United States of America v. Martoma
Filing
AMENDED OPINION, Dissenting, by judge RSP, FILED.[2331451] [14-3599]
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POOLER, Circuit Judge:
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I respectfully dissent. Last year, my colleagues filed an opinion in this
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matter in which they abrogated our prior decision in United States v. Newman, 773
4
F.3d 438, 452 (2d Cir. 2014). They declared that a non‐insider could be convicted
5
of insider trading on a gift theory even if she did not have a meaningfully close
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personal relationship with the insider from whom she received the confidential
7
information. See United States v. Martoma, 869 F.3d 58, 69 (2d Cir. 2017). Applying
8
this reasoning to the case at hand, they held that the jury instructions permissibly
9
allowed for conviction based on speculation about Dr. Gilman’s desire to be
10
friends with Martoma. I dissented from that opinion because it improperly
11
abrogated a prior panel decision without en banc review or an intervening
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Supreme Court precedent, undermined the personal benefit rule central to
13
holding corporate outsiders liable for insider trading, and approved of a
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conviction based on erroneous jury instructions that affected Martoma’s
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substantial rights.
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My colleagues now issue a modified opinion. In it, they purport to agree
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that our precedent prevents a jury from being charged with inferring that a tip
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was given as a gift unless it finds that there was a meaningfully close personal
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relationship between the tipper and the tippee. They no longer declaim Newman.
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They even agree that the jury instructions were in error.
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But these apparent concessions are semantic rather than substantial. My
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colleagues also attempt to redefine “meaningfully close personal relationship” in
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subjective rather than objective terms, rendering Newman a relic. To provide
6
support for this move, they improperly construe binding authority. They then
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hold that the erroneous jury instructions were harmless since the jury could have
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convicted based on a different theory.
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The majority’s attempt to undercut the meaningfully close personal
10
relationship requirement is in derogation of circuit precedent and unnecessary to
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arrive at their disposition. Only by abrogating Newman could my colleagues
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announce a new rule that a jury can infer a personal benefit based on a
13
freestanding “intention to benefit” and that this “intention to benefit” is at the
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core of the meaningfully close personal relationship standard. Slip op. at 22‐28,
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30‐31. Today’s opinion must be interpreted consistently with the rule that, as a
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three‐judge panel, we are unable to abrogate prior circuit decisions. See In re
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Zarnel, 619 F.3d 156, 168 (2d Cir. 2010) (“This panel is bound by the decisions of
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prior panels until such time as they are overruled either by an en banc panel of
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our Court or by the Supreme Court.”) (internal quotation marks omitted).
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Newman and a consistent line of cases preceding it make clear that a
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meaningfully close personal relationship cannot be proven without objective
4
evidence about the nature of the tipper‐tippee relationship. Bare speculation into
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insiders’ motives has always been insufficient; it remains so today in spite of the
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majority’s dicta.
Therefore, I continue to respectfully dissent.
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I.
Gifts and the Law of Insider Trading
Dirks, the foundational case on holding a non‐insider liable for insider
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trading, established that a jury’s “initial inquiry” must be whether a corporate
12
insider passed on information to the non‐insider “for personal advantage” rather
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than for the advantage of shareholders. Dirks v. S.E.C., 463 U.S. 646, 662‐63
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(1983). Making the inquiry into “whether the insider receives a direct or indirect
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personal benefit” by disclosing confidential information “requires courts to focus
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on objective criteria.” Id. at 663. The question for a finder of fact is not whether
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the insider wished ill on shareholders or wished good on the tippee, but whether
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she received something in return for her tip.
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As the Supreme Court explained,1 making objective evidence of a personal
1
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benefit a prerequisite to holding a non‐insider tippee liable serves several
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purposes. It creates “a guiding principle for those whose daily activities must be
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limited and instructed by the SEC’s inside‐trading rules” so that participants in
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securities markets are not left to the whims of prosecutorial enforcement
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priorities. Dirks, 463 U.S. at 664. It protects “persons outside the company such as
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an analyst or reporter who learns of inside information” from the threat of
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prosecution for uncovering information about securities issuers just because they
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also traded on it. Id. at 664 n.24 (italics omitted). It limits the government’s ability
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to hold non‐insiders liable when insiders “mistakenly think…information
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already has been disclosed or that it is not material enough to affect the market.”
