United States v. Timothy McGee

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 13-3183
__________
UNITED STATES OF AMERICA
v.
TIMOTHY MCGEE,
Appellant
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-12-cr-00236-001)
District Judge: Honorable Timothy J. Savage
__________
Argued on February 12, 2014
Before: CHAGARES, SHWARTZ and ALDISERT,
Circuit Judges
(Filed: August 14, 2014)
John C. Grugan, Esq. (ARGUED)
Christine R. O’Neil, Esq.
Ballard Spahr
1735 Market Street
51st Floor
Philadelphia, PA 19103
Counsel for Appellant
Jay M. Feinschil, Esq.
433 Green Lane
Philadelphia, PA 19128-0000
Counsel for Amicus Appellant
Zane D. Memeger, Esq.
Frank R. Costello, Jr., Esq.
Bernadette A. McKeon, Esq. (ARGUED)
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
__________
OPINION OF THE COURT
__________
ALDISERT, Circuit Judge.
Timothy McGee appeals his convictions for
(1) securities fraud under the misappropriation theory of
insider trading pursuant to 15 U.S.C. §§ 78j(b) and 78ff, and
Securities and Exchange Commission (“SEC”) Rules 10b-5
and 10b5-2(b)(2), and (2) perjury pursuant to 18 U.S.C.
2
§ 1621. McGee raises several issues on appeal. He first
challenges his securities fraud conviction, arguing that Rule
10b5-2(b)(2) is invalid because it allows for misappropriation
liability absent a fiduciary relationship between a
misappropriator of inside information and its source. McGee
contends also that there is insufficient evidence to sustain his
convictions, and that the District Court exceeded its discretion
in denying his motion for a new trial based on newly
discovered evidence. For the reasons that follow, we will
affirm.1
I.
Between June and July 2008, McGee obtained material
nonpublic information about the impending sale of
Philadelphia Consolidated Holding Corporation (“PHLY”), a
publicly traded company, from Christopher Maguire, a PHLY
insider. Before this information became public, McGee
borrowed approximately $226,000 at 6.875% interest to
partially finance the purchase of 10,750 PHLY shares.
Shortly after the public announcement of PHLY’s sale,
McGee sold his shares, resulting in a $292,128 profit.
A financial advisor with more than twenty years of
experience, McGee first met Maguire between 1999 and 2001
while attending Alcoholics Anonymous (“AA”) meetings.
AA is a fellowship of recovering alcoholics who share a
desire to stop drinking. AA members are encouraged to seek
1
The District Court for the Eastern District of Pennsylvania
had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C § 1291. We review the facts in
the “light most favorable to the prosecution.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
3
support from other members in their efforts to stay sober. As
a newcomer to AA, Maguire sought support from McGee,
who shared similar interests and had successfully achieved
sobriety for many years.
For the better part of a decade, McGee informally
mentored Maguire in AA. Though the two biked and
competed in triathlons together, sobriety was “the primary
purpose” of their relationship. J.A. 109-110. To achieve this
purpose, they shared intimate details about their lives to
alleviate stress and prevent relapses. Given the sensitive
nature of their communications, McGee assured Maguire that
their conversations were going to remain private. Likewise,
Maguire never repeated information that McGee entrusted to
him. This comported to the general practice in AA, where a
“newcomer can turn . . . with the assurance that no newfound
friends will violate confidences relating to his or her drinking
problem.” Amicus Curiae Br. Supporting Appellant at 12
(quoting Alcoholics Anonymous World Servs., Inc., 44
Questions 11 (2008)). McGee encouraged Maguire to use his
services as an investment adviser, telling Maguire, “I know
everything about what you’re going through from an alcohol
perspective. You can keep your trust in me.” J.A. 112.
Maguire repeatedly declined McGee’s offers.
In early 2008, Maguire was closely involved in
negotiations to sell PHLY. During this time, Maguire
experienced sporadic alcohol relapses, culminating in a
drinking episode a week or two after June 21-22, 2008 at a
weekend golf event. Shortly after the golf event, Maguire
recommenced his regular AA attendance. McGee saw
Maguire after a meeting and inquired about his frequent
absences. In response, Maguire “blurted out” the inside
4
information about PHLY’s imminent sale. J.A. 133. He told
McGee, “Listen, we’re selling the company. . . . for three
times book [value]. We are selling it for 61.50. [T]here’s a lot
of pressure. There’s just a lot of things going on, and I’m not
dealing with it well.” J.A. 133. He testified that he expected
McGee to keep this information confidential. At the time, the
sale had not been publicly announced and Maguire “had not
said a word to anybody.” J.A. 135. He believed he could trust
McGee with the information given their long history of
sharing confidences related to sobriety.
After this conversation, McGee purchased a substantial
amount of PHLY stock on borrowed funds without disclosing
to Maguire his intent to use the inside information:
On June 30, 2008, PHLY stock represented one-
tenth of McGee’s stock portfolio. Less than a
month later, it constituted 60% of his holdings.
In the interim period, McGee made the following
purchases: July 15, 2008, 1,000 shares at $33 per
share; July 17, 2008, 8,250 shares at $33 per
share; July 18, 2008, 1,000 shares at $34 per
share; and July 22, 2008, 500 shares at $35 per
share. On July 23, 2008, after the announcement
of the sale, the stock price rose to $58 per
share. . . . To finance his purchase of the 8,250
shares on July 17, 2008, he borrowed
approximately $226,000, at 6.875% interest.
