United States v. Sushovan Hussain ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10168
Plaintiff-Appellee,
D.C. No.
v. 3:16-cr-00462-CRB-1
SUSHOVAN TAREQUE HUSSAIN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted May 11, 2020
San Francisco, California
Filed August 26, 2020
Before: Ryan D. Nelson and Daniel A. Bress, Circuit
Judges, and James S. Gwin, * District Judge.
Opinion by Judge Bress
*
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
2 UNITED STATES V. HUSSAIN
SUMMARY **
Criminal Law
The panel affirmed Sushovan Hussain’s convictions and
sentence for wire fraud, conspiracy to commit wire fraud,
and securities fraud in a case in which Hussain—who served
as Chief Financial Officer of Autonomy Corporation, a U.K.
technology company that Hewlett-Packard acquired in
2011—and others fraudulently inflated revenue through a
series of elaborate accounting schemes.
The panel held that Hussain’s wire fraud convictions did
not involve an impermissible extraterritorial application of
United States law to foreign conduct because the “focus” of
the wire fraud statute is the use of the wires in furtherance of
a scheme to defraud, and Hussain used domestic wires to
perpetrate his fraud. The panel also held that sufficient
evidence supported Hussain’s conviction for securities fraud
because a reasonable jury could conclude that Hussain’s
approval of false and misleading financial information in an
HP press release distributed to the investing public reflected
a fraudulent scheme “in connection with” U.S. securities.
In a concurrently filed memorandum disposition, the
panel held that the district court did not abuse its discretion
in certain evidentiary rulings or err in ordering money
forfeiture.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. HUSSAIN 3
COUNSEL
Alexandra A.E. Shapiro (argued) and Lauren M. Capaccio,
Shapiro Arato Bach LLP, New York, New York, for
Defendant-Appellant.
Robert S. Leach (argued), Jonas Lerman, Adam A. Reeves,
and William Frentzen, Assistant United States Attorneys;
Merry Jean Chan, Chief, Appellate Section; Hallie Hoffman,
Chief, Criminal Division; David L. Anderson, United States
Attorney; United States Attorney’s Office, San Francisco,
California; for Plaintiff-Appellee.
OPINION
BRESS, Circuit Judge:
Sushovan Hussain served as Chief Financial Officer of
Autonomy Corporation, a U.K. technology company that
Hewlett-Packard (HP) acquired in 2011. Following the
acquisition, HP discovered that Hussain and others
fraudulently inflated Autonomy’s revenue through a series
of elaborate accounting schemes. Hussain was charged with
wire fraud, conspiracy to commit wire fraud, and securities
fraud. After a lengthy jury trial, Hussain was convicted on
all counts.
We hold that Hussain’s wire fraud convictions did not
involve an impermissible extraterritorial application of
United States law to foreign conduct because the “focus” of
the wire fraud statute is the use of the wires in furtherance of
a scheme to defraud, and Hussain used domestic wires to
perpetrate his fraud. We also hold that sufficient evidence
supported Hussain’s conviction for securities fraud because
4 UNITED STATES V. HUSSAIN
a reasonable jury could conclude that Hussain’s approval of
false and misleading financial information in an HP press
release distributed to the investing public reflected a
fraudulent scheme “in connection with” U.S. securities.
In a concurrently filed memorandum disposition, we
hold that the district court did not abuse its discretion in
certain evidentiary rulings or err in ordering money
forfeiture. We therefore affirm Hussain’s convictions and
sentence in full.
I
Autonomy was a U.K. technology company with dual
headquarters in San Francisco and Cambridge, United
Kingdom. Hussain, a U.K. citizen, served as Autonomy’s
CFO from approximately June 2001 to the spring of 2012.
In this role, he was responsible for preparing Autonomy’s
financial reports and certifying that they complied with U.K.
regulations for public companies.
HP began exploring the possibility of acquiring
Autonomy in early 2011, negotiating the deal that summer.
On August 18, 2011, HP announced that it would acquire
Autonomy for more than $11 billion, or £25.50 per share, an
approximately 64% premium on the market price for
Autonomy’s shares on the London Stock Exchange.
