United States v. Wang

United States Court of Appeals
For the First Circuit
Nos.18-2232,18-2233,19-1910,19-1911
United States,
Appellee,
v.
SCHULTZ CHAN, a/k/a JASON CHAN; SONGJIANG WANG,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Thompson, Barron,
Circuit Judges.*
Peter Charles Horstmann, with whom Elliot Weinstein was on
brief, for appellants.
Carol Head, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, Jordi DeLlano,
Assistant United States Attorney, and Kriss Basil, Assistant
United States Attorney, were on brief, for appellee.
* Judge Torruella heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C.
§ 46(d).
November 20, 2020
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THOMPSON, Circuit Judge. Two biostatisticians employed
by two publicly traded biopharmaceutical companies were convicted
of securities fraud and conspiracy to commit securities fraud after
they bought and sold shares in each other's employing companies.
When processing their stock transactions, both were in possession
of confidential raw data from clinical trials of drug treatments
from the other's company. On appeal, they make several claims of
trial and sentencing error, including challenges to: (1) the
denial of their motions for judgments of acquittal on each count
of conviction, (2) the denial of a motion to compel production of
a letter, (3) the calculation method for the adjusted base offense
level for one of the defendants, and (4) the restitution order.
For the reasons discussed below, we affirm across the board.
BACKGROUND
When, as here, defendants challenge the sufficiency of
the evidence to support their convictions, we provide our summary
of the facts in the light most favorable to the jury's verdict.
United States v. Charriez-Rolón, 923 F.3d 45, 47 (1st Cir. 2019).
We use this section to paint the big picture of what happened in
this case; we'll save some of the nitty-gritty detail for the
discussion section below, as needed, to complete the picture as we
tackle each issue on appeal.
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Akebia & Defendant Chan
Akebia Therapeutics, Inc. (Akebia) is a publicly traded
biopharmaceutical company focused on the development of treatments
for kidney disease. Schultz Chan, one of the defendants, is a
biostatistician who has spent his career working on clinical trials
in biotech companies. In the summer of 2015, Akebia hired Chan to
be its first in-house statistician; his role as Akebia's Director
of Biostatistics started on August 17, 2015. This was an important
time for the company; it was in the midst of closing out an
important clinical trial of a treatment for dialysis patients with
chronic kidney disease (known as the "11 study"). The results of
the "11 study" would not only affect the target patient population
but also those who had invested in Akebia by holding shares of its
publicly traded stock.1
Three days before Chan started working at Akebia, one of
its in-house attorneys sent an email to all Akebia's employees
imposing a blackout period on them, effective immediately. A
1 According to Akebia's Chief Medical Officer, there are three
phases of clinical trials involving humans when a new treatment is
developed. A phase 1 trial typically involves healthy volunteers
to determine the general safety of the treatment. A phase 2 trial
involves one- to two-hundred patients who are sick with the illness
the new medicine is designed to treat. When a phase 2 trial
achieves good results, then phase 3 is designed with oversight
from the Food and Drug Administration to test the treatment with
hundreds or thousands of patients with the target illness. The
"11 study" was a phase 2 trial of a treatment which came to be
known as Vadadustat.
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"blackout period" is when a company prohibits its employees -- or
a group of its employees -- from buying or selling its stock
because those employees may be, or are, in possession of important
information that has not yet been released to the public. This
information is referred to as "material, non-public information"
(MNPI) to those in the industry. Blackout periods are often
imposed around the quarterly release of financial information or
the release of clinical trial data because it prevents insiders
from using company information which could impact stock pricing.
Chan was part of the team responsible for analyzing the
data from the clinical trial and delivering some key results to
Akebia's executives, such as whether the treatment has been working
and whether there are any red flags about the safety of the
treatment. Data from the completed "11 study" was ready for
analysis in the first days of Chan's employment. Akebia's
executives needed the analyzed results from the "11 study" as soon
as possible so they could decide how and when to release the
results to the public and, most importantly, to Akebia's existing
and potential investors.
On August 19, 2015, Chan and others on his team received
good news; the preliminary data from the "11 study" showed almost
zero "sudden adverse effects" from the treatment tested such as
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deaths, strokes, deep vein thrombosis, or heart attacks.2 This
was important news because a report released the month before had
highlighted the results from a study of the same treatment tested
on non-dialysis patients with chronic kidney disease (the phase 2
"7 study") in which three patients who had received the treatment
died. That report had posited that these "safety issues" had the
effect of "weigh[ing] down" Akebia's stock price. Akebia announced
the full results from the "11 study" to the general public on
September 8, 2015.
Merrimack & Defendant Wang
Merrimack Pharmaceuticals, Inc. (Merrimack) is a
publicly traded biopharmaceutical company dedicated to the
development of diagnostics and treatments for cancer. In 2013 and
2014, Merrimack tested a treatment it had developed to prolong the
survival of those with metastatic pancreatic cancer who were also
undergoing chemotherapy. The development of this treatment (known
as MM-398) had progressed to a phase 3 trial (see supra note 1),
referred to as the NAPOLI-1 study. The NAPOLI-1 study's design
included specific benchmarks; for instance, they needed
approximately 405 patients to enroll in the trial and the study's
data would close out upon the 305th patient death. Merrimack used
press releases to communicate information about these benchmarks.
2 One patient had suffered a heart attack.
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For example, a press release issued on August 28, 2013, announced
Merrimack had reached its patient enrollment goal of 405 patients
in the NAPOLI-1 study. Merrimack also announced the results from
the completed NAPOLI-1 study through a press release issued on May
1, 2014, after the 305th patient had passed away in February and
the team had analyzed the results.
Merrimack initially thought the 305th patient death
would occur in the fall of 2013. Anticipating this milestone, in-
house counsel imposed a stock trading blackout period during the
summer of 2013 on those who worked closely with the study. The
blackout period was lifted in November because the study had not
yet reached the 305th patient death, and employees were admonished
not to trade in Merrimack stock if they were in possession of MNPI
about the NAPOLI-1 study. A blackout period was again imposed on
April 21, 2014, when the final data from the NAPOLI-1 study was
available to a select few employees for analysis. As previously
stated (but to close the chronology of events), Merrimack issued
a press release with the final results from the NAPOLI-1 study on
May 1, 2014.
Enter Songjiang Wang, the other defendant in this case.
He joined Merrimack in 2011 and, during the NAPOLI-1 study, he led
the statistical programming group at Merrimack. Wang's role for
the NAPOLI-1 study was to write the computer program to execute
the data analysis plan. To accomplish this task, Wang used a
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statistical analysis plan (SAP) which Merrimack developed as part
of the FDA approval process. Wang had access to the NAPOLI-1 study
data from the summer of 2013 through the duration of the study;
this preliminary data would have been used to test the computer
program he was writing in preparation to execute the ultimate data
analysis once the study was over and the dataset was final. Wang
was also part of the team who analyzed the final dataset in April
2014.
Where Friendship and Banking Activity and Stock Trading Meet
And now, the defendants, Akebia, and Merrimack converge.
The defendants met for the first time around 2008 when Chan, then
a senior director of biostatistics at FoldRx, hired Wang as a part-
time statistical programming consultant. Chan and Wang stayed in
touch through subsequent job changes and moves around the country.
In 2012 and 2013, Chan borrowed money from Wang to renovate real
property Chan owned in Massachusetts and Connecticut. Rather than
immediately spend some of the borrowed money on the property
renovations, however, Chan invested it in stocks, including shares
of Merrimack (where Wang worked). When Chan applied for a position
at Akebia, Wang served as a reference for him. After Chan started
working at Akebia, the men texted regularly and met frequently for
lunch.
Chan and Wang were active investors in the stock market,
favoring shares in biopharmaceutical companies. A deep dive by
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the government into their financial records revealed their trading
activities as well as timing of withdrawals of cash from their
bank accounts, and transfers of money between their own bank
accounts and brokerage accounts. For example, between August 2013
and March 2015, Chan purchased Merrimack shares on at least thirty-
seven different occasions, with his biggest purchase on April 21,
2014, when he placed an order to purchase 32,522 shares as opposed
to the 2,000-10,000 shares he usually bought at one time.