United States v. McGee, 955 F. Supp. 2d 466, 472 (E.D. Pa.
2013) (footnotes omitted).
Shortly after the sale was publicly announced, the SEC
commenced an investigation into McGee’s unusually high
5
volume of trades in PHLY stock. On September 16, 2009,
McGee gave sworn testimony before the SEC stating that he
“knew nothing” about the impending sale of PHLY before he
purchased the stock in July 2008. J.A. 53-54, 1630-1633. On
May 10, 2012, a grand jury returned a two-count indictment
charging McGee with (1) securities fraud under the
misappropriation theory of insider trading in violation of
§ 10(b) of the Securities Exchange Act of 1934, SEC Rules
10b-5 and 10b5-2(b)(1)-(2), and (2) perjury in violation of 18
U.S.C. § 1621. McGee moved to dismiss the indictment
contending that Rule 10b5-2(b)(1)-(2) is invalid. He argued
that the rule conflicts with Supreme Court precedent because
it allows for misappropriation liability absent a fiduciary
relationship between a misappropriator and his source. The
District Court denied his motion, holding that Supreme Court
precedent does not conflict with or unambiguously foreclose
Rule 10b5-2(b)(1)-(2).
On November 15, 2012, a jury found McGee guilty of
both counts. As to the securities fraud count, the jury found
that his trades violated a relationship of trust or confidence
with Maguire based on their “history, pattern, or practice of
sharing confidences” pursuant to Rule 10b5-2(b)(2).2 17
C.F.R. § 240.10b5-2(b)(2). McGee moved for a judgment of
acquittal or a new trial, challenging the sufficiency of the
evidence as to both convictions. He filed also a supplemental
motion for a new trial based on newly discovered evidence.
The District Court denied both motions. McGee timely
appeals.
2
Although the indictment charged McGee under both
subsections (b)(1) and (b)(2), the District Court only
instructed the jury as to subsection (b)(2). J.A. 446-450.
6
McGee renews his arguments on appeal, first
contending that Rule 10b5-2(b)(2) exceeds the SEC’s
rulemaking authority under § 10(b). Second, he argues that
there is insufficient evidence to support his convictions for
securities fraud and perjury. Finally, he argues that the
District Court exceeded its discretion in denying his motion
for a new trial based on newly discovered evidence. We will
address each argument in turn. Because we determine none to
be persuasive, we will affirm.
II.
A.
To determine whether Rule 10b5-2(b)(2) exceeds the
SEC’s rulemaking authority, we begin with the language of
the enabling statute. Section 10(b) of the Exchange Act of
1934 provides:
It shall be unlawful for any person, directly or
indirectly, by the use of any means or
instrumentality of interstate commerce or of the
mails, or of any facility of any national
securities exchange--
...
(b) [t]o use or employ, in connection with the
purchase or sale of any security . . . any
manipulative or deceptive device or contrivance
in contravention of such rules and regulations as
the [SEC] may prescribe as necessary or
appropriate in the public interest or for the
protection of investors.
7
15 U.S.C. § 78j (emphasis added). The SEC acted on this
broad delegation of rulemaking authority by promulgating
Rule 10b-5, which makes it unlawful for any person, in
connection with the purchase or sale of any security, to
“employ any device, scheme, or artifice to defraud,” or to
“engage in any act, practice, or course of business which
operates or would operate as a fraud or deceit upon any
person.” 17 C.F.R. § 240.10b-5. The Supreme Court has
recognized two complementary theories of insider trading
liability under § 10(b) and Rule 10b-5: the “traditional” and
“misappropriation” theories.
Traditional insider trading occurs “when a corporate
insider trades in the securities of his corporation on the basis
of material, nonpublic information.” United States v.
O’Hagan, 521 U.S. 642, 651-652 (1997). Such trading
constitutes a deceptive device under § 10(b) because the
insider violates a “relationship of trust and confidence” with
his shareholders by trading on nonpublic information learned
as a company insider. Chiarella v. United States, 445 U.S.
222, 228 (1980). The insider’s position imposes a duty to
either abstain from trading or disclose the inside information
to the investors with whom he trades. Id.
In contrast, misappropriation focuses on deceptive
trading by outsiders who owe no duty to shareholders. It
occurs when a person “misappropriates confidential
information for securities trading purposes, in breach of a
duty [to disclose] owed to the source of the information.”
O’Hagan, 521 U.S. at 652 (emphasis added). If the trader
discloses to the source his intent to trade, there is no
deception and no § 10(b) liability. Id. at 655. The Court first
recognized the misappropriation theory in O’Hagan, in which
8
a lawyer traded in a company’s securities after learning that
his firm’s client was planning a takeover of the company. 521
U.S. at 652. Because he was an outsider to the target
company, the lawyer could not be liable for traditional insider
trading. Id. at 653 n.5. He could nevertheless be held liable
for misappropriation because he violated a duty to disclose to
his client and firm, the sources of the information. Id. at 655,
659.
Deception through nondisclosure, therefore, is the crux
of insider trading liability. Id. at 654. In two seminal
traditional insider trading cases, the Supreme Court rejected
what is known as the parity-of-information rule, which would
impose “a general duty between all participants in market
transactions to forgo actions based on material, nonpublic
information.” Chiarella, 445 U.S. at 233; see also Dirks v.
