USA v. Gregory Reye

Filing

FILED OPINION (RONALD M. GOULD, MILAN D. SMITH, JR. and ALGENON L. MARBLEY) AFFIRMED. Judge: RMG , Judge: MDS Authoring, Judge: ALM . FILED AND ENTERED JUDGMENT. [7926266]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GREGORY L. REYES,
Defendant-Appellant.





No. 10-10323
D.C. No.
3:06-cr-00556CRB-1
OPINION

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
May 10, 2011—San Francisco, California
Filed October 13, 2011
Before: Ronald M. Gould and Milan D. Smith, Jr.,
Circuit Judges, and Algenon L. Marbley, District Judge.*
Opinion by Judge Milan D. Smith, Jr.

*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.

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COUNSEL
Amber S. Rosen, Assistant United States Attorney (argued),
Brian J. Stretch, Attorney for United States, Barbara J. Valliere, Chief, Appellate Division, Adam A. Reeves, Assistant
United States Attorney, San Jose, California, for plaintiffappellee United States.
Seth P. Waxman (argued), Peters G. Neiman, Edward C.
DuMont, Micah S. Myers, Sue-Yun Ahn, Shivaprasad
Nagaraj, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for defendant-appellant Gregory L. Reyes.

OPINION
M. SMITH, Circuit Judge:
Defendant-Appellant Gregory Reyes, the former Chief
Executive Officer of Brocade Communications (Brocade, or

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the Company), appeals his conviction in a second criminal
trial for (1) securities fraud and making false filings with the
Securities and Exchange Commission (SEC) in violation of
15 U.S.C. §§ 78j(b) and 78ff, and 17 C.F.R. § 240.10b-5; (2)
falsifying corporate books and records in violation of 15
U.S.C. §§ 78m(b)(2)(A) and 78ff, and 17 C.F.R. § 240.13b21; and (3) making false statements to auditors in violation of
15 U.S.C. § 78ff and 17 C.F.R. § 240.13b2-2. Reyes was previously convicted of violating these statutes, but we vacated
that conviction because of prosecutorial misconduct, and
remanded for a new trial. United States v. Reyes, 577 F.3d
1069 (9th Cir. 2009). In this appeal, Reyes contends that his
second conviction should also be vacated, and the case dismissed, because of (a) prosecutorial misconduct, (b) insufficient evidence of materiality to support his conviction, and (c)
various evidentiary and instructional errors at trial. We affirm.
FACTUAL BACKGROUND
Backdated Stock Options
Brocade develops and sells data switches for networks. It
became a publicly traded company in 1999. Reyes was hired
in 1998, and during his tenure served as CEO and Chairman
of the Company’s Board of Directors (Board). Brocade
offered stock options to its newly hired employees, and its
employees generally could also earn stock options through
annual incentive programs. These options gave employees the
right to purchase Brocade stock at a fixed exercise (strike)
price on or after a specific vesting date. A stock option is “inthe-money” if the strike price is below the stock’s current
market value. “Backdating” stock options means that an
option’s grant date and strike price are recorded retroactively.
During the relevant time period, backdating of Brocade stock
options was not illegal as long as the benefit to Brocade
employees was recorded on the Company’s financial records
as a non-cash compensation expense to Brocade. See Reyes,
577 F.3d at 1073. This accounting treatment was required by

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the then-applicable Accounting Principles Board Opinion No.
25 (APB 25).1 It is undisputed that the stock options relevant
to this appeal were backdated, and were not properly entered
in the Company’s books, as then required by APB 25.
Reyes approved grants of stock options to Brocade employees from 2000 through 2004. Company policies permitted
Reyes (as a sort of one-person committee) to approve grants
of stock options to non corporate officer employees. However, a committee of outside directors, who comprised the
Compensation Committee, was required to approve the grant
of stock options to Company officers and the full Board of
Directors was required to approve the grant of stock options
to non-officer directors. Committee minutes or unanimous
written consents were used to document the number of
options granted to specific employees as of a particular date.
Procedural history
In 2004, Brocade’s Board of Directors began investigating
some of the Company’s accounting practices with respect to
the granting of stock options to new employees. In early 2005,
Brocade changed some of its accounting practices, and
announced that Reyes had resigned as CEO and Chairman.
Concerned, the SEC and Department of Justice undertook a
joint investigation into Brocade’s option accounting, which
led to the SEC filing civil complaints against Reyes and several others involved in the granting of stock options and
accounting practices at Brocade.
1

In 2005, Financial Accounting Standards (FAS) 123(R) superseded
APB 25 and required that companies use FAS 123 expense amounts in
their Generally Accepted Accounting Principles (GAAP) statements. FAS
123 required reporting estimating the economic value of stock options
granted to employees during the relevant reporting period and the effect
such grants would have had on the Company’s earnings, determined pursuant to GAAP, if they had been treated as non-cash compensation
expenses.

