United States v. Blaszczak ( 2019 )


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  • 18-2811 (L)
    United States v. Blaszczak
    United States Court of Appeals
    for the Second Circuit
    AUGUST TERM 2019
    Docket Nos. 18-2811, 18-2825, 18-2867, 18-2878
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    DAVID BLASZCZAK, THEODORE HUBER, ROBERT OLAN, CHRISTOPHER
    WORRALL,
    Defendants-Appellants.
    ARGUED: NOVEMBER 21, 2019
    DECIDED: DECEMBER 30, 2019
    Before:              KEARSE, DRONEY, AND SULLIVAN, Circuit Judges.
    Defendants David Blaszczak, Theodore Huber, Robert Olan, and
    Christopher Worrall appeal from judgments of conviction following a jury trial
    before the United States District Court for the Southern District of New York
    (Kaplan, Judge) for wire fraud, Title 18 securities fraud, conversion of U.S.
    property, and conspiracy, arising from the misappropriation of confidential
    information from the Centers for Medicare & Medicaid Services. On appeal,
    Defendants argue that the evidence at trial was insufficient in various respects, the
    district court committed instructional and evidentiary errors, and there was
    prejudicial misjoinder for two counts in which Blaszczak alone was charged. We
    reject each of these challenges. In doing so, we hold, inter alia, that (1) confidential
    government information may constitute “property” for purposes of the wire fraud
    and Title 18 securities fraud statutes, and (2) the “personal-benefit” test announced
    in Dirks v. SEC, 
    463 U.S. 646
    (1983), does not apply to those Title 18 fraud statutes.
    Because we also discern no prejudicial error with respect to the other issues
    presented on appeal, we AFFIRM the judgments of the district court.
    Judge Kearse dissents in a separate opinion.
    SARAH K. EDDY, Assistant United States
    Attorney (Ian McGinley, Joshua A. Naftalis,
    Won S. Shin, Assistant United States
    Attorneys, on the brief), for Geoffrey S.
    Berman, United States Attorney for the
    Southern District of New York, New York,
    NY, for Appellee United States of America.
    DONALD B. VERILLI, JR. (Elaine J.
    Goldenberg, Jonathan S. Meltzer, on the
    brief), Munger, Tolles & Olson LLP,
    Washington, D.C., David Esseks, Eugene
    Ingoglia, Rachel Agress, Alexander Bussey,
    on the brief, Allen & Overy LLP, New York,
    NY, for Appellant Robert Olan.
    ALEXANDRA A.E. SHAPIRO (Eric S.
    Onley, on the brief), Shapiro Arato Bach LLP,
    New York, NY, Dani R. James, on the brief,
    2
    Kramer Levin Naftalis & Frankel, LLP, New
    York, NY, for Appellant Theodore Huber.
    COLLEEN P. CASSIDY, Federal Defenders
    of New York, Inc., New York, NY, for
    Appellant David Blaszczak.
    DANIEL M. SULLIVAN (James M.
    McGuire, on the brief), Holwell Shuster &
    Goldberg LLP, New York, NY, Stephen
    Fishbein, John A. Nathanson, on the brief,
    Shearman & Sterling LLP, New York, NY,
    for Appellant Christopher Worrall.
    Peter Neiman, Wilmer Cutler Pickering
    Hale and Dore LLP, New York, NY, Lindsay
    A. Lewis, Joshua L. Dratel, P.C., New York,
    NY, for Amicus Curiae National Association
    of Criminal Defense Lawyers.
    Kendall Turner, O’Melveny & Myers LLP,
    Washington, D.C., Anton Metlitsky,
    O’Melveny & Myers, LLP, New York, NY,
    for Amici Curiae Law Professors Adam C.
    Pritchard, Matthew C. Turk, Andrew N.
    Vollmer, Karen Woody.
    RICHARD J. SULLIVAN, Circuit Judge:
    These consolidated appeals require us to consider whether the federal wire
    fraud, securities fraud, and conversion statutes, codified at 18 U.S.C. §§ 1343, 1348,
    and 641, respectively, reach misappropriation of a government agency’s
    confidential nonpublic information relating to its contemplated rules. Defendants
    David Blaszczak, Theodore Huber, Robert Olan, and Christopher Worrall were
    3
    charged with violating these statutes – and with engaging in securities fraud in
    violation of Section 10(b) of the Securities and Exchange Act, 15 U.S.C. § 78j(b), and
    SEC Rule 10b-5 (“Title 15 securities fraud”) – by misappropriating confidential
    nonpublic information from the Centers for Medicare & Medicaid Services
    (“CMS”). The indictment principally alleged that CMS employees, including
    Worrall, disclosed the agency’s confidential information to Blaszczak, a “political
    intelligence” consultant for hedge funds, who in turn tipped the information to
    Huber and Olan, employees of the healthcare-focused hedge fund Deerfield
    Management Company, L.P. (“Deerfield”), which traded on it. After a one-month
    trial before the United States District Court for the Southern District of New York
    (Kaplan, J.), a jury found Defendants guilty of wire fraud, conversion, and, with
    the exception of Worrall, Title 18 securities fraud and conspiracy. The jury
    acquitted Defendants on all counts alleging Title 15 securities fraud.
    Defendants now challenge their convictions on various grounds. For the
    reasons set forth below, we reject these challenges. In doing so, we hold, inter alia,
    that (1) confidential government information such as the CMS information at issue
    here may constitute “property” in the hands of the government for purposes of
    the wire fraud and Title 18 securities fraud statutes, and (2) the “personal-benefit”
    4
    test established in Dirks v. SEC, 
    463 U.S. 646
    (1983), does not apply to these Title
    18 fraud statutes. Because we also discern no prejudicial error with respect to the
    remaining issues raised on appeal, we affirm the judgments of the district court.
    I. BACKGROUND
    A. Facts
    The jury returned guilty verdicts on counts charging two insider-trading
    schemes: (1) a scheme relating to Deerfield that involved all defendants to varying
    degrees, and (2) a scheme relating to another hedge fund investment manager,
    Visium Asset Management, L.P. (“Visium”), that involved Blaszczak only. We
    recite the facts pertaining to each of these schemes in turn, construing the evidence
    at trial underlying the counts of conviction in the light most favorable to the
    prosecution. See United States v. Kirk Tang Yuk, 
    885 F.3d 57
    , 65 (2d Cir. 2018).
    1. The Deerfield Scheme
    At various times between 2009 and 2014, Olan, Huber, and fellow Deerfield
    partner Jordan Fogel – a cooperating witness who pleaded guilty and testified at
    trial – approached Blaszczak for the purpose of obtaining so-called
    “predecisional”   information    concerning      CMS’s   contemplated    rules     and
    regulations. The three Deerfield partners knew that Blaszczak, who had worked
    5
    at CMS before becoming a consultant for hedge funds, enjoyed unique access to
    the agency’s predecisional information through his inside sources at the agency.
    Because other consultants did not have access to Blaszczak’s sources, the Deerfield
    partners counted him as a particularly lucrative fount of illegal market “edge.”
    App’x at 567, 606.
    This illegal market edge first paid off for the three Deerfield partners in July
    2009, after Blaszczak passed them nonpublic CMS information concerning both
    the timing and substance of an upcoming proposed CMS rule change that would
    reduce the reimbursement rate for certain radiation oncology treatments. The
    Deerfield partners sought to maximize this market edge by trading while “the
    information wasn’t known to others, and . . . wasn’t public.” 
    Id. at 593.
    In late
    June 2009, Olan, Huber, and Fogel directed Deerfield to enter orders shorting
    approximately $33 million worth of stock in radiation-device manufacturer Varian
    Medical Systems (“Varian”), a company that would be hurt by CMS’s proposed
    rule. Blaszczak’s information was consistent with the proposed rule that CMS
    ultimately announced on July 1, 2009, and as a result of the Varian trade, Deerfield
    made $2.76 million in profits.
    6
    Deerfield again traded on confidential CMS information obtained from
    Blaszczak in 2012. This time, Blaszczak obtained the predecisional information at
    issue from Worrall, a CMS employee who had previously worked with Blaszczak
    at the agency and remained friends with him after Blaszczak left CMS to become
    a hedge fund consultant.      Blaszczak met Worrall at CMS’s headquarters in
    Maryland on May 8, 2012; the following day, Blaszczak emailed Fogel to set up a
    phone call so that he could update him on one of Fogel’s “favorite topics.” 
    Id. at 2439.
    On the call, Blaszczak provided Fogel with predecisional CMS information
    about additional radiation oncology reimbursement rate changes. Fogel, in turn,
    shared this information with Huber and Olan, and together the three of them
    relied on it – in combination with other confidential CMS information that
    Blaszczak passed them over the next few weeks – in recommending that Deerfield
    short millions of dollars in the shares of companies that would be hurt by the
    reimbursement changes. Deerfield earned profits of $2.73 million from trades
    relating to this radiation oncology rule, which was publicly announced on July 6,
    2012.
    In February 2013, shortly after Fogel moved to a different group within
    Deerfield, he reached out to Blaszczak in the hopes of “re-ignit[ing] the Blaszczak-
    7
    Fogel money printing machine.” Supp. App’x at 6. As Fogel testified at trial, the
    “Blaszczak-Fogel money printing machine” meant that “Blaszczak had a long
    history of providing [Fogel] and [his] teammates nonpublic information that [they]
    could trade on, and it was a great asset to get edge for investments.” App’x at 581.
    Fogel did not have to wait long for the machine to reignite. In June 2013,
    Blaszczak told Fogel that he expected CMS to propose cutting the reimbursement
    rate for end-stage renal disease (“ESRD”) treatments by 12 percent. Although
    Blaszczak did not reveal the source of his information to Fogel, the prediction was
    so specific – and so different from the market consensus – that Fogel believed it
    came “from a credible source inside of CMS.” 
    Id. at 582.
    Still, Fogel remained
    anxious about the outlier status of Blaszczak’s prediction and continued to check
    in with him about his level of certainty. On June 25, 2013, less than a week before
    CMS announced the ESRD rule, Blaszczak told Fogel that there was “[n]o change
    in [his] numbers” and that he was “pretty confident” in his information. 
    Id. at 2024.
    Fogel again took this to mean that Blaszczak obtained the information from
    a reliable inside source, and further inferred that the public announcement of the
    proposed rate cut (the timing of which was also nonpublic) was around the corner
    and thus less likely to change.     On the basis of this confidential nonpublic
    8
    information, Fogel directed Deerfield to enter orders shorting stock in Fresenius
    Medical Care, a public company that would be hurt by the reimbursement rate
    cuts. CMS publicly announced the 12 percent rate cut on July 1, 2013, and
    Deerfield earned approximately $860,000 in profits from the trade.