Post-acquisition, things quickly soured. After Hussain
left the company in May 2012, Autonomy’s new CFO
discovered errors in Autonomy’s publicly filed financial
documents and decided to restate the company’s finances for
2010. Upon closer review, it was revealed that for years
Hussain and others at Autonomy had fraudulently
represented the company’s financial picture.
UNITED STATES V. HUSSAIN 5
Hussain and his co-conspirators perpetrated this fraud
through various sophisticated tactics. Each was centered
around the idea of inflating Autonomy’s revenue, one of the
main metrics of success for a technology company because
it signals growth and creates strong market valuation—
thereby making Autonomy an attractive acquisition target.
The government’s evidence at trial was extensive and we
offer only a flavor of it here. Among other things,
Autonomy recorded revenue earlier than allowed under
standard accounting practices by paying intermediary
brokers to buy its software, even though the brokers often
had no intention of selling it to end-users. Autonomy
backdated some of these deals so that it could increase
revenue for certain past quarters. In addition, and despite
representing itself as a “pure software” company, Autonomy
sold hardware at a loss to further inflate its revenues.
Extensive evidence presented at trial showed that Hussain
was centrally involved in both inflating Autonomy’s revenue
and misrepresenting its claimed financial success to HP.
The government’s evidence at trial showed that Hussain
and Autonomy had substantial presence in the United States
before and during the negotiations for the HP deal. As
relevant here, during the course of HP’s due diligence
leading up to the Autonomy acquisition, Hussain and his co-
conspirators used emails, press releases, and video and
telephone conference calls to speak with HP executives in
the United States and fraudulently misrepresent Autonomy’s
finances. On the cusp of finalizing the HP deal, Hussain
signed a letter warranting that an HP press release
announcing the acquisition contained truthful financial
information about Autonomy, when it did not. When the
deal closed, Hussain earned approximately $16 million.
6 UNITED STATES V. HUSSAIN
Following a joint investigation by American and U.K.
authorities, Hussain was charged in the Northern District of
California with fourteen counts of wire fraud under
18 U.S.C. § 1343, and one count of conspiracy to commit
wire fraud under 18 U.S.C. § 1349. Each count of wire fraud
alleged the misuse of a wire with a connection to the
Northern District. A few months later, the government
superseded the indictment and added one count of securities
fraud under 18 U.S.C. § 1348. The government’s theory for
this charge was that Hussain engaged in a scheme to defraud
“in connection with” HP securities by “caus[ing] HP to issue
a press release to the market that was false.”
Hussain moved to dismiss the indictment, arguing that
his wire fraud charges were an impermissible extraterritorial
application of U.S. law and that the securities fraud charge
was too attenuated to U.S. securities. The district court
rejected these legal challenges. After a 29-day trial in which
the government called 37 witnesses, the jury found Hussain
guilty on all counts. Hussain was sentenced to 60 months’
imprisonment. He was also ordered to pay a $4 million fine
and $6.1 million in restitution. This appeal followed.
II
Hussain’s primary argument on appeal is that his
convictions for wire fraud and conspiracy to commit wire
fraud must be reversed because they involved the improper
application of U.S. criminal law to conduct abroad. We
review questions of statutory interpretation de novo. United
States v. Gagarin, 950 F.3d 596, 603 (9th Cir. 2020). In
determining if the evidence was sufficient to sustain a
conviction, we consider whether, “after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Id. at 602
 UNITED STATES V. HUSSAIN 7
(quotations omitted). We hold that Hussain’s wire fraud and
conspiracy convictions are not impermissibly extraterritorial
because they are based on conduct that occurred in the
United States. 1
A
Federal criminal law generally applies to domestic
conduct, so when foreign conduct is also involved, questions
arise as to whether a U.S. prosecution exceeds its proper
bounds. Under the longstanding “presumption against
extraterritoriality,” the Supreme Court has held that
“[a]bsent clearly expressed congressional intent to the
contrary, federal laws will be construed to have only
domestic application.” RJR Nabisco, Inc. v. European
Cmty., 136 S. Ct. 2090, 2100 (2016). But if the object of a
federal law is conduct that occurs in this country, the
concerns associated with a potentially extraterritorial
application of our laws do not come into play. Id. at 2100–
101.
