United States v. Wang ( 2020 )


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  •           United States Court of Appeals
    For the First Circuit
    Nos.18-2232,18-2233,19-1910,19-1911
    United States,
    Appellee,
    v.
    SCHULTZ CHAN, a/k/a JASON CHAN; SONGJIANG WANG,
    Defendants, Appellants.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Indira Talwani, U.S. District Judge]
    Before
    Thompson, Barron,
    Circuit Judges.*
    Peter Charles Horstmann, with whom Elliot Weinstein was on
    brief, for appellants.
    Carol Head, Assistant United States Attorney, with whom
    Andrew E. Lelling, United States Attorney, Jordi DeLlano,
    Assistant United States Attorney, and Kriss Basil, Assistant
    United States Attorney, were on brief, for appellee.
    * Judge Torruella heard oral argument in this matter and
    participated in the semble, but he did not participate in the
    issuance of the panel's opinion in this case. The remaining two
    panelists therefore issued the opinion pursuant to 
    28 U.S.C. § 46
    (d).
    November 20, 2020
    - 2 -
    THOMPSON, Circuit Judge.     Two biostatisticians employed
    by two publicly traded biopharmaceutical companies were convicted
    of securities fraud and conspiracy to commit securities fraud after
    they bought and sold shares in each other's employing companies.
    When processing their stock transactions, both were in possession
    of confidential raw data from clinical trials of drug treatments
    from the other's company.   On appeal, they make several claims of
    trial and sentencing error, including challenges to:        (1) the
    denial of their motions for judgments of acquittal on each count
    of conviction, (2) the denial of a motion to compel production of
    a letter, (3) the calculation method for the adjusted base offense
    level for one of the defendants, and (4) the restitution order.
    For the reasons discussed below, we affirm across the board.
    BACKGROUND
    When, as here, defendants challenge the sufficiency of
    the evidence to support their convictions, we provide our summary
    of the facts in the light most favorable to the jury's verdict.
    United States v. Charriez-Rolón, 
    923 F.3d 45
    , 47 (1st Cir. 2019).
    We use this section to paint the big picture of what happened in
    this case; we'll save some of the nitty-gritty detail for the
    discussion section below, as needed, to complete the picture as we
    tackle each issue on appeal.
    - 3 -
    Akebia & Defendant Chan
    Akebia Therapeutics, Inc. (Akebia) is a publicly traded
    biopharmaceutical company focused on the development of treatments
    for kidney disease.      Schultz Chan, one of the defendants, is a
    biostatistician who has spent his career working on clinical trials
    in biotech companies.     In the summer of 2015, Akebia hired Chan to
    be its first in-house statistician; his role as Akebia's Director
    of Biostatistics started on August 17, 2015. This was an important
    time for the company; it was in the midst of closing out an
    important clinical trial of a treatment for dialysis patients with
    chronic kidney disease (known as the "11 study").     The results of
    the "11 study" would not only affect the target patient population
    but also those who had invested in Akebia by holding shares of its
    publicly traded stock.1
    Three days before Chan started working at Akebia, one of
    its in-house attorneys sent an email to all Akebia's employees
    imposing a blackout period on them, effective immediately.         A
    1 According to Akebia's Chief Medical Officer, there are three
    phases of clinical trials involving humans when a new treatment is
    developed. A phase 1 trial typically involves healthy volunteers
    to determine the general safety of the treatment. A phase 2 trial
    involves one- to two-hundred patients who are sick with the illness
    the new medicine is designed to treat.       When a phase 2 trial
    achieves good results, then phase 3 is designed with oversight
    from the Food and Drug Administration to test the treatment with
    hundreds or thousands of patients with the target illness. The
    "11 study" was a phase 2 trial of a treatment which came to be
    known as Vadadustat.
    - 4 -
    "blackout period" is when a company prohibits its employees -- or
    a group of its employees -- from buying or selling its stock
    because those employees may be, or are, in possession of important
    information that has not yet been released to the public.            This
    information is referred to as "material, non-public information"
    (MNPI) to those in the industry.             Blackout periods are often
    imposed around the quarterly release of financial information or
    the release of clinical trial data because it prevents insiders
    from using company information which could impact stock pricing.
    Chan was part of the team responsible for analyzing the
    data from the clinical trial and delivering some key results to
    Akebia's executives, such as whether the treatment has been working
    and whether there are any red flags about the safety of the
    treatment.      Data from the completed "11 study" was ready for
    analysis   in   the   first   days   of   Chan's   employment.   Akebia's
    executives needed the analyzed results from the "11 study" as soon
    as possible so they could decide how and when to release the
    results to the public and, most importantly, to Akebia's existing
    and potential investors.
    On August 19, 2015, Chan and others on his team received
    good news; the preliminary data from the "11 study" showed almost
    zero "sudden adverse effects" from the treatment tested such as
    - 5 -
    deaths, strokes, deep vein thrombosis, or heart attacks.2                   This
    was important news because a report released the month before had
    highlighted the results from a study of the same treatment tested
    on non-dialysis patients with chronic kidney disease (the phase 2
    "7 study") in which three patients who had received the treatment
    died.       That report had posited that these "safety issues" had the
    effect of "weigh[ing] down" Akebia's stock price. Akebia announced
    the full results from the "11 study" to the general public on
    September 8, 2015.
    Merrimack & Defendant Wang
    Merrimack    Pharmaceuticals,     Inc.    (Merrimack)    is     a
    publicly       traded   biopharmaceutical      company   dedicated     to    the
    development of diagnostics and treatments for cancer.            In 2013 and
    2014, Merrimack tested a treatment it had developed to prolong the
    survival of those with metastatic pancreatic cancer who were also
    undergoing chemotherapy.         The development of this treatment (known
    as MM-398) had progressed to a phase 3 trial (see supra note 1),
    referred to as the NAPOLI-1 study.           The NAPOLI-1 study's design
    included       specific     benchmarks;   for     instance,    they     needed
    approximately 405 patients to enroll in the trial and the study's
    data would close out upon the 305th patient death.            Merrimack used
    press releases to communicate information about these benchmarks.
    2   One patient had suffered a heart attack.
    - 6 -
    For example, a press release issued on August 28, 2013, announced
    Merrimack had reached its patient enrollment goal of 405 patients
    in the NAPOLI-1 study.   Merrimack also announced the results from
    the completed NAPOLI-1 study through a press release issued on May
    1, 2014, after the 305th patient had passed away in February and
    the team had analyzed the results.
    Merrimack initially thought the 305th patient death
    would occur in the fall of 2013.   Anticipating this milestone, in-
    house counsel imposed a stock trading blackout period during the
    summer of 2013 on those who worked closely with the study.      The
    blackout period was lifted in November because the study had not
    yet reached the 305th patient death, and employees were admonished
    not to trade in Merrimack stock if they were in possession of MNPI
    about the NAPOLI-1 study.   A blackout period was again imposed on
    April 21, 2014, when the final data from the NAPOLI-1 study was
    available to a select few employees for analysis.     As previously
    stated (but to close the chronology of events), Merrimack issued
    a press release with the final results from the NAPOLI-1 study on
    May 1, 2014.
    Enter Songjiang Wang, the other defendant in this case.
    He joined Merrimack in 2011 and, during the NAPOLI-1 study, he led
    the statistical programming group at Merrimack.     Wang's role for
    the NAPOLI-1 study was to write the computer program to execute
    the data analysis plan.     To accomplish this task, Wang used a
    - 7 -
    statistical analysis plan (SAP) which Merrimack developed as part
    of the FDA approval process. Wang had access to the NAPOLI-1 study
    data from the summer of 2013 through the duration of the study;
    this preliminary data would have been used to test the computer
    program he was writing in preparation to execute the ultimate data
    analysis once the study was over and the dataset was final.   Wang
    was also part of the team who analyzed the final dataset in April
    2014.
    Where Friendship and Banking Activity and Stock Trading Meet
    And now, the defendants, Akebia, and Merrimack converge.
    The defendants met for the first time around 2008 when Chan, then
    a senior director of biostatistics at FoldRx, hired Wang as a part-
    time statistical programming consultant.   Chan and Wang stayed in
    touch through subsequent job changes and moves around the country.
    In 2012 and 2013, Chan borrowed money from Wang to renovate real
    property Chan owned in Massachusetts and Connecticut.   Rather than
    immediately spend some of the borrowed money on the property
    renovations, however, Chan invested it in stocks, including shares
    of Merrimack (where Wang worked). When Chan applied for a position
    at Akebia, Wang served as a reference for him.   After Chan started
    working at Akebia, the men texted regularly and met frequently for
    lunch.
    Chan and Wang were active investors in the stock market,
    favoring shares in biopharmaceutical companies.     A deep dive by
    - 8 -
    the government into their financial records revealed their trading
    activities as well as timing of withdrawals of cash from their
    bank accounts, and transfers of money between their own bank
    accounts and brokerage accounts.   For example, between August 2013
    and March 2015, Chan purchased Merrimack shares on at least thirty-
    seven different occasions, with his biggest purchase on April 21,
    2014, when he placed an order to purchase 32,522 shares as opposed
    to the 2,000-10,000 shares he usually bought at one time.