    Blaszczak continued to provide Fogel with predecisional CMS information
    in advance of CMS’s announcement of the final ESRD rule on November 22, 2013.
    In particular, Blaszczak informed Fogel that the final ESRD rule would keep the
    12 percent rate cut but would be phased in over three to four years. Based on that
    information, Fogel recommended that Deerfield enter orders to short stock in
    Fresenius and DaVita Healthcare Partners Inc. Deerfield did so, earning profits of
    approximately $791,000. Immediately after CMS announced the final ESRD rule,
    Fogel emailed his colleagues at Deerfield to praise Blaszczak for his ESRD
    reimbursement predictions: “I told u guys blazcack [sic] is the man. . . . [H]e has
    crushed it on these two rules both times round.” Supp. App’x at 10.
    2. The Visium Scheme
    Around the same time that Blaszczak was tipping confidential CMS
    information to his contacts at Deerfield, he also provided similar information to
    Christopher Plaford, a portfolio manager at the hedge fund Visium.           After
    9
    subsequently pleading guilty pursuant to a cooperation agreement, Plaford
    testified that he used Blaszczak as a political-intelligence consultant from around
    2010 to 2013, during which time Blaszczak would provide him with both public
    and nonpublic information concerning the healthcare industry. Plaford, like the
    Deerfield partners, especially valued Blaszczak’s nonpublic CMS information due
    to the market edge it gave him. Indeed, Plaford considered Blaszczak’s CMS
    information to be “much more accurate” than the information provided by other
    consultants, since it came “directly from the horse’s mouth,” meaning Blaszczak’s
    friends and former colleagues at CMS. App’x at 750–51.
    In May 2013, for example, Blaszczak tipped Plaford that he expected CMS
    to propose cutting the reimbursement rate for home healthcare coverage by
    between three and three-and-a-half percent per year between 2014 and 2017. In
    the ensuing weeks, Plaford arranged phone calls with Blaszczak to discuss the
    sources of his information and thus his level of certainty, an issue that Plaford did
    not want to discuss over email “because it was potentially incriminating.” 
    Id. at 752.
    On the phone call, Blaszczak told Plaford that he had a “high conviction” that
    his information was accurate because he was “interacting directly with his
    counterparties in CMS [who] were working on the rule, and they were telling him
    10
    . . . [what] the cut would be.” 
    Id. Based on
    Blaszczak’s information, Plaford
    directed Visium to maintain its short positions for Amedisys Inc. and Gentiva
    Health Services Inc., and to buy put-options in those companies. Following CMS’s
    June 27, 2013 announcement of the proposed home healthcare rule, which
    included a three-and-a-half percent annual rate cut consistent with Blaszczak’s
    information, Visium earned approximately $330,000 in trading profits.
    B. Procedural History
    On March 5, 2018, the government filed an eighteen-count superseding
    indictment in the United States District Court for the Southern District of New
    York setting forth allegations relating to the Deerfield scheme (Counts One
    through Sixteen) and Visium scheme (Counts Seventeen and Eighteen). Counts
    One and Two charged Defendants with participating in conspiracies centering on
    the misappropriation of confidential CMS information between 2009 and 2014. In
    Counts Three through Ten, the indictment charged Defendants with conversion of
    U.S. property (Count Three), Title 15 securities fraud (Counts Four through Eight),
    wire fraud (Count Nine), and Title 18 securities fraud (Count Ten), relating to the
    misappropriation of confidential CMS information that pertained to the July 2012
    proposed radiation oncology rule. Counts Eleven and Twelve charged Blaszczak
    11
    and Worrall with conversion of U.S. property (Count Eleven) and wire fraud
    (Count Twelve) for allegedly misappropriating confidential CMS information
    relating to a company called NxStage Medical Inc. The remaining four Deerfield-
    related counts charged Blaszczak and Worrall with conversion of U.S. property
    (Count Thirteen), Title 15 securities fraud (Count Fourteen), wire fraud (Count
    Fifteen), and Title 18 securities fraud (Count Sixteen), based on the
    misappropriation of confidential CMS information concerning the 2013 proposed
    and final ESRD rules. Counts Seventeen and Eighteen charged Blaszczak alone
    with conspiracy and conversion of U.S. property, respectively, for providing
    confidential CMS information to Plaford as part of the Visium scheme.
    On April 2, 2018, the case proceeded to a jury trial before Judge Kaplan. The
    parties rested their cases three weeks later, on April 23, 2018, and after
    summations, the district court charged the jury.
    In particular, the district court instructed the jury pursuant to Dirks that, (1)
    in order to convict Worrall of Title 15 securities fraud, it needed to find that he
    tipped confidential CMS information in exchange for a “personal benefit;” (2) in
    order to convict Blaszczak of Title 15 securities fraud, it additionally needed to
    find that he knew that Worrall disclosed the information in exchange for a
    12
    personal benefit; and (3) in order to convict Huber or Olan of Title 15 securities
    fraud, it needed to find that Huber or Olan knew that a CMS insider tipped the
    information in exchange for a personal benefit. App’x at 1042–43. The district
    court, however, refused to give Dirks-style instructions on the wire fraud and Title
    18 securities fraud counts. The district court instead instructed the jury that wire
    fraud “includes the act of embezzlement, which is . . . the fraudulent appropriation
    to one’s own use of the money or property entrusted to one’s care by someone
    else.” 
    Id. at 1044–45;
    see Carpenter v. United States, 
    484 U.S. 19
    , 27 (1987). The
    district court similarly instructed the jury, for the Title 18 securities fraud counts,
    that it could find the existence of a scheme to defraud if a defendant “participated
    in a scheme to embezzle or convert confidential information from CMS by
    wrongfully taking that information and transferring it to his own use or the use of
    someone else.” App’x at 1045. For both Title 18 fraud offenses, the district court
    further instructed the jury that it could only convict if it found that the defendant
    it was considering knowingly and willfully participated in the fraudulent scheme.
    On May 3, 2018, after four days of deliberations, the jury returned a split
    verdict. The jury acquitted all defendants on the Title 15 securities fraud counts;
    Blaszczak and Worrall on the offenses charged in Counts Eleven and Twelve
    13
    relating to the NxStage information; and Worrall on the conspiracies charged in
    Counts One and Two and the substantive offenses charged in Counts Thirteen
    through Sixteen.    The jury nevertheless found all defendants guilty of the
    conversion and wire fraud offenses charged in Counts Three and Nine,
    respectively; all defendants but Worrall guilty of the conspiracy offenses charged
    in Counts One and Two as well as Title 18 securities fraud as charged in Count
    Ten; and Blaszczak alone guilty of the offenses charged in Counts Thirteen and
    Fifteen through Eighteen.
    On September 13, 2018, the district court denied from the bench Defendants’
    post-trial motions for a new trial and/or judgment of acquittal and proceeded to
    sentencing. The district court sentenced Blaszczak to twelve months and one day
    of imprisonment, Worrall to twenty months’ imprisonment, and Huber and Olan
    each to thirty-six months’ imprisonment and fines of $1,250,000. The district court
    also ordered Blaszczak to forfeit $727,500, Huber to forfeit $87,078, and Olan to
    forfeit $98,244, and ordered joint and several restitution in the amount of $1,644.26
    against all defendants to cover the costs that CMS expended on witnesses’ travel
    in connection with the criminal investigation and trial. Finally, the district court
    granted all defendants bail pending appeal on the ground that the forthcoming
    14
    appeal would present novel and substantial questions. See United States v. Randell,
    
    761 F.2d 122
    , 125 (2d Cir. 1985). Defendants timely appealed.
    II. JURISDICTION AND STANDARD OF REVIEW
    We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo
    questions of statutory interpretation, challenges to the district court’s jury
    instructions, and the propriety of joinder. See United States v. Gayle, 
    342 F.3d 89
    , 91
    (2d Cir. 2003); United States v. Sabhnani, 
    599 F.3d 215
    , 237 (2d Cir. 2010); United
    States v. Shellef, 
    507 F.3d 82
    , 96 (2d Cir. 2007). We also review de novo the
    sufficiency of the evidence, 
    Sabhnani, 599 F.3d at 241
    , recognizing, of course, that a
    defendant raising such a challenge “bears a heavy burden because a reviewing
    court must consider the evidence ‘in the light most favorable to the prosecution’
    and uphold the conviction if ‘any rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt,’” United States v.
    Aguilar, 
    585 F.3d 652
    , 656 (2d Cir. 2009) (quoting Jackson v. Virginia, 
    443 U.S. 307
    ,
    319 (1979)); accord United States v. Harvey, 
    746 F.3d 87
    , 89 (2d Cir. 2014). The district
    court’s evidentiary rulings are reviewed for abuse of discretion. See United States
    v. Nektalov, 
    461 F.3d 309
    , 318 (2d Cir. 2006).
    15
    III. DISCUSSION
    Defendants challenge their convictions on several grounds. They argue that
    (1) the confidential CMS information at issue is not “property” in the hands of
    CMS for purposes of the wire fraud and Title 18 securities fraud statutes; (2) the
    district court erred by refusing to instruct the jury on the Dirks personal-benefit
    test as to the Title 18 fraud counts; (3) Defendants’ convictions for converting U.S.
    property were infected by a series of legal and factual errors; (4) the evidence at
    trial was insufficient on all counts; (5) Counts Seventeen and Eighteen, charging
    Blaszczak alone in the Visium scheme, were misjoined with the other counts; and
    (6) the district court made a variety of evidentiary errors. We address each of these
    arguments in turn.
    A. “Property” under 18 U.S.C. §§ 1343, 1348
    Defendants argue that their convictions for fraud under Title 18 must be
    reversed because there was insufficient evidence to prove that they engaged in a
    scheme to defraud CMS of “property.” 18 U.S.C. §§ 1343, 1348. 1 The gravamen of
    1The superseding indictment charged Defendants with violating both subsections (1) and
    (2) of 18 U.S.C. § 1348, either of which may independently support a conviction. See
    United States v. Mahaffy, 
    693 F.3d 113
    , 125 (2d Cir. 2012). While subsection (2) proscribes
    a “scheme or artifice . . . to obtain, by means of false or fraudulent pretenses, . . . any
    16
    their argument is that a government agency’s confidential information is not
    “property” in the hands of the agency under the Supreme Court’s decision in
    Cleveland v. United States, 
    531 U.S. 12
    (2000), because the agency has a “purely
    regulatory” interest in such information, 
    id. at 22.