SEC, 463 U.S. 646, 657 (1983).3 These cases emphasized that
a duty to disclose is premised on “a specific relationship
between two parties” rather than on the mere possession of
inside information. Chiarella, 445 U.S. at 233; Dirks, 463
U.S. at 657-658. Accordingly, under either theory, “there can
be no fraud absent a duty to speak,” and the duty to speak
3
In Chiarella, the Court reversed the conviction of a print-
shop employee who traded securities of takeover targets he
deduced from print materials because he did not share a
fiduciary or similar relationship with the targets’
shareholders. 445 U.S. at 224-225, 235. Similarly, in Dirks,
an investment analyst was not liable for tipping his clients
about a company’s fraud because “[t]here was no expectation
by [the analyst’s inside] sources that he would keep their
information in confidence.” 463 U.S. at 665.
9
arises from a “relationship of trust and confidence.” Chiarella,
445 U.S. at 230, 235.
The Supreme Court has provided limited guidance on
which relationships between a trader and his source give rise
to a duty to disclose for misappropriation. In O’Hagan, the
Court suggested that only “recognized dut[ies]” will suffice.
521 U.S. at 666. However, the Court did not otherwise limit
or define the contours of such relationships. See id. at 652-
655; SEC v. Cuban, 620 F.3d 551, 555 (5th Cir. 2010).
Accordingly, after O’Hagan, it remained unclear which
nonfiduciary relationships carried a duty to disclose to the
source. SEC v. Yun, 327 F.3d 1263, 1271 (11th Cir. 2003).
Prompted by inconsistent treatment among lower courts,4 the
SEC promulgated Rule 10b5-2 “to clarify and enhance” the
misappropriation theory in light of O’Hagan. Proposed Rule,
Selective Disclosure and Insider Trading, 64 Fed. Reg.
72,590, 72,590 (proposed Dec. 28, 1999) [hereinafter
Proposed Rule] (codified as amended at 17 C.F.R.
§ 240.10b5-2). Rule 10b5-2 identifies three nonexhaustive
categories of relationships that give rise to a duty to disclose
for misappropriation liability:
4
Compare United States v. Kim, 184 F. Supp. 2d 1006 (N.D.
Cal. 2002) (holding that there was no duty of confidentiality
between members of a social group of CEOs although club
rules emphasized a need for confidentiality), with SEC v.
Kirch, 263 F. Supp. 2d 1144 (N.D. Ill. 2003) (holding such
duties existed between members of a group of software
executives because the need for confidentiality was
understood).
10
[A] “duty of trust or confidence” exists in the
following circumstances, among others:
(1) Whenever a person agrees to maintain
information in confidence;
(2) Whenever the person communicating the
material nonpublic information and the person
to whom it is communicated have a history,
pattern, or practice of sharing confidences, such
that the recipient of the information knows or
reasonably should know that the person
communicating the material nonpublic
information expects that the recipient will
maintain its confidentiality; or
(3) Whenever a person receives or obtains
material nonpublic information from his or her
spouse, parent, child, or sibling; provided,
however, that the person receiving or obtaining
the information may demonstrate that no duty
of trust or confidence existed with respect to the
information . . . .
17 C.F.R. § 240.10b5-2(b).
Because McGee’s conviction stems only from
subsection (b)(2), we will discuss solely that portion of the
rule. As a matter of first impression, we decide whether Rule
10b5-2(b)(2) exceeds the SEC’s rulemaking authority under
§ 10(b).
B.
11
We exercise plenary review over the District Court’s
legal conclusions. United States v. Huet, 665 F.3d 588, 594
(3d Cir. 2012). We review the validity of Rule 10b5-2(b)(2)
under the familiar two-step Chevron deference framework.
See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842-843 (1984). At step one, we ask if “the
[enabling] statute is silent or ambiguous” on “the precise
question at issue.” Id. at 843. If we answer in the affirmative,
we turn to step two and uphold the rule if it is “based on a
permissible construction of the statute.” Id.
The Supreme Court has clarified that a “prior judicial
construction of a statute trumps [a later] agency construction
otherwise entitled to Chevron deference only if the prior court
decision holds that its construction follows from the
unambiguous terms of the statute and thus leaves no room for
agency discretion.” Nat’l Cable & Telecomms. Ass’n v.
Brand X Internet Servs., 545 U.S. 967, 982 (2005). We
thereby “hold judicial interpretations contained in precedents
to the same demanding Chevron step one standard that
applies if the court is reviewing the agency’s construction on
a blank slate.” Id.
McGee argues that we are foreclosed from applying
the teachings of Chevron to Rule 10b5-2(b)(2). He first
contends that § 10(b) unambiguously requires deception.
McGee then argues that, under Supreme Court precedent,
deception through nondisclosure requires the breach of a
fiduciary duty, leaving no room for Rule 10b5-2(b)(2). We
disagree and hold that Rule 10b5-2(b)(2) is valid and entitled
to Chevron deference because it (1) has not been
congressionally or judicially foreclosed, and (2) is based on a
permissible reading of § 10(b). We address each step in turn.
12
1.
At Chevron step one, we decide that § 10(b) is
ambiguous and expressly delegates broad rulemaking
authority to the SEC. Section 10(b) acts as a catch-all
provision and authorizes the SEC to “prescribe [regulations]
as necessary or appropriate” to prevent the use of
“manipulative or deceptive device[s]” in connection with
trading securities. 15 U.S.C. § 78j(b). McGee’s contention
that § 10(b) “unambiguously requires deception” misses the
point. Appellant’s Br. at 25. The statute is ambiguous because
Congress declined to define the amorphous term “deceptive
device.” Moreover, Congress did not speak to the “precise
question at issue” because § 10(b) does not mention insider
trading at all, much less misappropriation or relationships
required for liability. This congressional omission constitutes
a delegation of authority to the SEC to “fill the statutory gap
in reasonable fashion.” Brand X, 545 U.S. at 980. The SEC
filled this gap with Rule 10b5-2.