From November 11, 2013 through February 26, 2014, Wang
withdrew between $4,000 and $7,000 in cash eight times. Between
December 3, 2013 and February 27, 2014, Chan made seven deposits
of $6,800 to $12,000 in cash or checks to his bank account and
purchased shares of Merrimack on at least four days during this
time period. He sold all of his Merrimack shares on March 2, 2015.
A few weeks later, Chan transferred approximately $98K from one of
his brokerage accounts to a regular bank account, then wrote a
$84K check which he gave to Wang, who deposited it into his own
bank account on March 26, 2015.
In addition, Chan bought shares of Akebia's stock during
the first week of his employment there in August 2015 and during
a blackout period imposed by the company on its employees. Wang
also bought shares of Akebia's stock sixteen times between August
28, 2015 and September 4, 2015. (These dates will be important
when we get to our discussion below.)
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FINRA's Interest Is Piqued and the Feds Close In
The Financial Industry Regulatory Authority (FINRA) is
"a non-governmental organization that regulates professionals and
firms in the securities industry," United States v. Bray, 853 F.3d
18, 23 (1st Cir. 2017), and helps the SEC (Securities and Exchange
Commission) enforce federal securities laws. FINRA got in touch
with both Akebia and Merrimack soon after each company announced
the results from the clinical trials identified above to conduct
a routine review and to ask who knew about the trial results before
they were publicly announced, as well as to find out if any of
these individuals knew any of the company's stockholders.
A couple of weeks after Merrimack's May 1, 2014
announcement of the results from the phase 3 clinical trial of MM-
398, Merrimack's General Counsel sent an email to several Merrimack
employees, including Wang, asking for information pursuant to an
inquiry from FINRA about who was aware of the MM-398 phase 3
results before Merrimack announced the results publicly. Wang
replied within an hour, stating he was aware of the data from the
NAPOLI-1 study on April 19, 2014. Three months later, Merrimack's
General Counsel sent another email to several Merrimack employees,
Wang included, asking each of them -- again, at FINRA's behest --
to review a list of names and disclose which individuals on that
list each of the employees knew. Wang did not reply until the
General Counsel followed up two weeks later. Wang then replied he
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had "reviewed the list of individuals in [the] email attachment
and couldn't recognize anyone on the list that [he] kn[e]w." The
list included "Chan, Schultz" and "Wang, Linda" (Chan's wife, no
relation to the defendant Wang).
Meanwhile, over at Akebia: Two months after Akebia's
September 2015 announcement of the results of its "11 study," the
legal department sent an email to all Akebia employees, vendors,
and consultants who had had access to the "11 study" data prior to
the September 8 public announcement, asking them to complete a
form, per a request from FINRA, disclosing whether they knew any
of the people on a list attached to the request. Chan responded
within an hour, declaring he didn't know anyone on the attached
list. The list included an entry for "Wang, Songjiang." Within
half an hour of responding to this request, Chan sent a text
message to Wang asking if he would be in his office that day. Wang
replied: "No, work from home today. Find some time next week."
The feds first approached and interviewed Chan in June
2016. Chan admitted he had bought Akebia stock after receiving
the "11 study" data in August 2015. Chan also told the agents who
interviewed him that the $84,143.98 check he had given to Wang was
to repay him for the loaned money for the property renovations in
Connecticut. The feds likewise interviewed Wang in June 2016.
Wang initially denied loaning money to Chan, but then stated he
had loaned money to Chan for a real estate transaction in Texas
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which Chan had repaid in cash. According to the FBI special agent
who arrested Wang in February 2017, while in transport post-arrest
Wang said: "If I was smart, I wouldn't have done this."
Indictment and Trial
The defendants were ultimately indicted and tried on
four counts of securities-related violations:
1. The defendants conspired to commit securities fraud, which
violated 18 U.S.C. § 371 (Count One);
2. The defendants committed securities fraud in and around April
2014 culminating in Chan's purchase and sale of Merrimack
shares after receiving MNPI from Wang, which violated 15
U.S.C. §§ 78j(b), 78ff(a), as well as 17 C.F.R. § 240.10b-5
(Count Two);
3. The defendants committed securities fraud in and between
August 2015 and September 2015 resulting in Wang's purchase
and sale of Akebia shares after receiving MNPI from Chan,
which violated the same laws as Count Two (Count Three); and
4. Chan committed securities fraud in and around August 2015
when he purchased and sold shares of Akebia stock after he
came into possession of MNPI from Akebia (Count Four).
In the pretrial proceedings, the defendants asked the
district court to force the government to turn over an
investigative referral letter FINRA sent to the SEC. A magistrate
judge denied the motion to compel production, concluding it was
irrelevant because "the government ha[d] already produced all of
the corresponding exhibits and attachments on which the FINRA
investigative referral letter [was] based, and the letter itself
therefore [was] not likely to contain any new information the
defendants [did] not already have."
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The defendants were tried by a jury over ten days in
June and July 2018. Several colleagues and executives from Akebia
and Merrimack who worked with Chan or Wang testified.
Chan also took the stand (Wang opted not to, as was his
right); during his testimony he offered various assertions
relevant to the issues presented for our review on appeal. He
denied giving MNPI to Wang or receiving any from him. Chan
testified he had been investing in the stock market for fifteen
years and developed a daily morning routine of reading through
news online about biotech and pharmaceutical companies, checking
stock prices while he drank his morning coffee. He stated he used
publicly available information about biotech companies, found on
company websites, in reports filed with the SEC, and in medical
journal articles, to learn about the drugs under development and
to help him decide where and whether to invest. With respect to
Wang, Chan testified he borrowed money in several installments for
renovations to property in Boston and Connecticut -- approximately
$80,000 in total -- but he ended up using much of the borrowed
money to purchase shares in Merrimack stock instead. Chan claimed
he paid the loan back, with interest, by check.
With respect to Akebia and Merrimack stock, Chan
admitted he purchased Akebia stock three times in August 2015,
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using limit orders3 on August 19 and 21, but he denied having had
MNPI at the time he made these stock purchases. Chan also admitted
to placing a limit order on Merrimack stock which went through on
April 21, 2014. Chan testified that the flurry of text messages
to Wang in the days and weeks after Chan started working at Akebia
was simply to coordinate a time to have lunch and so Chan could
thank him for serving as a reference for his job application at
Akebia.
Before the jury began its deliberations, the defendants
properly moved twice for judgments of acquittal, which the district
court eventually denied in writing after entertaining memoranda
and oral argument from the parties. The jury found Wang and Chan
guilty of conspiracy to commit securities fraud and all counts of
securities fraud with which they were charged. The district court
imposed a 36-month sentence of incarceration on Chan (more on the
court's sentencing calculus in a moment) and ordered him to pay
$153,428.72 in restitution to Akebia. As for Wang, the district
court ordered him to serve six months in prison and pay $17,047.64
in restitution to Akebia.
3 A "limit order" is an order to buy shares within specific
parameters, such as below a certain price per share, or a specific
number of shares, or shares up to a specified price. See Bray,
853 F.3d at 23 n.2.
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DISCUSSION
The defendants claim four separate errors on appeal,
three of which pertain to both and one of which pertains only to
Chan:
 Denying their motions for judgments of acquittal of each count
of conviction;
 Denying their motion to compel production of a letter from
FINRA4
4
The defendants also assert the district court erred by not
granting a posttrial motion to compel production of the grand jury
testimony and exhibits which they had asked for during the
sentencing phase of their case because they wanted "greater clarity
as to what evidence and facts were presented to the Grand Jury as
to the time frame of the MM-398 study and Wang’s possession of
MNPI." In particular, the defendants were still after the FINRA
"reports, referrals and records." The Government filed an
opposition to the motion, but it was never resolved; the district
court did not enter an order ruling on the motion.