    From November 11, 2013 through February 26, 2014, Wang
    withdrew between $4,000 and $7,000 in cash eight times.     Between
    December 3, 2013 and February 27, 2014, Chan made seven deposits
    of $6,800 to $12,000 in cash or checks to his bank account and
    purchased shares of Merrimack on at least four days during this
    time period.   He sold all of his Merrimack shares on March 2, 2015.
    A few weeks later, Chan transferred approximately $98K from one of
    his brokerage accounts to a regular bank account, then wrote a
    $84K check which he gave to Wang, who deposited it into his own
    bank account on March 26, 2015.
    In addition, Chan bought shares of Akebia's stock during
    the first week of his employment there in August 2015 and during
    a blackout period imposed by the company on its employees.     Wang
    also bought shares of Akebia's stock sixteen times between August
    28, 2015 and September 4, 2015.     (These dates will be important
    when we get to our discussion below.)
    - 9 -
    FINRA's Interest Is Piqued and the Feds Close In
    The Financial Industry Regulatory Authority (FINRA) is
    "a non-governmental organization that regulates professionals and
    firms in the securities industry," United States v. Bray, 
    853 F.3d 18
    , 23 (1st Cir. 2017), and helps the SEC (Securities and Exchange
    Commission) enforce federal securities laws.       FINRA got in touch
    with both Akebia and Merrimack soon after each company announced
    the results from the clinical trials identified above to conduct
    a routine review and to ask who knew about the trial results before
    they were publicly announced, as well as to find out if any of
    these individuals knew any of the company's stockholders.
    A   couple   of   weeks   after   Merrimack's   May   1,   2014
    announcement of the results from the phase 3 clinical trial of MM-
    398, Merrimack's General Counsel sent an email to several Merrimack
    employees, including Wang, asking for information pursuant to an
    inquiry from FINRA about who was aware of the MM-398 phase 3
    results before Merrimack announced the results publicly.             Wang
    replied within an hour, stating he was aware of the data from the
    NAPOLI-1 study on April 19, 2014.     Three months later, Merrimack's
    General Counsel sent another email to several Merrimack employees,
    Wang included, asking each of them -- again, at FINRA's behest --
    to review a list of names and disclose which individuals on that
    list each of the employees knew.         Wang did not reply until the
    General Counsel followed up two weeks later.      Wang then replied he
    - 10 -
    had "reviewed the list of individuals in [the] email attachment
    and couldn't recognize anyone on the list that [he] kn[e]w."     The
    list included "Chan, Schultz" and "Wang, Linda" (Chan's wife, no
    relation to the defendant Wang).
    Meanwhile, over at Akebia:     Two months after Akebia's
    September 2015 announcement of the results of its "11 study," the
    legal department sent an email to all Akebia employees, vendors,
    and consultants who had had access to the "11 study" data prior to
    the September 8 public announcement, asking them to complete a
    form, per a request from FINRA, disclosing whether they knew any
    of the people on a list attached to the request.      Chan responded
    within an hour, declaring he didn't know anyone on the attached
    list.   The list included an entry for "Wang, Songjiang."     Within
    half an hour of responding to this request, Chan sent a text
    message to Wang asking if he would be in his office that day.   Wang
    replied:   "No, work from home today.    Find some time next week."
    The feds first approached and interviewed Chan in June
    2016.   Chan admitted he had bought Akebia stock after receiving
    the "11 study" data in August 2015.     Chan also told the agents who
    interviewed him that the $84,143.98 check he had given to Wang was
    to repay him for the loaned money for the property renovations in
    Connecticut.   The feds likewise interviewed Wang in June 2016.
    Wang initially denied loaning money to Chan, but then stated he
    had loaned money to Chan for a real estate transaction in Texas
    - 11 -
    which Chan had repaid in cash.    According to the FBI special agent
    who arrested Wang in February 2017, while in transport post-arrest
    Wang said: "If I was smart, I wouldn't have done this."
    Indictment and Trial
    The defendants were ultimately indicted and tried on
    four counts of securities-related violations:
    1. The defendants conspired to commit securities fraud, which
    violated 
    18 U.S.C. § 371
     (Count One);
    2. The defendants committed securities fraud in and around April
    2014 culminating in Chan's purchase and sale of Merrimack
    shares after receiving MNPI from Wang, which violated 15
    U.S.C. §§ 78j(b), 78ff(a), as well as 
    17 C.F.R. § 240
    .10b-5
    (Count Two);
    3. The defendants committed securities fraud in and between
    August 2015 and September 2015 resulting in Wang's purchase
    and sale of Akebia shares after receiving MNPI from Chan,
    which violated the same laws as Count Two (Count Three); and
    4. Chan committed securities fraud in and around August 2015
    when he purchased and sold shares of Akebia stock after he
    came into possession of MNPI from Akebia (Count Four).
    In the pretrial proceedings, the defendants asked the
    district   court   to   force   the   government   to   turn   over   an
    investigative referral letter FINRA sent to the SEC.      A magistrate
    judge denied the motion to compel production, concluding it was
    irrelevant because "the government ha[d] already produced all of
    the corresponding exhibits and attachments on which the FINRA
    investigative referral letter [was] based, and the letter itself
    therefore [was] not likely to contain any new information the
    defendants [did] not already have."
    - 12 -
    The defendants were tried by a jury over ten days in
    June and July 2018.      Several colleagues and executives from Akebia
    and Merrimack who worked with Chan or Wang testified.
    Chan also took the stand (Wang opted not to, as was his
    right);   during   his    testimony   he   offered   various    assertions
    relevant to the issues presented for our review on appeal.                He
    denied giving MNPI to Wang or receiving any from him.                   Chan
    testified he had been investing in the stock market for fifteen
    years and developed a daily morning routine of reading through
    news online about biotech and pharmaceutical companies, checking
    stock prices while he drank his morning coffee.        He stated he used
    publicly available information about biotech companies, found on
    company websites, in reports filed with the SEC, and in medical
    journal articles, to learn about the drugs under development and
    to help him decide where and whether to invest.         With respect to
    Wang, Chan testified he borrowed money in several installments for
    renovations to property in Boston and Connecticut -- approximately
    $80,000 in total -- but he ended up using much of the borrowed
    money to purchase shares in Merrimack stock instead.           Chan claimed
    he paid the loan back, with interest, by check.
    With    respect   to   Akebia   and   Merrimack     stock,   Chan
    admitted he purchased Akebia stock three times in August 2015,
    - 13 -
    using limit orders3 on August 19 and 21, but he denied having had
    MNPI at the time he made these stock purchases.   Chan also admitted
    to placing a limit order on Merrimack stock which went through on
    April 21, 2014.   Chan testified that the flurry of text messages
    to Wang in the days and weeks after Chan started working at Akebia
    was simply to coordinate a time to have lunch and so Chan could
    thank him for serving as a reference for his job application at
    Akebia.
    Before the jury began its deliberations, the defendants
    properly moved twice for judgments of acquittal, which the district
    court eventually denied in writing after entertaining memoranda
    and oral argument from the parties.    The jury found Wang and Chan
    guilty of conspiracy to commit securities fraud and all counts of
    securities fraud with which they were charged.    The district court
    imposed a 36-month sentence of incarceration on Chan (more on the
    court's sentencing calculus in a moment) and ordered him to pay
    $153,428.72 in restitution to Akebia.    As for Wang, the district
    court ordered him to serve six months in prison and pay $17,047.64
    in restitution to Akebia.
    3 A "limit order" is an order to buy shares within specific
    parameters, such as below a certain price per share, or a specific
    number of shares, or shares up to a specified price. See Bray,
    853 F.3d at 23 n.2.
    - 14 -
    DISCUSSION
    The defendants claim four separate errors on appeal,
    three of which pertain to both and one of which pertains only to
    Chan:
         Denying their motions for judgments of acquittal of each count
    of conviction;
         Denying their motion to compel production of a letter from
    FINRA4
    4
    The defendants also assert the district court erred by not
    granting a posttrial motion to compel production of the grand jury
    testimony and exhibits which they had asked for during the
    sentencing phase of their case because they wanted "greater clarity
    as to what evidence and facts were presented to the Grand Jury as
    to the time frame of the MM-398 study and Wang’s possession of
    MNPI." In particular, the defendants were still after the FINRA
    "reports, referrals and records."        The Government filed an
    opposition to the motion, but it was never resolved; the district
    court did not enter an order ruling on the motion.