    As a preliminary matter, the government contends that Defendants failed to
    preserve the argument that confidential government information is not
    “property,” since Defendants did not object to the district court’s instruction that
    “confidential government information may be considered to be property” for
    purposes of Title 18 securities fraud. App’x at 1045; see also 
    id. (instructing the
    jury,
    for purposes of the wire fraud counts, that the government was required to prove
    that a defendant intended to deprive CMS of “something of value – for example,
    confidential material, non-public information”). But while Defendants did not
    challenge the pertinent jury instructions in the district court (and have not done so
    on appeal), Defendants filed a Rule 29(a) motion for a judgment of acquittal on the
    ground that the evidence at trial was insufficient to establish that CMS’s
    money or property in connection with the purchase or sale of” securities, subsection (1)
    does not use the term “property,” proscribing instead a “scheme or artifice . . . to defraud
    any person in connection with” securities. 18 U.S.C. § 1348. Nevertheless, the
    government does not argue that the object of a “scheme to defraud” in subsection (1) can
    be anything other than “property,” and thus we assume, for purposes of this case, that
    the “property” requirement in subsection (2) also applies in subsection (1).
    17
    information was “property” in the hands of the agency.              Contrary to the
    government’s argument, we do not construe Defendants’ Rule 29(a) motion in the
    district court as raising a claim distinct from their sufficiency claim on appeal; at
    both stages, Defendants expressly tied their sufficiency claim to the Supreme
    Court’s decision in Cleveland, thus raising the broader threshold question of
    whether a government agency’s confidential regulatory information may
    constitute “property” in the hands of the agency as a general matter. In answering
    this question, we are not bound by the district court’s jury instruction that
    “confidential government information may be considered to be property,” 
    id., since “[a]
    reviewing court’s limited determination on sufficiency review . . . does
    not rest on how the jury was instructed,” Musacchio v. United States, 
    136 S. Ct. 709
    ,
    715 (2016).
    Proceeding to the merits, we afford the same meaning to the word
    “property” in both the wire fraud and Title 18 securities fraud statutes. See S. Rep.
    No. 107-146, at 20 (2002) (Title 18 securities fraud statute created to be comparable
    to Title 18 bank and healthcare fraud statutes); Neder v. United States, 
    527 U.S. 1
    , 20
    (1999) (Title 18 mail, wire, and bank fraud statutes should be analyzed similarly).
    We may also look to cases interpreting the same word in the mail fraud statute.
    18
    See, e.g., Pasquantino v. United States, 
    544 U.S. 349
    , 355 n.2 (2005). Under each of
    these fraud statutes, the word “property” is construed in accordance with its
    ordinary meaning: “something of value” in the possession of the property holder
    (in this context, the fraud victim). 
    Pasquantino, 544 U.S. at 355
    (quoting McNally v.
    United States, 
    483 U.S. 350
    , 358 (1987), superseded by statute on other grounds as stated
    in Skilling v. United States, 
    561 U.S. 358
    (2010)); see also 
    id. at 356
    (citing Black’s Law
    Dictionary 1382 (4th ed. 1951) (defining “property” as “extend[ing] to every
    species of valuable right and interest”)).        In applying this general notion of
    property to the facts of this case, in which the fraud victim is a government agency
    and the claimed property is confidential information regarding contemplated
    regulatory action, we are guided by two precedents in particular: Carpenter and
    Cleveland.
    In Carpenter, the Supreme Court held that the publication schedule and
    contents of forthcoming articles in a Wall Street Journal column were the Journal’s
    “property” because “[t]he Journal had a property right in keeping confidential and
    making exclusive use” of the information before 
    publication. 484 U.S. at 26
    . In
    fact, the Court noted that “[c]onfidential business information ha[d] long been
    recognized as property.”       
    Id. The Court
    further noted that pre-publication
    19
    information was “stock in trade, to be gathered at the cost of enterprise,
    organization, skill, labor, and money, and to be distributed and sold to those who
    [would] pay money for it.” 
    Id. (quoting Int’l
    News Serv. v. Associated Press, 
    248 U.S. 215
    , 236 (1918)).     The Court therefore concluded that a Journal employee
    fraudulently misappropriated his employer’s “property” in violation of the mail
    and wire fraud statutes when he knowingly disclosed the Journal’s confidential
    pre-publication information to a stockbroker who traded on it. 
    Id. at 28.
    By contrast, thirteen years later, the Court in Cleveland held that the mail
    fraud statute did “not reach fraud in obtaining a state or municipal license” to
    operate video poker machines, holding that “such a license [was] not ‘property’ in
    the government regulator’s 
    hands.” 531 U.S. at 20
    . The Court reasoned that (1)
    the licenses themselves had no economic value until they were issued to a private
    actor, and (2) the state’s right to control the issuance of its licenses “implicated [its]
    role as sovereign, not as property holder.” 
    Id. at 22–24.
    Thus, the Court concluded
    that the government’s “theories of property rights . . . [both] stray[ed] from
    traditional concepts of property” and invited a “sweeping expansion of federal
    criminal jurisdiction in the absence of a clear statement by Congress.” 
    Id. at 24.
    20
    While Cleveland remains good law, courts have consistently rejected
    attempts – similar to those advanced by Defendants here – to apply its holding
    expansively. See, e.g., 
    Pasquantino, 544 U.S. at 357
    (“Cleveland is different from this
    case.”); Fountain v. United States, 
    357 F.3d 250
    , 256 (2d Cir. 2004) (explaining that
    Cleveland had only a “modest” effect on the existing legal landscape); United States
    v. Middendorf, No. 18-cr-36 (JPO), 
    2018 WL 3443117
    , at *8–9 (S.D.N.Y. July 17, 2018)
    (rejecting a Cleveland-based argument similar to the one raised here). As the
    Supreme Court has clarified, Cleveland simply “held that a [s]tate’s interest in an
    unissued video poker license was not ‘property,’ because the interest in choosing
    particular licensees was ‘purely regulatory’ and ‘could not be economic.’”
    
    Pasquantino, 544 U.S. at 357
    (emphasis added) (brackets omitted) (quoting
    
    Cleveland, 531 U.S. at 22
    –23). Consistent with this formulation, we have observed
    that Cleveland’s “particular selection of factors” did not establish “rigid criteria for
    defining property but instead . . . provid[ed] permissible considerations.”
    
    Fountain, 357 F.3d at 256
    . The considerations relied upon by the Court in Cleveland
    are thus in addition to considerations recognized in other cases, such as the “right
    to exclude” that was “deemed crucial in defining property” in Carpenter. 
    Id. 21 Here,
    we find it most significant that CMS possesses a “right to exclude”
    that is comparable to the proprietary right recognized in Carpenter. Like the
    private news company in Carpenter, CMS has a “property right in keeping
    confidential and making exclusive use” of its nonpublic predecisional information.
    
    Carpenter, 484 U.S. at 26
    . In stark contrast to a state’s right to issue or deny a poker
    license – a “paradigmatic exercise[] of the [state’s] traditional police powers” –
    CMS’s right to exclude the public from accessing its confidential predecisional
    information squarely implicates the government’s role as property holder, not as
    sovereign. 
    Cleveland, 531 U.S. at 23
    . This view is consistent with pre-Cleveland
    decisions from this and other Circuits. See United States v. Girard, 
    601 F.2d 69
    , 71
    (2d Cir. 1979) (concluding that “the [g]overnment has a property interest in certain
    of its private records,” including the confidential information contained in those
    records); United States v. Czubinski, 
    106 F.3d 1069
    , 1074 (1st Cir. 1997) (holding that
    the IRS’s confidential taxpayer information “may constitute intangible ‘property’”
    under the wire fraud statute (citing 
    Carpenter, 484 U.S. at 26
    )).
    Furthermore, although we do not read Cleveland as strictly requiring the
    government’s property interest to be “economic” in nature, the government
    presented evidence that CMS does have an economic interest in its confidential
    22
    predecisional information. For example, the evidence at trial established that CMS
    invests time and resources into generating and maintaining the confidentiality of
    its nonpublic predecisional information – resources that are devalued when the
    information is leaked to members of the public. See 
    Carpenter, 484 U.S. at 26
    ; see
    also, e.g., Middendorf, 
    2018 WL 3443117
    , at *9 (concluding that a statutory non-
    profit’s confidential inspection lists were “certainly something of value to the
    [non-profit], which invested time and resources into their creation” (internal
    quotation marks omitted)). Relatedly, the selective leaking of confidential CMS
    information risks hampering the agency’s decision-making process. Although this
    risk obviously implicates CMS’s regulatory interests, it also implicates CMS’s
    economic interest in making efficient use of its limited time and resources. As
    former CMS Director Dr. Jonathan Blum testified, leaks of confidential information
    could result in unbalanced lobbying efforts, which would in turn impede the
    agency’s efficient functioning by making it “more difficult to manage the process
    flow and to convince [Blum’s] superiors of the right course for the Medicare
    program.” App’x at 467. Leaks may also require the agency to “tighten up” its
    internal information-sharing processes, again with the result that the agency
    would become less efficient. 
    Id. at 766;
    see also EPA v. Mink, 
    410 U.S. 73
    , 87 (1973)
    23
    (explaining that Congress enacted the “deliberative process” exemption to the
    Freedom of Information Act’s disclosure requirements, 5 U.S.C. § 552(b)(5),
    because the “efficiency of [g]overnment would be greatly hampered if, with
    respect to legal and policy matters, all [g]overnment agencies were prematurely
    forced to ‘operate in a fishbowl.’” (quoting S. Rep. No. 89-813, at 9 (1965))),
    superseded by statute on other grounds as stated in CIA v. Sims, 
    471 U.S. 159
    , 190 n.5
    (1985).
    Despite CMS’s proprietary right to exclude and well-recognized economic
    interests, Defendants argue that the confidential CMS information at issue in this
    case was not “property” because there was no evidence at trial to establish that
    CMS suffered an actual monetary loss. In support of this argument, Defendants
    mainly rely on a single sentence in this Court’s decision in Fountain: “[Cleveland]
    indicates that, in the context of government regulation, monetary loss presents a
    critical, perhaps threshold 
    consideration.” 357 F.3d at 257
    . For two reasons, this
    sentence cannot bear the weight Defendants place on it.
    First, Fountain, like Cleveland, was not a case about confidential government
    information – it simply held that taxes owed to a government may constitute
    “property” in its hands – and thus we do not believe that Fountain’s reference to
    24
    “the context of government regulation” contemplated the circumstances
    presented here. Second, and more fundamentally, while monetary loss may
    generally be a useful tool for distinguishing the government’s property interests
    from its “purely regulatory” interests, Cleveland did not, we emphasize, establish
    any “rigid criteria for defining property.” 
    Id. at 256.