As part of their appellate arguments before us, the defendants
state, in a conclusory manner without any developed argument, that
they showed a particularized need for the "grand jury minutes . . .
related to the MM-398 timeline" because, after trial and before
sentencing, the defendants wanted to "clarify the prejudicial
variance for count 1" and the "interest of justice far outweighs
any need for continuing grand jury secrecy in this case." Setting
aside the lack of developed argument on this point for a moment,
without a ruling from the district court this claim of "error" is
not ripe for our review. Shea v. United States, 976 F.3d 63, 82
(1st Cir. 2020) ("[W]e generally do not rule on questions --
whether of fact or of law -- until a district court has done so,
a practice that enhances the quality of our decisions both by
allowing us to consider the district court's analysis and by
allowing the parties to hone their arguments before presenting
them to us." (quoting Moore v. United States, 871 F.3d 72, 79 (1st
Cir. 2017))). And in any event, the arguments before us are
perfunctory and undeveloped, so the issue is waived. See Rodríguez
v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011)
("It should go without saying that we deem waived claims not made
or claims adverted to in a cursory fashion, unaccompanied by
developed argument."); Holloway v. United States, 845 F.3d 487,
491 n.4 (1st Cir. 2017) (stating an argument was waived when party
failed to provide any legal citations to support its argument).
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 Calculating Chan's adjusted base offense level using the
market value of the stocks after the public information about
the clinical trials had been released to the public; and
 Awarding restitution to Akebia.
We will take each issue in turn.
A. The Securities Exchange Act
Before we tackle the motions for judgments of acquittal
as to the conspiracy and securities fraud convictions, let's go
over a quick primer on this area of the law.
"The unlawful trading in securities based on material,
nonpublic information, or illegal insider trading, is a well-
established violation of Section 10(b) of the Securities Exchange
Act . . . and the [SEC's] Rule 10b-5." Bray, 853 F.3d at 24
(citing Salman v. United States, 137 S. Ct. 420, 423 (2016)).
"Section 10(b) of the Securities Exchange Act of 1934 and the
Securities and Exchange Commission's Rule 10b–5 prohibit
undisclosed trading on inside corporate information by individuals
who are under a duty of trust and confidence that prohibits them
from secretly using such information for their personal
advantage." Salman, 137 S. Ct. at 423 (citing 15 U.S.C. § 78j(b)
(prohibiting the use, "in connection with the purchase or sale of
any security," of "any manipulative or deceptive device or
contrivance in contravention of such rules as the [SEC] may
prescribe") and 17 C.F.R. § 240.10b–5 (forbidding the use, "in
connection with the sale or purchase of any security," of "any
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device, scheme or artifice to defraud," or any "act, practice, or
course of business which operates . . . as a fraud or deceit")).
"The purpose of the Exchange Act and complementary SEC regulations
is 'to insure honest securities markets and thereby promote
investor confidence.'" United States v. McLellan, 959 F.3d 442,
457 (1st Cir. 2020) (quoting Chadbourne & Parke LLP v. Troice, 571
U.S. 377, 390 (2014)).
[T]he Supreme Court has recognized two
theories of insider trading liability: the
"classical theory" and the "misappropriation
theory." The classical theory generally only
imposes liability when a trader or tipper is
an insider of the traded-in corporation. The
classical insider-trader thus breaches a
fiduciary duty owed to the corporation's
shareholders. The misappropriation theory,
however, creates liability when a tipper or
trader misappropriates confidential
information from his source of the
information. The misappropriator thus
breaches a fiduciary duty owed to the source.
S.E.C. v. Rocklage, 470 F.3d 1, 5 (1st Cir. 2006).
B. Motions for Judgments of Acquittal
According to the defendants, they were entitled to
judgments of acquittal on all of the charges in the indictment:
The conspiracy to commit securities fraud count because the
evidence the government presented at trial varied prejudicially
from the allegations in the indictment and the substantive
securities fraud counts because there was not enough evidence at
trial from which the jury could have found they were guilty beyond
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a reasonable doubt. Because the defendants made the same arguments
before the district court (therefore preserving this legal issue
for our review), our task is to consider afresh their arguments
about why they say they are entitled to judgments of acquittal.
See Charriez-Rolón, 923 F.3d at 51. That is, we give no deference
to the district court's assessment of the same arguments when it
evaluated the defendants' motions for judgments of acquittal. Id.
Conspiracy Conviction
Count One of the operative indictment at trial (the
second superseding indictment or SSI) charged the defendants with
an illegal conspiracy "[b]eginning no later than November 2013 and
continuing through at least September 2015" to commit securities
fraud.
The defendants don't attack the conspiracy conviction in
a conventional "there isn't enough evidence to support my
conviction" manner. Instead, they frame their challenge as an
impermissible variance from the allegations in the SSI. Broadly
speaking, they accuse the government of proving a conspiracy of
which they had no notice, i.e., a conspiracy that started earlier
than that alleged in the SSI, as well as of proving separate
conspiracies rather than the single conspiracy alleged in the SSI.
Not surprisingly, the government disagrees with all of the
defendants' arguments, as we discuss below.
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"A variance occurs when the crime charged remains
unaltered, but the evidence adduced at trial proves different facts
than those alleged in the indictment." See United States v.
Dellosantos, 649 F.3d 109, 116 (1st Cir. 2011) (quoting United
States v. Mangual–Santiago, 562 F.3d 411, 421 (1st Cir. 2009)).
"A variance alone, however, does not necessitate disturbing a
conviction; rather, 'a variance is grounds for reversal only if it
is prejudicial . . . .'" Id. (alteration omitted) (quoting
Mangual–Santiago, 562 F.3d at 421). "Put differently, 'so long as
the statutory violation remains the same as that alleged in the
indictment, the jury can convict even if the facts are somewhat
different than charged -- so long as the difference does not cause
unfair prejudice.'" Id. (alteration omitted) (quoting United
States v. Wihbey, 75 F.3d 761, 774 (1st Cir. 1996)). We have
previously identified at least three ways in which a variance may
cause unfair prejudice (also often referred to as affecting a
defendant's substantial rights):
First, a defendant may receive inadequate
notice of the charge against him and thus be
taken by surprise at trial. Second, a
defendant may be twice subject to prosecution
for the same offense. Third, a defendant may
be prejudiced by "evidentiary spillover": the
"transference of guilt" to a defendant
involved in one conspiracy from evidence
incriminating defendants in another
conspiracy in which the particular defendant
was not involved.
Id. at 125 (quoting Wihbey, 75 F.3d at 774).
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For its part, the district court concluded there was a
variance from the indictment because the SSI alleged Wang possessed
MNPI from three separate clinical trials at Merrimack before the
company released the results of each of these trials to the public,
but the government only introduced evidence related to the NAPOLI-
1 study ending in 2014 described above. The district court decided
(and the government agrees) this variance was not prejudicial to
the defendants because the testimony at trial was consistent with
the SSI allegation that the conspiracy began in November 2013 and
this start date alleged in the indictment put the defendants on
notice for purposes of preparing to defend against the charged
offenses.
Upon de novo review, we agree with the district court.
Here's why:
There is no dispute the government only focused its
presentation of the evidence on one of the three Merrimack clinical
trials referenced in the SSI. The evidence admitted at trial
focused on the milestone dates related to the NAPOLI-1 study and
the government did not make any attempt to prove Wang perpetrated
securities fraud using MNPI from the other two clinical trials
Merrimack was running around the same time and mentioned in the
SSI.5 Herein lies the variance. See id. at 116 (defining a
5
In the SSI, the government alleged Wang had access to the
data from two separate clinical trials testing cancer treatments
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variance as "crime charged remains unaltered, but the evidence
adduced at trial proves different facts than those alleged in the
indictment" (quoting Mangual-Santiago, 562 F.3d at 421)).
Moreover, as the government points out, the evidence with respect
to the part of the conspiracy involving Merrimack proved a narrower
conspiracy than that alleged in the SSI because the government did
not opt to focus its evidentiary presentation on two of the
clinical studies referred to in the SSI. The proof of a narrower
conspiracy than that alleged in an indictment does not create a
prejudicial variance. See United States v. Mubayyid, 658 F.3d 35,
54 (1st Cir. 2011).
The defendants argue the district court erred by
concluding they were not prejudiced by the variance, contending
the prejudice arises in part from the lack of notice in the SSI
that they would specifically be defending against Wang's alleged
misuse of the MNPI from the NAPOLI-1 study starting with what Wang
had in his possession in November 2013. They also assert the
unrelated to MM-398 (the treatment tested in the NAPOLI-1 study),
the results of which were announced publicly during the alleged
scope of the conspiracy: (1) a phase 2 trial -- Merrimack
announced the results to the public in November 2013, and (2) a
phase 1 trial -- Merrimack announced the results to the public in
December 2013. One of Merrimack's Vice Presidents testified at
trial that Merrimack released good results from a phase 2 trial
for "MM-121" on November 26, 2013, as well as favorable results
from a phase 1 trial for "MM-302" on December 13, 2013. Other
than this testimony and the two relevant press releases, these two
treatments did not factor in to the government's evidentiary
presentation to prove the charges against the defendants.