    As part of their appellate arguments before us, the defendants
    state, in a conclusory manner without any developed argument, that
    they showed a particularized need for the "grand jury minutes . . .
    related to the MM-398 timeline" because, after trial and before
    sentencing, the defendants wanted to "clarify the prejudicial
    variance for count 1" and the "interest of justice far outweighs
    any need for continuing grand jury secrecy in this case." Setting
    aside the lack of developed argument on this point for a moment,
    without a ruling from the district court this claim of "error" is
    not ripe for our review. Shea v. United States, 
    976 F.3d 63
    , 82
    (1st Cir. 2020) ("[W]e generally do not rule on questions --
    whether of fact or of law -- until a district court has done so,
    a practice that enhances the quality of our decisions both by
    allowing us to consider the district court's analysis and by
    allowing the parties to hone their arguments before presenting
    them to us." (quoting Moore v. United States, 
    871 F.3d 72
    , 79 (1st
    Cir. 2017))).    And in any event, the arguments before us are
    perfunctory and undeveloped, so the issue is waived. See Rodríguez
    v. Municipality of San Juan, 
    659 F.3d 168
    , 175 (1st Cir. 2011)
    ("It should go without saying that we deem waived claims not made
    or claims adverted to in a cursory fashion, unaccompanied by
    developed argument."); Holloway v. United States, 
    845 F.3d 487
    ,
    491 n.4 (1st Cir. 2017) (stating an argument was waived when party
    failed to provide any legal citations to support its argument).
    - 15 -
        Calculating Chan's adjusted base offense level using the
    market value of the stocks after the public information about
    the clinical trials had been released to the public; and
        Awarding restitution to Akebia.
    We will take each issue in turn.
    A. The Securities Exchange Act
    Before we tackle the motions for judgments of acquittal
    as to the conspiracy and securities fraud convictions, let's go
    over a quick primer on this area of the law.
    "The unlawful trading in securities based on material,
    nonpublic information, or illegal insider trading, is a well-
    established violation of Section 10(b) of the Securities Exchange
    Act . . . and the [SEC's] Rule 10b-5."               Bray, 853 F.3d at 24
    (citing Salman v. United States, 
    137 S. Ct. 420
    , 423 (2016)).
    "Section 10(b) of the Securities Exchange Act of 1934 and the
    Securities     and    Exchange      Commission's     Rule   10b–5    prohibit
    undisclosed trading on inside corporate information by individuals
    who are under a duty of trust and confidence that prohibits them
    from    secretly     using   such     information     for   their    personal
    advantage."    Salman, 
    137 S. Ct. at
    423 (citing 15 U.S.C. § 78j(b)
    (prohibiting the use, "in connection with the purchase or sale of
    any    security,"    of   "any   manipulative   or    deceptive     device   or
    contrivance in contravention of such rules as the [SEC] may
    prescribe") and 
    17 C.F.R. § 240
    .10b–5 (forbidding the use, "in
    connection with the sale or purchase of any security," of "any
    - 16 -
    device, scheme or artifice to defraud," or any "act, practice, or
    course of business which operates . . . as a fraud or deceit")).
    "The purpose of the Exchange Act and complementary SEC regulations
    is    'to   insure   honest    securities       markets   and    thereby   promote
    investor confidence.'"         United States v. McLellan, 
    959 F.3d 442
    ,
    457 (1st Cir. 2020) (quoting Chadbourne & Parke LLP v. Troice, 
    571 U.S. 377
    , 390 (2014)).
    [T]he Supreme Court has recognized two
    theories of insider trading liability:     the
    "classical theory" and the "misappropriation
    theory." The classical theory generally only
    imposes liability when a trader or tipper is
    an insider of the traded-in corporation. The
    classical insider-trader thus breaches a
    fiduciary duty owed to the corporation's
    shareholders. The misappropriation theory,
    however, creates liability when a tipper or
    trader       misappropriates      confidential
    information    from   his    source   of   the
    information.     The   misappropriator    thus
    breaches a fiduciary duty owed to the source.
    S.E.C. v. Rocklage, 
    470 F.3d 1
    , 5 (1st Cir. 2006).
    B. Motions for Judgments of Acquittal
    According   to   the    defendants,     they      were   entitled    to
    judgments of acquittal on all of the charges in the indictment:
    The    conspiracy    to   commit     securities    fraud     count     because    the
    evidence the government presented at trial varied prejudicially
    from    the   allegations      in    the   indictment     and    the   substantive
    securities fraud counts because there was not enough evidence at
    trial from which the jury could have found they were guilty beyond
    - 17 -
    a reasonable doubt. Because the defendants made the same arguments
    before the district court (therefore preserving this legal issue
    for our review), our task is to consider afresh their arguments
    about why they say they are entitled to judgments of acquittal.
    See Charriez-Rolón, 923 F.3d at 51.      That is, we give no deference
    to the district court's assessment of the same arguments when it
    evaluated the defendants' motions for judgments of acquittal.           Id.
    Conspiracy Conviction
    Count One of the operative indictment at trial (the
    second superseding indictment or SSI) charged the defendants with
    an illegal conspiracy "[b]eginning no later than November 2013 and
    continuing through at least September 2015" to commit securities
    fraud.
    The defendants don't attack the conspiracy conviction in
    a   conventional   "there   isn't   enough   evidence   to   support     my
    conviction" manner.     Instead, they frame their challenge as an
    impermissible variance from the allegations in the SSI.            Broadly
    speaking, they accuse the government of proving a conspiracy of
    which they had no notice, i.e., a conspiracy that started earlier
    than that alleged in the SSI, as well as of proving separate
    conspiracies rather than the single conspiracy alleged in the SSI.
    Not   surprisingly,   the   government   disagrees   with    all   of   the
    defendants' arguments, as we discuss below.
    - 18 -
    "A   variance   occurs    when    the   crime   charged   remains
    unaltered, but the evidence adduced at trial proves different facts
    than those alleged in the indictment."             See United States v.
    Dellosantos, 
    649 F.3d 109
    , 116 (1st Cir. 2011) (quoting United
    States v. Mangual–Santiago, 
    562 F.3d 411
    , 421 (1st Cir. 2009)).
    "A variance alone, however, does not necessitate disturbing a
    conviction; rather, 'a variance is grounds for reversal only if it
    is prejudicial . . . .'"           
    Id.
     (alteration omitted) (quoting
    Mangual–Santiago, 
    562 F.3d at 421
    ).        "Put differently, 'so long as
    the statutory violation remains the same as that alleged in the
    indictment, the jury can convict even if the facts are somewhat
    different than charged -- so long as the difference does not cause
    unfair prejudice.'"       
    Id.
     (alteration omitted) (quoting United
    States v. Wihbey, 
    75 F.3d 761
    , 774 (1st Cir. 1996)).                We have
    previously identified at least three ways in which a variance may
    cause unfair prejudice (also often referred to as affecting a
    defendant's substantial rights):
    First, a defendant may receive inadequate
    notice of the charge against him and thus be
    taken by surprise at trial.         Second, a
    defendant may be twice subject to prosecution
    for the same offense. Third, a defendant may
    be prejudiced by "evidentiary spillover": the
    "transference of guilt" to a defendant
    involved in one conspiracy from evidence
    incriminating     defendants    in     another
    conspiracy in which the particular defendant
    was not involved.
    Id. at 125 (quoting Wihbey, 
    75 F.3d at 774
    ).
    - 19 -
    For its part, the district court concluded there was a
    variance from the indictment because the SSI alleged Wang possessed
    MNPI from three separate clinical trials at Merrimack before the
    company released the results of each of these trials to the public,
    but the government only introduced evidence related to the NAPOLI-
    1 study ending in 2014 described above. The district court decided
    (and the government agrees) this variance was not prejudicial to
    the defendants because the testimony at trial was consistent with
    the SSI allegation that the conspiracy began in November 2013 and
    this start date alleged in the indictment put the defendants on
    notice for purposes of preparing to defend against the charged
    offenses.
    Upon de novo review, we agree with the district court.
    Here's why:
    There is no dispute the government only focused its
    presentation of the evidence on one of the three Merrimack clinical
    trials referenced in the SSI.       The evidence admitted at trial
    focused on the milestone dates related to the NAPOLI-1 study and
    the government did not make any attempt to prove Wang perpetrated
    securities fraud using MNPI from the other two clinical trials
    Merrimack was running around the same time and mentioned in the
    SSI.5       Herein lies the variance.     See id. at 116 (defining a
    5
    In the SSI, the government alleged Wang had access to the
    data from two separate clinical trials testing cancer treatments
    - 20 -
    variance as "crime charged remains unaltered, but the evidence
    adduced at trial proves different facts than those alleged in the
    indictment"     (quoting   Mangual-Santiago,    
    562 F.3d at 421
    )).
    Moreover, as the government points out, the evidence with respect
    to the part of the conspiracy involving Merrimack proved a narrower
    conspiracy than that alleged in the SSI because the government did
    not opt to focus its evidentiary presentation on two of the
    clinical studies referred to in the SSI.       The proof of a narrower
    conspiracy than that alleged in an indictment does not create a
    prejudicial variance.      See United States v. Mubayyid, 
    658 F.3d 35
    ,
    54 (1st Cir. 2011).