Having identified the gap in § 10(b), we turn to
McGee’s argument that Supreme Court precedent forecloses
us from applying Chevron’s framework to Rule 10b5-2(b)(2).
We do not accept this argument. The Court has recognized
that “allowing a judicial precedent to foreclose an agency
from interpreting an ambiguous statute . . . would allow a
court’s interpretation to override an agency’s.” Id. at 982.
“Chevron’s premise is that it is for agencies, not courts, to fill
statutory gaps.” Id. Hence, it bears reemphasis that “[o]nly a
judicial precedent holding that the statute unambiguously
forecloses the agency’s interpretation, and therefore contains
no gap for the agency to fill, displaces a conflicting agency
13
construction.” Id. at 982-983. Our review of insider trading
case law reveals no such authority.
First, we reject McGee’s contention that Rule 10b5-
2(b)(2) conflicts with the Supreme Court’s insider trading
jurisprudence. According to McGee, O’Hagan expressly
requires a fiduciary relationship between a misappropriator
and the source of inside information for liability.5 McGee
further argues that O’Hagan cannot be read in a vacuum, but
is constrained by virtue of the Court’s earlier traditional
insider trading cases. McGee contends that Chiarella and its
progeny require a fiduciary relationship for both theories of
§ 10(b) nondisclosure liability. Because Rule 10b5-2(b)(2)
requires only a “history, pattern, or practice of sharing
confidences,” McGee argues that it impermissibly expands
the Supreme Court’s insider trading doctrine. We are
unpersuaded.
Contrary to McGee’s contention, Supreme Court
precedent does not unequivocally require a fiduciary duty for
all § 10(b) nondisclosure liability. In O’Hagan, though the
defendant’s duty to disclose undoubtedly arose from his
position as a fiduciary, the Court stressed that
misappropriation liability extends to “those who breach a
recognized duty.” 521 U.S. at 645, 666. The Court did not
5
In McGee’s motion to dismiss the indictment, he conceded
that O’Hagan “did not elaborate on the requisite relationship
giving rise to the duty and deception.” United States v.
McGee, 892 F. Supp. 2d 726, 732 (E.D. Pa. 2012) (quoting
McGee Mem. at 6). On appeal, McGee changes course,
insisting that O’Hagan requires a fiduciary duty.
14
unambiguously define recognized duties or cabin such duties
to fiduciary relationships. The Court painted with a broader
brush, referring to the requisite relationship as a “fiduciary or
other similar relationship,” an “agency or other fiduciary
relationship,” a “duty of loyalty and confidentiality,” and a
“duty of trust and confidence.” See id. at 652-661 (citations
omitted). We will not assign a meaning to “recognized
dut[ies]” that the Court did not acknowledge. We therefore
perceive no conflict between O’Hagan’s language and Rule
10b5-2(b)(2).
The Supreme Court’s traditional insider trading
precedent does not change this result. Chiarella and Dirks call
for a “specific relationship between two parties.” Chiarella,
445 U.S. at 233; Dirks, 463 U.S. at 657-658. Although these
cases often referred to fiduciaries, they spoke also in broader
terms. See Dirks, 463 U.S. at 654 (explaining that for
traditional insider trading, there is no duty to disclose if the
trader is not an agent, a fiduciary, or “a person in whom the
sellers [of the securities] had placed their trust and
confidence” (quoting Chiarella, 445 U.S. at 232)). Even
assuming arguendo that Chiarella and Dirks require a strict
fiduciary duty for traditional insider trading, neither case
considered the misappropriation theory. In O’Hagan, the
Court examined these cases and opted to extend
misappropriation beyond solely fiduciaries. 521 U.S. at 645,
666. We decline to infer from Chiarella and Dirks a
restriction on misappropriation that the O’Hagan Court did
not itself recognize.
We join our sister circuits in recognizing that the
Supreme Court “did not set the contours of a relationship of
‘trust and confidence’ giving rise to the duty to disclose or
15
abstain and misappropriation liability.” Cuban, 620 F.3d at
555; see also Yun, 327 F.3d at 1271 (acknowledging that
after O’Hagan and before Rule 10b5-2 “it [was] unsettled
whether non-business relationships . . . provide the duty of
loyalty and confidentiality necessary to satisfy the
misappropriation theory”). Accordingly, the imposition of a
duty to disclose under Rule 10b5-2(b)(2) when parties have a
history, pattern or practice of sharing confidences does not
conflict with Supreme Court precedent.6
Moreover, even if the rule were to conflict with the
Court’s interpretation of deceptive devices, the Court “did not
purport to adopt or apply the unambiguous meaning” of § 10.