    Nor do we see any reason to
    impose a rigid “monetary loss” criterion here. Such a requirement would be at
    odds with Carpenter, which squarely rejected the argument “that a scheme to
    defraud requires a monetary loss,” and instead found it “sufficient that the Journal
    ha[d] been deprived of its right to exclusive use of the information” because
    “exclusivity is an important aspect of confidential business information and most
    private property for that 
    matter.” 484 U.S. at 26
    –27. Although CMS is not a private
    entity, Carpenter’s reasoning applies with equal force, since exclusivity is no less
    important in the context of confidential government information. See, e.g., 
    Girard, 601 F.2d at 71
    ; see also 
    Pasquantino, 544 U.S. at 356
    (“The fact that the victim of the
    fraud happens to be the government, rather than a private party, does not lessen
    the injury.”); Middendorf, 
    2018 WL 3443117
    , at *8 (explaining that the “reasoning of
    Carpenter supports the conclusion that confidential information – whether held by
    the government [or] a private entity . . . – is ‘property’”). It is abundantly clear that
    25
    government agencies have strong interests – both regulatory and economic – in
    controlling whether, when, and how to disclose confidential information relating
    to their contemplated rules. See 
    Mink, 410 U.S. at 87
    (recognizing the important
    “public policy . . . of open, frank discussion between subordinate and chief
    concerning administrative action” (internal quotation marks omitted)); supra pp.
    23–24. Although fraudulent interference with these interests may at times result
    in monetary loss to the fraud victim, nothing in the Title 18 fraud statutes requires
    that to be so.
    In sum, the government’s theory of property rights over a regulatory
    agency’s confidential predecisional information does not “stray from traditional
    concepts of property,” 
    Cleveland, 531 U.S. at 24
    , but rather is entirely consistent
    with them.       We therefore hold that, in general, confidential government
    information may constitute government “property” for purposes of 18 U.S.C.
    §§ 1343 and 1348, and that here, there was sufficient evidence to establish that the
    CMS information at issue was “property” in the hands of CMS.
    B. Whether Dirks v. SEC applies to 18 U.S.C. §§ 1343 and 1348
    Under Dirks, an insider may not be convicted of Title 15 securities fraud
    unless the government proves that he breached a duty of trust and confidence by
    26
    disclosing material, nonpublic information in exchange for a “personal 
    benefit.” 463 U.S. at 663
    . Similarly, a tippee may not be convicted of such fraud unless he
    utilized the inside information knowing that it had been obtained in breach of the
    insider’s duty. See United States v. Newman, 
    773 F.3d 438
    , 447–49 (2d Cir. 2014),
    abrogated on other grounds by Salman v. United States, 
    137 S. Ct. 420
    (2016). Here,
    Defendants claim that the district court erred by not instructing the jury that
    Dirks’s personal-benefit test also applied to the wire fraud and Title 18 securities
    fraud counts. In essence, Defendants argue that the term “defraud” should be
    construed to have the same meaning across the Title 18 fraud provisions and Rule
    10b-5, so that the elements of insider-trading fraud are the same under each of
    these provisions. We disagree.
    We begin by noting what the Title 18 fraud statutes and Title 15 fraud
    provisions have in common: their text does not mention a “personal benefit” test.
    Rather, these provisions prohibit, with certain variations, schemes to “defraud.”
    18 U.S.C. §§ 1343, 1348(1); 17 C.F.R. § 240.10b-5(a); see 18 U.S.C. § 1348(2)
    (prohibiting schemes to obtain certain property “by means of false or fraudulent
    pretenses”); 15 U.S.C. § 78j(b) (prohibiting the use of any “manipulative or
    deceptive device”). For each of these provisions, the term “defraud” encompasses
    27
    the so-called “embezzlement” or “misappropriation” theory of fraud. See United
    States v. O'Hagan, 
    521 U.S. 642
    , 653–54 (1997) (Title 15 securities fraud); 
    Carpenter, 484 U.S. at 27
    (mail and wire fraud); see also, e.g., United States v. Mahaffy, 
    693 F.3d 113
    , 123 (2d Cir. 2012) (Title 18 securities fraud). According to this theory, “[t]he
    concept of ‘fraud’ includes the act of embezzlement, which is ‘the fraudulent
    appropriation to one’s own use of the money or goods entrusted to one’s care by
    another.’” 
    Carpenter, 484 U.S. at 27
    (quoting Grin v. Shine, 
    187 U.S. 181
    , 189 (1902)).
    The undisclosed misappropriation of confidential information, in breach of a
    fiduciary or similar duty of trust and confidence, “constitutes fraud akin to
    embezzlement.” 
    O'Hagan, 521 U.S. at 654
    ; see also United States v. Chestman, 
    947 F.2d 551
    , 566–67, 571 (2d Cir. 1991) (en banc).
    While the Title 18 fraud statutes and Title 15 fraud provisions thus share
    similar text and proscribe similar theories of fraud, these common features have
    little to do with the personal-benefit test. Rather, the personal-benefit test is a
    judge-made doctrine premised on the Exchange Act’s statutory purpose. As Dirks
    explained, in order to protect the free flow of information into the securities
    markets, Congress enacted the Title 15 fraud provisions with the limited “purpose
    of . . . eliminat[ing] [the] use of inside information for personal advantage.” 
    463 U.S. 28
    at 662 (emphasis added) (internal quotation marks omitted). Dirks effectuated this
    purpose by holding that an insider could not breach his fiduciary duties by tipping
    confidential information unless he did so in exchange for a personal benefit. 
    Id. at 662–64;
    see also 
    Chestman, 947 F.2d at 581
    (Winter, J., concurring in part and
    dissenting in part) (observing that whereas the theory of fraud recognized in
    Carpenter “is derived from the law of theft or embezzlement,” the “Dirks rule is
    derived from securities law, and . . . [is] influenced by the need to allow persons
    to profit from generating information about firms so that the pricing of securities
    is efficient”); United States v. Pinto-Thomaz, 
    352 F. Supp. 3d 287
    , 298 (S.D.N.Y. 2018)
    (Rakoff, J.) (“Although [the Dirks personal-benefit test] was novel law, the Court
    reasoned that this test was consistent with the ‘purpose of the [Title 15] securities
    laws . . . to eliminate use of inside information for personal advantage.’” (quoting
    
    Dirks, 463 U.S. at 662
    )).
    But once untethered from the statutory context in which it arose, the
    personal-benefit test finds no support in the embezzlement theory of fraud
    recognized in Carpenter. In the context of embezzlement, there is no additional
    requirement that an insider breach a duty to the owner of the property, since “it is
    impossible for a person to embezzle the money of another without committing a
    29
    fraud upon him.” 
    Grin, 187 U.S. at 189
    . Because a breach of duty is thus inherent
    in Carpenter’s formulation of embezzlement, there is likewise no additional
    requirement that the government prove a breach of duty in a specific manner, let
    alone through evidence that an insider tipped confidential information in
    exchange for a personal benefit. See 
    O'Hagan, 521 U.S. at 682
    n.1 (Thomas, J.,
    concurring in the judgment in part and dissenting in part) (“Of course, the ‘use’ to
    which one puts misappropriated property need not be one designed to bring profit
    to the misappropriator:       Any ‘fraudulent appropriation to one’s own use’
    constitutes embezzlement, regardless of what the embezzler chooses to do with
    the money.”); see also United States v. Bryan, 
    58 F.3d 933
    , 953 (4th Cir. 1995) (“Those
    who trade on purloined information but who do not come within the . . . definition
    of ‘insider’ [set forth in Chiarella v. United States, 
    445 U.S. 222
    (1980), and Dirks] are
    still almost certain to be subject to criminal liability for federal mail or wire
    fraud.”), abrogated on other grounds by O'Hagan, 
    521 U.S. 642
    . In short, because the
    personal-benefit test is not grounded in the embezzlement theory of fraud, but
    rather depends entirely on the purpose of the Exchange Act, we decline to extend
    Dirks beyond the context of that statute.
    30
    Our conclusion is the same for both the wire fraud and Title 18 securities
    fraud statutes. While it is true that Section 1348 of Title 18, unlike the wire fraud
    statute, concerns the general subject matter of securities law, Section 1348 and the
    Exchange Act do not share the same statutory purpose. See United States v. Mills,
    
    850 F.3d 693
    , 699 (4th Cir. 2017) (“The doctrine of in pari materia is inapplicable
    when statutes have different purposes.”). Indeed, Section 1348 was added to the
    criminal code by the Sarbanes-Oxley Act of 2002 in large part to overcome the
    “technical legal requirements” of the Title 15 fraud provisions. S. Rep. No. 107-
    146, at 6; see United States v. Hoskins, 
    902 F.3d 69
    , 81 n.5 (2d Cir. 2018) (“As a general
    matter, we may consider reliable legislative history where, as here, the statute is
    susceptible to divergent understandings and, equally important, where there
    exists authoritative legislative history that assists in discerning what Congress
    actually meant.” (internal quotation marks omitted)). In particular, Congress
    intended for Section 1348 to “supplement the patchwork of existing technical
    securities law violations with a more general and less technical provision, with
    elements and intent requirements comparable to current bank fraud and health
    care fraud statutes.” S. Rep. No. 107-146, at 14. Given that Section 1348 was
    intended to provide prosecutors with a different – and broader – enforcement
    31
    mechanism to address securities fraud than what had been previously provided
    in the Title 15 fraud provisions, we decline to graft the Dirks personal-benefit test
    onto the elements of Title 18 securities fraud.
    Finally, Defendants argue that we should extend Dirks beyond the Title 15
    fraud provisions because otherwise the government may avoid the personal-
    benefit test altogether by prosecuting insider-trading fraud with less difficulty
    under the Title 18 fraud statutes – particularly the Title 18 securities fraud statute,
    which (unlike the wire fraud statute) does not require proof that wires were used
    to carry out the fraud. But whatever the force of this argument as a policy matter,
    we may not rest our interpretation of the Title 18 fraud provisions “on such
    enforcement policy considerations.” 
    O’Hagan, 521 U.S. at 678
    n.25. “The Federal
    Criminal Code is replete with provisions that criminalize overlapping conduct,”
    and so “[t]he mere fact that two federal criminal statutes criminalize similar
    conduct says little about the scope of either.” 
    Pasquantino, 544 U.S. at 358
    n.4.
    Congress was certainly authorized to enact a broader securities fraud provision,
    and it is not the place of courts to check that decision on policy grounds.
    32
    Accordingly, we hold that the personal-benefit test does not apply to the
    wire fraud and Title 18 securities fraud statutes, and thus the district court did not
    err by refusing to instruct the jury on the personal-benefit test for those offenses.