In Morrison v. National Australian Bank Ltd., 561 U.S.
247, 262–65 (2010), the Supreme Court devised a two-step
framework for analyzing issues of extraterritoriality. See
also RJR Nabisco, 136 S. Ct. at 2101. We first ask “whether
the presumption against extraterritoriality has been
rebutted—that is, whether the statute gives a clear,
affirmative indication that it applies extraterritorially.” Id.
If it does not, then we “determine whether the case involves
1
We reject the government’s assertion that Hussain failed to
preserve this issue. Hussain raised the objection in his pre-trial motion
to dismiss and re-raised it in his Rule 29 motion for judgment of
acquittal.
8 UNITED STATES V. HUSSAIN
a domestic application of the statute” by “looking to the
statute’s ‘focus.’” Id.
A statute’s “focus” under step two of Morrison is “‘the
object of its solicitude,’ which can include the conduct it
‘seeks to regulate’ as well as the parties and interests it ‘seeks
to protect’ or vindicate.” WesternGeco LLC v. ION
Geophysical Corp., 138 S. Ct. 2129, 2137 (2018) (quoting
Morrison, 561 U.S. at 267) (alterations omitted). If a statute
is not extraterritorial under Morrison step one, the question
under step two becomes whether the conduct that is
proscribed took place in this country to a sufficient extent:
If the conduct relevant to the statute’s focus
occurred in the United States, then the case
involves a permissible domestic application
even if other conduct occurred abroad; but if
the conduct relevant to the focus occurred in
a foreign country, then the case involves an
impermissible extraterritorial application
regardless of any other conduct that occurred
in U.S. territory.
RJR Nabisco, 136 S. Ct. at 2101.
The Supreme Court has instructed that “[b]ecause a
finding of extraterritoriality at step one will obviate step
two’s ‘focus’ inquiry, it will usually be preferable for courts
to proceed” with these two steps sequentially. Id. at 2101
n.5. But courts may also “start[] at step two in appropriate
cases.” Id. This is such a case because the focus of the wire
fraud statute is the use of the wires in furtherance of a
scheme to defraud, which here occurred domestically. We
therefore need not and do not decide whether § 1343 applies
extraterritorially.
UNITED STATES V. HUSSAIN 9
B
The wire fraud statute states:
Whoever, having devised or intending to
devise any scheme or artifice to defraud, or
for obtaining money or property by means of
false or fraudulent pretenses, representations,
or promises, transmits or causes to be
transmitted by means of wire, radio, or
television communication in interstate or
foreign commerce, any writings, signs,
signals, pictures, or sounds for the purpose of
executing such scheme or artifice, shall be
fined under this title or imprisoned not more
than 20 years, or both.
18 U.S.C. § 1343. There are thus three elements of wire
fraud: “(1) a scheme to defraud, (2) use of the wires in
furtherance of the scheme and (3) a specific intent to deceive
or defraud.” United States v. Garlick, 240 F.3d 789, 792 (9th
Cir. 2001). Hussain and the government disagree over the
“focus” of § 1343 under the Morrison framework outlined
above. Hussain argues that the “focus” is the first element—
the “scheme to defraud”—whereas the government argues it
is the “misuse of the wires.”
Our circuit has yet to resolve this issue in a published
opinion. But the text of the statute and the precedents
interpreting it provide a clear path to the answer. Section
1343 is not a general fraud statute, but instead criminalizes
frauds that specifically involve the misuse of the wires.
Pasquantino v. United States, 544 U.S. 349, 358 (2005)
(“[T]he wire fraud statute punishes fraudulent use of
domestic wires.”). It reflects “the policy choice” to “free the
interstate wires from fraudulent use, irrespective of the
10 UNITED STATES V. HUSSAIN
object of the fraud.” Id. at 370. As we have explained, the
wire fraud statute “protect[s] the instrumentalities of
communication, making the use of the . . . wires as part of a
fraudulent scheme an independent offense quite separate
from any other potentially illegal conduct.” Garlick,
240 F.3d at 792; see also id. at 793 (wire fraud statute is
“directed at the instrumentalities of fraud”) (quotations
omitted).