    The    defendants    argue   the   district   court    erred   by
    concluding they were not prejudiced by the variance, contending
    the prejudice arises in part from the lack of notice in the SSI
    that they would specifically be defending against Wang's alleged
    misuse of the MNPI from the NAPOLI-1 study starting with what Wang
    had in his possession in November 2013.          They also assert the
    unrelated to MM-398 (the treatment tested in the NAPOLI-1 study),
    the results of which were announced publicly during the alleged
    scope of the conspiracy:      (1) a phase 2 trial -- Merrimack
    announced the results to the public in November 2013, and (2) a
    phase 1 trial -- Merrimack announced the results to the public in
    December 2013. One of Merrimack's Vice Presidents testified at
    trial that Merrimack released good results from a phase 2 trial
    for "MM-121" on November 26, 2013, as well as favorable results
    from a phase 1 trial for "MM-302" on December 13, 2013.      Other
    than this testimony and the two relevant press releases, these two
    treatments did not factor in to the government's evidentiary
    presentation to prove the charges against the defendants.
    - 21 -
    prejudicial variance allowed "otherwise inadmissible evidence of
    [their] banking transactions to prejudice the jury's consideration
    of all offenses."    But we perceive no prejudice to the defendants
    because they clearly had adequate notice of the conspiracy with
    which they were charged: In more than one section, the SSI alleged
    a   conspiracy   began   in   November   2013   and   did   not   limit   this
    timeframe to one or more of the three clinical trials the SSI
    included in its general allegations.       See Dellosantos, 
    649 F.3d at 125
     (stating defendants may be unfairly prejudiced by variance if
    taken by surprise at trial due to inadequate notice of the charge
    against them).      For this reason, too, the defendants were not
    deprived of the ability to challenge the admission of banking
    transactions that precede what they consider to be the proper start
    date for any misconduct in regard to the NAPOLI-1 study.
    We also note that, even if we agreed with the defendants
    regarding the variance to the conspiracy for the securities fraud
    offense related to Merrimack, they have not alleged any variance
    from the allegations regarding the scheme as to the purchase of
    shares of Akebia's stock.        Therefore, the conspiracy conviction
    would remain in place.
    The defendants also argue judgments of acquittal are
    warranted because the SSI alleged a single conspiracy to commit
    securities fraud for both companies but the evidence at trial
    varied by supporting two separate and distinct conspiracies.               We
    - 22 -
    examine a defendant's claim of variance from the specifically
    charged conspiracy in terms of evidentiary sufficiency.     See 
    id. at 116
    ; United States v. Niemi, 
    579 F.3d 123
    , 127 (1st Cir. 2009)
    ("Whether evidence shows one or many conspiracies is a question of
    fact for the jury and is reviewed only for sufficiency of the
    evidence.").   "Three factors guide our assessment of whether the
    evidence was sufficient to prove that a set of criminal activities
    constituted a single conspiracy:    '(1) the existence of a common
    goal, (2) overlap among the activities' participants, and (3)
    interdependence among the participants.'"   United States v. Ortiz-
    Islas, 
    829 F.3d 19
    , 24 (1st Cir. 2016) (alteration omitted)
    (quoting United States v. Paz–Alvarez, 
    799 F.3d 12
    , 30 (1st Cir.
    2015)).   A single conspiracy "does not require the participants to
    . . . [have] participate[d] in each aspect of the conspiracy."
    
    Id. at 24-25
     (emphasis omitted) (quoting Dellosantos, 
    649 F.3d at 118
    ).
    For its part, the district court concluded these three
    factors were met by the evidence and there was sufficient evidence
    to support a single conspiracy with multiple crimes.      We agree.
    The evidence of the defendants' common goal to profit from their
    employers included their individual investments in the stock of
    each other's employers soon after each was in possession of
    critical data (MNPI) about clinical trials and their specified
    knowledge and skills to know how the results of the trials would
    - 23 -
    affect the stock prices of each defendant's employer.                              This
    evidence     points   to    the        common      goal     of   using      confidential
    information from each's employer to make strategic transactions of
    shares of stock but using each other to execute the actual stock
    orders to avoid company policy violations. See id. at 25; Mangual-
    Santiago,    
    562 F.3d at 421
    .        The     overlap     of   the   defendants'
    activities is demonstrated through this same evidence:                         Each was
    needed to achieve the goal of profiting from their investments in
    shares of both Akebia and Merrimack stock.                            The defendants'
    activities    were    interdependent            on    one    another     because   "the
    activities of one aspect of the scheme [we]re necessary [and]
    advantageous to the success of another aspect of the scheme."
    Mangual-Santiago,     
    562 F.3d at 422
         (quoting     United      States   v.
    Portela, 
    167 F.3d 687
    , 695 (1st Cir. 1999)).                     We hold, therefore,
    there was sufficient evidence to prove a single conspiracy.
    The defendants also argue that this purported variance
    resulted in spillover prejudice on the counts related to Merrimack
    which stemmed from the evidence presented regarding the Akebia-
    related charges and this prejudice -- they say -- affected their
    rights to a fair trial.                Specifically, the defendants contend
    Wang's bank withdrawals and the $84K check paid by Chan to Wang
    would not have been admitted had there been a separate Akebia trial
    - 24 -
    (which begs the question since no one asked for one).6                     The
    government,     in   response   to    the     defendants'   arguments   about
    spillover prejudice, states there was no transference of guilt to
    one defendant from evidence incriminating the other because there
    is ample evidence to support the convictions against each defendant
    based on their individual actions and statements in connection
    with the single conspiracy that was charged.
    The concern we have expressed in the past about prejudice
    stemming from "evidentiary spillover" or guilt transference from
    one defendant to another can be found in cases with multiple
    defendants    and    multiple   conspiracies      in   which   one   defendant
    allegedly may not be involved at all in one of the conspiracies,
    but may suffer from the evidence in support of the other defendants
    in those other conspiracies.          See Dellosantos, 
    649 F.3d at 125
    (vacating the defendants' convictions on the basis of a prejudicial
    variance resulting from both evidentiary spillover and lack of
    adequate notice).      Here, there could be no evidentiary spillover
    6  The defendants imply the evidence about Wang's cash
    withdrawals, which began in November 2013, would not have been
    admissible if the counts in the indictment had been severed and
    tried separately because the probative value would have been
    outweighed by the prejudicial effect.     There is no indication,
    however, that the defendants attempted to sever the counts or have
    each defendant tried separately. The district court said as much
    when it addressed the same argument in its decision denying their
    motions for judgments of acquittal. As such, any musings about
    what might have happened if the charges or defendants had been
    tried separately are speculation and carry no weight with us.
    - 25 -
    because there was evidence to support the two (and only two)
    defendants' involvement in the offenses perpetrated in furtherance
    of the single charged conspiracy.
    Each of the arguments the defendants made to challenge
    their convictions for conspiracy fails.7    We therefore affirm the
    district court's decision to deny the defendants' motions for
    judgments of acquittal on Count One.
    Securities Fraud Convictions
    Now   that   we've   explained   our   affirmance   of   the
    defendants' conspiracy convictions, we move on to discuss their
    evidentiary sufficiency challenge to their §§ 78j(b) and 78ff(a)
    7 The defendants also state a couple of claims in a summary
    fashion, without any attempt to develop the arguments.          For
    example, they say the district court failed to instruct the jury
    on the specific start and end date of the conspiracy and this
    created further prejudice from the claimed variance.            The
    defendants did not raise this concern with the district court and
    do not tell us either how they were prejudiced by this supposed
    error or where our case law says this matters. The argument is
    therefore waived. See Rodríguez, 
    659 F.3d at 175
    .
    The defendants also assert, for the first time in their brief,
    that a constructive amendment to the SSI occurred at trial because
    the government presented evidence of a conspiracy with respect to
    the results from the NAPOLI-1 study beginning in November 2013. A
    constructive amendment differs in focus from a prejudicial
    variance, see United States v. Valdés-Ayala, 
    900 F.3d 20
    , 36-37
    (1st Cir. 2018), and while the defendants define the concept and
    mention it a couple of times, they do not provide any argument or
    case law about how the evidence the government presented at trial
    constituted a constructive amendment from the SSI (as opposed to
    their arguments with respect to the variance).      Merely stating
    this issue without any developed argument is insufficient to
    warrant our exploration of the claim here. See Holloway, 845 F.3d
    at 491 n.4.
    - 26 -
    securities     fraud   convictions.     To    complete    our    review,     we
    "consider[] all the evidence, direct and circumstantial, in the
    light most favorable to the prosecution, draw[] all reasonable
    inferences consistent with the verdict, and avoid[] credibility
    judgments, to determine whether a rational jury could have found
    the defendant[s] guilty beyond a reasonable doubt."             United States
    v. Negrón-Sostre, 
    790 F.3d 295
    , 307 (1st Cir. 2015) (quoting United
    States v. Agosto-Vega, 
    617 F.3d 541
    , 548 (1st Cir. 2010)).                 As a
    reminder, both defendants were convicted of securities fraud for
    Chan's trades in Merrimack stock and Wang's trades in Akebia stock.
    Chan was also convicted of securities fraud for his own trades in
    Akebia's stock.
