove rnment to provide defendants wit h evidence that they could obtain from other sources by exercising reasonable diligence.” Perdomo

,27 929 F.2d at 973. Indeed, Appellant “was in a position of parity with the government as far as access to this material

, ” United States v. Jones , 34 F.3d 596, 600 (8th Cir. 1994)

, and thus, “the transcript [] was as available to [ the defendant ] as it was to the Government.” United States v. Ladoucer , 573 F.3d 628, 636 (8th Cir. 2009) (finding no Brady violation from the government’s failure to produce the transcript of its witness’s st ate court testimony in an unrelated matter because the defendant “could have obtained a copy of the transcript himself”).

Here, a s the District Court observed , “it is apparent that with just minimal due diligence on the part of Georgiou, he could have o btained a copy of [Waltzer’s] guilty plea transcript because he certainly was aware that the main witness against him had pled guilty before Judge Dalzell.” ( A pp . 58 .) Likewise, the existence of the Bail Report was not hidden from Appellant , and it could have been accessed through his exercise of reasonable diligence

. Accordingly, the Minutes and the Bail Report cannot be deemed to have been suppressed.

Further, evidence concerning Waltzer’s mental health is neither favorable to the Appellant nor mater ial. In this case, this evidence neither undermine s Waltzer’s reliability

n or call s into question his “ ‘ ability to perceive, remember and narrate perc e ptions accurately, ’ ” and thus is not “clearly relevant to his credibility.” Wilson v. Beard , 589 F.3d 6 51, 666 (3d Cir. 2009) ( quoting Cohen v. Albert Einstein Med. Ctr.

, 592 A.2d 720, 726 ( Pa. Super. Ct. 1991) ) ; see also 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 607.05[1] (Josep h M. McLaughlin ed., 2d ed. 2014 ) (“A witness’s credibility may always be attacked by showing that his or her capacity to observe, remember, or28 narrate is impaired. Consequently, the witness’s capacity at the time of the event, as well as at the time of trial, is significant.”).

T he evidence at issu e here shows that Waltzer had been seeking medic al attention for anxiety and depre ssion for several years, and had been taking medication to treat those conditions . ( A pp . 4187.) I n the Minutes, Waltzer stated that his medication did not affect his mental capacity , and the District Judge

, the G overnment, and Waltzer’s attorney all agreed h e was competent to plead guilty

. (A pp . 4250.) Cf. Wilson

, 589 F. 3d at 666 ( suppressing mental health evidence found material under Brady where it showed that witness h ad “an inability to form adequate perceptions, that he is easily confused, has dissociative tendencies, blackouts, motor visual problems, weak long and short term memory, poor judgment, and distorted perceptions of reality.” ) (internal quotation marks omit ted). Furthermore , evidence of Waltzer’s mental illness was not material because

, relative to the strength of the evidence against Appellant, there i s not a “reasonable probability that, had the evidence been disclosed to the defense, the result of the pr oceeding would have been different.” Bagley , 473 U.S. at 682.

c
. Documents from SEC M eetings with Waltzer

Georgiou also argues that the Government violated Brady in failing to produce documents from meetings between the SEC and Waltzer. The G overnment produced pretrial discovery from the SEC, including trading and financi al records of the Target Stocks. Subsequent to this production, Georgio u withdre w his discovery motion as moot. ( Supp. App. 1228

. ) However, the Government had not29 produce d n otes taken during two SEC interviews of Waltzer

, at which members of the prosecution te am were present. Subsequent to Appellant’s posttrial challenge, the Government reviewed these notes and determined that they did not contain any Brady material.

We agr ee with the Distric t Court’s ass essment that there is no basis in the record to suggest that the se notes contain ed Brady material

. Pure speculation that exculpatory information might exist is insufficient to sustain a Brady claim. See United States v. An drus

, 775 F.2d 825, 843 (7th Cir. 1985) (“ ‘ Mere speculation that a government file may contain Brady material is not sufficient to require a remand for in camera inspection, much less reversal for a new trial. ’ ” ) ( quoting United States v. Navarro , 737 F.2d 625 (7th Cir. 1984), cert. denied, 469 U.S. 1020 (1984) )

. Thus, Appellant has not set out a viable Brady claim based on these documents.