Our analysis in Garlick is particularly instructive here.
In Garlick, we held that “each use of the wires constitutes a
separate violation of the wire fraud statute.” Id. We
therefore affirmed the defendant’s convictions for two
counts of wire fraud under § 1343: one for faxing fraudulent
information about the age of a product, and another for
causing the buyer in return to fax his agreement to purchase
the product. Id. at 790. It was no matter that both uses of
the wires were part of the same overarching scheme to
defraud. Id. at 794.
In reaching this conclusion, we drew on the similarly
worded mail fraud statute, 18 U.S.C. § 1341, and—in
language relevant here—noted that “[c]ourts have
consistently construed Congress’ intent behind the mail
fraud statute broadly, focusing on the use of the mails itself,
not on the underlying scheme or a particular fraud victim.”
Garlick, 240 F.3d at 792. In Garlick, we also agreed with
the D.C. Circuit that “the focus of the mail and wire fraud
statutes is upon the misuse of the instrumentality of
communication.” Id. at 792 (quoting United States v. Alston,
609 F.2d 531, 536 (D.C. Cir. 1979)) (alterations omitted).
Other circuits have specifically determined that under
Morrison step two, the “focus” of the wire fraud statute is
the misuse of the wires. In a recent decision, the First Circuit
explained that “the structure, elements, and purpose of the
UNITED STATES V. HUSSAIN 11
wire fraud statute indicate that its focus is not the fraud itself
but the abuse of the instrumentality in furtherance of a
fraud.” United States v. McLellan, 959 F.3d 442, 469 (1st
Cir. 2020). The First Circuit therefore affirmed the
defendant’s convictions under § 1343 because his “domestic
conduct through domestic wires [ ] spurred his prosecution.”
Id. at 470. The Second Circuit also evaluated § 1343 under
the Morrison framework and similarly concluded that “the
regulated conduct is not merely a ‘scheme to defraud,’ but
more precisely the use of the . . . wires in furtherance of a
scheme to defraud.” Bascuñán v. Elsaca, 927 F.3d 108, 122
(2d Cir. 2019); see also United States v. Napout, 963 F.3d
163, 179 (2d Cir. 2020) (same). 2
Despite this ample precedent from our circuit and others,
Hussain argues that the “focus” of § 1343 for Morrison
purposes is the “scheme to defraud.” We are aware of no
court that has agreed with this interpretation, and Hussain
does not identify any. Instead, Hussain argues we should be
guided by language in several decisions, including from the
Supreme Court, stating that the “gravamen” of the mail fraud
statute (and by extension the wire fraud statute) is “the
scheme to defraud.” Bridge v. Phx. Bond & Indem. Co.,
2
The Second Circuit in Bascuñán held that wire fraud “involves
sufficient domestic conduct when (1) the defendant used domestic . . .
wires in furtherance of a scheme to defraud; and (2) the use of the . . .
wires was a core component of the scheme to defraud.” 927 F.3d at 122.
The First Circuit interpreted this second requirement as relevant where
“a foreign defendant is alleged to have committed wire fraud against a
foreign victim, and the use of domestic wires was merely ‘incidental’ to
the overall scheme.” McLellan, 959 F.3d at 470 n.7. That is not the case
here because Hussain defrauded a domestic victim. In all events, under
Bascuñán Hussain’s conduct was sufficiently domestic because the use
of wires to defraud HP was a core component of his fraud, and not
“merely incidental.” 927 F.3d at 122.