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prejudicial variance allowed "otherwise inadmissible evidence of
[their] banking transactions to prejudice the jury's consideration
of all offenses." But we perceive no prejudice to the defendants
because they clearly had adequate notice of the conspiracy with
which they were charged: In more than one section, the SSI alleged
a conspiracy began in November 2013 and did not limit this
timeframe to one or more of the three clinical trials the SSI
included in its general allegations. See Dellosantos, 649 F.3d at
125 (stating defendants may be unfairly prejudiced by variance if
taken by surprise at trial due to inadequate notice of the charge
against them). For this reason, too, the defendants were not
deprived of the ability to challenge the admission of banking
transactions that precede what they consider to be the proper start
date for any misconduct in regard to the NAPOLI-1 study.
We also note that, even if we agreed with the defendants
regarding the variance to the conspiracy for the securities fraud
offense related to Merrimack, they have not alleged any variance
from the allegations regarding the scheme as to the purchase of
shares of Akebia's stock. Therefore, the conspiracy conviction
would remain in place.
The defendants also argue judgments of acquittal are
warranted because the SSI alleged a single conspiracy to commit
securities fraud for both companies but the evidence at trial
varied by supporting two separate and distinct conspiracies. We
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examine a defendant's claim of variance from the specifically
charged conspiracy in terms of evidentiary sufficiency. See id.
at 116; United States v. Niemi, 579 F.3d 123, 127 (1st Cir. 2009)
("Whether evidence shows one or many conspiracies is a question of
fact for the jury and is reviewed only for sufficiency of the
evidence."). "Three factors guide our assessment of whether the
evidence was sufficient to prove that a set of criminal activities
constituted a single conspiracy: '(1) the existence of a common
goal, (2) overlap among the activities' participants, and (3)
interdependence among the participants.'" United States v. Ortiz-
Islas, 829 F.3d 19, 24 (1st Cir. 2016) (alteration omitted)
(quoting United States v. Paz–Alvarez, 799 F.3d 12, 30 (1st Cir.
2015)). A single conspiracy "does not require the participants to
. . . [have] participate[d] in each aspect of the conspiracy."
Id. at 24-25 (emphasis omitted) (quoting Dellosantos, 649 F.3d at
118).
For its part, the district court concluded these three
factors were met by the evidence and there was sufficient evidence
to support a single conspiracy with multiple crimes. We agree.
The evidence of the defendants' common goal to profit from their
employers included their individual investments in the stock of
each other's employers soon after each was in possession of
critical data (MNPI) about clinical trials and their specified
knowledge and skills to know how the results of the trials would
- 23 -
affect the stock prices of each defendant's employer. This
evidence points to the common goal of using confidential
information from each's employer to make strategic transactions of
shares of stock but using each other to execute the actual stock
orders to avoid company policy violations. See id. at 25; Mangual-
Santiago, 562 F.3d at 421. The overlap of the defendants'
activities is demonstrated through this same evidence: Each was
needed to achieve the goal of profiting from their investments in
shares of both Akebia and Merrimack stock. The defendants'
activities were interdependent on one another because "the
activities of one aspect of the scheme [we]re necessary [and]
advantageous to the success of another aspect of the scheme."
Mangual-Santiago, 562 F.3d at 422 (quoting United States v.
Portela, 167 F.3d 687, 695 (1st Cir. 1999)). We hold, therefore,
there was sufficient evidence to prove a single conspiracy.
The defendants also argue that this purported variance
resulted in spillover prejudice on the counts related to Merrimack
which stemmed from the evidence presented regarding the Akebia-
related charges and this prejudice -- they say -- affected their
rights to a fair trial. Specifically, the defendants contend
Wang's bank withdrawals and the $84K check paid by Chan to Wang
would not have been admitted had there been a separate Akebia trial
- 24 -
(which begs the question since no one asked for one).6 The
government, in response to the defendants' arguments about
spillover prejudice, states there was no transference of guilt to
one defendant from evidence incriminating the other because there
is ample evidence to support the convictions against each defendant
based on their individual actions and statements in connection
with the single conspiracy that was charged.
The concern we have expressed in the past about prejudice
stemming from "evidentiary spillover" or guilt transference from
one defendant to another can be found in cases with multiple
defendants and multiple conspiracies in which one defendant
allegedly may not be involved at all in one of the conspiracies,
but may suffer from the evidence in support of the other defendants
in those other conspiracies. See Dellosantos, 649 F.3d at 125(vacating the defendants' convictions on the basis of a prejudicial
variance resulting from both evidentiary spillover and lack of
adequate notice). Here, there could be no evidentiary spillover
6 The defendants imply the evidence about Wang's cash
withdrawals, which began in November 2013, would not have been
admissible if the counts in the indictment had been severed and
tried separately because the probative value would have been
outweighed by the prejudicial effect. There is no indication,
however, that the defendants attempted to sever the counts or have
each defendant tried separately. The district court said as much
when it addressed the same argument in its decision denying their
motions for judgments of acquittal. As such, any musings about
what might have happened if the charges or defendants had been
tried separately are speculation and carry no weight with us.
- 25 -
because there was evidence to support the two (and only two)
defendants' involvement in the offenses perpetrated in furtherance
of the single charged conspiracy.
Each of the arguments the defendants made to challenge
their convictions for conspiracy fails.7 We therefore affirm the
district court's decision to deny the defendants' motions for
judgments of acquittal on Count One.
Securities Fraud Convictions
Now that we've explained our affirmance of the
defendants' conspiracy convictions, we move on to discuss their
evidentiary sufficiency challenge to their §§ 78j(b) and 78ff(a)
7 The defendants also state a couple of claims in a summary
fashion, without any attempt to develop the arguments. For
example, they say the district court failed to instruct the jury
on the specific start and end date of the conspiracy and this
created further prejudice from the claimed variance. The
defendants did not raise this concern with the district court and
do not tell us either how they were prejudiced by this supposed
error or where our case law says this matters. The argument is
therefore waived. See Rodríguez, 659 F.3d at 175.
The defendants also assert, for the first time in their brief,
that a constructive amendment to the SSI occurred at trial because
the government presented evidence of a conspiracy with respect to
the results from the NAPOLI-1 study beginning in November 2013. A
constructive amendment differs in focus from a prejudicial
variance, see United States v. Valdés-Ayala, 900 F.3d 20, 36-37
(1st Cir. 2018), and while the defendants define the concept and
mention it a couple of times, they do not provide any argument or
case law about how the evidence the government presented at trial
constituted a constructive amendment from the SSI (as opposed to
their arguments with respect to the variance). Merely stating
this issue without any developed argument is insufficient to
warrant our exploration of the claim here. See Holloway, 845 F.3d
at 491 n.4.
- 26 -
securities fraud convictions. To complete our review, we
"consider[] all the evidence, direct and circumstantial, in the
light most favorable to the prosecution, draw[] all reasonable
inferences consistent with the verdict, and avoid[] credibility
judgments, to determine whether a rational jury could have found
the defendant[s] guilty beyond a reasonable doubt." United States
v. Negrón-Sostre, 790 F.3d 295, 307 (1st Cir. 2015) (quoting United
States v. Agosto-Vega, 617 F.3d 541, 548 (1st Cir. 2010)). As a
reminder, both defendants were convicted of securities fraud for
Chan's trades in Merrimack stock and Wang's trades in Akebia stock.
Chan was also convicted of securities fraud for his own trades in
Akebia's stock.