***

In light of the extensive evidence in the trial record

, including recordings of Appellant discussing fraudulent activities

, emails between Appellant and co

- conspirators regarding manipulative trades

, voluminous r e cords of the trades themselves, bank account s and wire transfer s , Appellant’s argument that the evidence of Walter’s substance abuse and mental illness , or his meetings with the SEC, is material for our Brady analysis cannot stand

. Waltzer’s testimony is “ strongly corroborated ” by recordings of phone calls and meetings

, and records of actual trades. See Johnson

, 705 F.3d at 129 ( citing Rocha

, 619 F.3d at 3 96

- 97 ). Thus

, this evidence would “ generally not [be] considered material for Brady purposes ” because w hen considered “ ‘ relative to30 the other evidence mustered by the state

, ’ ” the allegedly suppressed evidence is in significant

. I d. ( quoting Rocha, 619 F. 3d at 396 )

. Moreover, for the foregoing reasons , the evidence at issue had not been suppressed , nor is it favorable to the Appellant. As such, Appellant’s Brady arguments must fail

.

2

. Jencks Act Disclosures

The Jencks Act obliges the Government to d isclose
any witness statement “in the possession of the United States which relate s to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b). This requirement is limited to production of statements “possessed by the prosecutorial arm of the federal government.” United States v. Reyeros

, 537 F.3d 270, 285 (3d Cir. 2008) ( quoting United States v. Merlino, 349 F.3d 144, 154 (3d Cir. 2003) ). However, unlike Brady , “[t]he Jencks Act requires that any statement in the possession of th e government

— exculpatory or not

— that is made by a government witness must be produced by the government during trial.” United States v. Starusko

, 729 F.2d 256 , 263 (3d Cir. 1984).

Here

, Appellant has failed to identify any statements that were withheld i n violation of the Jencks Act. Indeed, Appellant does not dispute that the Government produced boxes of impeachment evidence concerning Waltzer, including records of Waltzer’s numerous prior frauds, evidence of his plea and cooperation, trading and financ ial records, and prior statements to law enforcement. The additional statements Appellant seeks either were not within the possession of the prosecutorial arm of the government, i.e., those held by the SEC , or do not exist. Likewise, the Government did n ot have possession of the Bail Report, and31 thus was not ob ligated to provide it

. ( See App. 108

- 09 .) ( t he Government explained that it neither examined nor took possession of the Bail Report, and the Report included language indicating that it should not b e removed from the courtroom.)

D

. Evidentiary Rulings

1

. Koster’s Testimony and Summary C harts

After the jury returned its verdict, Georgiou moved for a new trial, arguing, inter alia, that Government witness Daniel Ko ster, an SEC employee, should not have been permitted to testify as a lay witness under F ederal R ule of E vidence 701

. The Di strict Court denied this motion on the grounds that Koster’s testimony was permissible under Rule 701.

On a ppeal, Georgiou again argues that the Dist rict Court e rred by allowing Koster to testify as an undeclared expert and to offer opinions and legal conclusions that usurped the role of the jury. He also argues that the District Court admit ted prejudicial charts into evidence without providing cautionary instruc tions to the jury. The Government responds that these arguments have been waived, 16 and lack merit.

16 The Government submitted a trial memorandum, including the following stipulations reached by the parties : (1) “[v]arious trading records and financial eviden ce relating to the scheme will be introduced in the form of summary charts and testimony pursua nt to Rule 1006 ” ; (2) Koster would

“ present testimony and accompanying charts concerning the32 We review the denial of a motion for a new trial for abuse of discretion. United States v. Brennan

, 326 F.3d 176, 189 (3d Cir. 2003)

. “ ‘ An abuse of dis cretion arises when the District Court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law[,] or an improp er application of law to fact. ’ ” Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008) ( quoting In re TMI Lit ig. , 193 F.3d 613, 666 (3d Cir. 1999) ).

manipulative trading act ivity charged in the indictment”; and (3) Ko ster may further testify as a “summary fact witness to explain the relevance of his trading analysis to the other evidence presented in the case. ” ( A pp . 5593

- 94.) Georgiou objected generally to the use of a summary witness, and to the use of witnesses an d charts to summarize anything other than voluminous writings, recordings, or photographs, specifically objecting to summary of oral testimony.