12 UNITED STATES V. HUSSAIN
553 U.S. 639, 647 (2008). Hussain also points out that in
distinguishing Securities Exchange Act § 10(b) from wire
fraud, the Supreme Court noted that the wire fraud statute
prohibits “‘any scheme or artifice to defraud’—fraud
simpliciter, without any requirement that it be ‘in connection
with’ any particular transaction or event.” Morrison,
561 U.S. at 271–72.
Hussain’s reliance on these passages does not overcome
the plain import of the statutory text and the body of
precedent relevant to the extraterritoriality issue at hand. We
understand the language in the cases upon which Hussain
relies to mean simply that § 1343 criminalizes a broad array
of fraudulent schemes, which is consistent with the notion
that the “focus” of the statute for Morrison purposes is the
instrumentalities used to perpetrate those schemes. Further,
Hussain’s argument is in serious tension with our decision in
Garlick. That a defendant can commit multiple violations of
§ 1343 in service of one fraudulent plot suggests that the
focus of the statute is not on the overall scheme. See Garlick,
240 F.3d at 792. Indeed, we said as much in Garlick itself.
Id. at 792–93.
Equally unavailing is Hussain’s argument that misuse of
the wires is merely a jurisdictional element rather than a
substantive element of the wire fraud offense. We have held
that the “interstate requirement in 18 U.S.C. § 1343 is
jurisdictional.” United States v. Jinian, 725 F.3d 954, 965
(9th Cir. 2013) (emphasis added). The use of the wires,
however, is a substantive element of the crime.
Pasquantino, 544 U.S. at 371; see also Garlick, 240 F.3d
at 792 (listing as an element of wire fraud the “use of the
wires in furtherance of the scheme”). The requirement that
the wires cross state or international lines for purposes of
UNITED STATES V. HUSSAIN 13
federal jurisdiction does not mean that use of the wires is not
the focus of the criminal offense under Morrison.
We therefore hold that, under Morrison step two, the
“focus” of the wire fraud statute, 18 U.S.C. § 1343, is the use
of the wires in furtherance of a scheme to defraud. See
Napout, 963 F.3d at 179; McLellan, 959 F.3d at 469–70;
Bascuñán, 927 F.3d at 122; Garlick, 240 F.3d at 792. So
long as Hussain’s use of the wires in furtherance of his fraud
had a sufficient domestic nexus, we must uphold his
convictions as “permissible domestic application[s]” of the
statute. RJR Nabisco, 136 S. Ct. at 2101.
The facts demonstrate that all fourteen counts of wire
fraud involved the use of domestic wires in furtherance of
the scheme to defraud, and Hussain does not seriously
contend otherwise. Six counts stemmed from phone or video
conference calls among participants in the United Kingdom
and California, five counts focused on emails originating or
terminating in California, and three involved press releases
distributed from England to California. Since each count of
wire fraud involved the use of a domestic wire, each
conviction is a domestic application of the statute. Id. 3
III
Hussain also challenges his conviction for securities
fraud under 18 U.S.C. § 1348. The basis for this charge was
Hussain’s role in warranting financial information contained
in an HP press release announcing the Autonomy
acquisition. In a letter dated August 18, 2011, which
3
Hussain concedes that the extraterritoriality analysis for conspiracy
to commit wire fraud, 18 U.S.C. § 1349, mirrors the analysis for the
substantive wire fraud provision. We agree. Therefore, sufficient
evidence supports his conviction under § 1349 as well.
14 UNITED STATES V. HUSSAIN
Hussain signed and to which a “draft press announcement”
was attached, Hussain affirmed that to the best of his
knowledge, “any information provided by me for inclusion
in the Press Announcement . . . is and will be true and
accurate in all respects and not misleading in any respect.”
Hussain in the letter also pledged to sell his shares of
Autonomy.
The HP press release referenced in Hussain’s letter was
released the same day and was entitled “HP To Acquire
Leading Enterprise Information Management Software
Company Autonomy Corporation plc.” The press release
lauded Autonomy’s “strong growth and profit margin
profile” and claimed the acquisition would “[e]nhance HP’s
financial profile.” It also provided details about Autonomy’s
financial success, namely, Autonomy’s “consistent track
record of double-digit revenue growth, with 87 percent gross
margins and 43 percent operating margins in calendar year
2010.”