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Id. at 662.
Restricting proof of a personal benefit to objective evidence avoids turning
13
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the rule into a mere formality. Absent objective evidence, a slip of the tongue
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might be presented to a jury as a purposeful tip with a good cover story, an off‐
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the‐record comment to a trusted reporter might be portrayed as a means of
And as I explained in my previous dissent. See Martoma, 869 F.3d at 75‐78
(Pooler, J., dissenting).
1
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bribing a journalist for favorable coverage. The difference between guilty and
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innocent conduct would be a matter of speculation into what a tippee knew or
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should have known about the tipper’s intent. A trader, journalist, or analyst
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attempting to avoid running afoul of criminal law would have little to guide her
5
behavior. The conservative thing to do would be to avoid seeking inside
6
information too aggressively, even if the whole market could benefit from such
7
investigation. Those who decided to cultivate insider sources would risk
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prosecution in any case, so they might have fewer scruples about compensating
9
their sources and trading on the information they purchased.
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What does objective evidence of a personal benefit consist of? In the easiest
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case, a tippee has paid the insider for the coveted tidbit. If the government can
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adduce evidence indicating that money changed hands, it has established all of
13
the objective facts needed to infer that an insider personally benefitted by
14
tipping. In the presence of an obvious quid pro quo, no further facts about the
15
nature of the tipper‐tippee relationship will be needed. The insider has
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effectively made the “secret profits” that securities law has prohibited since its
17
inception, but by selling information to a trader rather than trading on it herself.
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In re Cady, Roberts & Co., 40 S.E.C. 907, 916 n.31 (1961); see also United States v.
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O’Hagan, 521 U.S. 642, 653 (1997) (characterizing misappropriation as an insider
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“secretly converting the [corporation’s] information for personal gain”).
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The majority rightly points out that “[t]he tipper’s personal benefit need
4
not be pecuniary in nature.” Slip op. at 21; see also id. at 25. But that does not
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obviate the requirement that it be provable via “objective evidence.” In‐kind
6
compensation in goods or services given to the tipper may also constitute a
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personal benefit, and can be established in court in much the same way monetary
8
compensation can, i.e. with objective evidence pointing to the goods or services
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received. See, e.g., United States v. Jiau, 734 F.3d 147, 153 (2d Cir. 2013) (discussing
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“an iPhone, live lobsters, a gift card, and a jar of honey”). The government can
11
also prove a benefit on the theory that the tipper received potentially profitable
12
social connections, such as admission into an investment club, so long as the
13
prosecution’s case relies on evidence of these connections and their potential
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value to the tipper. Id.
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When the alleged benefit to the tipper is less concrete, objective evidence
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about the nature of the relationship between tipper and tippee takes on more
17
importance in identifying the benefit. For instance, unlike with money, goods,
18
services, and connections, one cannot directly trace a “reputational benefit that
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will translate into future earnings.” Dirks, 463 U.S. at 663. Instead, one must draw
2
upon circumstantial evidence about the power of a tippee to materially benefit
3
someone in the tipper’s position and the inclination of a tippee to view the tipper
4
in a better light based on the tipper’s provision of inside information. Evidence
5
about the tipper‐tippee relationship will make these conclusions easier, as
6
illustrated by the facts of S.E.C. v. Obus, 693 F.3d 276 (2d Cir. 2012). In that case,
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we concluded that it was sufficient that the tipper, an employee of a hedge fund
8
that “was a large holder” of the stock in question, “hoped to curry favor with his
9
boss,” the tippee, who was the principal of that hedge fund. Id. at 280, 292.
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Bosses, of course, have substantial say over subordinates’ future earnings, and
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the boss of a hedge fund trading in a particular stock is likely to value employees
12
that can get him information about that stock.
13
More directly on point, if the government fails to put forward evidence of
14
any particular quo that was provided in exchange for the quid of inside
15
information, it can still establish objective facts that point to a “relationship
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between the insider and the [tippee] that suggests a quid pro quo.” Dirks, 463 U.S.