However, Georgiou did not dispute that the “charts and the underlying records have been produced to defendant ” and that “defendant has stipulated that [they] are authentic and qualify as business records under Rule 803(6).” ( Id. at 5594. ) Before trial, Georgiou ’s counsel indicated that he had concerns about the proposed testimony of the Government’s SEC witness es and would be objecting if they “stray[ed] from within [] legal limits,” specifically identifying “the issue of opinion testimony or improper summary of things not admissible in evidence.” Id. at 1520. However, counsel also stated h is concerns with the charts had been “resolved.” Id. Furthermore, at trial, no objections were lodged by Appellant with respect to Koster’s testimony, or the admission of charts.33 “A new trial should be ordered only when subst antial prejudice has occurred,” United States v. Armocida , 515 F.2d 29, 49 (3d Cir. 1975), and “ if the interest of justice so requires .” Fed. R. Crim. P. 33. To gran t a new trial, a court must determine that “the allegedly improper statements or conduct make it ‘reasonably probable’ that the verdict was influenc ed by the resulting prejudice.” Forrest v. Beloit Corp. , 424 F.3d 344, 351 (3d Cir. 2005) ( quoting Greenlea f v. Garlock, Inc., 174 F.3d 352, 363

- 64 (3d Cir. 1999) ).

“W e review the District Court’ s decisions as to the admissibility of evidence for abuse of discretion. To the extent that these rulings were based on an interpretation of the Federal Rules of Ev idence, however, our review is plenary.” United States v. Serafini , 233 F.3d 758, 768 n. 14 (3d Cir. 2000) (citing United States v. Pelullo, 964 F.2d 193, 199 (3d Cir.1992) ).

Under Federal Rule of Evidence 701

, i f a witness does not testify as an expert, opinion testimony must be: “ (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701.

Under Federal Rule of Evidence 1006, a party may “use a summary, chart, or calculation to prove the content of voluminous writings [or] recordings . . . that cannot be conveniently examined in court,” as long as the originals or duplicates are made available for examination or copying by other parties. Fed. R. Evid. 1006.34 Georgiou argues that Koster’s testimony was based on specialized knowledge and thus inadmissible from a lay witness

. We agree with the D istrict Court ’s assessment that Koster’s testimony , including comparisons of stock quantities and prices did not require prohibited “ scientific, technical, or other specialized knowledge ,” and thus was squarely within the scope of Rule 701. (App. 40.) Kos ter’s testimony provided factual information and summaries of voluminous trading records that he had personally reviewed in his capacity as an SEC employee and as part of the SEC’s investigation of Georgiou. See SEC v . Treadway , 430 F. Supp. 2d 293 , 321

- 2 2 (S.D.N.Y. 2006) (rejecting challenge to admissibility of testimony of SEC witness under Rule 701 because witness was “simply an SEC employee providing his view of the facts as a summary of certain evidence and as an aid to the Court

, ” and that witness’s declaration “was more akin to a summary d ocument than an expert analysis ” )

. Because Koster “present[ed] testimony and accompanying charts concerning the manipulative trading activity charged in the indictment . . . [and] explain[ed] the relevance of his
t rading analysis to the other evidence presented in the case, ” within the scope of Rule 701 and the parties’ pretrial stipulation, the District Court did not abuse its discretion in admitting his testimony as a lay witness. ( Gov’t Trial Mem.

, A pp. 5594.)

The District Court also did not a buse its discretion in allowing Koster’s remaining testimony on re

- direct because Georgiou’s counsel first elicited Koster’s opinion on cross

examination . Un der the doctrine of curative admissibility, i.e., “opening the door,” “ when one party introduces inadmissible evidence, the opposing party thereafter may introduce otherwise inadmissible evidence to rebut or explain35 the prior evidence. ” Gov’t of the Virgin Islands v. Archibald

, 987 F.2d 180, 187 (3d Cir. 1993 ) (citi ng C. McCormick, On Evidence § 57 (4th ed. 1992))

.

2

. Exclusion of evidence pursuant to FRE 608(b)

Georgiou also argues that the District Court erred in prohibiting testimony and extrinsic evidence regarding allegations of a post

- cooperation fraud p erpetrated by Waltzer

. 17 The District Court excluded this evidence as collateral and cumulative under Federal Rules of Evidence 608(b) and 4 03. The District Court’s decisions regarding the admissibility of ev idence are reviewed for abuse of discretion. S erafini , 233 F.3d at 768 n. 14 ( citing Pelullo, 964 F.2d at 199 ).