    C. Conversion of U.S. Property
    The federal conversion statute proscribes “knowingly convert[ing] to [one’s]
    use or the use of another . . . any . . . thing of value of the United States,” or
    “receiv[ing] . . . the same with intent to convert it to [one’s] use or gain, knowing
    it to have been . . . converted.” 18 U.S.C. § 641. Defendants challenge their
    convictions under this statute on five grounds. All defendants argue that (1) the
    evidence was insufficient to establish that they “seriously interfered” with CMS’s
    ownership of its confidential information, as required to prove conversion, and (2)
    information is not a “thing of value” for purposes of Section 641. Olan, Huber, and
    Blaszczak further argue that (3) the conversion statute is unconstitutionally vague
    as applied to them, and (4) the evidence was insufficient to establish scienter.
    Finally, Olan and Huber contend that (5) the district court erred in giving a
    conscious avoidance jury instruction. We address each of these arguments in turn.
    33
    1. “Serious Interference”
    Defendants first argue that there was insufficient evidence at trial to prove
    conversion of U.S. property because the government presented no evidence that
    Defendants interfered, let alone “seriously interfered,” with CMS’s ability to use
    its confidential information in the rulemaking process. Although the government
    agrees that “serious interference” is required, it responds that “the interference is
    complete when the [confidential] information is disclosed, and the interference is
    serious when the government has demonstrated a strong interest in maintaining
    confidentiality of that species of information.” 2 Appellee’s Br. at 109.
    We disagree with Defendants’ view of how the “serious interference”
    standard applies when, as here, the property at issue is confidential information.
    2 Because there is no dispute here, we assume without deciding that the conversion
    statute requires a “serious interference” with property. It is worth noting that although
    this court has yet to decide this issue, all of our sister Circuits to address the question
    have held, consistent with the common-law definition of conversion, that a “serious
    interference” is required. See United States v. Collins, 
    56 F.3d 1416
    , 1420 (D.C. Cir. 1995)
    (“The cornerstone of conversion is the unauthorized exercise of control over property in
    such a manner that serious interference with ownership rights occurs.”); United States v.
    Scott, 
    789 F.2d 795
    , 798 (9th Cir. 1986) (similar); United States v. May, 
    625 F.2d 186
    , 192 (8th
    Cir. 1980) (similar); see also Restatement (Second) of Torts § 222A (1965). Although
    arguably a lesser quantum of interference might be required under the federal conversion
    statute, which was intended to broaden the scope of the common-law crime, see 
    Collins, 56 F.3d at 1419
    , certainly evidence sufficient to establish “serious interference” under the
    common law would, at a minimum, also be sufficient to establish the requisite
    interference required for conversion under Section 641.
    34
    By focusing on the fact that their misappropriation of confidential CMS
    information did not ultimately affect the rules that CMS subsequently announced,
    Defendants disregard the Supreme Court’s teaching in Morissette v. United States
    that conversion under Section 641 extends broadly to the “misuse or abuse of
    [government] property.”      
    342 U.S. 246
    , 272 (1952).     Moreover, Defendants’
    argument overlooks the fact that the unauthorized disclosure of CMS’s
    confidential nonpublic information by definition interferes with the agency’s right
    to exclude the public from accessing such information. See 
    Carpenter, 484 U.S. at 26
    (rejecting the defendants’ argument that they “did not interfere with the
    Journal’s use of the [pre-publication] information” as “miss[ing] the point,”
    because it sufficed that the defendants interfered with the Journal’s “right to
    decide how to use [the information] prior to disclosing it to the public”). Thus, we
    agree with the government that the relevant “interference” with CMS’s ownership
    of confidential information was complete upon the unauthorized disclosure.
    As for the “seriousness” of the interference, we also reject Defendants’
    contention that their misappropriation of confidential CMS information exceeded
    the reach of the conversion statute simply because CMS was able to keep using the
    information. Defendants’ argument is inconsistent with the Restatement, which
    35
    sets forth a multi-factor test for determining the “seriousness of the interference”
    that lists “the harm done to the [property]” and “the inconvenience and expense
    caused to the [property owner]” as only two of six non-exhaustive factors, none of
    which “is always predominant.” Restatement (Second) of Torts § 222A(2) & cmt.
    d (1965) (hereinafter “Restatement”)); see also United States v. Collins, 
    56 F.3d 1416
    ,
    1420 (D.C. Cir. 1995) (citing the Restatement to interpret Section 641); United States
    v. May, 
    625 F.2d 186
    , 192 (8th Cir. 1980) (same). Moreover, Defendants’ view is
    also in stark tension with our holding in Girard, where we upheld the defendants’
    convictions under Section 641 for engaging in a scheme to sell confidential DEA
    information that identified the agency’s informants, even though the scheme was
    unsuccessful and there was no suggestion that the informants were in fact
    
    compromised. 601 F.2d at 70
    , 73; see also 
    Morissette, 342 U.S. at 272
    (explaining that
    “merely . . . commingling” money may constitute conversion where the custodian
    is “under a duty to keep it separate and intact”).
    Thus, while the jury in this case was free to consider the fact that CMS was
    able to use the misappropriated information and did not suffer any monetary loss,
    it was also free to consider other factors, including (1) the strength of the
    government’s interest in maintaining confidentiality, (2) the risk of harm to the
    36
    government’s interests posed by the unauthorized disclosure, and (3) the extent of
    the unauthorized disclosure. See Restatement § 222A(2); see also, e.g., 
    Girard, 601 F.2d at 70
    , 73.
    Applying this standard here, we conclude that there was sufficient evidence
    to support the jury’s finding of serious interference with CMS’s ownership of its
    confidential information. Dr. Blum testified that “[i]t’s a very strong precedent
    and a very strong principle that every stakeholder has the right to receive the
    materials [concerning a rule] at the same time,” because the “rule-making process
    is based upon the notion that the entire public that can be affected . . . ha[s] the
    right to comment” in a manner that is fair to all stakeholders. App’x at 467. The
    leaking of predecisional information, Dr. Blum explained, could thus tilt the
    playing field against interest groups (and the public) who were not yet privy to
    the information, and also prematurely “trigger powerful [lobbying] forces to try
    and stop decisions.” 
    Id. CMS employee
    Amy Bassano echoed these views in her
    testimony, while adding that CMS employees were more “wary of what
    [stakeholders were] going to be sharing” with the agency after predecisional
    information had leaked. 
    Id. at 767.
    This increased wariness, combined with the
    agency’s tightening up of internal information-sharing protocols, “sometimes
    37
    result[ed] in suboptimal [policy] outcomes.” 
    Id. Furthermore, all
    of these adverse
    effects harmed CMS economically by making the agency function less efficiently.
    See supra pp. 23–24.
    As for other relevant factors, the jury could reasonably infer that the
    disclosure of confidential information to a Washington D.C. consultant like
    Blaszczak – and ultimately to Blaszczak’s clients – seriously risked harming the
    government’s interests by threatening wider disclosure of the information to
    interested stakeholders.    Indeed, the government presented evidence that
    Blaszczak tipped confidential information not only to hedge fund partners, who
    sought to use the information for trading purposes, but also to employees of
    healthcare companies such as Amgen, a regulated entity that stood to benefit from
    the very informational asymmetry that the government’s confidentiality rules for
    predecisional information were designed to prevent.         Taken together, this
    evidence was sufficient to support a finding that Defendants’ misappropriation of
    CMS’s confidential nonpublic information “seriously interfered” with CMS’s
    ownership rights for purposes of the conversion statute.
    38
    2. “Thing of Value”
    Defendants next argue that confidential information is not a “thing of value”
    within the meaning of the conversion statute. 18 U.S.C. § 641 (emphasis added).
    But as this Court explained in Girard, “[t]he word ‘thing’ notwithstanding, the
    phrase is generally construed to cover intangibles as well as 
    tangibles.” 601 F.2d at 71
    (collecting cases). Thus, “[a]lthough the content of a writing is an intangible,
    it is nonetheless a thing a value.” 
    Id. Contrary to
    Defendants’ strained reading of
    the case, we read Girard to hold that confidential information can itself be a “thing
    of value” under Section 641. Id.; see also United States v. Matzkin, 
    14 F.3d 1014
    , 1021
    (4th Cir. 1994) (holding that confidential information was a “thing of value”);
    United States v. Barger, 
    931 F.2d 359
    , 368 (6th Cir. 1991) (citing, inter alia, Girard for
    the proposition that “information itself is enough to meet the property or ‘thing of
    value’ element of the statute.”). Thus, whatever the merit of Defendants’ textual
    argument, we are not at liberty to reconsider Girard here. See, e.g., Deem v. DiMella-
    Deem, 
    941 F.3d 618
    , 623 (2d Cir. 2019) (“[A] published panel decision is binding on
    future panels unless and until it is overruled by the Court en banc or by the
    Supreme Court.” (internal quotation marks omitted)).
    39
    3. Vagueness
    Olan, Huber, and Blaszczak further argue that Section 641 is
    unconstitutionally vague as applied to them because there was no rule or
    regulation making clear that Worrall’s disclosure of CMS’s confidential
    information was “without authority.” 3 This argument too lacks merit.
    “Where, as here, we are not dealing with defendants’ exercise of a first
    amendment freedom, we should not search for statutory vagueness that did not
    exist for the defendants themselves.” 
    Girard, 601 F.2d at 71
    ; see also United States v.
    Mazurie, 
    419 U.S. 544
    , 550 (1975) (“[V]agueness challenges to statutes which do not
    involve First Amendment freedoms must be examined in the light of the facts of
    the case at hand.”). In Girard, we held that “statutory vagueness . . . did not exist
    for the defendants themselves” because the defendants “must have known” that
    the disclosure of the identity of DEA informants was 
    unauthorized. 601 F.2d at 3
    The phrase “without authority” in Section 641 modifies only the words that follow it,
    “sells, conveys, or disposes,” not the words preceding it, “embezzles, steals, purloins, or
    knowingly converts.” 18 U.S.C. § 641. Nevertheless, in this context, the “without
    authority” requirement is implied by the definition of conversion. See Restatement § 228
    (“One who is authorized to make a particular use of a chattel, and uses it in a manner
    exceeding the authorization, is subject to liability for conversion to another whose right
    to control the use of the chattel is thereby seriously violated.”).
    40
    71. Although we noted that the “DEA’s own rules and regulations forbidding such
    disclosure” were relevant to the inquiry, 
    id., we did
    not, contrary to Defendants’
    suggestion, require the existence of a published rule or regulation on point. See
    United States v. McAusland, 
    979 F.2d 970
    , 975 (4th Cir. 1992) (“We do not read
    [Girard] as requiring the disclosure to be specifically proscribed by published
    regulations.”). Nor will we impose such a sweeping extra-textual requirement
    here. Rather, we agree with the Fourth Circuit that “the existence of a published
    regulation proscribing disclosure” is not “the exclusive method of preventing
    vagueness.”   Id.; see also, e.g., 
    id. at 975–76
    (rejecting defendants’ as-applied
    vagueness challenge in light of “legends restricting disclosure” on the converted
    documents, “[d]efendants’ behavior,” and witnesses’ testimony at trial that
    defendants “would have known that the information was not to be disclosed”);
    United States v. Jones, 
    677 F. Supp. 238
    , 241 (S.D.N.Y. 1988) (“Given the
    government’s long[-]standing practice of maintaining the confidentiality of
    information relevant to on-going criminal investigations, and given the
    government’s obvious interest in maintaining such confidentiality, the defendant
    could reasonably know the proscribed nature of his alleged actions.”).