See Swallows Holding, Ltd. v. Comm’r, 515 F.3d 162, 170
n.11 (3d Cir. 2008); Brand X, 545 U.S. at 982 (holding that to
foreclose a conflicting agency interpretation, a “prior court
6
We recognize that some courts have more narrowly defined
duty-bearing relationships than others. Before O’Hagan, the
Court of Appeals for the Second Circuit held that
misappropriation requires a fiduciary relationship or its
“functional equivalent,” which the court narrowly defined as
a relationship sharing “the essential characteristics of a
fiduciary association.” United States v. Chestman, 947 F.2d
551, 568 (2d Cir. 1991) (en banc, 5-4 decision). However,
after O’Hagan, both the SEC and the Court of Appeals for the
Eleventh Circuit explicitly rejected Chestman’s narrow
holding because it did not “sufficiently protect investors,”
Proposed Rule, 64 Fed. Reg. at 72,602, and it “too narrowly
defined the circumstances in which a duty . . . is created,”
Yun, 327 F.3d at 1272. As we hold here, deference is owed to
the SEC’s interpretation.
16
decision [must hold] that its construction follows from the
unambiguous terms of the statute”). Indeed, the Supreme
Court has recognized that the text of § 10(b) is ambiguous.
See, e.g., Chiarella, 445 U.S. at 226 (“[Section] 10(b) does
not state whether [or when] silence may constitute a
manipulative or deceptive device. . . . [and] neither the
legislative history nor the statute itself affords specific
guidance . . . .”). In short, the Supreme Court simply has not
held that misappropriation requires a fiduciary relationship or
that its interpretation follows from the unambiguous terms of
§ 10(b).7 Accordingly, we turn to step two of Chevron.
2.
“Under step two of the Chevron framework, we
consider whether the [SEC’s] interpretation is reasonable in
light of the language, policies, and legislative history” of
§ 10(b) and the Exchange Act of 1934 as a whole. GenOn
REMA, LLC v. EPA, 722 F.3d 513, 522 (3d Cir. 2013)
7
McGee’s reliance on United States v. Home Concrete &
Supply, LLC, 132 S. Ct. 1836 (2012), is also misplaced.
There, an agency’s interpretation of an ambiguous I.R.C.
provision was not entitled to Chevron deference when a prior
court had determined that Congress’s intent was clear and
“decided the question definitively, leaving no room for the
agency.” Id. at 1844. In contrast, O’Hagan did not definitively
decide the question of relationships bearing a duty to disclose,
leaving no room for the SEC. Unlike the I.R.C. provision in
Home Concrete, § 10(b) and its legislative history
demonstrate that the statute is flexible by design. S. Rep. 73-
792, at 5 (1934) (“[S]o delicate a mechanism as the modern
stock exchange cannot be regulated efficiently under a rigid
statutory program.”).
17
(citation omitted). We “need not conclude that the agency
construction was the only one it permissibly could have
adopted to uphold the construction, or even the reading the
court would have reached.” Chevron, 467 U.S. at 843 n.11.
“Rules represent important policy decisions, and should not
be disturbed if ‘this choice represents a reasonable
accommodation of conflicting policies that were committed to
the agency’s care by the statute . . . .’” Swallows, 515 F.3d at
171 (quoting Chevron, 467 U.S. at 845). We are mindful that
§ 10(b) should be “construed not technically and restrictively,
but flexibly to effectuate its remedial purposes.” SEC v.
Zandford, 535 U.S. 813, 819 (2002) (internal quotation marks
and citation omitted).
Here, Congress implemented the Exchange Act “to
insure the maintenance of fair and honest markets in
[securities] transactions.” 15 U.S.C. § 78b. The legislative
history demonstrates that § 10(b) was aimed at
“any . . . manipulative or deceptive practices which [the SEC]
finds detrimental to the interests of the investor.” S. Rep. No.
73-792, at 18 (1934) (emphasis added). Rule 10b5-2(b)(2)
targets a misappropriator who deceives his source by trading
on confidential information notwithstanding the parties’
“history, pattern, or practice of sharing confidences.” 17
C.F.R. § 240.10b5-2(b). The SEC explained “that in some
circumstances a past pattern of conduct between two parties
will lead to a legitimate, reasonable expectation of
confidentiality on the part of the confiding person.” Proposed
Rule, 64 Fed. Reg. at 72,603.
We agree with the analysis in United States v. Corbin,
which held that the SEC’s broader approach was reasonable
and “buttressed by a thorough and careful
18
consideration . . . of the ends of § 10(b), the state of the
current insider trading case law” and “the need to protect
investors and the market.” 729 F. Supp. 2d 607, 619
(S.D.N.Y. 2010). Like misappropriation generally, subsection
(b)(2) “trains on conduct involving manipulation or
deception” and proscribes “feigning fidelity to the source of
the information.” See O’Hagan, 521 U.S. at 655. A trader’s
“undisclosed, self-serving use,” id. at 652, of confidential
information notwithstanding the parties’ history of sharing
confidences chills market participation because it “‘stems
from contrivance, not luck,’ and the informational
disadvantage to other investors ‘cannot be overcome with
research or skill.’” Proposed Rule, 64 Fed. Reg. at 72,603
(quoting O’Hagan, 521 U.S. at 658-659). Rule 10b5-2(b)(2)
provides a basis to hold such misappropriators accountable.
Subsection (b)(2) thus is “well tuned to an animating purpose
of the Exchange Act: to insure honest securities markets and
thereby promote investor confidence.” See O’Hagan, 521
U.S. at 658 (citation omitted).8
8
The SEC was emboldened by Congress’s enactment of “two
separate laws providing enhanced penalties for insider
trading,” which the SEC viewed as an endorsement of its
regulatory efforts. Proposed Rule, 64 Fed. Reg. at 72,599-
72,600 (citations omitted). Likewise, we note that Rule 10b5-
2(b)(2) has been in effect since October 23, 2000. See Final
Rule, Selective Disclosure and Insider Trading, 65 Fed. Reg.