At trial, two HP shareholders testified that they
purchased HP stock based on statements in the press release
about Autonomy’s growth rate. An equity research analyst
similarly testified that he reviewed the press release and used
the information in it to advise investors. The government
put on evidence to show that the statements in the press
release about Autonomy’s finances were false.
As relevant here, the securities fraud criminal statute
prohibits executing a “scheme or artifice” “to defraud any
person in connection with any” U.S.-registered security,
18 U.S.C. § 1348(1), or “obtain, by means of false or
fraudulent pretenses, representations, or promises, any
money or property in connection with the purchase or sale of
any” U.S.-registered security, id. § 1348(2). This provision
was enacted in 2002 as part of the Sarbanes-Oxley Act, and
UNITED STATES V. HUSSAIN 15
it was “intended to provide prosecutors with a different—
and broader—enforcement mechanism to address securities
fraud than what had been previously provided.” United
States v. Blaszczak, 947 F.3d 19, 36 (2d Cir. 2019). The
government charged Hussain under § 1348 and further
alleged he aided and abetted securities fraud under 18 U.S.C.
§ 2.
In order to convict under § 1348, the jury was instructed
that it must find Hussain (1) “knowingly executed or
attempted to execute a scheme or plan to defraud or a scheme
or plan for obtaining money or property by means of false or
fraudulent pretenses, representations, or promises”; (2) “the
statements made or facts omitted as part of the scheme were
material”; (3) Hussain “acted with the intent to defraud”; and
(4) “the scheme was in connection with the purchase or sale
of securities of Hewlett-Packard company.” See also SEC v.
Stein, 906 F.3d 823, 830 (9th Cir. 2018); United States v.
Coscia, 866 F.3d 782, 796 (7th Cir. 2017).
On appeal, Hussain attempts to mount a challenge to the
third element and argues the government failed to prove the
requisite fraudulent intent. But Hussain below barely raised
this issue in passing in his Rule 29 motion, and the district
court unsurprisingly did not address it. Hussain thus waived
the argument, and we review a waived ground for acquittal
only “to prevent a manifest miscarriage of justice.” United
States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010)
(quotations omitted).
There was no manifest miscarriage of justice. But even
if we were reviewing de novo the result would be the same,
as ample evidence would allow a rational jury to find that
Hussain had the requisite mens rea. Hussain, a senior
executive, knew HP was a publicly traded company and
knew HP would publicize its acquisition of Autonomy to
16 UNITED STATES V. HUSSAIN
investors, including through an important press release
containing Autonomy’s financial information the accuracy
of which Hussain expressly warranted. A jury was entitled
to conclude based on the evidence that Hussain intended to
defraud HP and its investors. 4
Hussain’s primary challenge to his securities fraud
conviction concerns the fourth element in the § 1348 jury
instructions: in his view, the government failed to prove his
fraudulent scheme was “in connection with” the purchase or
sale of HP securities. Hussain does not dispute that he
signed the August 18, 2011 letter and verified the supposed
accuracy of the financial information in the press release.
Instead, he assumes his conduct was fraudulent but
maintains that verifying information in an HP press release
that was later distributed to the investing public was conduct
that was too attenuated to constitute a fraudulent scheme “in
connection with” HP securities.
There is scant case law on § 1348, and this case does not
require us to delve into every aspect of it. Instead, we are
focused on § 1348’s specific “in connection with”
4
Alternatively, Hussain argues that a new trial is warranted because
the district court’s aiding and abetting jury instruction lacked the element
of scienter. We review this for plain error because Hussain failed to raise
this issue below. See United States v. Lindsay, 931 F.3d 852, 864 (9th
Cir. 2019). There was no error, plain or otherwise. To find Hussain
guilty of aiding and abetting securities fraud, the jury was instructed to
find that he “willfully caused an act to be done which, if directly
performed by him or another, would be an offense,” if the evidence
demonstrated “beyond a reasonable doubt” that Hussain “acted with the
knowledge and intention of helping that person commit the crime
charged.” The jury instructions thus did not omit the mens rea
requirement. Nor has Hussain shown that any error in the instructions
affected his substantial rights. United States v. Conti, 804 F.3d 977, 981–
82 (9th Cir. 2015).