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at 664 (emphasis added). That is, an apparently gratuitous tip can reasonably be
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understood as recompense for past benefits or as a means of keeping a good
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thing going so long as there is objective evidence of a history of mutually
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enriching exchanges or favors between tipper and tippee.
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The personal benefit rule is also satisfied by other “relationships between
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the insider and the recipient” that “suggest an intention to benefit the particular
5
recipient” even when the insider receives no immediately discernible
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compensation. Id. In particular, as relevant here, an apparently uncompensated
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tip can be said to “resemble trading by the insider himself followed by a gift of
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the profits to the recipient” when it is given to a “trading relative or friend.” Id.;
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see also Salman v. United States, 137 S. Ct. 420, 427‐28 (2016). Friends and relatives
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tend to internalize each other’s interests, see Transcript of Oral Argument at 8,
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Salman v. United States, 137 S. Ct. 420 (2016) (No. 15‐628) (“[T]o help a close
12
family member [or friend] is like helping yourself.”), to give each other things of
13
value to demonstrate care, or to commit acts of generosity with the assumption
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that the other would do the same in a rough sort of quid‐pro‐quo.2 For any of
Following Newman’s suggestion, the majority holds that a jury could conclude
that tipper and tippee shared a meaningfully close relationship so long as they
shared a relationship suggesting quid pro quo. Slip op. at 30‐31 (citing Newman,
773 F.3d at 452). But, as the majority rightly points out, Dirks and subsequent
cases established that a relationship suggesting quid pro quo itself can itself give
rise to the inference of a personal benefit to the tipper, without any need to
determine whether it gives rise to the intermediate inference of a meaningfully
close personal relationship. Slip op. at 30. It would make for a less confusing bit
2
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these reasons, a tipper can be said to benefit himself by giving something
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valuable to somebody with who he shares a “meaningfully close personal
3
relationship.”3 Newman, 773 F.3d at 452. Without objective evidence of such a
4
relationship, however, the inference that a gratuitous tip functioned as a gift will
5
not be available. Newman made clear that the “gift theory” is not applicable to
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casual acquaintances or mere members of the same club, church, or alumni
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association—or, it should go without saying, to perfect strangers—at least not
8
without additional evidence indicating meaningful closeness. 773 F.3d at 452‐55.
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Other boundaries of the concept of meaningful closeness remain to be
10
developed. See Salman, 137 S. Ct. at 429 (“…there is no need for us to address
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those difficult cases today…”).
12
of doctrine to cleanly separate quid‐pro‐quo and meaningfully close personal
relationships, and I do not think Newman requires conflating them. But the
majority’s interpretation is consistent with Newman, and, in any case, a jury can
infer personal benefit from the former whether or not it gives rise to an inference
of the latter.
Salman made clear that the tipper need not also “receive something of
pecuniary or similarly valuable nature in exchange for a gift to family or
friends.” 137 S. Ct. at 428 (internal quotation marks omitted). While my
colleagues earlier opinion read Salman to have eliminated the meaningfully close
personal relationship standard entirely, Martoma, 869 F.3d at 68‐71, they now
agree that that aspect of Newman remains good law.
3
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II.
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The Majority’s Error
Last year the majority attempted to rewrite this doctrine explicitly. Today
2
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they attempt to do so more subtly. In their now withdrawn opinion, they held
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that a gratuitous tip could be understood as beneficial to the tipper so long as a
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jury concludes that a tipper expects the tippee will trade on it. Martoma, 869 F.3d
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at 70‐71. Now they hold that an uncompensated tip can be found to personally
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benefit the tipper so long as the jury concludes that the tipper intended to benefit
8
the tippee. Slip op. at 22‐28. All that “meaningfully close personal relationship”
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means, they inform us, is a tipper‐tippee pairing in which the tipper has such an
10
intention.4 Id. at 30‐31.
This interpretation would eliminate the rule that has been with us since
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Dirks that the government must prove objective facts indicating that the tipper
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benefitted from her relationship with the tippee. On the majority’s proposal, the
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prosecution could pile up insinuations about the tipper’s subjective
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understanding of the purpose of the tip, and the jury would be charged with
As discussed supra in note 2, the majority, following Newman’s suggestion,
holds that a relationship suggesting a quid pro quo is also a meaningfully close
personal relationship. I do not find this part of their analysis objectionable
(except in the sense discussed in note 2).