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On August 10, 2006, the Government charged Reyes with
committing criminal securities fraud, mail fraud, falsifying
corporate books and records, and violating related statutes and
regulations. In August 2007, Reyes was found liable on all
counts except the mail fraud charge, which was dismissed
before trial. On appeal, we vacated Reyes’s conviction and
remanded for a new trial after finding prosecutorial misconduct. Reyes, 577 F.3d at 1078-79. Specifically, we held that
the prosecution knew that several employees of Brocade’s
Finance Department had given pre-trial statements to the Federal Bureau of Investigation acknowledging that the Finance
Department knew about Reyes’s and the Company’s stock
option backdating practices, but that during closing argument,
the prosecution knowingly and falsely claimed that the
Finance Department did not know about the stock option
backdating. Id. at 1076-77. We held that this deception was
material because it went to Reyes’s defense that he relied on
others. Id. at 1078.
After a second five-week jury trial in February 2010, Reyes
was acquitted on a conspiracy charge but convicted on all
other counts, including: (1) securities fraud and making false
filings with the Securities and Exchange Commission (SEC)
in violation of 15 U.S.C. §§ 78j(b) and 78ff, and 17 C.F.R.
§ 240.10b-5; (2) falsifying corporate books and records in
violation of 15 U.S.C. §§ 78m(b)(2)(A) and 78ff, and 17
C.F.R. § 240.13b2-1; and (3) making false statements to auditors in violation of 15 U.S.C. § 78ff and 17 C.F.R.
§ 240.13b2-2. Reyes was sentenced to 18-months imprisonment, two years of supervised release, and was fined
$15,000,000. Reyes timely appeals.
JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction under 18 U.S.C. § 1291.
We review the district court’s rulings on alleged prosecutorial misconduct for an abuse of discretion. United States v.

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Steele, 298 F.3d 906, 910 (9th Cir. 2002); see also United
States v. Murillo, 288 F.3d 1126, 1140 (9th Cir. 2002) (applying abuse of discretion standard to the denial of a motion for
new trial based on prosecutorial misconduct). Issues of prosecutorial misconduct involving mixed questions of fact and
law are reviewed de novo. United States v. Bracy, 67 F.3d
1421, 1433 (9th Cir. 1995). Harmless error review applies
when a defendant timely objects to prosecutorial misconduct.
United States v. Blueford, 312 F.3d 962, 973-74 (9th Cir.
2002). When reviewing for prosecutorial misconduct, we consider in the context of the entire trial “whether it is more probable than not that the prosecutor’s conduct materially affected
the fairness of the trial.” United States v. McKoy, 771 F.2d
1207, 1212 (9th Cir. 1985).
Plain error review applies when a defendant fails to object
to alleged prosecutorial misconduct before the district court.
United States v. Sullivan, 522 F.3d 967, 982 (9th Cir. 2008);
United States v. Geston, 299 F.3d 1130, 1134 (9th Cir. 2002).
To establish plain error, a defendant must establish that (1)
there was error, (2) the error was plain, and (3) the error
affected his “substantial rights.” Geston, 299 F.3d at 1135.
“Under this standard, a conviction can be reversed only if,
viewed in the context of the entire trial, the [claimed] impropriety seriously affected the fairness, integrity, or public reputation of judicial proceedings, or where failing to reverse a
conviction would result in a miscarriage of justice.” Id. (citation omitted).
We review de novo the question of whether a trial court’s
jury instruction accurately states the law. United States v.
Hopper, 177 F.3d 824, 831 (9th Cir. 1999). We review for
abuse of discretion a district court’s formulation of jury
instructions. United States v. Franklin, 321 F.3d 1231, 124041 (9th Cir. 2003), cert. denied, 540 U.S. 858 (2003). Thus,
while the question of whether the district court’s instructions
adequately covers a defense theory is reviewed de novo, we
“look to the instructions as a whole and a refusal to give a

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proper specific instruction can be remedied by other instructions that cover the subject.” United States v. Thomas, 612
F.3d 1107, 1122 (9th Cir. 2010) (internal citations omitted).
There must be sufficient evidence to constitutionally support a criminal conviction. See Jackson v. Virginia, 443 U.S.
307, 319 (1979). The evidence must be viewed in the light
most favorable to the Government to determine whether any
rational trier of fact could have found the essential elements
beyond a reasonable doubt. Id.; United States v. Nevils, 598
F.3d 1158, 1163-64 (9th Cir. 2010) (en banc). We “may not
usurp the role of the finder of fact by considering how it
would have resolved the conflicts, made the inferences, or
considered the evidence at trial.” Nevils, 598 F. 3d at 1164.
Evidence is sufficient where it “is adequate to allow ‘any
rational trier of fact [to find] the essential elements of the
crime beyond a reasonable doubt.’ ” Id. (quoting Jackson, 443
U.S. at 319).
DISCUSSION
1.