    The defendants generally focus their arguments about
    these three counts on the absence of enough evidence presented at
    trial to prove they possessed MNPI about the relevant clinical
    trials at their respective companies close in time to the records
    of   communication     between   them   and    their     securities-trading
    activities.     Indeed, this is where the timeline of events and
    specific dates we summarized many pages ago really comes into play:
    The defendants insist too much time passed between
       the dates associated with the evidence about possession of
    MNPI at the time of the trades in Akebia's and Merrimack's
    securities,
       the dates they allegedly had access to MNPI,
       the dates of communication between them, and
       the dates of their trading activities
    - 27 -
    for a jury to conclude they were guilty beyond a reasonable doubt
    of securities fraud.
    As we mentioned at the beginning of this discussion,
    there       are    two     theories       of     insider      trading,    classical     and
    misappropriation, both of which are at play with the defendants'
    convictions here.              "Under the 'traditional' or 'classical theory'
    of insider trading liability, § 10(b) and Rule 10b–5 are violated
    when    a       corporate       insider      trades     in    the    securities    of   his
    corporation on the basis of material, nonpublic information."
    United States v. McPhail, 
    831 F.3d 1
    , 10 n.4 (1st Cir. 2016)
    (quoting United States v. O'Hagan, 
    521 U.S. 642
    , 651-52 (1997)).
    Under       a     misappropriation           theory      of   securities       fraud,    the
    government         has    to    prove    the     defendants        committed   "fraud   'in
    connection         with'        a   securities          transaction,      .    .   .    [by]
    misappropriat[ing] confidential information for securities trading
    purposes,         in     breach     of   a     duty   owed    to    the   source   of   the
    information."            United States v. Larrabee, 
    240 F.3d 18
    , 21 (1st
    Cir. 2001) (quoting O'Hagan, 
    521 U.S. at 652-53
    ).                         "[I]ndividuals
    entrusted with confidential information about a corporation cannot
    'secretly use such information for their personal advantage,' even
    when they do not owe any direct fiduciary duty to that corporation
    or its shareholders."               Bray, 853 F.3d at 25 (quoting Salman, 
    137 S. Ct. at 423
    ).
    - 28 -
    When evaluating whether a tipper derived a
    personal benefit from his or her tip, we
    "focus on objective criteria, i.e., whether
    the insider receives a direct or indirect
    personal benefit from the disclosure, such as
    a pecuniary gain or a reputational benefit
    that will translate into future earnings."
    However, a personal benefit can "often" be
    inferred where "a relationship between the
    [tipper] and the recipient . . . suggests a
    quid pro quo from the latter, or an intention
    to benefit the particular recipient."
    Id. at 26 (alterations in original) (citation omitted) (quoting
    Dirks v. S.E.C., 
    463 U.S. 646
    , 663-64 (1983)).
    Chan's Merrimack Trades Using MNPI from Wang
    Here's what the evidence at trial, considered in the
    light most favorable to the prosecution, tells us about the
    defendants' activities leading up to Chan's trades in shares of
    Merrimack stock.   Bruce Belanger, a biostatistician and head of
    Biometry at Merrimack, worked with Wang from 2011-2016 and was his
    manager.    Belanger testified Wang received raw data from the
    NAPOLI-1 study every month from the fall of 2013 through April
    2014 even though the biometrics team would only officially analyze
    the data when it was final at the end of the study.   According to
    Belanger, Wang would have used this monthly data drop to develop
    the ultimate statistical computer program; a program their team
    would use to process the final results from the study.     Belanger
    was not aware of any other data sets Wang might have used to test
    - 29 -
    the program Wang was developing for the analysis of the final
    results.
    The    government's   investigation   into   Chan's   trading
    activity revealed Chan traded frequently in shares of Merrimack
    stock from August 2013 through April 2014. Chan's largest purchase
    of shares, however, occurred on April 21, 2014, two days after the
    biometrics team (which included Wang) received the last of the raw
    data, analyzed it, and celebrated the good results with champagne.
    Chan also placed an order to buy shares on April 28, 2014, again
    before the good results of the study went public on May 1.
    The    government's   investigation   also   revealed    Wang
    withdrew chunks of cash from one of his bank accounts, in $4,000
    to $7,000 increments, eight times between November 2013 and March
    2014.     Between December 2013 and March 2014, Chan made cash and
    check deposits into one of his bank accounts in $10,000 to $19,800
    increments.       In this same time period, Chan bought shares of
    Merrimack stock twenty times using a few different brokerage
    accounts.
    This summary of the evidence is enough to drive our
    analysis about whether there was enough to support the defendants'
    convictions on this count of securities fraud.           As the parties
    know well, we have previously listed and applied six factors to
    guide our examination of whether there was sufficient evidence to
    support     a     conviction   for   securities    fraud    under    the
    - 30 -
    misappropriation    theory:      "(1)      access    to     information;     (2)
    relationship between the tipper and the tippee; (3) timing of
    contact between the tipper and the tippee; (4) timing of the
    trades; (5) pattern of the trades; and (6) attempts to conceal
    either the trades or the relationship between the tipper and the
    tippee."   Larrabee, 
    240 F.3d at 21-22
    .
    During   oral   argument,       the    defendants      stated    each
    Larrabee   factor   identified     above         should    be   given      "equal
    consideration" and each factor is weaker in their case than when
    considered against the facts in Larrabee.                   In Larrabee, the
    evidence at trial showed the defendant called his stockbroker and
    instructed a purchase of shares one minute after receiving an email
    from an individual with MNPI at the company in whose stock the
    defendant was investing.      
    Id. at 20
    .    We held there was sufficient
    evidence to support Larrabee's conviction.                
    Id. at 24-25
    .     Chan
    and Wang assert the reasonable doubt as to their culpability lays
    in the days which passed between their supposed receipt of the
    MNPI, the communication between them, and the purchase of shares
    of either the Akebia or Merrimack stock.                  In their view, our
    holding in Larrabee should preclude affirming their convictions
    for securities fraud related to Chan's trades in Merrimack stock
    because the evidence admitted at trial was "too far attenuated"
    from the timing of the activities in Larrabee.                  The defendants
    urge us to declare the facts in Larrabee to be the "absolute
    - 31 -
    limit[]" of the applicability of circumstantial evidence to the
    time between obtaining MNPI and the alleged use of it to trade in
    securities.   We decline to do so.
    When we examine the evidence in this case, we find each
    of the six Larrabee factors is in fact met, especially given the
    uphill climb the defendants have when moving for a judgment of
    acquittal because we examine the evidence in the light most
    favorable to the prosecution.    See Negrón-Sostre, 790 F.3d at 307.
    First, Wang clearly had access to MNPI for the NAPOLI-1
    study; his response to the initial FINRA request reflected he had
    MNPI on April 19, 2014. In addition, Belanger testified Wang would
    have used raw monthly data while Wang developed the analysis
    program. The final statistical analysis plan (SAP) for the NAPOLI-
    1 study, admitted as an exhibit at trial, is clear that access to
    the data would be "strictly controlled by the Merrimack biometrics
    team";   limited   to   "authorized   personnel   for   specified   data
    review."   And since Wang was a member of the biometrics team, the
    jury could have reasonably concluded he was one of the authorized
    individuals for data review, especially in combination with his
    manager's testimony.    The raw data did not hide whether any given
    patient was receiving the treatment being tested in the NAPOLI-1
    study; it is therefore reasonable to infer Wang could have used
    the monthly raw data drop to run some preliminary analysis to gauge
    how the treatment fared on the study's subjects in addition to
    - 32 -
    testing the statistical analysis program he was responsible for
    developing.       Regardless of what Wang did or did not do with the
    monthly data from November 2013 until April 2014, there is no
    dispute he was in possession of the final raw data on April 19,
    2014 (as Wang himself provided this date to Merrimack's general
    counsel in an email),8 and the results of the NAPOLI-1 study were
    not disclosed to the public until May 1, 2014.9
    8   Remember, Chan bought Merrimack stock on April 21 and 28,
    2014.
    9
    We pause for a quick aside to address a discussion that came
    up not stochastically during oral argument. While the defendants
    in their papers do not develop any argument about whether the data
    Wang received was material, non-public information, there was
    extensive discussion at oral argument about whether the data Wang
    received actually contained any information that could have given
    anyone an edge in deciding whether and when to trade in Merrimack
    stock.
    Information is material "if there is 'a substantial
    likelihood that a reasonable shareholder would consider it
    important in deciding how to vote.'" S.E.C. v. Happ, 
    392 F.3d 12
    ,
    21 (1st Cir. 2004) (quoting TSC Indus., Inc. v. Northway, Inc.,
    
    426 U.S. 438
    , 449 (1976)). Materiality is a fact-specific inquiry,
    asking whether the information at issue "would have been viewed by
    the reasonable investor as having significantly altered the 'total
    mix' of information made available."     Id. at 21 (quoting Basic
    Inc. v. Levinson, 
    485 U.S. 224
    , 231-32 (1988)). The final data
    from the NAPOLI-1 study was material because the execution of the
    SAP revealed results that Wang and the members of the biometrics
    team celebrated with champagne the day they analyzed the data to
    get the results. Moreover, these results had a positive impact on
    Merrimack stock. A representative from FINRA testified at trial
    that the day after the NAPOLI-1 study results were announced to
    the public, the stock price jumped up 59 percent and the volume of
    trading activity jumped 2,841 percent.     Therefore, we (and the
    jury) can reasonably infer that knowledge of the good results from
    this study were important to investors' trading decisions and
    "significantly altered" the information available about Merrimack
    stock. 