4
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resting their inferences about her benefit on those wobbly foundations. The only
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objective facts the government would have to prove would be the
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communication of material non‐public information. All of the protections of the
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personal benefit rule—a clear guide for conduct, preventing liability for slip ups
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and other innocent disclosures—would erode.
6
It is good news, then, that binding precedent stands for the opposite
7
principle. The only time Dirks refers to an “intention to benefit” is when it
8
discusses the need to prove “a relationship between the insider and the recipient
9
that suggests…an intention to benefit the particular recipient.” 463 U.S. at 664
10
(emphasis added). Reading “intention to benefit” out of context, my colleagues
11
assert that, under Dirks, an intention can be inferred without any objective
12
evidence about relationships. Slip op. at 21. But Dirks does not say that, and it has
13
never been applied to allow such a freestanding inference of intent in this Circuit
14
or elsewhere. Salman, 137 S. Ct. at 427 (applying gift theory to sibling
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relationship) Jiau, 734 F.3d at 153 (discussing gift theory as relationship‐based
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before finding quid pro quo); Obus, 693 F.3d at 285 (discussing “trading relative
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or friend” standard); United States v. Bray, 853 F.3d 18, 26‐27 (1st Cir. 2017)
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(“good friends”); United States v. Parigian, 824 F.3d 5, 16 (1st Cir. 2016) (friendship
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and quid pro quo); S.E.C. v. Rocklage, 470 F.3d 1, 7 n.4 (1st Cir. 2006) (siblings);
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S.E.C. v. Sargent, 229 F.3d 68, 77 (1st Cir. 2000) (“reconciliation” between friends
3
and reputational benefit); S.E.C. v. Maio, 51 F.3d 623, 632‐33 (7th Cir. 1995)
4
(exchange of favors within a friendship); S.E.C. v. Yun, 327 F.3d 1263, 1280 (11th
5
Cir. 2003) (“a friend and frequent partner in real estate deals”).
6
S.E.C. v. Warde, 151 F.3d 42 (2d Cir. 1998), cited in the majority opinion, is
7
not to the contrary. Slip op. at 22‐23. In that case, “[t]he evidence showed that
8
Warde[, the tippee,] was a good friend of Edward Downe,” the tipper. Warde, 151
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F.3d at 45 (emphasis added). We found that the “close friendship between Downe
10
and Warde suggests that Downe’s tip was ‘inten[ded] to benefit’ Warde…” Id. at
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49 (emphasis added, brackets in original). Thus, we did not find that a
12
freestanding “intention to benefit” would have been sufficient to prove Downe’s
13
personal benefit. Instead, we followed the principle that an intention to benefit
14
can only be inferred from objective facts about the nature of the relationship
15
between tipper and tippee. Again, the majority extracts the phrase “intention to
16
benefit” from its context, suggesting that the relationship between tipper and
17
tippee did not matter when it was the central focus of our inquiry.
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The majority offers an alternative interpretation in which the sentence at
2
issue in Dirks “effectively reads, ‘there may be a relationship between the insider
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and the recipient that suggests a quid pro quo from the latter, or there may be an
4
intention to benefit the particular recipient.’” Slip op. at 23. Perhaps one could
5
read the sentence in that way in isolation, but doing so would certainly not be
6
“more consonant with Dirks as a whole” or with the subsequent case law relying
7
on Dirks. Id. The Dirks court included that sentence to provide examples of
8
“objective facts and circumstances that often justify…an inference” that “the
9
insider receive[d] a direct or indirect personal benefit from the disclosure.” Dirks,
10
463 U.S. at 663‐64. It is difficult to understand why the Court would have
11
mentioned an intention to benefit, which is a subjective fact, as an example of a
12
personal benefit, which is an objective fact. Nearly as difficult to understand is
13
why the Dirks court would have provided an intention to benefit a tippee as an
14
example of a benefit to the tipper. Intending to benefit somebody is not in itself a
15
benefit. That is, not unless one has reason to believe that the person with the
16
intention to benefit benefits from the beneficiary’s benefit or one adopts the
17
trivializing view of human psychology wherein everything any individual does
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is to benefit herself.