Prosecutorial Misconduct

A. Reyes claims that the Government asserted a new, false
theory at his second trial; specifically, that Reyes “grant[ed]
. . . in-the-money options to himself” to “pad his own pocket.”
Reyes argues it was prosecutorial misconduct to focus on this
theory when, as the prosecution knew, Reyes could not grant
himself options because the Compensation Committee had to
approve all options granted to him. In particular, Reyes
objects to testimony and exhibits highlighted at trial by the
Government where Reyes’s name was listed next to other
employees to whom he granted options.
Reyes concedes that he did not object at trial to the prosecutor’s allegedly improper conduct of introducing evidence
that Reyes granted himself stock options. Accordingly, we

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review this aspect of Reyes’s claim of prosecutorial misconduct for plain error. Geston, 299 F.3d at 1134.
[1] We review Reyes’s claims of prosecutorial misconduct
in the light of clearly established legal principles. The “prosecutor’s job isn’t just to win, but to win fairly, staying well
within the rules.” United States v. Kojayan, 8 F.3d 1315, 1323
(9th Cir. 1993). “[I]t is improper for the government to present to the jury statements or inferences it knows to be false
or has very strong reason to doubt.” Reyes, 577 F.3d at 1077.
It is certainly within the bounds of fair advocacy for
a prosecutor, like any lawyer, to ask the jury to draw
inferences from the evidence that the prosecutor
believes in good faith might be true. But it is decidedly improper for the government to propound inferences that it knows to be false, or has very strong
reason to doubt, particularly when it refuses to
acknowledge the error afterwards to either the trial
court or this court and instead offers far-fetched
explanations of its actions.
Blueford, 312 F.3d at 968. Faithful adherence to these principles is particularly important because a “prosecutor’s opinion
carries with it the imprimatur of the Government” and making
false or misleading assertions “may induce the jury to trust the
Government’s judgment rather than its own view of the evidence.” Reyes, 577 F.3d at 1077 (quoting United States v.
Young, 470 U.S. 1, 18-19 (1985)).
Viewed in the light of these authorities, Reyes fails to
establish that there was prosecutorial misconduct at his second trial regarding this aspect of his claim. What the Government argued at the second trial was that Reyes’s motivation
for engaging in a fraudulent scheme, in part, was to personally
profit. To substantiate its theory, the Government introduced
evidence showing the significant number of stock options
Reyes received (thirteen million), the value of those options

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(approximately $130 million for eleven million in-the-money
options), that he made almost $2 million from exercising
some of his backdated options and that Reyes received almost
six times the amount of options granted to any other officer
or employee of the Company.
The Government also presented evidence that Reyes was
involved in the process of granting stock options to himself
because he signed lists of grant options with his name on
them. For example, Reyes several times signed lists of stock
option grants, which included his own name along with those
of non-officer employees. By signing his name to the lists,
Reyes was also able to influence the date of his grants to
match those of certain non-officer employees. In one instance,
Reyes received almost $4 million in options for an April 17,
2001 stock price, the same date as the date applicable to the
stock grants he made to certain non-officer employees, even
though he did not obtain the Compensation Committee’s final
approval for, or ratification of, the grant until May 2001. Presenting this evidence did not rise to the level of prosecutorial
misconduct because the Government was not pursuing an
invalid theory of the case, but rather was showing Reyes’s
involvement in the process of granting backdated stock
options. Moreover, the Government clarified any confusion
that might have flowed from the referenced setting by proffering testimony from its own expert that technically, in accordance with Brocade’s own internal rules, the Compensation
Committee was required to approve stock options granted to
Reyes.
[2] In short, the evidence the Government presented was
not false (Reyes did sign off on the lists showing grants of
backdated stock options to himself and to certain non-officer
employees), and the Government did not impermissibly ask
the jury to draw false inferences from the evidence presented
at trial about Reyes’s role in the process of granting backdated
stock options to himself because the prosecution acknowledged that ultimately the approval of the Compensation Com-