    41
    Here, as in Girard, there was ample evidence at trial to establish that
    Defendants “must have known” that the disclosure of the predecisional CMS
    information at issue was prohibited. Although Worrall does not raise a vagueness
    challenge himself, it bears noting that CMS employees were subject to 5 C.F.R.
    § 2635.703(a) (the text of which was introduced into evidence at trial), which
    forbids the “improper use of nonpublic information to further [the employee’s]
    own private interest or that of another . . . by knowing unauthorized disclosure.”
    The regulation further provides that “nonpublic information is information that
    the employee gains by reason of Federal employment and that he knows or
    reasonably should know has not been made available to the general public.” 
    Id. § 2635.703(b).
    In addition, CMS employees received extensive training on the rules
    prohibiting disclosure of nonpublic predecisional information.
    As a former employee, Blaszczak was previously subject to these same rules
    and presumably had also received training on the confidential nature of
    predecisional information.     At trial, moreover, the government’s witnesses
    consistently testified to the fact that Blaszczak, Olan, and Huber – and consultants
    and securities traders in the healthcare space more generally – knew that
    predecisional CMS information was nonpublic and confidential. Indeed, Fogel
    42
    testified that the Deerfield defendants valued predecisional CMS information
    precisely because it was not available to other traders. Plaford testified similarly as
    to his own motivations.
    That testimony was corroborated by evidence of Defendants’ own
    communications and behavior. In one episode in 2012, for example, Olan, Huber,
    Fogel, and Blaszczak attempted to extract predecisional CMS information from
    CMS consultant Dr. Niles Rosen, prompting an email discussion of the fact that
    Rosen was unlikely to disclose such information.          Olan commented that he
    thought the odds of Blaszczak “getting shut down by [R]osen [were] 103%,” but
    nevertheless Blaszczak and the Deerfield partners pushed ahead in the hopes that
    Blaszczak might get Rosen to “bite[],” since he was “the man with the keys to [the
    radiation-oncology device] companies’ coffins.” App’x at 1982, 2428. Ultimately,
    Rosen rebuffed Blaszczak’s efforts, writing in an email, “As you clearly
    understand, I cannot share with you our recommendations to CMS.” 
    Id. at 2431.
    Thus, construing the evidence in the light most favorable to the prosecution,
    we conclude that there was sufficient evidence to establish that Olan, Huber, and
    Blaszczak knew that the CMS information at issue was disclosed “without
    authority.” Accordingly, their as-applied vagueness challenge fails.
    43
    4. Scienter
    Olan and Huber next argue that there was insufficient evidence at trial to
    establish that they received confidential CMS information “knowing it to have
    been . . . converted,” as required by 18 U.S.C. § 641. Blaszczak similarly argues
    that the evidence was insufficient to prove his “intent to convert [such
    information] to his use or gain.” 
    Id. Again, we
    disagree, and find that the evidence
    at trial was sufficient to establish Olan’s and Huber’s knowledge that they received
    converted property.
    Specifically, we reject, for the reasons just mentioned, Olan’s argument
    (joined by Huber) that the evidence was insufficient to prove his knowledge of
    unauthorized disclosure.     We also reject Olan’s claim that the evidence was
    insufficient to prove his knowledge of “serious interference” with CMS’s
    ownership of its confidential information. Despite Olan’s bald assertion that
    “[t]here was no way for [him] . . . to know that disclosure of the information” could
    affect CMS’s rulemaking process given that he had “never worked for CMS,” Olan
    Br. at 45, fellow Deerfield partner Fogel – who had also never worked for CMS –
    testified that he understood that disclosure of CMS’s confidential information
    “had the potential to disrupt CMS’s process,” App’x at 564.           Indeed, Fogel
    44
    specifically acknowledged that if CMS’s confidential “information was out there,
    it would give industry lobbyists and others a chance to . . . stop a proposed cut or
    increase from happening.” 
    Id. Most notably,
    Fogel testified that he “discuss[ed]
    th[e] impact on the CMS process” with Huber and Olan. 
    Id. This detailed
    testimony alone was enough to establish Huber’s and Olan’s knowledge of serious
    interference. See United States v. Hamilton, 
    334 F.3d 170
    , 179 (2d Cir. 2003) (“The
    testimony of a single accomplice is sufficient to sustain a conviction so long as that
    testimony is not incredible on its face and is capable of establishing guilt beyond
    a reasonable doubt.” (internal quotation marks omitted)).
    As to Blaszczak’s sufficiency challenge, there was ample evidence to
    support a finding that Blaszczak intended to convert the confidential CMS
    information that he received from CMS insiders to his use or gain. Although
    Blaszczak argues that there was insufficient evidence to establish that he
    specifically “intend[ed] [for] his predictions and analyses . . . to interfere . . . with
    CMS’s work,” Blaszczak Br. at 57, the requisite intent was established by evidence
    that Blaszczak, himself a former CMS employee, obviously knew that the
    disclosure of the predecisional CMS information he received was unauthorized
    and could spawn interference with CMS’s processes, but he nevertheless
    45
    intentionally proceeded to appropriate such information to his own use by
    disclosing it to his hedge fund clients. See 
    Morissette, 342 U.S. at 270
    –72.
    5. Conscious Avoidance Instruction
    Last, we reject Olan’s and Huber’s claim that the district court erred in
    giving a “conscious avoidance” instruction.         As relevant here, a conscious
    avoidance instruction may only be given if “the appropriate factual predicate for
    the charge exists, i.e. the evidence is such that a rational juror may reach the
    conclusion beyond a reasonable doubt that the defendant was aware of a high
    probability of the fact in dispute and consciously avoided confirming that fact.”
    United States v. Goffer, 
    721 F.3d 113
    , 126–27 (2d Cir. 2013) (internal quotation marks
    omitted). This standard is easily satisfied here. To repeat, the evidence at trial
    established that Olan and Huber sought out Blaszczak’s services precisely so they
    could trade on information that other analysts and consultants did not possess.
    And as Fogel testified, when Blaszczak gave the Deerfield partners the nonpublic
    information they sought, he either told them “explicitly” that it came from CMS
    insiders, or that fact was “implied or obvious” given the context in which the
    information was conveyed. App’x at 555. In addition, Fogel testified that he, Olan,
    and Huber specifically discussed the fact that disclosure of CMS’s confidential
    46
    predecisional information could harm the agency’s regulatory process. In these
    circumstances, a rational juror could find that, even if Olan and Huber did not
    have actual knowledge that Blaszczak’s predictions were based on confidential
    CMS information that had been converted, Olan and Huber were at least aware of
    a high probability of that fact and yet consciously avoided confirming it.
    D. Other Sufficiency Arguments
    Blaszczak, joined by Olan and Huber, next argues that at most the evidence
    established that he passed along information that was already public, or that was
    disclosed by CMS insiders who had the authority to disclose it. This argument is
    meritless. The fact that Blaszczak had access to legitimate sources of information
    that could have supported his predictions hardly compels the conclusion that he in
    fact relied on those sources, rather than on CMS insiders who disclosed
    confidential information without authority, as Fogel and Plaford testified. And
    while Blaszczak makes much of the fact that his predictions were not always
    accurate, his lack of perfection does not compel an inference that his sources were
    legitimate and public. As the evidence reflected, there were various reasons why
    CMS might adjust its position between the time that confidential predecisional
    information leaked and the time that a rule was publicly announced. Moreover,
    47
    despite Blaszczak’s imperfect record, his predictions were still more accurate (and
    valuable) than those of other market consultants. Put simply, Blaszczak invites us
    to choose “between competing inferences,” but this is a fact-finding function that
    lies “solely within the province of the jury.” United States v. Payne, 
    591 F.3d 46
    , 60
    (2d Cir. 2010).
    For similar reasons, we reject Worrall’s argument that the evidence was
    insufficient to establish that he was the source of leaked CMS information in 2012.
    Contrary to Worrall’s suggestion, the government was not required to prove the
    precise way in which he became aware of predecisional information concerning
    the proposed radiation oncology rule. Rather, the government was entitled to
    prove Worrall’s knowledge of the information through circumstantial evidence,
    including evidence that Worrall had access to the information because he worked
    closely with Blum and his job responsibilities exposed him to various matters
    within the agency. As to whether Worrall disclosed this information to Blaszczak,
    the government introduced into evidence a May 8, 2012 CMS sign-in sheet
    establishing that Blaszczak met Worrall the day before relaying confidential
    information concerning the proposed radiation oncology rule to Fogel. This
    evidence was buttressed by testimony from Marc Samuels, Blaszczak’s consulting
    48
    partner between 2008 and 2012, who recalled that Blaszczak had specifically
    named Worrall as a source of confidential CMS information. The government also
    presented evidence that Blaszczak and Worrall remained close in 2013 and 2014;
    for example, Blaszczak’s research analyst during that period, Timothy Epple,
    testified that Blaszczak “would reference his friend Chris most often” as his source
    of nonpublic CMS information. App’x at 872. Epple further testified that, after
    Blaszczak learned he was under investigation by the SEC, he pointedly asked
    Worrall whether investigators had been questioning people at CMS.                   While
    Worrall argues that Blaszczak could nevertheless have obtained information about
    the 2012 radiation oncology rule from other people at CMS, the above-referenced
    evidence was more than sufficient to support the jury’s contrary finding on this
    point.
    Thus, having carefully reviewed the record, we conclude that the evidence
    at trial was sufficient to support the jury’s verdict on each count of conviction. 4
    4 Because each of the conspiracy convictions was predicated on substantive counts for
    which there was sufficient evidence, we need not reach the issue of whether there was
    also sufficient evidence to support so-called “Klein” conspiracies to defraud the United
    States, in violation of 18 U.S.C. § 371, by “obstruct[ing] a lawful function of the
    Government . . . by deceitful or dishonest means.” United States v. Coplan, 
    703 F.3d 46
    , 61
    (2d Cir. 2012) (internal quotation marks omitted); see United States v. Desnoyers, 
    637 F.3d 105
    , 109–10 (2d Cir. 2011); United States v. Coriaty, 
    300 F.3d 244
    , 250 (2d Cir. 2002).