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Perhaps the majority’s theory is that an intention to benefit a tippee is
2
circumstantial evidence that a tipper is receiving some other benefit by providing
3
the information. On this theory, so long as objective evidence would allow a jury
4
to infer that a tipper intended to benefit the tippee, the jury should be allowed to
5
infer from that inference that the tipper somehow benefitted by benefitting the
6
tippee without actually having to determine what that benefit might be. This
7
theory fails to deal with the fact that an intention to benefit is not itself an
8
“objective fact or circumstance,” as Dirks requires, but rather an inference drawn
9
from objective facts or circumstances. Additionally, this theory makes it difficult
10
to understand why the Dirks court would have adopted the personal benefit test
11
in the first place. If a jury can conclude that a tipper breached his duty so long as
12
it concludes that she intended to benefit the tippee, why should it have to go
13
through the tortuous process of concluding that the tipper received a personal
14
benefit based on its conclusion that the tipper intended to benefit the tippee?
15
Why should we care about the tipper’s benefit at all?
16
At times the majority seems to suggest that Dirks does not really require
17
proof of a personal benefit. Rather, the personal benefit test is mentioned merely
18
as a guide to prosecutors regarding the sort of evidence that will help them
14
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establish the tipper’s intention to benefit the tippee. Thus, when Dirks says that
2
“a breach of duty…depends in large part on the purpose of the disclosure,” it is
3
announcing the real test for a breach of the duty to shareholders. Id. at 662.
4
“Identifying personal benefits is…simply how courts and juries analyze breaches
5
of” this duty. Slip op. at 20. When the government can adduce other evidence
6
that a tipper “lacked a legitimate corporate purpose,” Slip op. at 25, then “it
7
makes perfect sense to permit the government to prove a personal benefit with
8
[only] objective evidence of the tipper’s intent.” Slip op. at 23‐24.
But Dirks is entirely unambiguous that “the test [for whether duty has
9
10
been breached] is whether the insider personally will benefit, directly or
11
indirectly, from his disclosure.” 463 U.S. at 662. Whatever the insider’s purpose
12
in disclosing the information, “[a]bsent some personal gain [to the insider], there
13
has been no breach of duty to stockholders.” Id. Nowhere does Dirks suggest that
14
the need to prove personal benefit can be ignored simply because a tipper’s
15
intent or purpose can be independently demonstrated.5 And Dirks expressly
I do not deny that “[i]ntent elements are everywhere in our law and are
generally proved with circumstantial evidence.” Slip op. at 27. I deny that one
can replace proof of personal benefit to the tipper with proof of the tipper’s
intention to benefit the tippee. As I discussed in my previous dissent, insider
trading law separately requires that the insider expect the tippee will trade on
the information, and this expectation can be proven with circumstantial
5
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declaims the idea that “personal benefit” is merely a synonym for a tipper “not
2
act[ing] simply out of the goodness of his heart.” Slip op. at 25 n.7; Dirks, 463 U.S.
3
at 663 (stating that proof of personal benefit should not be focused on mind
4
reading). The personal benefit test may well be a way to get at a tipper’s purpose,
5
but it is the former and not the latter that the prosecution must prove.
6
None of these puzzles is presented if one reads the relevant sentence in
7
Dirks the way I have suggested. It is easy to understand why the Dirks court
8
would have mentioned a relationship suggesting an intention to benefit, an
9
objective circumstance, when it was providing examples of objective facts and
10
circumstances. Unlike a standalone intention to benefit, a relationship suggesting
11
an intention to benefit provides reason to believe that the tipper benefits by
12
benefitting, since the tipper is understood as contributing to a relationship from
13
which both tipper and tippee benefit. See supra at 8. And the focus on
14
relationships rather than bare intentions fits neatly with Dirks’s cabining of the
15
gift theory to disclosures to “trading relative[s] or friend[s].” 463 U.S. at 664.
evidence. See Martoma, 869 F.3d at 82 (Pooler, J., dissenting) (citing Obus, 693 F.3d
at 286‐87; United States v. Gansman, 657 F.3d 85, 92 (2d Cir. 2011)). The majority’s
approach comes close to conflating this element of insider trading liability and
the separate personal benefit test.