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mittee was required, even if that approval was simply pro
forma. Cf. Reyes, 577 F.3d at 1078. In this way, the Government sought to show that Reyes knowingly benefitted from
the scheme by approving the dates and lists, some of which
included his name as a backdated stock option recipient.
Without evidence of the Government’s relying on known
false or misleading statements, Reyes’s allegations of this
type of prosecutorial misconduct do not rise to the level of
improper conduct that “so affected the jury’s ability to consider the totality of the evidence fairly that it tainted the verdict and deprived [Reyes] of a fair trial.” United States v.
Weatherspoon, 410 F.3d 1142, 1151 (9th Cir. 2005) (quoting
United States v. Smith, 962 F.2d 923, 935 (9th Cir. 2002).
[3] B. Reyes also asserts that the Government’s introduction of evidence that between 2000 and 2004 Reyes received
eleven million backdated options (out of a total of thirteen
million), worth approximately $130 million, and that he exercised 40,000 of his backdated options in September 2000, for
a gain of approximately $2 million (collectively, the Option
Gains Evidence), was irrelevant, unduly prejudiced the jury,
and constituted prosecutorial misconduct. We disagree.
Reyes does not explain how the admission of such allegedly irrelevant or unfairly prejudicial evidence constitutes
prosecutorial misconduct, and we fail to see independently
how it does. See Fed. R. Evid. 401, 403; see also, e.g., Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not
manufacture arguments for [a party]. . . .”). The Option Gains
Evidence was based on facts and testimony introduced at trial
and the inferences that flowed therefrom were linked to
Reyes’s motives. See Reyes, 577 F.3d at 1077. Moreover,
because we conclude below that the Options Gains Evidence
was properly admitted, Reyes cannot rely on the admission of
that evidence to demonstrate prosecutorial misconduct. See
United States v. Hinton, 31 F.3d 817, 824 (9th Cir. 1994).
Tellingly, Reyes also did not object to the introduction of
the Options Gains Evidence on prosecutorial misconduct

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grounds; he simply raised an evidentiary objection to its
admission. “Evidentiary rulings will be reversed for abuse of
discretion only if such nonconstitutional error more likely
than not affected the verdict.” United States v. Tran, 568 F.3d
1156, 1162 (9th Cir. 2009) (citation omitted). The district
court permitted the introduction of the Options Gains Evidence because it related to motive, knowledge, and intent, and
because it demonstrated that Reyes made money in the backdating scheme. On the other hand, the district court showed
sensitivity to undue prejudice concerns when it forbade the
introduction of evidence that Reyes made $500 million from
the sale of Brocade stock, reasoning that such evidence was
unduly prejudicial, whereupon the parties agreed that the jury
would be told only that Reyes sold “a significant amount of
Brocade stock” between 2000 and 2004.
[4] The Government was not permitted to introduce evidence simply to show that Reyes was wealthy. See, e.g.,
United States v. Mitchell, 172 F.3d 1104, 1108-09 (9th Cir.
1999) (“A rich man’s greed is as much a motive to steal as a
poor man’s poverty. Proof of either, without more, is likely to
amount to a great deal of unfair prejudice with little probative
value.”). However, the Government was allowed to introduce
evidence about Reyes’s motivation for his involvement in the
backdating scheme, his scienter, even if such evidence is generally not sufficient, standing alone, to prove intent to
defraud. Cf. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 325 (2007) (“While it is true that motive can be a
relevant consideration, and personal financial gain may weigh
heavily in favor of a scienter inference, we agree . . . that the
absence of a motive allegation is not fatal.”); Livid Holdings
Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 948 (9th
Cir. 2005) (mere motive to commit fraud is insufficient to
adequately plead scienter); United States v. Quattrone, 441
F.3d 153, 187 (2d Cir. 2006) (permitting evidence of executive compensation where the introduction of the evidence was
for the limited purpose of demonstrating motive and not simply wealth).

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[5] Consistent with these authorities, the district court permitted the introduction of relevant and not unfairly prejudicial
evidence related to Reyes’s motive. Reyes’s gains from backdated options permitted the jury to draw a reasonable inference that he knew what he was doing, and how the scheme
operated to his benefit. Reyes also fails to demonstrate that
the Government sought a verdict from the jury based on
Reyes’s wealth, instead of with respect to his conduct related
to backdated stock options. The jury was properly instructed
as to the elements of the relevant crimes, including specific
willfulness and intent on Reyes’s part to defraud, a heightened
standard from mere motive. There was also significant evidence in the record that Reyes knowingly participated in a
scheme that he recognized was illegal.
[6] The jury was also presented with evidence by both parties showing the amount of gain actually made by Reyes,
approximately $2 million, and that he did not exercise or
receive the full potential gain of $130 million that could have
been realized on his backdated options. Under these circumstances, we conclude the Options Gains Evidence constituted
probative evidence of Reyes’s motive, knowledge, and intent
to participate in the backdating scheme, and its admission into
evidence fell far short of meeting the level required to find
unfair prejudice. See United States v. Mende, 43 F.3d 1298,
1302 (9th Cir. 1995) (“Under the terms of the rule, the danger
of prejudice must not merely outweigh the probative value of
the evidence, but substantially outweigh it.”); United States v.
Patterson, 819 F.2d 1495, 1505 (9th Cir. 1987) (stating that
Rule 403 is “an extraordinary remedy to be used sparingly”).
C. Reyes further argues that the Government committed
prosecutorial misconduct in its questioning of two witnesses.
Specifically, Reyes contends that through the testimony of
Stephen Beyer, a former employee in Brocade’s Human
Resources department, the Government furthered the false
impression that Brocade’s options-pricing process was “secretive and unusual.” Reyes similarly objects to the introduction