51,716, 51,716 (codified at 17 C.F.R. § 240.10b5-2(b)). In the
intervening time, Congress has not altered the SEC’s
interpretation.
19
We believe that Rule 10b5-2(b)(2) is based on a
permissible reading of “deceptive device[s]” under § 10(b).
Although we are not without reservations concerning the
breadth of misappropriation under Rule 105b-2(b)(2), it is for
Congress to limit its delegation of authority to the SEC or to
limit misappropriation by statute. It is not the role of our
Court, “even if the agency’s reading differs from what the
court believes is the best statutory interpretation.” See Brand
X, 545 U.S. at 980.9
C.
We hold that Rule 10b5-2(b)(2) is a valid exercise of
the SEC’s rulemaking authority. The rule is owed Chevron
deference because it has not been congressionally or
judicially foreclosed and is “based on a permissible reading”
of § 10(b).
III.
McGee argues also that the District Court erred by
denying his motion for a judgment of acquittal or a new trial
because insufficient evidence supports his convictions for
securities fraud and perjury. Our review of the sufficiency of
the evidence is “highly deferential.” United States v.
Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en
banc). The verdict must be upheld if “after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
9
Like the Court in O’Hagan, we are reassured by the added
protection for criminal liability under § 10(b), which requires
that misappropriators knowingly and willfully violate the law.
521 U.S. at 665-666.
20
of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at
319 (emphasis in original).
A.
McGee first challenges his securities fraud conviction.
He argues that no rational trier of fact could have found that
(1) McGee and Maguire had the requisite relationship of trust
or confidence for misappropriation liability, or (2) the inside
information was disclosed within the scope of such a
relationship. But McGee cannot overcome the “highly
deferential” standard of review for sufficiency of the
evidence. Caraballo-Rodriguez, 726 F.3d at 430.
A person is liable for misappropriation when he
“misappropriates confidential information for securities
trading purposes, in breach of a duty owed to the source of
the information.” O’Hagan, 521 U.S. at 652. Under Rule
10b5-2(b)(2), a duty to disclose to the source exists when
there is a “history, pattern, or practice of sharing confidences,
such that the recipient of the information knows or reasonably
should know” that the person communicating the information
expects it to be kept confidential. 17 C.F.R. § 240.10b5-
2(b)(2). The SEC explicitly rejected limiting liability to those
who share “business confidences.” Proposed Rule, 64 Fed.
Reg. at 72,603. The SEC instead favored a facts-and-
circumstances test and noted that the type of confidences
historically shared between parties could be a relevant factor.
Id.10
10
Because we owe deference to the rule as codified, we reject
McGee’s argument that a business relationship is required for
misappropriation.
21
We reject McGee’s argument that he did not share a
relationship of trust or confidence with Maguire. McGee
contends that membership in AA alone does not generate a
duty of trust or confidence and his relationship with Maguire
did not bear the hallmark indicators of a confidential
relationship. McGee characterizes their relationship as purely
social, limited to “occasional bike rides and sporadic AA
meetings.” Appellant’s Br. at 31, 35. He argues this social
affiliation is insufficient to impose a duty to disclose under
Rule 10b5-2(b)(2). We disagree.
Even assuming there is no expectation of
confidentiality generally in AA,11 the plain language of Rule
10b5-2(b)(2) requires a “history, pattern, or practice of
sharing confidences” between the two parties. 17 C.F.R.
§ 240.10b5-2(b)(2). Sufficient evidence supports the jury’s
11
Amicus on behalf of McGee cites an exposition published
by AA’s General Service Office for the proposition that AA
is premised on the “anonymity” of its members and not
“confidentiality.” Amicus Curiae Br. Supporting Appellant at
12-13. But the AA materials cited by Amicus include broader
language. Amicus cites to an AA publication stating that a
“newcomer can turn to A.A. with the assurance that no
newfound friends will violate confidences relating to his or
her drinking problem.” Id. at 12 (citation omitted) (emphasis
added). This language is not limited to a member’s
anonymity. Moreover, evidence at trial indicated that AA
members were cautioned that “what you hear here, stays
here.” J.A. 111. Although this undermines McGee’s
argument, a finding that AA requires confidentiality is not
necessary to our holding.
22
finding that such a pattern existed. For almost a decade,
McGee informally mentored Maguire, who entrusted
“extremely personal” information to McGee to alleviate stress
associated with alcohol relapses. J.A. 109-110.
Confidentiality was not just Maguire’s unilateral hope; it was
the parties’ expectation. It was their “understanding” that
information discussed would not be disclosed or used by
either party. J.A. 112. Maguire never repeated information
that McGee revealed to him and McGee assured Maguire that
their discussions were going to remain private. Furthermore,
McGee encouraged Maguire to use his services as an
investment adviser, telling Maguire, “I know everything
about what you’re going through from an alcohol perspective.
You can keep your trust in me.” J.A. 112. From this evidence,
a rational juror could find that a relationship of trust or
confidence existed based on the parties’ history, pattern or
practice of sharing confidences related to sobriety.