16
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This cannot be so, my colleagues protest. They ask us to imagine a
2
situation where a tipper “discloses inside information to a perfect stranger and
3
says, in effect, you can make a lot of money by trading on this.” Slip op. at 27.
4
Wouldn’t it be absurd if this perfect stranger could not be held liable for insider
5
trading if he went ahead and traded on this information? No, it would not be. At
6
least, not if one takes the personal benefit rule seriously. Ex hypothesi, the
7
fictional tipper in their scenario receives absolutely nothing in return for his
8
disclosure, except, I suppose, the warmth that comes with knowing that
9
somebody else might have made some money because of his actions (or perhaps
10
the schadenfreude that comes with knowing that shareholders were defrauded).
11
But if those sorts of “benefits” were enough, then every disclosure of inside
12
information without affirmative indication of a pure heart would be
13
presumptively beneficial to the tipper. Dirks rejected that possibility, and every
14
appellate court to have considered the issue, including us, has consistently done
15
the same. That is the law whether we like or not, but, for what it’s worth, I see no
16
reason to worry that truly random acts of enrichment can go unpunished.
17
18
Even assuming arguendo that there was any ambiguity on the topic in our
precedents, Newman removed it by requiring a “meaningfully close personal
17
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relationship” in order to prove personal benefit via the gift theory. 773 F.3d at
2
452. In the majority’s withdrawn opinion, they candidly acknowledged that they
3
were abrogating Newman, relying on a justification for doing so that they no
4
longer advance. Martoma, 869 F.3d at 68‐70. Today they do not even attempt to
5
argue they can do so. Instead, they call into question settled law in non‐binding
6
dicta. Newman remains good law.
7
8
III.
9
The Jury Instructions
Turning to the case at hand, I agree with my colleagues’ updated view that
10
the jury was erroneously instructed. However, in light of the foregoing, I
11
disagree with their formulation of the proper instruction. A properly instructed
12
jury would have instead been asked whether Dr. Gilman and Martoma shared a
13
relationship suggesting a quid pro quo or were close enough friends that it
14
would be reasonable to understand Dr. Gilman’s provision of information to
15
Martoma as a gift. The jury could not conclude that their relationship was
16
meaningfully close based on the mere possibility of a future friendship. Nor
17
could it make a relationship‐independent inference about Dr. Gilman’s
18
intentions, contrary to the majority’s dicta. That is because Newman’s
18
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interpretation of the gift theory does “require[] proof that Dr. Gilman and
2
Martoma share[d] any type of personal relationship.” Slip op. at 32 (internal
3
quotation marks omitted).
4
Moreover, I disagree that the error in the jury instructions was harmless.
5
The majority rightly states that we can only find harmlessness in this context if
6
“it is clear beyond a reasonable doubt that a rational jury would have found the
7
defendant guilty absent the error.” United States v. Mahaffy, 693 F.3d 113, 136 (2d
8
Cir. 2012) (internal quotation marks omitted).6 This record provides plenty of
9
reasons to doubt that Dr. Gilman and Martoma shared a meaningfully close
10
personal relationship. The government itself repeatedly denied that Dr. Gilman
As I discussed in my previous dissent, I would hold that the modified plain
error rule applies here. Martoma, 869 F.3d at 87‐88 (Pooler, J., dissenting). We
have long held that where “the source of an alleged jury instruction is a
supervening decision, we employ a modified plain error rule, under which the
government, not the defendant, bears the burden to demonstrate that the error
was harmless.” Mahaffy, 693 F.3d at 136 (internal quotation marks omitted). The
majority points out that multiple panels in this Circuit have called into question
the continued applicability of the modified plain error rule after Johnson v. United
States, 520 U.S. 461 (1997), without deciding the matter either way. Slip op. at 16
n.4. But Johnson did not provide any reason to abandon the well‐established
modified plain error rule. Johnson only “cautioned against any unwarranted
expansion of Rule 52(b),” which provides for plain error review in criminal
matters in which an issue has not been raised below. 520 U.S. at 466. The
modified plain error rule does not expand Rule 52(b). It merely allocates the
burden of proof, a matter on which Rule 52 is silent.
6
19
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1
and Martoma had anything other than a “commercial, pecuniary relationship.”