    Id.
    - 33 -
    We move on to Larrabee factors 2-5 and examine the
    defendants' relationship, the timing of their communication, and
    the timing and pattern of trading activities together.      
    240 F.3d at 21-22
    .   Wang and Chan had a well-established relationship:   The
    evidence clearly shows that they knew each other for years as
    friends and colleagues working in similar professional positions
    in the same industry.      They communicated frequently, walking or
    eating together at lunch time. Chan frequently traded in Merrimack
    shares at a time Wang had valuable information about one of the
    clinical trials at the company, placing his largest order for
    shares (32,522 shares as opposed to the usual 2,000-10,000 shares)
    two days after Wang processed the data of the NAPOLI-1 study and
    got good results -- more than a week before those results went
    public.
    To be sure, the timeframe of all the defendants' relevant
    activities is indeed much wider than in Larrabee, where the
    defendant called his stockbroker one minute after receiving an
    email with MNPI.   
    Id. at 20
    .   But the timing of their communication
    and the timing and pattern of their stock trades are only three of
    the factors we consider.     We move on to the sixth factor.
    Testimony from one of the FBI agents who initially
    interviewed Wang provides support for Wang's "attempts to conceal
    either the trades or the relationship between the tipper and the
    tippee."    
    Id. at 22
    .   In one of Wang's interviews with the FBI, he
    - 34 -
    was vague about whether he knew Chan worked at Akebia and he
    initially denied giving any loans to Chan before admitting he had
    loaned $10,000 to Chan for a real estate transaction in Texas.
    Wang also told the FBI Chan had paid him back in cash but Chan
    both told the FBI and testified at trial that he had paid Wang
    back with a check, and the check Chan gave Wang for $84K was
    admitted as an exhibit at trial.
    Moreover, a few months after Merrimack released the
    NAPOLI-1 study results to the public, Wang denied recognizing
    Chan's name on the list of Merrimack shareholders he was asked to
    review as part of the FINRA inquiry.    Wang did not respond to the
    initial inquiry from Merrimack's general counsel until Merrimack's
    general counsel followed up with him a couple of weeks later.   Chan
    appeared on the list as "Chan, Schultz."      When a special agent
    from the FBI interviewed Wang in June 2016, Wang stated he did not
    know Chan's official first name.       Chan's colleagues apparently
    knew him as Jason; the emails entered as exhibits at trial and the
    testimony from Chan's former colleagues indicate as much.       But,
    the check Chan gave to Wang for $84K had "Schultz Chan" as the
    account holder, so it strains credulity (a reasonable jury could
    have found) to suggest Wang never knew Chan's official first name.
    To borrow an image we used in Larrabee, there are dozens
    of pieces to the puzzle of whether the evidence presented in this
    case will, "[w]hen assembled, . . . create a picture that supports
    - 35 -
    the inference" the defendants committed securities fraud.   
    Id. at 24
    .   While we are missing a few pieces, such as the words on a
    screen or a transcript of a phone call where Wang told Chan to
    purchase shares in Merrimack, the evidence indicating Wang had
    MNPI about the NAPOLI-1 study from November 2013 through April
    2014 and Chan's frequent purchases of shares of Merrimack stock
    during this same time period, coupled with the evidence of bank
    activity -- the withdrawals and deposits and transfers -- fit
    neatly together, particularly when that puzzle is being assembled
    on a table with explicit instructions to construe the evidence in
    the light most favorable to the prosecution.   As we have mentioned
    already, Chan placed his largest order of Merrimack shares two
    days after Wang received the final data for the NAPOLI-1 study for
    analysis.   Even though the puzzle is missing a few pieces, the big
    picture allowed a reasonable jury to conclude each defendant was
    guilty beyond a reasonable doubt of securities fraud, as charged
    in Count Two.
    Wang's Akebia Trades Using MNPI from Chan
    We trudge ahead to the next count of conviction for
    securities fraud.   Here's what we know from the evidence at trial
    about Chan's possession of MNPI related to the "11 study" and
    Wang's subsequent trades in shares of Akebia's stock:    In Chan's
    first week in his new job at Akebia, there were a flurry of emails
    between Akebia's clinical research group members and a couple of
    - 36 -
    outside consultants because the final data from the "11 study" was
    ready for analysis and needed to be analyzed quickly so they could
    provide    some    preliminary   or    "top-line"    results    to   Akebia's
    executives.       On August 17, 2015, Chan's first day, his manager
    sent him information about the treatment tested in the "11 study"
    and the next day his manager started including him on the group
    emails discussing the final "11 study" data.
    On August 19, Chan told some co-workers he would be
    working on the data at home that evening because Akebia did not
    yet have the software he wanted for some of the statistical
    analysis and he could use his own computer to complete these
    calculations.      That evening, Philippe Carriere, one of the members
    of the clinical research group, sent an email to the others with
    good news -- the data did not reveal a concerning number of adverse
    health    events   for   patients,    meaning    unexpected    negative   side
    effects.    On August 21 and August 24, the clinical research group
    exchanged additional emails and attachments with data analysis
    from the "11 study."
    The evidence at trial also showed Chan and Wang exchanged
    a series of text messages between August 24 and August 28 (content
    unknown) and Wang purchased shares in Akebia's stock sixteen times
    between August 28 and September 4.            On September 8, Akebia issued
    a press release, announcing positive results from the "11 study."
    - 37 -
    On November 6, 2015, Akebia's in-house attorneys asked
    Akebia's employees to examine a list of names sent by FINRA and to
    complete a form indicating if and how they knew any of the
    individuals on the list.      Chan replied to the email with a
    completed form indicating he knew no one on the list.   Wang's name
    was on the list, but as "Wang, Songjiang" instead of "Wang, Sam"
    which is how Chan knew him.      Records of the defendants' text
    messages show an exchange of text messages that same day, in which
    Chan asked Wang whether he was working in his office that day.
    Overall, there is sufficient evidence here too to paint
    a complete picture using each of the six Larrabee factors.   While
    Chan denies he had MNPI before August 21, there is ample evidence
    he had access to MNPI about the "11 study" from the day he began
    his employment at Akebia when his new work team was in the throes
    of needing to turn around results from the study quickly.     Chan
    and Wang's relationship and routine communications we've already
    canvassed above.   In addition, the government presented evidence
    of frequent text messages in the days leading up to Wang's series
    of purchases of shares of Akebia stock. The trading activity began
    within 10 days of Chan's receipt of MNPI and ended before the
    results from the "11 study" were announced publicly on September
    8.   The activities related to Wang's purchase of Akebia shares are
    much closer in time to one another than with the count related to
    the trading activity of Merrimack stock.   Similar to Wang's denial
    - 38 -
    of recognition of Chan's names on the FINRA list Wang was asked to
    review in 2014, Chan denied recognizing Wang's name on the list
    FINRA sent to Akebia in November 2015.
    Viewing all the evidence in the light most favorable to
    the government, a reasonable jury could certainly conclude the
    defendants engaged in securities fraud when Wang bought the shares
    of Akebia stock in August and September 2015.                 We affirm the
    defendants' convictions in Count Three and move on to the last
    count of conviction.
    Chan's Own Akebia Trades
    We don't need to tell you much more about the evidence
    presented at trial to paint the picture of Chan's trading activity
    in shares of Akebia's stock.        Most of the events described in the
    preceding section are relevant to this count, which was only
    charged against Chan.
    In addition to the events explained above, on August 19,
    2015, less than two hours after Carriere's email telling the
    clinical   research   group   the    "11     study"   had   not   yielded   any
    concerning patient safety results, Chan bought shares of Akebia
    stock.   Chan also bought shares of Akebia stock on August 21.              When
    Chan testified at trial, he denied having MNPI when he made the
    purchases of Akebia stock, claiming he first received MNPI on
    August 21, after placing the orders for shares of Akebia stock.
    - 39 -
    After reviewing the testimony and documents admitted at
    trial, there is more than enough evidence to allow a reasonable
    jury to conclude Chan traded in Akebia stock using MNPI to which
    he had access from the day he started working at Akebia.10            See
    McPhail, 831 F.3d at 10 n.4 (defining inside trading under the
    classical   theory).     We   therefore   affirm   his   conviction   for
    securities fraud related to his own trading activity in Akebia
    stock.
    Now that we have affirmed the district court's denial of
    the defendants' motions for judgments of acquittal on each count
    of conviction, we turn to the remaining issues:           The denial of
    their motion to compel a letter FINRA sent to the SEC, Chan's
    adjusted base offense level for sentencing, and an award of
    restitution given to Akebia.