Under Rule 608(b) of the Federal Rules of Evidence

, “extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s ch aracter for truthfu lness.” Fed. R. Evid. 608(b). Further, Federal Rule of Evidence 403 authorizes a district court to “ exclude collateral matters that are likely to confus e the issues.” United States v . Casoni , 950 F.2d 893

, 919 (3d Cir. 1991); s ee also Fed. R. Evid. 403 ( “ The court may exclude relevant evidence if its probative value is substantially outweighed by a dange r of . . . confusing the

17 Appellant sought to call a law enforcement agent to testify about his investigation of Walt zer on unrelated crimes, and seven lay witnesses to testify that they were victims of an unrelated fraud perpetrated by Waltzer. He argued that this testimony would show Waltzer’s bias and pattern of fraud.36 issues . . . or needlessly presenting cumulative evidence

. ”). A matter is collateral if it is “f actually unr elated to [the] case ” such as an “unrelated criminal investigation.” Casoni , 950 F.2d at 919. Moreover, given the District Court ’s “wide discretion in limiting cross

- examination [,] [a] restriction will not constitute reversible error unless it is so seve re as to constitute a denial of the defendant’s right to confront witnesses against him and it is prejudicial to substantial rights of the defendant.” Id

. (quoting United States v. Adams, 75 9 F.2d 1099, 1100 (3d Cir. 1985)).

Georgiou’s rights un der the C onfrontation Clause were not implicated here, as the record reflects that the District Court allowed Appellant to cross

- examine Waltzer about his alleged criminal acts, and limited further questioning only after Waltzer denied engaging in misconduct. (App

. 803

- 819; 835

- 846; 867

- 872.) S ee Casoni , 950 F.2d at 919 (“ The Supreme Cou rt has said the Constitution’s Confrontation Clause guarantees an opportunity for effective cross

examination, not cross

- examination that is effective in whatever way and to whatev er e x tent, the defense might wish.”) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).

The District Court’s imposition of a reasonable limit

on the scope of cross

- examination wa s permissible in order to

“ strike a balance between the constitutio nally required opportunity to cross

- examine and the need to prevent repetitive or abusive cross

- examination. ” Casoni , 950 F.2d at 919. By the time Appellant sought to cross

- examine Waltzer

on his involvement in post

- cooperation fraudulent activities

, t he record already contained evidence of Waltzer’s past illegal conduct and his cooperation with the G overnment, all of which is directly relevant to Appellant’s theory that37 Waltzer was bias ed in favor of the g overnment. (App. 835

- 846; 867

- 872

. ) Indeed, App ellant directly questioned Waltzer on whether he was untrustworthy and biased for the Government. Id. Because “[t]he jury was in possession of sufficient info rmation to make a discriminating appraisal of [the w itness ’ s ] possible motives for test ifying fa lsely in favor of the [G] overnment,” the District Court did not abuse its discretion in excluding certain extrinsic evidence and limit ing the cross

- examination of Waltzer. See U.S. v. McNeill , 887 F.2d 448 , 454 (3d Cir. 1989).

3

. Motion to unseal

We re ject Georgiou’s argument that the District Court erred in denying his motion to unseal. Georgiou filed the motion after filing a notice of ap peal with this Court, appealing the District Court’s denial of his Motion for Reconsideration and New Trial. “T he filing of a notice of appeal

. . . confers jurisdiction on the court of appeals and divests the district c ourt of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). Becau se the District Court lacked jurisdiction at the time Appellant filed his motion to unseal, there was no error in denying this motion.

E

. S entencing

The District Court sentenced Georgiou to 300 months’ imprisonment, followed by a three

- year term of super vised release, and ordered restitution of $55,832,398 , a special assessment of $900, and forfeiture of $26,000,000

. Georgiou challenges this sentence as procedurally and substantively unreasonable, arguing that the District Court erred38 procedurally in fai ling to apply Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005)

, to the Guidelines loss calcula tion, resulting in substantive error.
Georgiou also challenges the sentence enhancements on the grounds that the District Court did not require the Gove rnment to properly establish the number of victims for a six

- point enhancement under U.S.S.G. § 2B1.1 (b)(2)(C). Georgiou further argues that the District Court erred in adding six levels to the Guidelines range due to the dissolution of Caledonia and the sophisticated nature of the fraud

. Finally

, Georgiou asserts that the District Court erred in basing restitution on the G uide lines loss calculation, and in its imposition of the forfeiture order.