We reject also McGee’s argument that the inside
information about PHLY’s sale exceeded the scope of any
confidential relationship related to sobriety. Shortly following
Maguire’s relapse, McGee saw him at an AA meeting. After
the meeting, McGee asked Maguire about his inconsistent AA
attendance. In response, Maguire told McGee, his confidant,
that the impending sale of PHLY was a source of high stress
and that he was not dealing well with the pressure. McGee, a
savvy investment advisor, feigned fidelity to Maguire and did
not disclose his intent to use the information to his pecuniary
advantage by trading in PHLY. Accordingly, McGee’s
inquiry and Maguire’s disclosure of PHLY’s impending sale
related directly to their confidential relationship.
23
Ultimately, we agree with the District Court, which
held that “[t]here was sufficient evidence from which a
rational fact finder could have found that a confidential
relationship existed and the inside information was disclosed
within the confines of that relationship.” McGee, 955 F.
Supp. 2d at 470. Accordingly, we will affirm McGee’s
conviction for securities fraud.
B.
McGee next challenges his perjury conviction under
18 U.S.C. § 1621 based on his sworn testimony on September
16, 2009 before the SEC. Under oath, McGee denied
knowing any information about the sale of PHLY before he
purchased the company’s stock in July 2008.12 McGee
12
The charge in the indictment recited the following colloquy
regarding McGee’s perjury charge:
Q: [SEC attorney] Did you have any information prior
to making your purchases in Philadelphia Consolidated
in July of ’08 that there might be something afoot at
the company, that there might be something happening
with the stock?
A: [McGee] No.
Q: You didn’t get a feeling from anyone that there was
some activity, maybe [PHLY executives] weren’t at a
certain event that they were always at and you thought
something might be going on, that they were busy?
A: No, there was nothing like that. . . .
Q: Any other events that you recall in let’s say—
beginning in maybe March of ’08 going forward?
A: March of ’08?
Q: Anything from that time forward till you bought?
A: No.
24
contends that his perjury conviction must be overturned
because (1) Maguire’s testimony was uncorroborated and (2)
there was insufficient evidence that McGee’s statements were
false. We find neither argument to be persuasive.
Q: How about any contacts, do you recall having any
conversations or contacts with [PHLY executives]?
A: Oh, I talked to [Maguire], you know, just checked
in with him. Made sure he was doing alright in our
common deal. There’s a certain amount of our
conversations that kind of revolve around that bike
environment.
Q: In any of these interactions that you had with him
during that time frame, did you ever sense or pick up
any type of information or queue [sic] that would
suggest that the company was going to be purchased?
A: I did not.
Q: Was there any rumors going on that you heard
about the company being bought that led you to
purchase the stock in July?
A: No. I knew nothing. I mean there was not a factor.
Q: And there’s no indication from any of the family
members, generic or otherwise, to suggest to you to
purchase the stock, whether it not be specific about
whether you bought out, but any other indications to
you that it might be a good time to buy the stock?
A: If there were, it was so generic that I didn’t pick up
on it. I mean I did not pick up on anything. I did not
recognize any comment that made me take pause to
think.
J.A. 52-54 (emphasis in original) (footnote omitted).
25
1.
A perjury conviction under § 1621 cannot be obtained
solely on the uncorroborated testimony of one witness, but
must be based on “the testimony of two independent
witnesses or by one witness and corroborating evidence.”
United States v. Neff, 212 F.2d 297, 306 (3d Cir. 1954).
Evidence corroborating the testimony of a single witness
must be independent of the witness’s testimony, trustworthy
enough to convince the jury that what the witness said was
true, and be “inconsistent with the innocence of the
defendant.” Id. at 307. To be inconsistent with innocence,
corroborating evidence must “merely support the inference
that the defendant was lying.” United States v. Nessanbaum,
205 F.2d 93, 95 n.4 (3d Cir. 1953).
At trial, the Government offered McGee’s high-
volume trading in PHLY stock to corroborate Maguire’s
testimony that he told McGee about PHLY’s sale before it
was publicly announced. McGee contends that his trading
records are not sufficient corroborative evidence. McGee
points to United States v. Chestman, in which the Court of
Appeals for the Second Circuit reversed a perjury conviction
because the evidence of trading was not inconsistent with the
defendant’s “position that he researched the company,
assumed it was a takeover target, and invested accordingly.”
903 F.2d 75, 82 (2d Cir. 1990), rev’d on other grounds en
banc, 947 F.2d 551 (2d Cir. 1991). McGee argues that, like
the defendant in Chestman, his trading records are insufficient
corroborative evidence because there are other explanations
for his excessive trading.
McGee contends that his trades are congruous with his
investment strategy of “averaging down.” Averaging down
26
“occurs when an investor . . . buys additional stock at a price
lower than the initial investment, which reduces the average
price per share of the total investment.” McGee, 955 F. Supp.
2d at 472 n.12. McGee contends that because PHLY’s stock
price at the time of his July trades was lower than the price at
which he had previously purchased the stock, his trading was
“not inconsistent with his innocence.” Appellant’s Br. at 46.
McGee additionally cites a “historic and significant spike in
volume” near the time of his trades, which would encourage
increased investor holdings. Id. For these reasons, McGee
argues his trading alone fails to independently establish
perjury because there were innocent motives for his trades.
We agree with the District Court that McGee’s trading
records constitute independent corroborating evidence and
that “[t]he jury obviously rejected [McGee’s averaging-down]
argument.” McGee, 955 F. Supp. 2d at 472. Unlike in
Chestman, in which the defendant’s trading was consistent
with his position that he researched the company and invested
accordingly, McGee’s high-volume trades were anomalous
and inconsistent with an averaging-down strategy. McGee did
not engage in similar trading activity during prior periods of
low PHLY stock prices. Yet, in the weeks preceding PHLY’s
sale, McGee increased his holdings in PHLY from 10 percent
of his portfolio on June 30, 2008 to 60 percent by July 23,
2008, the date PHLY’s sale was publicly announced.