    49
    E. Misjoinder
    Olan and Huber next argue that the district court erred in denying their
    motion under Federal Rule of Criminal Procedure 8(b) to sever Counts Seventeen
    and Eighteen, which charged Blaszczak alone in the Visium scheme, from the
    remaining counts.
    Rule 8(b) provides that an indictment “may charge [two] or more
    defendants if they are alleged to have participated in the same act or transaction,
    or in the same series of acts or transactions, constituting an offense or offenses.”
    Fed. R. Crim. P. 8(b). Under this rule, “joinder of defendants is proper when the
    alleged acts are ‘unified by some substantial identity of facts or participants, or
    arise out of a common plan or scheme.’” United States v. Feyrer, 
    333 F.3d 110
    , 114
    (2d Cir. 2003) (quoting United States v. Attanasio, 
    870 F.2d 809
    , 815 (2d Cir. 1989)).
    In administering this standard, we “apply a ‘commonsense rule’ to decide
    whether, in light of the factual overlap among charges, joint proceedings would
    produce sufficient efficiencies such that joinder is proper notwithstanding the
    possibility of prejudice to either or both of the defendants resulting from the
    joinder.” United States v. Rittweger, 
    524 F.3d 171
    , 177 (2d Cir. 2008) (Sotomayor, J.)
    (quoting 
    Shellef, 507 F.3d at 96
    ). Even where joinder is erroneous, we will not
    50
    reverse unless the “misjoinder results in actual prejudice because it had [a]
    substantial and injurious effect or influence in determining the jury’s verdict.”
    
    Shellef, 507 F.3d at 100
    (internal quotation marks omitted).
    Here, the district court did not err in concluding that the Visium-related
    charges against Blaszczak were properly joined with the Deerfield-related charges
    against Blaszczak, Olan, Huber, and Worrall. Although these two sets of charges
    involved distinct schemes, there was substantial temporal overlap between the
    Visium scheme (2011 to 2013) and Deerfield scheme (mainly 2012 to 2014); the
    schemes involved nearly identical conduct, i.e., misappropriation and insider
    trading of confidential government information concerning healthcare rules; and
    in both schemes, Blaszczak was the key player and CMS was the victim. These
    similarities alone were sufficient to render Rule 8(b) joinder both efficient and
    proper. See 
    Rittweger, 524 F.3d at 177
    ; 
    Feyrer, 333 F.3d at 114
    ; 
    Attanasio, 870 F.2d at 815
    .
    In any event, even if joinder were improper, any error would be harmless
    because much of the evidence relating to the Visium scheme would have been
    admissible against Olan and Huber on Counts One through Sixteen. See 
    Shellef, 507 F.3d at 101
    –02.      The district court correctly determined that Plaford’s
    51
    testimony, which both corroborated Fogel’s testimony and provided useful
    background on Blaszczak’s methods and sources during the same time period as
    the Deerfield conspiracy, was relevant evidence on the charges against Olan and
    Huber. See Fed. R. Evid. 401; see also 
    id. 404(b). While
    the court also recognized
    that the probative value of Plaford’s testimony “may [have been] somewhat
    attenuated” in relation to the Deerfield scheme, the court permissibly concluded
    that such testimony would not result in any undue prejudice for purposes of Rule
    403(b). App’x at 996; see United States v. Awadallah, 
    436 F.3d 125
    , 134 (2d Cir. 2006)
    (“Only rarely – and in extraordinarily compelling circumstances – will we, from
    the vista of a cold appellate record, reverse a district court’s on-the-spot judgment
    concerning the relative weighing of probative value and unfair effect.” (internal
    quotation marks omitted)).
    F. Evidentiary Issues
    Blaszczak, again joined by Olan and Huber, also argues that the district
    court committed several evidentiary errors warranting a new trial. Specifically,
    Blaszczak contends that the district court erred by (1) limiting as cumulative the
    defense’s cross-examination of CMS employee Mark Hartstein concerning the fact
    that CMS’s 2012 proposed radiation oncology rule was based on published
    52
    recommendations of the American College for Radiology; (2) precluding cross-
    examination of Plaford as to a prior inconsistent statement; (3) admitting into
    evidence statements made by Amgen employee Ruth Hoffman under the co-
    conspirator exclusion set forth in Rule 801(d)(2)(E); and (4) admitting into evidence
    minutes of a 2007 Deerfield meeting as a business record for the purpose of
    proving Olan’s and Huber’s states of mind.
    Having considered these arguments in the context of the record as a whole,
    we discern no error warranting a new trial. The district court acted within its
    discretion in limiting Hartstein’s testimony as to the basis for CMS’s proposed
    radiation oncology rule, since other evidence had indeed been introduced on this
    subject and Hartstein’s testimony would have been cumulative.             Regarding
    Plaford’s prior inconsistent statement that the market’s prediction for the home
    healthcare cuts was 2.5% rather than 3.5% as he recalled at trial, the district court
    did not err in concluding that Plaford’s recollection as to the actual market
    consensus was a collateral issue. As for Hoffman’s email statements, the evidence
    at trial was sufficient to establish Hoffman’s status as an unindicted coconspirator
    for purposes of Rule 801(d)(2)(E) based on her implied agreement with Blaszczak
    to misappropriate confidential CMS information.          See, e.g., United States v.
    53
    Downing, 
    297 F.3d 52
    , 57–58 (2d Cir. 2002). Finally, the district court properly
    admitted the minutes of the 2007 Deerfield meeting – reflecting that someone at
    the meeting had opined that “Blazacks [sic] comments pre-news suggest he had a
    read of draft documents,” App’x at 2039 – as a business record probative of Olan’s
    and Huber’s states of mind during the years of the charged conspiracy, see Fed. R.
    Evid. 803(6), and subject to a clear limiting instruction that such evidence could
    not be considered against Blaszczak.
    We therefore discern no error in the district court’s evidentiary rulings.
    Moreover, even assuming that one or more of these rulings were erroneous, any
    errors would fall well short of prejudicial. Over the course of the month-long trial,
    the government presented various forms of evidence establishing that Blaszczak’s
    predictions were based on confidential nonpublic CMS information obtained
    directly from CMS insiders, and that Olan and Huber were aware of that fact when
    they sought out this information, received it, and directed Deerfield to trade on it.
    IV. CONCLUSION
    In upholding the jury’s verdict, we pause to reject Defendants’ thematic
    claim that the government’s positions, if accepted, would herald an
    unprecedented expansion of federal criminal law. It is Defendants who ask us to
    54
    break new ground by rejecting well-recognized theories of property rights and by
    adding, in effect, a “personal benefit” element to the Title 18 fraud statutes. We
    decline these requests, holding instead that (1) a government agency’s confidential
    information relating to its contemplated rules may constitute “property” for
    purposes of the wire fraud and Title 18 securities fraud statutes, and (2) Dirks’s
    “personal-benefit” framework does not apply to these Title 18 fraud statutes. Our
    remaining holdings confirm that Defendants’ misappropriation of CMS’s
    predecisional information, as proven at trial, fall comfortably within the Title 18
    securities fraud, wire fraud, conversion, and conspiracy statutes. To the extent
    that the government’s decision to prosecute any or all of these crimes in this case
    raises broader enforcement policy concerns, that is a matter for Congress and the
    Executive, not the Judiciary. Our inquiry is a more limited one, and having now
    completed it, we AFFIRM the judgments of the district court.
    55
    United States v. Blaszczak
    No. 18‐2811, etc.
    1       KEARSE, Circuit Judge, dissenting:
    2                    I respectfully dissent from the majorityʹs affirmance of the convictions
    3       of these four defendants for substantive crimes of conversion of government property
    4       in violation of 18 U.S.C. § 641 and wire fraud in violation of 18 U.S.C. § 1343, as well
    5       as the convictions of three of the defendants for substantive crimes of securities fraud
    6       in violation of 18 U.S.C. § 1348, for conspiracy in violation of 18 U.S.C. § 1349 to
    7       commit Title 18 crimes of wire fraud and securities fraud, and for conspiracy in
    8       violation of 18 U.S.C. § 371 to commit offenses under § 641 and other provisions,
    9       including Title 15 securities fraud in violation of 15 U.S.C. § 78j(b) and SEC Rule 10b‐5
    10       promulgated thereunder.
    11                    Section 641, one of the sections under which all four defendants were
    12       convicted, provides that it is unlawful to
    13                    embezzle[], steal[], purloin[], or knowingly convert[] to his use or
    14                    the use of another, or without authority, sell[], convey[] or
    15                    dispose[] of any record, voucher, money, or thing of value of the
    16                    United States or of any department or agency thereof . . . .
    17       18 U.S.C. § 641 (emphases added). Section 1343, under which all four defendants
    18       were also convicted, provides in part that
    19                         [w]hoever, having devised or intending to devise any
    20                    scheme or artifice . . . for obtaining money or property by means of
    1                false or fraudulent pretenses . . . transmits or causes to be
    2                transmitted by means of wire . . . any writings, signs, signals . . .
    3                for the purpose of executing such scheme or artifice, shall be fined
    4                under this title or imprisoned not more than 20 years, or both.
    5   18 U.S.C. § 1343 (emphases added). Section 1348, under which three defendants were
    6   convicted, is similar to § 1343. It provides in part that
    7                [w]hoever knowingly executes, or attempts to execute, a scheme or
    8   artifice‐‐
    9                              ....
    10                              (2) to obtain, by means of false or fraudulent
    11                       pretenses, representations, or promises, any money or
    12                       property in connection with the purchase or sale of . . . any
    13                       security of an issuer with a class of securities registered
    14                       under Section 12 of the Securities Exchange Act of 1934 . . . .
    15                shall be fined under this title or imprisoned not more than 25
    16                years, or both.
    17   18 U.S.C. § 1348(2) (emphases added).
    18                With respect to the issue dividing us, the majority treats the relevant
    19   elements of §§ 1343 and 1348 as the same: the property that the defendant is charged
    20   with obtaining by false or fraudulent pretenses must be the property of the defrauded
    21   victim. While this has been held to be so with respect to the mail fraud statute,
    22   18 U.S.C. § 1341, see, e.g., Cleveland v. United States, 
    531 U.S. 12
    , 15 (2000) (ʺthe thing
    23   obtained must be property in the hands of the [fraud] victimʺ), and §§ 1341 and 1343
    2
    1   ʺshare the same language in relevant partʺ and are subject to the same analysis,
    2   Carpenter v. United States, 
    484 U.S. 19
    , 25 n.6 (1987), it is not entirely clear to me that
    3   this is true of § 1348. However, for purposes of this opinion, I accept that both §§ 1343
    4   and 1348 prohibit obtaining property belonging to the victim of the fraud.