T he District Court determined that the total actual l os ses amounted to $55,832,398. This calculation accounted for the losses suffered by: (1) the three institutions Georgiou defrauded through his use of manipulated stocks, namely, Accuvest ($3,613,856), Alliance ($5,890,748), and Caledonia ($22,000,000) ( see A pp . 5489); (2) Alex Barrotti ($16,000,000), to who m Georgiou made a false promise to cover trading losses for trades made at Georgiou’s direction ( see A pp . 5488); and (3) numerous victim shareholders who bought HYHY stock during Georgiou’s “ pump and dump ” scheme ($8,327,794 ). ( See A pp . 5491, Supp. App. 996.)

Based on these figures, Georgiou received a 24

- level increase to the base offense level of seven pursuant to U.S.S.G. § 2B1.1(b)(1)(M) (providing for a 24 point enhancement wher e the loss exceeds $50,000,000). ( A pp. 5516

- 24; A pp . 5308

. )39 Our “review of a district court’ s decision regarding the interpretation of the Sentencing Guidelines, including what constitutes ‘loss,’ is plenary. ” United States v. Napier, 273 F.3d 276, 278 (3d Cir. 2001) (quo ting United States v. Sharma , 190 F.3d 220 , 226 (3d Cir. 1999). We review fact ual findings for clear error. Id. (citing Sharma

, 190 F.3d at 229).

1

. Loss Calculation

Georgiou argues that the District Court incorrectly calculated the total loss attributa ble to his offense, resulting in a higher total offense level. He contends that the loss calculation contained in the Presentence Investigation Report (“PSR”) was grossly oversta ted because it ignored the impact of market forces on the values of the Targe t Stocks. Georgiou asserts that such an assessment is required under Dura Pharmaceuticals

, 544 U.S. 336

. Although it is undisputed that the District Court did not consider the impact of market forces in its loss calculation, it was not required to do so. Dura Pharmaceuticals was decided in the context of a civil securities fraud class action. Id. at 341. W hile some of our sister circuits have applied the Dura Pharmaceuticals loss calculation in the criminal sentencing context, we have not. Thus, t here is no b asis on which to find the District Court’s loss calculation clearly erroneous. Indeed , the record here indicates that the accounts responsible for the losses in the Target Stocks were control led by the Appellant and his

co

- conspirators. Appe llant conceded as much in recorded conversations. ( See

, e.g. , App. 702

- 05 , 725

- 32 , Supp. App. 1101

- 11.)40 Moreover, assuming arguendo that an error had occurred in failing to assess the impact of market forces on the Target Stocks, any such error would be h armless. In applying Section 2B1.1(b ), courts must use “the greater of the actual or intended loss

. ” U.S.G.G . § 2B1.1 cmt. n.3(A). During sentencing, the District Court found that Georgiou was responsible for intended losses that “far exceeded a hundred million [dollars]” based on his scheme involving Northern Ethanol. ( A pp

. 5485

- 86, 5490.) However, the District Court did not consider intended losses in its calculation because Georgiou’s total offense level, 45, already exceeded the guideline maximum o f 43. ( A pp

. 5308

. ) Therefore, under either calculation, Georgiou’s total offense level would have been in excess of 43. Thus, his sentence was not impacted by the District Court’s alleged error.

2

. Victim Enhancements

Georgiou ’s challenge to the six

- l evel upward adjustment for 250 or more victims under U.S.S.G §2B1.1(b)(2)(C) also fails. The jury found that Appellant participated in a “pump and dump” scheme with HYHY, and had p aid for a mailer on the stock to be sent to seven million people

. (Supp. A pp. 987.) Koster, the SEC witness, identified 1,918 investor accounts that purchased the stock during the period of the scheme, each of which lost over $1,000. ( App. 5427

- 29. ) Thus, there we re well over 250 victims , and the District Court’s upward adjus tment based on number of vic tims was not clearly erroneous.

3

. Forfeiture

Georgiou did not object

— though he had several opportunities to do so

— to the Court’s imposition of the41 forfeiture order , which had been submitted to the Court prior
to sentencing

. Thus, any claims on the basis of this forfeiture have been waived

. Furthermore , even absent the waiver, the forfeiture is proper under 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c) because the $26 ,000,000 subject to forfeiture “constitutes, or is deriv ed from proceeds traceable to the offenses of which the defendant was convicted.” ( See App. 1355, 1378

- 79 , 1392

- 1402

, 1415

, 1482

- 96

, 1836

- 38

, 5488

- 89

, Supp. App. 995

- 96. ) Because Appellant waived his objection s and because the order was, in fact, proper , there is

no basis for a finding of clear error with respect to the forfeiture.

V.

For the reasons stated above, we will affirm Georgiou’s Judgment of C onviction

.