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of the testimony of Carol Bowie, a consultant with ISS Governance Services, who discussed Brocade’s governance and
compensation practices.
[7] Reyes fails to show how the introduction of the Beyer
or Bowie evidence constitutes prosecutorial misconduct.
Reyes does not demonstrate that Beyer gave any false testimony related to his experience with accounting practices at
KLA-Tencor, and then Brocade. Beyer testified on direct
examination that he was instructed not to use email at Brocade to discuss backdating stock options, in order to avoid an
“audit trail” for an “incorrect practice.” Defense counsel then
cross-examined Beyer about his work at KLA-Tencor, and
that company’s practice of backdating stock options. Defense
counsel then introduced evidence of emails sent to Beyer at
KLA-Tencor showing a list of backdated stock options to
undermine Beyer’s credibility and to show that backdating
was a common practice. On redirect, the Government sought
to distinguish KLA-Tencor’s process of pricing stocks with
the backdating process at Brocade.
Approximately a week after Beyer’s testimony, defense
counsel raised an objection to his testimony on prosecutorial
misconduct grounds. According to Reyes, the Government’s
effort to distinguish the two practices was prosecutorial misconduct, because the Government surely knew that backdating was occurring at KLA-Tencor. The district court denied
the objection on the ground that the witness did not give false
testimony because the questions posed on redirect were
related to Beyer’s own knowledge of the practices at KLATencor.2
2

The district court also denied defense counsel’s proffered limiting jury
instructions as “enormously argumentative” and “totally inappropriate.”
Defense counsel, while objecting to the Government’s proposed limiting
instructions, and despite the trial court’s repeated efforts to solicit input,
refused to offer any substantive suggestions that would make the Government’s version acceptable. Defense counsel’s complete rejection of any
limiting instructions except its own does not, per se, make the Government
responsible for failing to correct misleading testimony. See Blueford, 312
F.3d at 968.

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[8] The district court did not abuse its discretion in finding
that there was no prosecutorial misconduct based on the Government’s questioning of Beyer on redirect. Beyer’s direct
testimony dealt with his concerns about Brocade’s stock
option practices, when compared with his experiences at
KLA-Tencor. The defense sought to impeach Beyer on the
grounds that he was not a credible witness and that he had lied
about his experience at KLA-Tencor, in order to show that he
did not actually have concerns about Brocade’s practices. On
redirect, the Government asked questions that were specifically related to Beyer’s personal knowledge about KLATencor’s practices, and did not seek an inference that, regardless of any knowledge Beyer may have had, the KLA-Tencor
never backdated its stock options. Because there is no evidence that Beyer knowingly offered false testimony, or that
the Government sought to draw false inferences beyond
Beyer’s personal knowledge testimony, Reyes fails to show
prosecutorial misconduct. See Reyes, 577 F.3d at 1077 (finding prosecutorial misconduct where the Government made
statements that it knew, or had very strong reasons to doubt,
that such statements were accurate).
Moreover, even if the district court did err in permitting
Beyer’s testimony, it was harmless. See Blueford, 312 F.3d at
973-74. Three other witnesses from Brocade’s Human
Resources department testified that they thought the backdating practices at Brocade were improper. The jury was specifically instructed that backdating was not in and of itself illegal.
The jury also heard other testimony that a significant number
of other companies had engaged in backdating as a routine
practice. Accordingly, whether the jury knew specifically
about KLA-Tencor’s backdating practices from Beyer was
unlikely to substantially affect the jury’s verdict. See McKoy,
771 F.2d at 1212.
[9] The district court also did not abuse its discretion when
it denied defense counsel’s motion to strike Carol Bowie’s
testimony. Martinez-Rodriguez, 472 F.3d 1087, 1091 (9th Cir.