The defendants generally focus their arguments about
these three counts on the absence of enough evidence presented at
trial to prove they possessed MNPI about the relevant clinical
trials at their respective companies close in time to the records
of communication between them and their securities-trading
activities. Indeed, this is where the timeline of events and
specific dates we summarized many pages ago really comes into play:
The defendants insist too much time passed between
 the dates associated with the evidence about possession of
MNPI at the time of the trades in Akebia's and Merrimack's
securities,
 the dates they allegedly had access to MNPI,
 the dates of communication between them, and
 the dates of their trading activities
- 27 -
for a jury to conclude they were guilty beyond a reasonable doubt
of securities fraud.
As we mentioned at the beginning of this discussion,
there are two theories of insider trading, classical and
misappropriation, both of which are at play with the defendants'
convictions here. "Under the 'traditional' or 'classical theory'
of insider trading liability, § 10(b) and Rule 10b–5 are violated
when a corporate insider trades in the securities of his
corporation on the basis of material, nonpublic information."
United States v. McPhail, 831 F.3d 1, 10 n.4 (1st Cir. 2016)
(quoting United States v. O'Hagan, 521 U.S. 642, 651-52 (1997)).
Under a misappropriation theory of securities fraud, the
government has to prove the defendants committed "fraud 'in
connection with' a securities transaction, . . . [by]
misappropriat[ing] confidential information for securities trading
purposes, in breach of a duty owed to the source of the
information." United States v. Larrabee, 240 F.3d 18, 21 (1st
Cir. 2001) (quoting O'Hagan, 521 U.S. at 652-53). "[I]ndividuals
entrusted with confidential information about a corporation cannot
'secretly use such information for their personal advantage,' even
when they do not owe any direct fiduciary duty to that corporation
or its shareholders." Bray, 853 F.3d at 25 (quoting Salman, 137
S. Ct. at 423).
- 28 -
When evaluating whether a tipper derived a
personal benefit from his or her tip, we
"focus on objective criteria, i.e., whether
the insider receives a direct or indirect
personal benefit from the disclosure, such as
a pecuniary gain or a reputational benefit
that will translate into future earnings."
However, a personal benefit can "often" be
inferred where "a relationship between the
[tipper] and the recipient . . . suggests a
quid pro quo from the latter, or an intention
to benefit the particular recipient."
Id. at 26 (alterations in original) (citation omitted) (quoting
Dirks v. S.E.C., 463 U.S. 646, 663-64 (1983)).
Chan's Merrimack Trades Using MNPI from Wang
Here's what the evidence at trial, considered in the
light most favorable to the prosecution, tells us about the
defendants' activities leading up to Chan's trades in shares of
Merrimack stock. Bruce Belanger, a biostatistician and head of
Biometry at Merrimack, worked with Wang from 2011-2016 and was his
manager. Belanger testified Wang received raw data from the
NAPOLI-1 study every month from the fall of 2013 through April
2014 even though the biometrics team would only officially analyze
the data when it was final at the end of the study. According to
Belanger, Wang would have used this monthly data drop to develop
the ultimate statistical computer program; a program their team
would use to process the final results from the study. Belanger
was not aware of any other data sets Wang might have used to test
- 29 -
the program Wang was developing for the analysis of the final
results.
The government's investigation into Chan's trading
activity revealed Chan traded frequently in shares of Merrimack
stock from August 2013 through April 2014. Chan's largest purchase
of shares, however, occurred on April 21, 2014, two days after the
biometrics team (which included Wang) received the last of the raw
data, analyzed it, and celebrated the good results with champagne.
Chan also placed an order to buy shares on April 28, 2014, again
before the good results of the study went public on May 1.
The government's investigation also revealed Wang
withdrew chunks of cash from one of his bank accounts, in $4,000
to $7,000 increments, eight times between November 2013 and March
2014. Between December 2013 and March 2014, Chan made cash and
check deposits into one of his bank accounts in $10,000 to $19,800
increments. In this same time period, Chan bought shares of
Merrimack stock twenty times using a few different brokerage
accounts.
This summary of the evidence is enough to drive our
analysis about whether there was enough to support the defendants'
convictions on this count of securities fraud. As the parties
know well, we have previously listed and applied six factors to
guide our examination of whether there was sufficient evidence to
support a conviction for securities fraud under the
- 30 -
misappropriation theory: "(1) access to information; (2)
relationship between the tipper and the tippee; (3) timing of
contact between the tipper and the tippee; (4) timing of the
trades; (5) pattern of the trades; and (6) attempts to conceal
either the trades or the relationship between the tipper and the
tippee." Larrabee, 240 F.3d at 21-22.
During oral argument, the defendants stated each
Larrabee factor identified above should be given "equal
consideration" and each factor is weaker in their case than when
considered against the facts in Larrabee. In Larrabee, the
evidence at trial showed the defendant called his stockbroker and
instructed a purchase of shares one minute after receiving an email
from an individual with MNPI at the company in whose stock the
defendant was investing. Id. at 20. We held there was sufficient
evidence to support Larrabee's conviction. Id. at 24-25. Chan
and Wang assert the reasonable doubt as to their culpability lays
in the days which passed between their supposed receipt of the
MNPI, the communication between them, and the purchase of shares
of either the Akebia or Merrimack stock. In their view, our
holding in Larrabee should preclude affirming their convictions
for securities fraud related to Chan's trades in Merrimack stock
because the evidence admitted at trial was "too far attenuated"
from the timing of the activities in Larrabee. The defendants
urge us to declare the facts in Larrabee to be the "absolute
- 31 -
limit[]" of the applicability of circumstantial evidence to the
time between obtaining MNPI and the alleged use of it to trade in
securities. We decline to do so.
When we examine the evidence in this case, we find each
of the six Larrabee factors is in fact met, especially given the
uphill climb the defendants have when moving for a judgment of
acquittal because we examine the evidence in the light most
favorable to the prosecution. See Negrón-Sostre, 790 F.3d at 307.
First, Wang clearly had access to MNPI for the NAPOLI-1
study; his response to the initial FINRA request reflected he had
MNPI on April 19, 2014. In addition, Belanger testified Wang would
have used raw monthly data while Wang developed the analysis
program. The final statistical analysis plan (SAP) for the NAPOLI-
1 study, admitted as an exhibit at trial, is clear that access to
the data would be "strictly controlled by the Merrimack biometrics
team"; limited to "authorized personnel for specified data
review." And since Wang was a member of the biometrics team, the
jury could have reasonably concluded he was one of the authorized
individuals for data review, especially in combination with his
manager's testimony. The raw data did not hide whether any given
patient was receiving the treatment being tested in the NAPOLI-1
study; it is therefore reasonable to infer Wang could have used
the monthly raw data drop to run some preliminary analysis to gauge
how the treatment fared on the study's subjects in addition to
- 32 -
testing the statistical analysis program he was responsible for
developing. Regardless of what Wang did or did not do with the
monthly data from November 2013 until April 2014, there is no
dispute he was in possession of the final raw data on April 19,
2014 (as Wang himself provided this date to Merrimack's general
counsel in an email),8 and the results of the NAPOLI-1 study were
not disclosed to the public until May 1, 2014.9
8 Remember, Chan bought Merrimack stock on April 21 and 28,
2014.
9
We pause for a quick aside to address a discussion that came
up not stochastically during oral argument. While the defendants
in their papers do not develop any argument about whether the data
Wang received was material, non-public information, there was
extensive discussion at oral argument about whether the data Wang
received actually contained any information that could have given
anyone an edge in deciding whether and when to trade in Merrimack
stock.
Information is material "if there is 'a substantial
likelihood that a reasonable shareholder would consider it
important in deciding how to vote.'" S.E.C. v. Happ, 392 F.3d 12,
21 (1st Cir. 2004) (quoting TSC Indus., Inc. v. Northway, Inc.,
426 U.S. 438, 449 (1976)). Materiality is a fact-specific inquiry,
asking whether the information at issue "would have been viewed by
the reasonable investor as having significantly altered the 'total
mix' of information made available." Id. at 21 (quoting Basic
Inc. v. Levinson, 485 U.S. 224, 231-32 (1988)). The final data
from the NAPOLI-1 study was material because the execution of the
SAP revealed results that Wang and the members of the biometrics
team celebrated with champagne the day they analyzed the data to
get the results. Moreover, these results had a positive impact on
Merrimack stock. A representative from FINRA testified at trial
that the day after the NAPOLI-1 study results were announced to
the public, the stock price jumped up 59 percent and the volume of
trading activity jumped 2,841 percent. Therefore, we (and the
jury) can reasonably infer that knowledge of the good results from
this study were important to investors' trading decisions and
"significantly altered" the information available about Merrimack
stock. Id.- 33 -
We move on to Larrabee factors 2-5 and examine the
defendants' relationship, the timing of their communication, and
the timing and pattern of trading activities together. 240 F.3d
at 21-22. Wang and Chan had a well-established relationship: The
evidence clearly shows that they knew each other for years as
friends and colleagues working in similar professional positions
in the same industry. They communicated frequently, walking or
eating together at lunch time. Chan frequently traded in Merrimack
shares at a time Wang had valuable information about one of the
clinical trials at the company, placing his largest order for
shares (32,522 shares as opposed to the usual 2,000-10,000 shares)
two days after Wang processed the data of the NAPOLI-1 study and
got good results -- more than a week before those results went
public.