2
Recording of Oral Argument at 34:18‐34:27, 26:27‐26:58, United States v. Martoma,
3
No. 14‐3599 (2d Cir. Oct. 28, 2015). Dr. Gilman testified that he shared almost
4
nothing about his personal life with Martoma and that Martoma acted friendlier
5
than Dr. Gilman thought appropriate for a professional relationship. Tr. at 1238,
6
1236. As the government itself pointed out to the district court, there is no
7
evidence that Martoma and Dr. Gilman ever interacted outside of their
8
consulting sessions. Recording of Oral Argument at 34:18‐34:27, United States v.
9
Martoma, No. 14‐3599 (2d Cir. Oct. 28, 2015).
10
A reasonable jury could also have doubted whether the relationship
11
between Dr. Gilman and Martoma suggested a quid pro quo. Dr. Gilman took no
12
payment for the consulting sessions in which he provided the inside information
13
at issue here, and there is no evidence in the record that his compensation before
14
or after that session was higher than usual. He was in high demand as an expert
15
and a researcher, so there is reason to doubt that he would have risked
16
prosecution just to keep up his consulting relationship with SAC and Martoma.
17
See Tr. at 1552‐60. A reasonable jury could have found a relationship suggesting a
18
quid pro quo, but it was not required to. Ruling otherwise would lead to the
20
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1
holding that whenever inside information is revealed within a paid consulting
2
relationship where other, legitimate services are rendered, a fact‐finder must
3
infer that the insider was paid to breach his duties. That rule would allow
4
convictions for erroneously revealed information or for information revealed
5
based on a misunderstanding about its materiality or its confidentiality.
6
7
8
9
IV.
Sufficiency of the Evidence
Because the jury instructions amount to reversible error, I would not reach
the sufficiency of the evidence question. But even were the majority correct that
10
there was sufficient evidence here, it is incorrect and ill‐advised to go on to
11
speculate that the jury could have inferred an intention to benefit merely because
12
“a corporate insider…deliberately disclos[ed] valuable, confidential information
13
without a corporate purpose and with the expectation that the tippee will trade
14
on it.” Slip op. at 36.
15
In addition to undermining Newman in the manner already discussed, this
16
musing flirts with the possibility that the personal benefit test that goes back to
17
Dirks may no longer be good law. The very reason the government must
18
establish a personal benefit is to allow for the possible conclusion that the insider
21
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1
provided information without a “corporate purpose.” Dirks, 463 U.S. at 654, 655
2
n.14. If the government can put forward evidence that an insider did not have a
3
corporate purpose in order to establish that the insider personally benefitted
4
from providing the information, it can convict based on circular reasoning.
5
“Personal benefit” would then no longer have any independent meaning. The
6
government would need only convince the jury to “read [the tipper’s] mind[],”
7
Dirks, 463 U.S. at 663. The tipper would need not have benefitted in any objective
8
sense so long as the prosecution could convince a jury that she was not thinking
9
of the corporation’s interest. Dirks stands for the opposite proposition.7
10
CONCLUSION
11
Setting our disagreement about the harmfulness of the district court’s error
12
13
to one side, my colleagues could have reached the conclusion they did by
The majority suggests that the abundance of objective evidence in this case
demonstrates that my concern about differentiating guilty from innocent conduct
based entirely on inferences about intent is “unfounded.” Slip op. 35 n.8. If so,
then Dirks’s and Newman’s similar concerns are also unfounded. see Dirks, 463
U.S. at 663; Newman, 773 F.3d at 452. Anyway, assuming arguendo that the
evidence here was more than sufficient, that fact alone does not mean that we
should endorse a rule that would allow for convictions based on speculation in
cases where the evidence is thinner or more ambiguous. See supra at 4‐5.
7
22
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1
following the path our precedent provides. They need only have held that the
2
jury instructions were erroneous because they allowed for conviction absent
3
objective evidence of a meaningfully close personal relationship but harmless
4
because there was objective evidence of a relationship suggesting a quid pro quo.
5
Instead, they have taken a detour to declare that subjective evidence could have
6
worked as well. This detour calls into question well‐established principles of
7
insider trading law that we have neither reason nor power to abrogate.
23
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