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2007). Bowie testified that investors care how companies
compensate employees and that granting stock options is the
equivalent of granting equity in the company. She also testified about materiality, see infra, and about a report finding
that Brocade had a “disturbing pattern” of granting stock
options to Reyes when the stock price dropped.
Reyes strongly objects to Bowie’s “arresting” testimony
that his compensation (through the grant of stock options,
most of which were not exercised) increased 1,896% at the
same time that Brocade’s stock prices were falling. Reyes
claims that this evidence is irrelevant and unfairly prejudicial
because it relies on biases and class prejudice.
[10] Notably, Reyes does not explain how the introduction
of Bowie’s testimony constitutes prosecutorial misconduct.
Reyes does not demonstrate that such testimony was false, or
that the Government sought to draw improper inferences
based on its admission. See Reyes, 577 F.3d at 1077. As previously noted, while it would be improper to admit this evidence simply to show Reyes’s wealth, the evidence is relevant
to Reyes’s motives for the backdating scheme, since he had
a financial interest in the process of backdating options. See
Mitchell, 172 F.3d at 1108-09. The 1,896% compensation
increase figure is not so “arresting” as to make it unfairly
prejudicial because this figure was tied to potential gain had
Reyes exercised all of the stock options. Fed. R. Evid. 403.
The record reflects that Reyes did not exercise all of his stock
options, and the jury was clearly informed of that fact. Under
these circumstances, the district court did not abuse its discretion by permitting Bowie’s testimony.
D. Reyes also maintains that the district court erred in
admitting public statements—in the form of two press
releases and a civil pleading (answer)—made by his first
defense counsel to the effect that Reyes did not engage in
backdating options at Brocade (collectively, the Prior Case
Evidence). Specifically, Reyes argues that the admission of

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the Prior Case Evidence was irrelevant to establishing his
guilt and was unfairly prejudicial because it was introduced as
evidence of his guilt.3
[11] The district court did not abuse its discretion in admitting the Prior Case Evidence. At his second trial, Reyes’s
defense strategy was to admit that he backdated stock options,
but deny that he had knowledge and responsibility for misreporting the compensation expenses. To show that Reyes
understood that he was engaged in illegal conduct, the Government introduced the testimony of an attorney who conducted an internal investigation of Brocade’s practices, at the
Company’s request. The attorney testified that Reyes told him
that he never backdated stock options. Defense counsel
sought to discredit the attorney by questioning the attorney’s
memory and bias. To corroborate the attorney’s testimony, the
Government introduced Reyes’s first defense counsel’s press
releases and his answer in the civil enforcement suit brought
by the SEC. For example, the press releases quoted Reyes’s
first counsel, who claimed that “Mr. Reyes did not backdate
options.” Reyes’s answer to the SEC’s civil complaint made
similar denials. Reyes objected to these admissions.
[12] The statements were relevant because they were
inconsistent with Reyes’s position at his second trial, to the
effect that he engaged in backdating, and were used to corroborate another Government witness’s testimony that Reyes told
him that he did not backdate. The Prior Case Evidence was
also relevant to Reyes’s guilty state of mind. See United
States v. Perkins, 937 F.2d 1397, 1402 (9th Cir. 1991) (false
exculpatory statements can be considered as evidence of consciousness of guilt).
3

Reyes does not explain how the Government engaged in prosecutorial
misconduct by introducing the Prior Case Evidence at trial. He does not
demonstrate how the evidence is false or how the Government sought to
draw false inferences from the facts, and fails to show that the Government knew or should have known that such inferences were false. See
Reyes, 577 F.3d at 1077.

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E. Reyes also asserts that the prosecution unduly focused
on a theme of corporate responsibility whereby Reyes was
ultimately responsible for any misconduct because he was
CEO of Brocade. In particular, Reyes points to prosecution’s
references to corporate culture and that Reyes signed the SEC
filings. Reyes also contends that the district court erred by not
giving proposed defense jury instructions directing the jury
not to give any significance to Reyes’s position as CEO of the
Company, or to the legal concept of respondeat superior liability.4 We disagree.
[13] Reyes did not object at trial to the introduction of evidence related to Reyes’s responsibilities as CEO of the Company. Moreover, the district court did not plainly err when it
allowed the introduction of evidence that Reyes, in his role as
CEO, signed the financial statements and representation letters which formed the basis of the Government’s charges that
Reyes falsified Company books and records, and lied to Company auditors. See Geston, 299 F.3d at 1134; 15 U.S.C.
§§ 78m(b)(2)(A) and 78ff, 17 C.F.R. § 240.13b2-1 (falsifying
corporate books and records); 15 U.S.C. § 78ff, 17 C.F.R.
§ 240.13b2-2 (making false statements to auditors). In further
clarification of the purpose of the evidence, the Government
argued that as CEO of the Company, Reyes knew about what
was occurring at Brocade regarding the granting of stock
options, not that he should be held liable simply because he
was the CEO.
[14] The district court also did not abuse its discretion
when it rejected defense counsel’s proposed jury instruction
that a corporate officer is not criminally responsible for the
acts of subordinates. The issue arose after the district court
received a question from a juror part way through trial asking
the court if Reyes was individually liable, or liable as a CEO.
4

Reyes does not specifically explain how the prosecutors allegedly
engaged in misconduct as to this issue.