To be sure, the timeframe of all the defendants' relevant
activities is indeed much wider than in Larrabee, where the
defendant called his stockbroker one minute after receiving an
email with MNPI. Id. at 20. But the timing of their communication
and the timing and pattern of their stock trades are only three of
the factors we consider. We move on to the sixth factor.
Testimony from one of the FBI agents who initially
interviewed Wang provides support for Wang's "attempts to conceal
either the trades or the relationship between the tipper and the
tippee." Id. at 22. In one of Wang's interviews with the FBI, he
- 34 -
was vague about whether he knew Chan worked at Akebia and he
initially denied giving any loans to Chan before admitting he had
loaned $10,000 to Chan for a real estate transaction in Texas.
Wang also told the FBI Chan had paid him back in cash but Chan
both told the FBI and testified at trial that he had paid Wang
back with a check, and the check Chan gave Wang for $84K was
admitted as an exhibit at trial.
Moreover, a few months after Merrimack released the
NAPOLI-1 study results to the public, Wang denied recognizing
Chan's name on the list of Merrimack shareholders he was asked to
review as part of the FINRA inquiry. Wang did not respond to the
initial inquiry from Merrimack's general counsel until Merrimack's
general counsel followed up with him a couple of weeks later. Chan
appeared on the list as "Chan, Schultz." When a special agent
from the FBI interviewed Wang in June 2016, Wang stated he did not
know Chan's official first name. Chan's colleagues apparently
knew him as Jason; the emails entered as exhibits at trial and the
testimony from Chan's former colleagues indicate as much. But,
the check Chan gave to Wang for $84K had "Schultz Chan" as the
account holder, so it strains credulity (a reasonable jury could
have found) to suggest Wang never knew Chan's official first name.
To borrow an image we used in Larrabee, there are dozens
of pieces to the puzzle of whether the evidence presented in this
case will, "[w]hen assembled, . . . create a picture that supports
- 35 -
the inference" the defendants committed securities fraud. Id. at
24. While we are missing a few pieces, such as the words on a
screen or a transcript of a phone call where Wang told Chan to
purchase shares in Merrimack, the evidence indicating Wang had
MNPI about the NAPOLI-1 study from November 2013 through April
2014 and Chan's frequent purchases of shares of Merrimack stock
during this same time period, coupled with the evidence of bank
activity -- the withdrawals and deposits and transfers -- fit
neatly together, particularly when that puzzle is being assembled
on a table with explicit instructions to construe the evidence in
the light most favorable to the prosecution. As we have mentioned
already, Chan placed his largest order of Merrimack shares two
days after Wang received the final data for the NAPOLI-1 study for
analysis. Even though the puzzle is missing a few pieces, the big
picture allowed a reasonable jury to conclude each defendant was
guilty beyond a reasonable doubt of securities fraud, as charged
in Count Two.
Wang's Akebia Trades Using MNPI from Chan
We trudge ahead to the next count of conviction for
securities fraud. Here's what we know from the evidence at trial
about Chan's possession of MNPI related to the "11 study" and
Wang's subsequent trades in shares of Akebia's stock: In Chan's
first week in his new job at Akebia, there were a flurry of emails
between Akebia's clinical research group members and a couple of
- 36 -
outside consultants because the final data from the "11 study" was
ready for analysis and needed to be analyzed quickly so they could
provide some preliminary or "top-line" results to Akebia's
executives. On August 17, 2015, Chan's first day, his manager
sent him information about the treatment tested in the "11 study"
and the next day his manager started including him on the group
emails discussing the final "11 study" data.
On August 19, Chan told some co-workers he would be
working on the data at home that evening because Akebia did not
yet have the software he wanted for some of the statistical
analysis and he could use his own computer to complete these
calculations. That evening, Philippe Carriere, one of the members
of the clinical research group, sent an email to the others with
good news -- the data did not reveal a concerning number of adverse
health events for patients, meaning unexpected negative side
effects. On August 21 and August 24, the clinical research group
exchanged additional emails and attachments with data analysis
from the "11 study."
The evidence at trial also showed Chan and Wang exchanged
a series of text messages between August 24 and August 28 (content
unknown) and Wang purchased shares in Akebia's stock sixteen times
between August 28 and September 4. On September 8, Akebia issued
a press release, announcing positive results from the "11 study."
- 37 -
On November 6, 2015, Akebia's in-house attorneys asked
Akebia's employees to examine a list of names sent by FINRA and to
complete a form indicating if and how they knew any of the
individuals on the list. Chan replied to the email with a
completed form indicating he knew no one on the list. Wang's name
was on the list, but as "Wang, Songjiang" instead of "Wang, Sam"
which is how Chan knew him. Records of the defendants' text
messages show an exchange of text messages that same day, in which
Chan asked Wang whether he was working in his office that day.
Overall, there is sufficient evidence here too to paint
a complete picture using each of the six Larrabee factors. While
Chan denies he had MNPI before August 21, there is ample evidence
he had access to MNPI about the "11 study" from the day he began
his employment at Akebia when his new work team was in the throes
of needing to turn around results from the study quickly. Chan
and Wang's relationship and routine communications we've already
canvassed above. In addition, the government presented evidence
of frequent text messages in the days leading up to Wang's series
of purchases of shares of Akebia stock. The trading activity began
within 10 days of Chan's receipt of MNPI and ended before the
results from the "11 study" were announced publicly on September
8. The activities related to Wang's purchase of Akebia shares are
much closer in time to one another than with the count related to
the trading activity of Merrimack stock. Similar to Wang's denial
- 38 -
of recognition of Chan's names on the FINRA list Wang was asked to
review in 2014, Chan denied recognizing Wang's name on the list
FINRA sent to Akebia in November 2015.
Viewing all the evidence in the light most favorable to
the government, a reasonable jury could certainly conclude the
defendants engaged in securities fraud when Wang bought the shares
of Akebia stock in August and September 2015. We affirm the
defendants' convictions in Count Three and move on to the last
count of conviction.
Chan's Own Akebia Trades
We don't need to tell you much more about the evidence
presented at trial to paint the picture of Chan's trading activity
in shares of Akebia's stock. Most of the events described in the
preceding section are relevant to this count, which was only
charged against Chan.
In addition to the events explained above, on August 19,
2015, less than two hours after Carriere's email telling the
clinical research group the "11 study" had not yielded any
concerning patient safety results, Chan bought shares of Akebia
stock. Chan also bought shares of Akebia stock on August 21. When
Chan testified at trial, he denied having MNPI when he made the
purchases of Akebia stock, claiming he first received MNPI on
August 21, after placing the orders for shares of Akebia stock.
- 39 -
After reviewing the testimony and documents admitted at
trial, there is more than enough evidence to allow a reasonable
jury to conclude Chan traded in Akebia stock using MNPI to which
he had access from the day he started working at Akebia.10 See
McPhail, 831 F.3d at 10 n.4 (defining inside trading under the
classical theory). We therefore affirm his conviction for
securities fraud related to his own trading activity in Akebia
stock.
Now that we have affirmed the district court's denial of
the defendants' motions for judgments of acquittal on each count
of conviction, we turn to the remaining issues: The denial of
their motion to compel a letter FINRA sent to the SEC, Chan's
adjusted base offense level for sentencing, and an award of
restitution given to Akebia.