    C. FINRA Referral Letter
    Long before the trial started, the defendants filed a
    motion to compel the government to turn over a referral letter
    FINRA sent to the SEC about purchases of Akebia stock before the
    10 The defendants also mention (Fed. R. Crim. P.) Rule 33 two
    times in their brief -- once in their statement of the issues and
    once when they provide the standard of review for Rule 33 motions
    for new trial. Their motion at the end of the trial indeed included
    a motion for new trial and the district court denied their motion.
    The defendants have not attempted to develop any argument specific
    to their denied motion for new trial, so, to the extent they were
    trying to challenge that denial, we deem the issue waived. See
    Valdés-Ayala, 900 F.3d at 33 n.14.
    - 40 -
    results of the "11 study" became public.                   The defendants asserted
    they were entitled to this letter pursuant to Federal Rule of
    Criminal Procedure 16 and Brady v. Maryland, 
    373 U.S. 83
     (1963).
    The government opposed the motion, asserting the defendants were
    not entitled to the letter because the government had already
    provided them with all of the documents attached to the letter and
    the text of the letter itself did not provide any additional or
    exculpatory information but simply "summarized FINRA's findings
    and its suspicions concerning trading by the defendants and others
    -- or evidence concerning trading by other individuals FINRA
    investigated       who     were     not    targets          of     the     government's
    investigation and have no connection to the charged conspiracy."
    At   a   hearing   on    the   motion,     the    defendants        explained    their
    suspicion that the letter "drove the investigation in a direction
    that     perhaps   it    shouldn't    have,      or   it     may    have    driven   the
    prosecution itself based on what we believe is false information."
    The   district       court   denied      the    motion,       finding   the
    government had provided the supporting documentation to the FINRA
    referral letter in question to the defendants already.                               The
    district court concluded the actual letter was both immaterial to
    the preparation of their defense and irrelevant because the SEC
    and U.S. Attorney's Office had independently investigated the
    concerns raised by FINRA.            Moreover, the district court reasoned
    that even if the defendants were correct with their theory FINRA
    - 41 -
    passed incorrect information on to the SEC, the only relevant issue
    after the grand jury indicted the defendants was whether the
    government could prove the charges beyond a reasonable doubt.
    Before us, the defendants imply that the way in which
    the   FBI   conducted   its   investigation    into   the   defendants'
    activities reveals the FBI relied on FINRA material withheld from
    the defendants but provided to the grand jury, so the FINRA
    document or documents constitute "Brady material" to which the
    defendants were entitled.     The government, for its part, maintains
    its position that the defendants are not entitled to the FINRA
    letter because the government provided the defendants with all of
    the documentary attachments to the letter and the letter itself
    did not provide any additional or exculpatory information.
    We usually review the denial of a motion to compel
    discovery for abuse of discretion.    United States v. Flete-Garcia,
    
    925 F.3d 17
    , 33 (1st Cir. 2019).         But here the defendants have
    simply stated the issue along with some conjecture about what the
    FBI, the grand jury, and FINRA may have relied upon during their
    investigations.    The defendants have not provided any argument
    about how the district court abused its discretion when it denied
    the defendants' pre-trial motion to compel.           As we've stated
    already, we generally consider undeveloped arguments to be waived.
    Valdés-Ayala, 900 F.3d at 33 n.14; Rodríguez, 
    659 F.3d at 175
    .      As
    a result, the defendants have not given us any reason to conclude
    - 42 -
    the district court abused its discretion when it denied their
    motion to compel.
    We move on to Chan's claim of error related to his
    sentence.
    D. Sentencing
    Adjusted Base Offense Level
    The district court calculated a guidelines sentencing
    range (GSR) of 63-78 months' incarceration but sentenced Chan to
    a below-guidelines term of 36 months' imprisonment.11   Chan did not
    object to the base offense level of 8 the district court assigned
    but did challenge the way in which the district court calculated
    his gain from the offenses.   On appeal, Chan renews his objection
    to the district court's adjustment of his base offense level on
    the basis that it used the wrong method to calculate his financial
    gain from his trades in Akebia and Merrimack stock.12     We review
    11 During Chan's sentencing hearing, the district court
    commented the GSR had been largely driven by the loss calculation,
    which, as will be soon described, is actually a calculation of the
    financial gain to the defendant. See U.S.S.G. § 2B1.4(b). The
    district court briefly discussed its belief that Chan had not
    committed his crimes out of antisocial or greedy actions but had
    tried to help friends and family, without the actual gain to
    himself that the final calculation implied. The court concluded
    that, in this case, the dollar sum calculated was, in its totality,
    a "poor measure."
    12 To construe this issue on appeal as a challenge to the
    district court's calculation is generous considering Chan's
    "argument" on this issue in his brief is simply a whole cloth cut-
    and-paste from the sentencing memorandum he filed in the district
    court prior to sentencing.
    - 43 -
    preserved challenges to the loss calculation during the sentencing
    phase de novo.   United States v. Mayendía-Blanco, 
    905 F.3d 26
    , 34
    (1st Cir. 2018).
    U.S.S.G. § 2B1.4 applies to insider trading offenses.
    Paragraph (a) prescribes a base offense level of 8.   Paragraph (b)
    identifies the "[s]pecific [o]ffense [c]haracteristics" used to
    potentially adjust the base offense level floor:
    (1) If the gain resulting from the offense
    exceeded $6,500, increase by the number of
    levels from the table in § 2B1.1 . . .
    corresponding to that amount.
    (2) If the offense involved an organized
    scheme to engage in insider trading and the
    offense level determined above is less than
    level 14, increase to level 14.
    Section 2B1.4(b).    As the background to the statutory section
    explains, the "gain, i.e., the total increase in value realized
    through trading in securities by the defendant and persons acting
    in concert with the defendant or to whom the defendant provided
    inside information, is employed instead of the victims' losses."
    Section 2B1.4(b) cmt. background.      The table in § 2B1.1(b)(1)
    instructs the district court to increase the offense by 14 if the
    loss is more than $550,000 and by 16 if the loss is more than
    $1,500,000.
    Chan urged the district court to calculate the gain to
    him from trading in Akebia's and Merrimack's shares either at the
    point in time he sold them or the shares' values at the time of
    - 44 -
    the sentencing hearing.     Instead, the district court determined
    "the gain [to Chan] resulting from the offense" by using the value
    of the stocks the day after the results from the clinical studies
    became public, in part because this calculation would reflect the
    loss to the stakeholders from the sale of their shares to the
    defendants.13   In this way, the district court tried to capture the
    value of the MNPI to which the defendants had the advantage of
    knowing and using; that is, the change in the value of the stock
    between the date of the defendants' purchases of shares and the
    date when everyone had the same information about the clinical
    studies' results.   The district court did not include the value of
    shares purchased before the evidence at trial clearly showed the
    defendants had possession of MNPI.14    The district court's final
    gain calculation was $1,542,051.79. Even though this dollar figure
    meant the district court should have added 16 to the offense level
    pursuant to § 2B1.1(b)(1), it chose to add 14.
    13 During the sentencing hearing, the district court also
    found paragraph (b)(2) in the specific offense characteristics of
    § 2B1.4 applied to Chan, instructing an automatic increase "to
    level 14" "[i]f the offense involved an organized scheme to engage
    in insider trading and the offense level determined above is less
    than level 14." Chan would not concede this paragraph applied and
    the district court calculated the loss, or in this case, the gain
    to Chan resulting from his offense.
    14 The district court also excluded Wang's own purchases of
    Merrimack stock, which was neither a point of focus during the
    trial or included as one of the charges.
    - 45 -
    While our circuit has not yet examined the proper method
    of calculating the gain to determine the value realized by the
    inside trader, three of our sister circuits have weighed in.              The
    Second Circuit said the gain is "reasonably determined by reference
    to the market price once the inside information has been revealed,
    not the profit (or loss) realized by the tippee, whose hold
    decisions may be informed by various factors."           United States v.
    Riley, 
    638 F. App'x 56
    , 65 (2d Cir. 2016).           And in United States
    v. Nacchio, the Tenth Circuit took a deep dive into considering
    how the loss calculation for an insider trading conviction should
    be determined.15    
    573 F.3d 1062
     (10th Cir. 2009).      The court agreed
    with that defendant's proposed approach to adopt, in part, the
    method courts employ in determining damages and disgorgement in
    civil insider trading enforcement cases.            
    Id. at 1078
    .       As the
    Tenth Circuit quoted, "[i]n [a civil] insider trading case, the
    proper amount of disgorgement is generally the difference between
    the value of the shares when the insider sold them while in
    possession    of   the   material,    nonpublic   information,   and    their
    market value 'a reasonable time after public dissemination of the
    15 The Tenth Circuit used the 2000 version of the Guidelines
    but noted §§ 2F1.1 and 2F1.2 had been consolidated with §§ 2B1.1
    and 2B1.4, and § 2B1.4 "contain[ed] the same language as former
    § 2F1.2 regarding gain . . . relevant to [its] analysis." Nacchio,
    
    573 F.3d at
    1066 n.5; see also United States v. Burdi, 
    414 F.3d 216
    , 218 n.2 (1st Cir. 2005) (acknowledging § 2F1.1's deletion and
    consolidation with § 2B1.1).