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In response, the court told the jury that it would be instructed
on the issue at the end of the trial.
Reyes’s claim that the district court’s given instructions did
not adequately cover his theory of defense is reviewed de
novo. United States v. Howell, 231 F.3d 615, 629 (9th Cir.
2000). The district court has wide discretion in formulating
the instructions to the jury, see, e.g., United States v.
Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985), and we
review its decision for an abuse of discretion. Franklin, 321
F.3d at 1240-41. The court did not commit reversible error by
refusing to give a separate instruction where “other instructions, in their entirety, adequately cover that defense theory.”
See Thomas, 612 F.3d at 1120 (9th Cir. 2010).
[15] The jury was properly instructed before closing arguments and the commencement of jury deliberations. The trial
court properly instructed the jury as to the required elements
of each of the crimes charged. Jurors are presumed to follow
the court’s instructions. Zafiro v. United States, 506 U.S. 534,
540 (1993). From the instructions given, it was clear that the
jury could not find Reyes guilty simply due to his position as
CEO of Brocade. Therefore, the district court’s refusal to give
the requested instruction regarding that aspect of the defense’s
theory did not constitute reversible error. See, e.g., United
States v. Reed, 575 F.3d 900, 925 (9th Cir. 2009) (alteration
in original) (“A district court may properly refuse to give a
‘mere presence’ instruction when the government’s case rests
on ‘more than just a defendant’s presence, and the jury is
properly instructed on all elements of the crime . . . .” (quoting United States v. Negrete-Gonzales, 966 F.2d 1277, 1282
(9th Cir. 1992)).
[16] Accordingly, we conclude that Reyes has failed to
show that the Government made any false or misleading statements based on the evidence introduced, which necessarily
means that Reyes failed to show that the Government knowingly made any misrepresentations. See Reyes, 577 F.3d at

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1077. As a result, there is no evidence of sufficient facts in
this record supporting any allegation of prosecutorial misconduct that would “so infect[ ] the trial with unfairness as to
make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted).
II.

Sufficiency of the Materiality Evidence

[17] A. “[A]ny person who uses or employs a manipulative
or deceptive device in connection with the sale of any security
commits securities fraud.” United States v. Jenkins, 633 F.3d
788, 801-02 (9th Cir. 2011) (citing 15 U.S.C. § 78(j)(b)), 17
C.F.R. § 240.10b-5(b) (prohibiting “any untrue statement of a
material fact”)). Materiality is one element of securities fraud.
Id. at 802 (citing In re Cutera Secs. Litig., 610 F.3d 1103,
1108 (9th Cir. 2010) (“Central to a 10b-5 claim is the requirement that a misrepresentation or omission of fact must be
material.”).
For an omission to be material, “there must be a substantial
likelihood that the disclosure of the omitted fact would have
been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.”
Basic Inc. v. Levinson, 485 U.S. 224, 231-32 (1988) (citation
and internal quotation marks omitted); United States v.
Tarallo, 380 F.3d 1174, 1182 (9th Cir. 2004) (“For securities
fraud, a statement is material if there is a substantial likelihood that a reasonable investor would consider it important in
making a decision.”). “[T]he standard of materiality is judged
from the perspective of a ‘reasonable investor,’ and is therefore an objective one.” Reyes, 577 F.3d at 1075 (rejecting
Reyes’s argument that witnesses’ testimony failed to establish
materiality because they made no personal decision to invest
in Brocade’s stock).
Reyes argues that the prosecution failed to prove that additional disclosures related to the APB 25 non-cash expenses

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would have been material to investors. In particular, Reyes
argues that the testimony of Bowie and Robert McCormick,
a lawyer who supervised proxy voting for Fidelity Investments, only related to proxy voting decisions and did not
establish that APB 25 expenses could influence a reasonable
investor’s decision. Reyes also maintains that the two Brocade investors who testified, Kevin Kilgannon and David
Ryan, did not establish that they found APB 25 information
important.5 We disagree with Reyes’s highly theoretical and
distorted reading of the materiality standard.
[18] “We have recognized that information regarding a
company’s financial condition is material to investment.” Id.
at 1076 (citing SEC v. Murphy, 626 F.2d 633, 653 (9th Cir.
1980) (“Surely the materiality of information relating to
financial condition, solvency and profitability is not subject to
serious challenge.”)); see also Berson v. Applied Signal Tech.,
Inc., 527 F.3d 982, 985 (9th Cir. 2008) (“[A] statement is misleading if it would give a reasonable investor the impression
of a state of affairs that differs in a material way from the one
that actually exists.” (Internal citations and quotation marks
omitted)). Here, there was substantial evidence for the jury to
rely on in finding materiality based on the extent to which
5