C. FINRA Referral Letter
Long before the trial started, the defendants filed a
motion to compel the government to turn over a referral letter
FINRA sent to the SEC about purchases of Akebia stock before the
10 The defendants also mention (Fed. R. Crim. P.) Rule 33 two
times in their brief -- once in their statement of the issues and
once when they provide the standard of review for Rule 33 motions
for new trial. Their motion at the end of the trial indeed included
a motion for new trial and the district court denied their motion.
The defendants have not attempted to develop any argument specific
to their denied motion for new trial, so, to the extent they were
trying to challenge that denial, we deem the issue waived. See
Valdés-Ayala, 900 F.3d at 33 n.14.
- 40 -
results of the "11 study" became public. The defendants asserted
they were entitled to this letter pursuant to Federal Rule of
Criminal Procedure 16 and Brady v. Maryland, 373 U.S. 83 (1963).
The government opposed the motion, asserting the defendants were
not entitled to the letter because the government had already
provided them with all of the documents attached to the letter and
the text of the letter itself did not provide any additional or
exculpatory information but simply "summarized FINRA's findings
and its suspicions concerning trading by the defendants and others
-- or evidence concerning trading by other individuals FINRA
investigated who were not targets of the government's
investigation and have no connection to the charged conspiracy."
At a hearing on the motion, the defendants explained their
suspicion that the letter "drove the investigation in a direction
that perhaps it shouldn't have, or it may have driven the
prosecution itself based on what we believe is false information."
The district court denied the motion, finding the
government had provided the supporting documentation to the FINRA
referral letter in question to the defendants already. The
district court concluded the actual letter was both immaterial to
the preparation of their defense and irrelevant because the SEC
and U.S. Attorney's Office had independently investigated the
concerns raised by FINRA. Moreover, the district court reasoned
that even if the defendants were correct with their theory FINRA
- 41 -
passed incorrect information on to the SEC, the only relevant issue
after the grand jury indicted the defendants was whether the
government could prove the charges beyond a reasonable doubt.
Before us, the defendants imply that the way in which
the FBI conducted its investigation into the defendants'
activities reveals the FBI relied on FINRA material withheld from
the defendants but provided to the grand jury, so the FINRA
document or documents constitute "Brady material" to which the
defendants were entitled. The government, for its part, maintains
its position that the defendants are not entitled to the FINRA
letter because the government provided the defendants with all of
the documentary attachments to the letter and the letter itself
did not provide any additional or exculpatory information.
We usually review the denial of a motion to compel
discovery for abuse of discretion. United States v. Flete-Garcia,
925 F.3d 17, 33 (1st Cir. 2019). But here the defendants have
simply stated the issue along with some conjecture about what the
FBI, the grand jury, and FINRA may have relied upon during their
investigations. The defendants have not provided any argument
about how the district court abused its discretion when it denied
the defendants' pre-trial motion to compel. As we've stated
already, we generally consider undeveloped arguments to be waived.
Valdés-Ayala, 900 F.3d at 33 n.14; Rodríguez, 659 F.3d at 175. As
a result, the defendants have not given us any reason to conclude
- 42 -
the district court abused its discretion when it denied their
motion to compel.
We move on to Chan's claim of error related to his
sentence.
D. Sentencing
Adjusted Base Offense Level
The district court calculated a guidelines sentencing
range (GSR) of 63-78 months' incarceration but sentenced Chan to
a below-guidelines term of 36 months' imprisonment.11 Chan did not
object to the base offense level of 8 the district court assigned
but did challenge the way in which the district court calculated
his gain from the offenses. On appeal, Chan renews his objection
to the district court's adjustment of his base offense level on
the basis that it used the wrong method to calculate his financial
gain from his trades in Akebia and Merrimack stock.12 We review
11 During Chan's sentencing hearing, the district court
commented the GSR had been largely driven by the loss calculation,
which, as will be soon described, is actually a calculation of the
financial gain to the defendant. See U.S.S.G. § 2B1.4(b). The
district court briefly discussed its belief that Chan had not
committed his crimes out of antisocial or greedy actions but had
tried to help friends and family, without the actual gain to
himself that the final calculation implied. The court concluded
that, in this case, the dollar sum calculated was, in its totality,
a "poor measure."
12 To construe this issue on appeal as a challenge to the
district court's calculation is generous considering Chan's
"argument" on this issue in his brief is simply a whole cloth cut-
and-paste from the sentencing memorandum he filed in the district
court prior to sentencing.
- 43 -
preserved challenges to the loss calculation during the sentencing
phase de novo. United States v. Mayendía-Blanco, 905 F.3d 26, 34
(1st Cir. 2018).
U.S.S.G. § 2B1.4 applies to insider trading offenses.
Paragraph (a) prescribes a base offense level of 8. Paragraph (b)
identifies the "[s]pecific [o]ffense [c]haracteristics" used to
potentially adjust the base offense level floor:
(1) If the gain resulting from the offense
exceeded $6,500, increase by the number of
levels from the table in § 2B1.1 . . .
corresponding to that amount.
(2) If the offense involved an organized
scheme to engage in insider trading and the
offense level determined above is less than
level 14, increase to level 14.
Section 2B1.4(b). As the background to the statutory section
explains, the "gain, i.e., the total increase in value realized
through trading in securities by the defendant and persons acting
in concert with the defendant or to whom the defendant provided
inside information, is employed instead of the victims' losses."
Section 2B1.4(b) cmt. background. The table in § 2B1.1(b)(1)
instructs the district court to increase the offense by 14 if the
loss is more than $550,000 and by 16 if the loss is more than
$1,500,000.
Chan urged the district court to calculate the gain to
him from trading in Akebia's and Merrimack's shares either at the
point in time he sold them or the shares' values at the time of
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the sentencing hearing. Instead, the district court determined
"the gain [to Chan] resulting from the offense" by using the value
of the stocks the day after the results from the clinical studies
became public, in part because this calculation would reflect the
loss to the stakeholders from the sale of their shares to the
defendants.13 In this way, the district court tried to capture the
value of the MNPI to which the defendants had the advantage of
knowing and using; that is, the change in the value of the stock
between the date of the defendants' purchases of shares and the
date when everyone had the same information about the clinical
studies' results. The district court did not include the value of
shares purchased before the evidence at trial clearly showed the
defendants had possession of MNPI.14 The district court's final
gain calculation was $1,542,051.79. Even though this dollar figure
meant the district court should have added 16 to the offense level
pursuant to § 2B1.1(b)(1), it chose to add 14.
13 During the sentencing hearing, the district court also
found paragraph (b)(2) in the specific offense characteristics of
§ 2B1.4 applied to Chan, instructing an automatic increase "to
level 14" "[i]f the offense involved an organized scheme to engage
in insider trading and the offense level determined above is less
than level 14." Chan would not concede this paragraph applied and
the district court calculated the loss, or in this case, the gain
to Chan resulting from his offense.
14 The district court also excluded Wang's own purchases of
Merrimack stock, which was neither a point of focus during the
trial or included as one of the charges.
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While our circuit has not yet examined the proper method
of calculating the gain to determine the value realized by the
inside trader, three of our sister circuits have weighed in. The
Second Circuit said the gain is "reasonably determined by reference
to the market price once the inside information has been revealed,
not the profit (or loss) realized by the tippee, whose hold
decisions may be informed by various factors." United States v.
Riley, 638 F. App'x 56, 65 (2d Cir. 2016). And in United States
v. Nacchio, the Tenth Circuit took a deep dive into considering
how the loss calculation for an insider trading conviction should
be determined.15 573 F.3d 1062 (10th Cir. 2009). The court agreed
with that defendant's proposed approach to adopt, in part, the
method courts employ in determining damages and disgorgement in
civil insider trading enforcement cases. Id. at 1078. As the
Tenth Circuit quoted, "[i]n [a civil] insider trading case, the
proper amount of disgorgement is generally the difference between
the value of the shares when the insider sold them while in
possession of the material, nonpublic information, and their
market value 'a reasonable time after public dissemination of the
15 The Tenth Circuit used the 2000 version of the Guidelines
but noted §§ 2F1.1 and 2F1.2 had been consolidated with §§ 2B1.1
and 2B1.4, and § 2B1.4 "contain[ed] the same language as former
§ 2F1.2 regarding gain . . . relevant to [its] analysis." Nacchio,
573 F.3d at 1066 n.5; see also United States v. Burdi, 414 F.3d
216, 218 n.2 (1st Cir. 2005) (acknowledging § 2F1.1's deletion and
consolidation with § 2B1.1).