    - 46 -
    inside information.'"         Id. at 1078 (second alteration in original)
    (quoting S.E.C. v. Happ, 
    392 F.3d 12
    , 31 (1st Cir. 2004)).                This
    is precisely the approach used by the district court in this case.
    Chan argues that we should instead adopt the Eighth
    Circuit's approach, which understands gains to be "the total profit
    actually made from a defendant's illegal securities transactions."
    United States v. Mooney, 
    425 F.3d 1093
    , 1100 (8th Cir. 2005) (en
    banc).    The Second Circuit rejected this very approach in Nacchio,
    
    573 F.3d at 1072
    , and we do the same today.               While Chan argues
    that the district court's approach fails to distinguish between
    "bargain seekers" like himself and "profit seekers" and results in
    sentencing     based    on    an   "arbitrary   value   determined   by    the
    sentencing court," Chan's proposed approach and that of the Eighth
    Circuit    would       mean    that   sentences   would    reflect   market
    fluctuations unrelated to the offense of insider trading, such
    that co-conspirators could receive differing sentences even when
    they committed the same crime.          See 
    id. at 1086
     (finding that it
    "contravenes important objectives of federal sentencing" to allow
    the extent of punishment to be imposed "on the throw of the dice
    -- the ups and downs of the stock market" (quoting Mooney, 
    425 F.3d at
    1108 n.12 (Bright, J., dissenting))).
    Nor does the text of the official commentary to U.S.S.G.
    § 2B1.4 convince us that the district court's approach was wrong.
    The Eighth Circuit relied on the plain meaning of that text in
    - 47 -
    endorsing a gains calculation based on the profit received through
    sale, explaining that "realized," both in common parlance and in
    the tax context, see Cottage Savings Ass'n v. Comm'r, 
    499 U.S. 554
    , 559 (1991) (holding that "to realize a gain or loss in the
    value of property, the taxpayer must engage in a 'sale or other
    disposition of [the] property,'" (alteration in original) (quoting
    
    Treas. Reg. § 1001
    (a))), refers to conversion into actual money.
    
    Id. at 1100
    .      But, we find the relevant provision of the tax code,
    which states that "[t]he amount realized from the sale or other
    disposition of property shall be the sum of any money received"
    
    Treas. Reg. § 1001
    (a), to be distinguishable from the "total
    increase     in   value    realized     through   trading    in   securities,"
    U.S.S.G. § 2B1.4, cmt. background.                The tax code explicitly
    calculates "amount realized" from the sale, whereas there is no
    reference    to    stock   sales   in    the   Guidelines    --   "trading    in
    securities" refers only to the offense itself.              Moreover, we find
    "value realized" to be distinguishable from "amount realized."
    Compare Amount Realized, Black's Law Dictionary (11th ed. 2019)
    ("The amount received by a taxpayer for the sale or exchange of an
    asset . . . ."), with Value, Black's Law Dictionary (11th ed. 2019)
    ("1.   The   significance,     desirability,      or   utility    of   something
    . . . . 2. The monetary worth or price of something . . . ."
    (emphasis added)).
    - 48 -
    Because we do not read the Guidelines commentary to
    preclude the district court's approach and we agree that "the civil
    disgorgement   remedy   provides   an   appropriate   guidepost   for
    sentencing in insider trading cases," Nacchio, 
    573 F.3d at 1086
    ,
    we find no error in the district court's approach.     Therefore, we
    affirm Chan's sentence.
    Restitution
    During the sentencing phase of this case, the government
    asked the district court to order $312,899.22 in restitution to
    Akebia pursuant to the Mandatory Victims Restitution Act (MVRA),
    18 U.S.C. § 3663A.16    The request was primarily to reimburse the
    expenses Akebia incurred throughout the government's investigation
    and prosecution of the defendants for representation by the law
    firm Ropes & Gray LLP, but also included fees from a couple of
    contract attorney firms.    The district court ultimately ordered
    the defendants to pay $170,476.36 in restitution to Akebia, with
    Wang on the hook for 10% of the award, or $17,047.64, and Chan
    responsible for 90%, or $153,428.72.
    According to the defendants, this amount is excessive
    because, as we understand their argument, Akebia has included
    16 This was in fact a revised request   after the district court
    concluded the details of Akebia's first      request for restitution
    improperly included some categories of       expenses and asked the
    government to resubmit the request for       restitution on Akebia's
    behalf.
    - 49 -
    categories of tasks and expenses that should have been deemed
    outside the permissible scope of the MVRA.17               The government
    responds that the restitution order was neither excessive nor
    unreasonable because the district court reviewed each item of
    Akebia's   request      before   determining    Akebia   was   entitled   to
    approximately half of the total amount requested.
    We examine restitution orders for abuse of discretion,
    reviewing the relevant factual findings for clear error.            United
    States v. Naphaeng, 
    906 F.3d 173
    , 179 (1st Cir. 2018) (citing
    United States v. Chiaradio, 
    684 F.3d 265
    , 283 (1st Cir. 2012)).
    The MVRA provides victims of crimes with reimbursement
    for   various   types    of   losses   and   expenses.   Relevant   to    the
    defendants' convictions, this statute says the district court must
    award restitution to a victim of an offense against property,
    including offenses committed by fraud, § 3663A(c)(1)(A)(ii), for
    "necessary child care, transportation, and other expenses incurred
    17The defendants invite us to review each item in Akebia's
    request for restitution but we decline to do so given our
    deferential standard of review. We also note that, similar to the
    section of the defendants' brief challenging the district court's
    calculation for determining the appropriate adjustment to the base
    offense level in the preceding section of this opinion, the
    defendants have simply pasted paragraphs cut from their objections
    and responses to the restitution requests filed with the district
    court and used this material as their appellate argument. As a
    result, it is difficult to determine precisely how, in the
    defendants' minds, the district court erred with the determination
    of the award because their prose is written in response to the
    government and Akebia's submissions to the district court during
    the restitution proceedings.
    - 50 -
    during participation in the investigation or prosecution of the
    offense or attendance at proceedings related to the offense,"
    § 3663A(b)(4).
    Our    court   has    said    that     "expenses     qualifying    for
    restitution are not unlimited, . . . [but] will pass muster if
    they would not have been incurred in the absence of the offense,
    were not too attenuated in fact or time from the crime, . . . and
    were reasonably foreseeable."           United States v. Janosko, 
    642 F.3d 40
    , 42 (1st Cir. 2011) (internal quotation marks and citations
    omitted).    The Supreme Court's recent decision in Lagos v. United
    States, though addressing the context of a victim undertaking its
    own private investigation and so not directly relevant here, also
    sharpened the focus on the word "necessary" in § 3663A(b)(4).                 
    138 S. Ct. 1684
    ,   1687-88,      1690    (2018);    see   also    In   re   Akebia
    Therapeutics, Inc., No. 19-1929, ___ F.3d ___ (our opinion, also
    issued today, with a deeper examination of Janosko and Lagos,
    denying Akebia's challenge to the restitution order).
    The district court understood the defendants' objection
    to Akebia's request for restitution to be centered on their
    assertion that the expenses Akebia claimed for reimbursement were
    neither necessary nor reasonable.            The district court concluded
    that its evaluation of the expenses submitted for reimbursement
    needed to focus on whether the expenses were necessary as well as
    - 51 -
    foreseeable.       It concluded attorney's fees would be awarded only
    when they were necessary expenses.
    Ultimately,           our    task   is   to    consider    "whether      the
    district court has made 'a reasonable determination of appropriate
    restitution       by   resolving        uncertainties      with    a   view    towards
    achieving    fairness        to    the     victim,'"      including    "whether      the
    restitution award has 'a rational basis in the record.'"                        United
    States v. González-Calderón, 
    920 F.3d 83
    , 85 (1st Cir. 2019) (first
    quoting United States v. Alphas, 
    785 F.3d 775
    , 787 (1st Cir. 2015),
    then quoting United States v. Salas-Fernández, 
    620 F.3d 45
    , 48
    (1st Cir. 2010)).       The defendants have not given us any reason to
    conclude    the    district        court    erred    in    any    respect     with   its
    restitution       order.18         After    reviewing      the    district     court's
    reasoning, we conclude there was no abuse of its broad discretion
    to determine which expenses in this case claimed were necessary,
    foreseeable, and just.
    18Akebia has also challenged the restitution order through a
    petition for writ of mandamus filed with this court, asking us to
    vacate the order and reconsider some of the categories of expenses
    the district court disallowed.     See In re Akebia Therapeutics,
    Inc., No. 19-1929, ___ F.3d ___.       Akebia's challenge to the
    restitution order is much more thorough and we address those
    arguments in a separate opinion, issued today, affirming the order.
    - 52 -
    CONCLUSION
    To   wrap   this   all    up,   we   affirm   Chan's   and   Wang's
    convictions,   Chan's   term   of    incarceration,     and   the   order   of
    restitution awarding Akebia $170,476.36.
    - 53 -