UNITED STATES V. HUSSAIN 17
requirement. We have not addressed this clause of § 1348
before, nor is it apparent that any other court of appeals has
either, at least not in any depth. But § 10(b) of the Securities
Exchange Act contains similar “in connection with”
language. See 15 U.S.C. § 78j(b) (prohibiting “in
connection with the purchase or sale of any security . . . any
manipulative or deceptive device”). The Supreme Court has
also noted it has given the “in connection with” requirement
in § 10(b) a “broad interpretation,” and that Congress cannot
be “unaware of th[at] broad construction” when it uses
similar language in other statutes. Merrill Lynch, Pierce,
Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85 (2006).
In light of this, we consider precedents involving § 10(b)
in evaluating whether a rational jury could have found that
Hussain’s involvement in the press release met the “in
connection with” requirement of § 1348. Indeed, like the
government, Hussain himself in both the district court and
this court has pointed to § 10(b) precedent as relevant to the
§ 1348 “in connection with” inquiry.
In the § 10(b) context, we have explained that “in
connection with” is construed “broadly, ‘not technically and
restrictively.’” Freeman Invs., L.P. v. Pac. Life Ins. Co.,
704 F.3d 1110, 1117 (9th Cir. 2013) (quoting SEC v.
Zandford, 535 U.S. 813, 819 (2002)). And we have held
under § 10(b) that “[w]here the fraud alleged involves public
dissemination in a document such as a press release, annual
report, investment prospectus or other such document on
which an investor would presumably rely, the ‘in connection
with’ requirement is generally met by proof of the means of
dissemination and the materiality of the misrepresentation or
omission.” SEC v. Rana Research, Inc., 8 F.3d 1358, 1362
(9th Cir. 1993). In McGann v. Ernst & Young, 102 F.3d 390
(9th Cir. 1996), we therefore held that “an accounting firm
18 UNITED STATES V. HUSSAIN
acts ‘in connection with’ securities trading when it produces
an audit report that it knows its client will include in a Form
10-K,” because such “public statements [are] reasonably
calculated to influence those who trade securities.” Id.
at 394, 397. The Tenth Circuit has similarly held that
§ 10(b) may apply when a defendant “can fairly be said to
have caused [the speaker] to make the relevant statements”
and “knew or should have known that the statements would
reach investors.” SEC v. Wolfson, 539 F.3d 1249, 1261
(10th Cir. 2008).
In this case, and based on these precedents, the evidence
presented at trial was sufficient for the jury to find that the
“in connection with” element was met. The letter Hussain
signed attached a “draft press announcement,” and Hussain
affirmed that the information included in the press release
“provided by me” was “true and accurate in all respects and
not misleading in any respect.” A press release is a primary
method of informing the market about an acquisition. And
it can hardly be a surprise—especially to a sophisticated
executive like Hussain—that investors could and would base
their trading decisions on it. See, e.g., Rana Research,
8 F.3d at 1362 (explaining that a press release is a “document
on which an investor would presumably rely”). Indeed,
press releases often form the basis for securities fraud
allegations. See, e.g., SEC v. Platforms Wireless Int’l Corp.,
617 F.3d 1072, 1094–96 (9th Cir. 2010); Rana Research,
8 F.3d at 1362. Given the evidence presented at trial,
Hussain’s assurances that the financial information in the
press release was accurate was sufficiently “in connection
with” U.S. securities.
We cannot accept Hussain’s arguments that his scheme
falls outside § 1348 because it was only “in connection with”
Autonomy securities, and that his misrepresentations were
UNITED STATES V. HUSSAIN 19
directed at HP’s management and not its investors. These
arguments reflect an unduly narrow interpretation of § 1348.
And they likewise reflect a cramped view of the import to
the investing public of a press release about a major
acquisition, as well as Hussain’s personal role in verifying
the accuracy of the Autonomy financial information
included in the press release. The jury was entitled to reject
Hussain’s efforts to minimize the press release and his level
of involvement in it.
* * *
For the reasons stated here and in our accompanying
memorandum disposition, the judgment of conviction is
AFFIRMED.