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inside information.'" Id. at 1078 (second alteration in original)
(quoting S.E.C. v. Happ, 392 F.3d 12, 31 (1st Cir. 2004)). This
is precisely the approach used by the district court in this case.
Chan argues that we should instead adopt the Eighth
Circuit's approach, which understands gains to be "the total profit
actually made from a defendant's illegal securities transactions."
United States v. Mooney, 425 F.3d 1093, 1100 (8th Cir. 2005) (en
banc). The Second Circuit rejected this very approach in Nacchio,
573 F.3d at 1072, and we do the same today. While Chan argues
that the district court's approach fails to distinguish between
"bargain seekers" like himself and "profit seekers" and results in
sentencing based on an "arbitrary value determined by the
sentencing court," Chan's proposed approach and that of the Eighth
Circuit would mean that sentences would reflect market
fluctuations unrelated to the offense of insider trading, such
that co-conspirators could receive differing sentences even when
they committed the same crime. See id. at 1086 (finding that it
"contravenes important objectives of federal sentencing" to allow
the extent of punishment to be imposed "on the throw of the dice
-- the ups and downs of the stock market" (quoting Mooney, 425
F.3d at 1108 n.12 (Bright, J., dissenting))).
Nor does the text of the official commentary to U.S.S.G.
§ 2B1.4 convince us that the district court's approach was wrong.
The Eighth Circuit relied on the plain meaning of that text in
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endorsing a gains calculation based on the profit received through
sale, explaining that "realized," both in common parlance and in
the tax context, see Cottage Savings Ass'n v. Comm'r, 499 U.S.
554, 559 (1991) (holding that "to realize a gain or loss in the
value of property, the taxpayer must engage in a 'sale or other
disposition of [the] property,'" (alteration in original) (quoting
Treas. Reg. § 1001(a))), refers to conversion into actual money.
Id. at 1100. But, we find the relevant provision of the tax code,
which states that "[t]he amount realized from the sale or other
disposition of property shall be the sum of any money received"
Treas. Reg. § 1001(a), to be distinguishable from the "total
increase in value realized through trading in securities,"
U.S.S.G. § 2B1.4, cmt. background. The tax code explicitly
calculates "amount realized" from the sale, whereas there is no
reference to stock sales in the Guidelines -- "trading in
securities" refers only to the offense itself. Moreover, we find
"value realized" to be distinguishable from "amount realized."
Compare Amount Realized, Black's Law Dictionary (11th ed. 2019)
("The amount received by a taxpayer for the sale or exchange of an
asset . . . ."), with Value, Black's Law Dictionary (11th ed. 2019)
("1. The significance, desirability, or utility of something
. . . . 2. The monetary worth or price of something . . . ."
(emphasis added)).
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Because we do not read the Guidelines commentary to
preclude the district court's approach and we agree that "the civil
disgorgement remedy provides an appropriate guidepost for
sentencing in insider trading cases," Nacchio, 573 F.3d at 1086,
we find no error in the district court's approach. Therefore, we
affirm Chan's sentence.
Restitution
During the sentencing phase of this case, the government
asked the district court to order $312,899.22 in restitution to
Akebia pursuant to the Mandatory Victims Restitution Act (MVRA),
18 U.S.C. § 3663A.16 The request was primarily to reimburse the
expenses Akebia incurred throughout the government's investigation
and prosecution of the defendants for representation by the law
firm Ropes & Gray LLP, but also included fees from a couple of
contract attorney firms. The district court ultimately ordered
the defendants to pay $170,476.36 in restitution to Akebia, with
Wang on the hook for 10% of the award, or $17,047.64, and Chan
responsible for 90%, or $153,428.72.
According to the defendants, this amount is excessive
because, as we understand their argument, Akebia has included
16 This was in fact a revised request after the district court
concluded the details of Akebia's first request for restitution
improperly included some categories of expenses and asked the
government to resubmit the request for restitution on Akebia's
behalf.
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categories of tasks and expenses that should have been deemed
outside the permissible scope of the MVRA.17 The government
responds that the restitution order was neither excessive nor
unreasonable because the district court reviewed each item of
Akebia's request before determining Akebia was entitled to
approximately half of the total amount requested.
We examine restitution orders for abuse of discretion,
reviewing the relevant factual findings for clear error. United
States v. Naphaeng, 906 F.3d 173, 179 (1st Cir. 2018) (citing
United States v. Chiaradio, 684 F.3d 265, 283 (1st Cir. 2012)).
The MVRA provides victims of crimes with reimbursement
for various types of losses and expenses. Relevant to the
defendants' convictions, this statute says the district court must
award restitution to a victim of an offense against property,
including offenses committed by fraud, § 3663A(c)(1)(A)(ii), for
"necessary child care, transportation, and other expenses incurred
17The defendants invite us to review each item in Akebia's
request for restitution but we decline to do so given our
deferential standard of review. We also note that, similar to the
section of the defendants' brief challenging the district court's
calculation for determining the appropriate adjustment to the base
offense level in the preceding section of this opinion, the
defendants have simply pasted paragraphs cut from their objections
and responses to the restitution requests filed with the district
court and used this material as their appellate argument. As a
result, it is difficult to determine precisely how, in the
defendants' minds, the district court erred with the determination
of the award because their prose is written in response to the
government and Akebia's submissions to the district court during
the restitution proceedings.
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during participation in the investigation or prosecution of the
offense or attendance at proceedings related to the offense,"
§ 3663A(b)(4).
Our court has said that "expenses qualifying for
restitution are not unlimited, . . . [but] will pass muster if
they would not have been incurred in the absence of the offense,
were not too attenuated in fact or time from the crime, . . . and
were reasonably foreseeable." United States v. Janosko, 642 F.3d
40, 42 (1st Cir. 2011) (internal quotation marks and citations
omitted). The Supreme Court's recent decision in Lagos v. United
States, though addressing the context of a victim undertaking its
own private investigation and so not directly relevant here, also
sharpened the focus on the word "necessary" in § 3663A(b)(4). 138
S. Ct. 1684, 1687-88, 1690 (2018); see also In re Akebia
Therapeutics, Inc., No. 19-1929, ___ F.3d ___ (our opinion, also
issued today, with a deeper examination of Janosko and Lagos,
denying Akebia's challenge to the restitution order).
The district court understood the defendants' objection
to Akebia's request for restitution to be centered on their
assertion that the expenses Akebia claimed for reimbursement were
neither necessary nor reasonable. The district court concluded
that its evaluation of the expenses submitted for reimbursement
needed to focus on whether the expenses were necessary as well as
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foreseeable. It concluded attorney's fees would be awarded only
when they were necessary expenses.
Ultimately, our task is to consider "whether the
district court has made 'a reasonable determination of appropriate
restitution by resolving uncertainties with a view towards
achieving fairness to the victim,'" including "whether the
restitution award has 'a rational basis in the record.'" United
States v. González-Calderón, 920 F.3d 83, 85 (1st Cir. 2019) (first
quoting United States v. Alphas, 785 F.3d 775, 787 (1st Cir. 2015),
then quoting United States v. Salas-Fernández, 620 F.3d 45, 48
(1st Cir. 2010)). The defendants have not given us any reason to
conclude the district court erred in any respect with its
restitution order.18 After reviewing the district court's
reasoning, we conclude there was no abuse of its broad discretion
to determine which expenses in this case claimed were necessary,
foreseeable, and just.
18Akebia has also challenged the restitution order through a
petition for writ of mandamus filed with this court, asking us to
vacate the order and reconsider some of the categories of expenses
the district court disallowed. See In re Akebia Therapeutics,
Inc., No. 19-1929, ___ F.3d ___. Akebia's challenge to the
restitution order is much more thorough and we address those
arguments in a separate opinion, issued today, affirming the order.
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CONCLUSION
To wrap this all up, we affirm Chan's and Wang's
convictions, Chan's term of incarceration, and the order of
restitution awarding Akebia $170,476.36.
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