    5                My disagreement with the majority is focused on the charges of the
    6   operative superseding indictment (ʺIndictmentʺ) that defendants violated §§ 1343 and
    7   1348 by obtaining something that was government ʺpropertyʺ and violated § 641 by
    8   ʺconvertingʺ something that was a ʺthing of valueʺ to the government.
    9                The alleged conduct underlying virtually all of these charges was that
    10   defendants Blaszczak, Huber, and Olan obtained directly or indirectly from
    11   defendant Worrall, an employee of the federal agency Centers for Medicare &
    12   Medicaid Services (ʺCMSʺ), confidential information as to the substance and timing
    13   of upcoming changes to CMS rules governing reimbursement rates for certain
    14   medical treatments. CMS is not a business; it does not sell, or offer for sale, a service
    15   or a product; it is a regulatory agency. It adopts regulations that affect, inter alia,
    16   business organizations or health industry entities‐‐whether the affected persons or
    17   entities favor the regulations or not. While CMS seeks to maintain confidentiality as
    18   to its planned regulations‐‐and the regulations can plainly have either a favorable or
    3
    1   an adverse effect on certain business entitiesʹ fortunes‐‐I do not view a planned CMS
    2   regulation as a ʺthing of valueʺ to CMS, 18 U.S.C. § 641, that is susceptible to
    3   conversion. Unlike the information that was planned for publication by the news
    4   publisher victim in Carpenter, information is not CMSʹs ʺstock in 
    trade,ʺ 484 U.S. at 26
    5   (internal quotation marks omitted). CMS does not seek buyers or subscribers; it is not
    6   in a competition; it is an agency of the government that regulates the conduct of
    7   others. It does so whether or not any information on which its regulation is premised
    8   is confidential. Further, regardless of whether information as to the substance or
    9   timing of a planned regulation remains confidential as CMS prefers or is disclosed to
    10   unauthorized listeners, CMS adopts its preferred planned regulation and‐‐subject to
    11   legal requirements as to timing, e.g., 42 U.S.C. § 1395w‐4(b)(1) (requiring that
    12   reimbursement rates for a given year be announced prior to November 1 of the
    13   preceding year)‐‐can do so in accordance with its own timetable. I cannot see that
    14   predecisional regulatory information is subject to conversion within the
    15   contemplation of § 641.
    16                Although the majority views our decision upholding a § 641 conviction
    17   in United States v. Girard, 
    601 F.2d 69
    , 71 (2d Cir. 1979), as compelling the conclusion
    18   that CMSʹs desire for predecisional confidentiality is a thing of value, I disagree.
    19   Girard involved a drug dealerʹs attempt to purchase confidential records of the United
    4
    1   States Drug Enforcement Administration (ʺDEAʺ) as to what persons were DEA
    2   informants.    Confidential information as to the identities of informants and
    3   cooperators is clearly ʺ[some]thing of valueʺ to a government agency whose mission
    4   is law enforcement. That confidential information has inherent value because it
    5   enables the agency to, inter alia, collect evidence upon which the Department of
    6   Justice may obtain authorizations to conduct electronic surveillance, obtain warrants
    7   for arrests, and commence prosecutions. Confidentiality in that context enhances the
    8   value of the information because, inter alia, it reduces the chances that suspects will
    9   alter their observable behavior, hide their contraband, flee into hiding, or tamper
    10   with‐‐or harm‐‐witnesses before the law enforcement agency has an opportunity to
    11   fully act upon the information it possesses.
    12                 An agency such as CMS whose brief is to issue regulations is entirely
    13   different. It may either carry out or deviate from its planned adoption of regulations
    14   even if its plans, and/or the information that affects those plans, become public
    15   knowledge before CMS prefers that such disclosures occur. There has been no
    16   conversion.
    17                 For similar reasons, I do not view CMSʹs interest in issuing a regulation,
    18   or in doing so on a particular date, or in keeping the planned regulation a secret until
    19   its issuance, as constituting government ʺpropertyʺ within the meaning of §§ 1343 and
    5
    1   1348. Given that CMS, notwithstanding any premature disclosure of its predecisional
    2   regulatory information, can issue a regulation that adheres to its preliminary
    3   inclination or can issue a different regulation, I cannot see that CMS has been
    4   deprived of anything that could be considered property.
    5                Nor do I see merit in the governmentʹs contention that predecisional
    6   regulatory information should be considered government property because CMS is
    7   ʺresponsible for allocating $1 trillion in federal funds every year,ʺ and that ʺ[b]ecause
    8   a large part ofʺ CMSʹs ʺmissionʺ to ʺdevelop[] and maintain[] effective health care
    9   policy . . . .   is centered on cost‐effective allocation of health care spending,
    10   interference with CMSʹs right to exclusive use of its confidential information
    11   necessarily creates the potential for significant economic consequencesʺ (Government
    12   brief on appeal at 92). Whatever economic consequences actually occur will be based
    13   on what CMS actually decides as to the substance and the timing of the regulation it
    14   adopts. The Cleveland Court rejected the governmentʹs argument that a property right
    15   of the State of Louisiana had been interfered with because the defendant ʺfrustrated
    16   the Stateʹs right to control the issuanceʺ of gaming 
    licenses. 531 U.S. at 23
    . The Court
    17   held that ʺthese intangible rights of allocation, exclusion, and control amount to no
    18   more and no less than Louisianaʹs sovereign power to regulate.ʺ 
    Id. 19 Like
    the gaming licenses in question in Cleveland, which the State had the
    6
    1   right to control or withhold‐‐but which had no property status or effect until they
    2   were issued (and even when issued were not the property of the State)‐‐the
    3   predecisional CMS information has no economic impact on the government until after
    4   CMS has actually decided what regulation to issue and when the regulation will take
    5   effect. And at the point when the regulation has economic impact on the government
    6   fisc, its impact will be in accordance with whatever regulation CMS ultimately
    7   decided to adopt. Thus, I cannot agree that a premature disclosure of predecisional
    8   regulatory information has taken any property from CMS or the government.
    9               As the majority notes, all four defendants were acquitted on all of the
    10   counts charging them with substantive securities fraud violations of Title 15 and SEC
    11   Rule 10b‐5 promulgated thereunder. The only substantive counts on which the jury
    12   found any defendant guilty were those charging violations of 18 U.S.C. §§ 641, 1343,
    13   and 1348. Since, in my view, the predecisional regulatory information at issue here
    14   did not constitute CMS property within the meaning of §§ 1343 and 1348, or a thing
    15   of value stolen from CMS in violation of § 641, none of defendantsʹ convictions on
    16   substantive counts should stand.
    17               The Indictment also contained three conspiracy counts: Counts 1 and 2
    18   against all four defendants (on both of which Worrall was acquitted), and Count 17
    19   against Blaszczak alone. Count 2 charged all defendants with violating 18 U.S.C.
    7
    1   § 1349, which prohibits conspiracy ʺto commit any offense under this chapter,ʺ to wit,
    2   Chapter 63 of Title 18, i.e., 18 U.S.C. §§ 1341‐1351. Count 17 charged Blaszczak with
    3   violating 18 U.S.C. § 371 by conspiring with a cooperating coconspirator to violate
    4   § 641. Since in my view the Indictmentʹs allegations of substantive violations of
    5   §§ 1343, 1348, and 641 charged defendants only with conduct that was not prohibited
    6   by those sections, defendants could not properly be convicted of conspiring to violate
    7   them. Thus, I would conclude that the convictions on Counts 2 and 17 should also
    8   be reversed.
    9                  The conspiracy charged in Count 1, however, was not limited to a
    10   conspiracy to violate §§ 641, 1343, and 1348. Count 1 (Indictment ¶¶ 1‐76) charged
    11   defendants with agreeing to commit ʺconversion of United States property, in
    12   violation of Title 18, United States Code, Section 641; securities fraud, in violation of Title
    13   15, United States Code, Sections 78j(b) and 78ff, and Title 17, Code of Federal Regulations,
    14   Section 240.10b‐5; and to defraud the United States and an agency thereof, to wit, CMS, in
    15   violation of Title 18, United States Code, Section 371 and Title 5, Code of Federal Regulations,
    16   Section 2635.703(a).ʺ (Indictment ¶ 72 (emphases added)). The latter Code of Federal
    17   Regulations provision states in part that ʺ[a]n employee shall not . . . allow the improper
    18   use of nonpublic information to further his own private interest or that of another . . . by
    19   knowing unauthorized disclosure.ʺ 5 C.F.R. § 2635.703(a) (emphases added). Count
    8
    1   1 alleged that defendants agreed to, inter alia, defraud CMS by obtaining from its
    2   employee Worrall confidential information about CMSʹs predecisional regulatory
    3   information (see Indictment ¶ 75) and engage in purchases and sales of securities in
    4   violation of 15 U.S.C. § 78j(b) and 78ff (see 
    id. ¶ 74),
    and that pursuant to their
    5   conspiracy certain overt acts, including short sales of the shares of specified
    6   companies, were committed, all in violation of 18 U.S.C. § 371 (see 
    id. ¶ 76).
    7                The defendants other than Worrall were found guilty on this count. The
    8   jury was not given questions to answer that would reveal, with respect to Count 1,
    9   whether it found that the three convicted defendants had conspired to violate the
    10   securities fraud provisions of Title 15 and SEC Rule 10b‐5 promulgated under that
    11   Title or to violate a government employeeʹs duty of confidentiality, or instead had
    12   only conspired to violate § 641. When, as here, the jury has been presented with
    13   several bases for conviction, one or more of which is invalid as a matter of law, and
    14   it is impossible to tell which ground the jury selected, the conviction should be
    15   vacated. See, e.g., Yates v. United States, 
    354 U.S. 298
    , 312 (1957) (prosecution for
    16   conduct beyond statute‐of‐limitations period invalid as a matter of law), partially
    17   overruled on other grounds by Burks v. United States, 
    437 U.S. 1
    , 7‐10 (1978); see generally
    18   Griffin v. United States, 
    502 U.S. 46
    , 52‐56 (1991). While the mere insufficiency of the
    19   evidence to support one of the bases submitted to the jury does not fall within this
    9
    1   principle, see 
    id. at 56,
    a basis is invalid as a matter of law when the conduct in
    2   question ʺfails to come within the statutory definition of the crime,ʺ 
    id. at 59.
    3                As the jury could have found that the three defendants it convicted under
    4   Count 1 agreed to commit crimes prohibited by Title 15 and the regulations
    5   promulgated under that Title, but may instead have found only that they agreed to
    6   engage in conduct that was alleged to violate 18 U.S.C. § 641, 1343, or 1348 but that
    7   did not come within the definitions of those sections, the convictions of Blaszczak,
    8   Huber, and Olan on Count 1 should be vacated.
    9                Accordingly, I respectfully dissent.
    10