Reyes also contends that as a matter of law no jury could find that the
omission of APB 25 expenses was matter based on “basic market economics.” Reyes’s academic theory is that decreased earnings will only lead to
lower securities prices if the earnings are cash earnings. GAAP earnings,
Reyes maintains, reflect only non-cash accounting and does not affect
future cash flows, which “should” not affect stock price. Because APB 25
options expenses are non-cash accounting entries, omitting them “should
not affect stock valuations by reasonable investors.”
Notwithstanding this theoretical analysis of how the market should
behave, the Government proffered testimony suggesting that actual investors do care about earnings prices. Where, as here, the earnings were overstated because of improper accounting at the time, such information
affects investors decisions to buy or sell. Moreover, the overarching legal
conclusion in Reyes is applicable, as the court concluded that the “false
records” could affect a reasonable investor because it produced an “incorrect picture” of Brocade’s finances. Reyes, 577 F.3d at 1075-76.

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Brocade’s true financial condition was not disclosed to investors.
In particular, the Government presented evidence that the
backdating scheme affected Brocade’s reported earnings. Brocade’s net income was overstated by almost $1 billion
between 2000 and 2004; it reported profits in 2001 and 2002
when it should have reported losses, and underreported losses
by almost $500 million in 2003 and 2004. Government expert
Fujuimoto testified that APB 25 calculations affected the
reported earnings (unlike FAS 123 disclosures). Further,
McCormick provided identical testimony to that which he
gave at Reyes’s first trial that Fidelity’s policy was to vote
against company plans that allow in-the-money options
because it costs the company more money and can affect
shareholder returns. Bowie’s testimony was consistent with
McCormick’s. A jury could reasonably conclude based on
this testimony that investors would want to know information
that affects investment returns.
Further, two actual Brocade investors testified that they
cared about accurately stated earnings. Kilgannon testified
that, as an investor, whether a company was really suffering
a loss but reported profits, would “have been important” to
him. He also testified that he sold his remaining Brocade
shares after he learned that the company was restating its
earnings. Ryan traded on a basis of the stock’s price and trading volume. He testified that price follows earnings and that
he decided to sell when he heard of Brocade’s restated earnings. While the Brocade investors’ testimony is not specific
to APB 25 non-cash expenses, it is sufficient to help establish
materiality in this case because investors care about earnings,
which at that time were required to reflect APB 25 non-cash
expenses.
[19] Taking into account the cumulative testimony of the
witnesses regarding the materiality of the Company’s misstatement of its earnings, coupled with the information in the

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Company’s financial statements and SEC filings, and viewing
the evidence in the light most favorable to the Government,
a rational jury could find that Brocade’s significantly overstated net income and underreported losses were material to
investors. Reyes, 577 F.3d at 1076; Berson, 527 F.3d at 985.
Accordingly, we reject Reyes’s narrow reading of the materiality standard.
[20] B. Reyes also contends the prosecution improperly
suggested to the jury that it could find materiality based on
proxy-voting decisions, and that the district court erred
because it did not give an instruction that would prevent the
jury from being mislead. We disagree.
Reviewing for plain error, Geston, 299 F.3d at 1134, Reyes
does not point to any place in the record where we could find
that the prosecutors acted in a “well-calculated” manner to
“mislead the jury” as to this issue. Having various unconnected references in the record is not sufficient to show prosecutorial misconduct where the Government did not offer the
proxy voting to establish materiality. Rather, the voting preferences testimony largely related to the reasons why the witnesses voted against plans permitting in-the-money options,
because they can lead to lesser earnings, about which investors do care.
[21] Second, while improper accounting requiring a
restatement does not, by itself, establish materiality, it can be
used as evidence. See DSAM Global Value Fund v. Altris
Software, Inc., 288 F.3d 385, 390 (9th Cir. 2002) (“[T]he
mere publication of inaccurate accounting figures, or a failure
to follow GAAP, without more, does not establish scienter.”
(citation omitted)); Gebhardt v. ConAgra Foods, Inc., 335
F.3d 824, 829 (8th Cir. 2003) (“We do not believe that restating earnings makes the original misstatement material per se
. . . [but] those facts are part of the total mix of information
available to investors and are deserving of some consideration.”). Here, the Government did not argue that Brocade’s

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financial restatement alone, which was required because the
Company’s accountants found material discrepancies in the
financials, rendered Reyes criminally culpable.
[22] The district court did not abuse its discretion by not
giving Reyes’s proposed jury instruction. The jury was properly instructed as to the materiality requirements under Basic,
485 U.S. at 231-32, and is presumed to follow those instructions, Zafiro, 506 U.S. at 540. That is sufficient, particularly
where the context for the testimony related to how granting
in-the-money option affects earnings. Further, the trial court
gave limiting instructions during trial concerning the materiality of accounting restatements, and gave correct materiality
instructions at the end of trial.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court.