Moreover, there is scant evidence McGee knew about a
“historic and significant spike in volume” or that he would
increase his holdings in PHLY so appreciably based on such a
trading spike. As the District Court held, “[t]he unusual
timing and the large number of the shares purchased within a
three-week period of time when compared to his previous
holdings in PHLY stock, and the significant loan he took to
27
purchase the stock is [sufficient] corroborative evidence.” Id.
Accordingly, we reject McGee’s argument that his trading
records do not corroborate Maguire’s testimony.
2.
McGee next contends that there was insufficient
evidence that his sworn statements were false. McGee first
claims that Maguire’s inability to recall the precise date he
told McGee about the sale demonstrates that McGee’s
answers denying knowledge of the sale when he traded could
have been true. Next, McGee selectively points to specific
questions asked of him under oath to show that each is
ambiguous and the corresponding answers were literally true.
McGee again cannot overcome the “highly deferential”
standard of review for sufficiency of evidence as to the falsity
of his statements. See Caraballo-Rodriguez, 726 F.3d at 430.
We do not agree that Maguire’s testimony was unclear.
Maguire plainly testified that he disclosed PHLY’s sale
before McGee’s suspicious July trades. Maguire testified that
a week or two after June 21-22, 2008, he attended a weekend
golf tournament where he drank. Maguire further testified that
right after the golf tournament, he recommenced his AA
attendance and told McGee about the sale after a meeting.
Though Maguire did not point to an exact date, his testimony
indicates that he disclosed the information within the first two
weeks of July 2008, before McGee’s first purchase of PHLY
stock on the evening of July 14, 2008. Maguire’s testimony
therefore directly contradicts McGee’s sworn statement
before the SEC that he did not have any inside information
“prior to making [his] purchases in Philadelphia Consolidated
in July of ’08.” J.A. 52. The jury was free to accept or reject
28
Maguire’s testimony, which was not so unclear as to
invalidate McGee’s perjury conviction.
We reject also McGee’s argument that the SEC’s
questions were ambiguous. “Precise questioning is imperative
as a predicate for the offense of perjury.” Bronston v. United
States, 409 U.S. 352, 362 (1973). However, our Court has
“eschew[ed] a broad reading of Bronston,” noting instead
that, “[a]s a general rule, the fact that there is some ambiguity
in a falsely answered question will not shield the respondent
from a perjury or false statements prosecution.” United States
v. Reilly, 33 F.3d 1396, 1416 (3d Cir. 1994) (quoting United
States v. Ryan, 828 F.2d 1010, 1015 (3d Cir. 1987)).
We agree with the District Court, which held that
although some questions were imprecise, they were not so
ambiguous that McGee’s answers were literally true. McGee
was specifically asked, “Did you have any information prior
to making your purchases in [PHLY] in July of ’08 that there
might be something afoot at the company, that there might be
something happening with the stock?” J.A. 52. McGee
responded, “No.” J.A. 52. McGee makes much of the word
“afoot,” arguing that its implication of mischief or trouble
makes his answer literally true. Appellant’s Br. at 54. McGee
strains to find ambiguity in the question. Read in its entirety,
the question asks whether McGee had any information
concerning PHLY stock in July. McGee’s express denial
cannot be characterized as literally true.
McGee’s efforts to find ambiguity in other questions
are similarly flawed. McGee was asked, “W[ere] there any
rumors going on that you heard about [PHLY] being bought
that led you to purchase the stock in July?” J.A. 53. McGee
29
answered, “No. I knew nothing.” J.A. 54. McGee was
additionally asked, “In any of these interactions [with
Maguire] during that time frame, did you ever sense or pick
up any type of information . . . that would suggest that the
company was going to be purchased?” J.A. 53. McGee
answered, “I did not.” J.A. 53. McGee argues that the words
“rumors” and “sense” relate to gossip and intuition, not
whether anyone directly told him about the sale. We do not
accept McGee’s contrived interpretation of the SEC’s
questions and determine that McGee’s unequivocal answer
that he “knew nothing” was clearly false. The questions asked
by the SEC were not so ambiguous as to render McGee’s
answers literally true.
3.
We hold that Maguire’s testimony was corroborated
and there was sufficient evidence to support the falsity of
McGee’s statements under oath. Accordingly, we will affirm
McGee’s perjury conviction.
IV.
Finally, McGee contends that he is entitled to a new
trial based on a newly discovered affidavit. We review the
denial of a motion for a new trial pursuant to Rule 33 of the
Federal Rules of Criminal Procedure for abuse of discretion.
United States v. Quiles, 618 F.3d 383, 390 (3d Cir. 2010).
Under Rule 33, “[u]pon the defendant’s motion, the court
may vacate any judgment and grant a new trial if the interest
of justice so requires.” Fed. R. Crim. P. 33. Five requirements
must be met to justify a new trial on the basis of newly
discovered evidence:
30
(a) the evidence must be in fact, newly discovered,
i.e. discovered since trial; (b) facts must be alleged
from which the court may infer diligence on the
part of the movant; (c) the evidence relied on must
not be merely cumulative or impeaching; (d) it
must be material to the issues involved; and (e) it
must be such, and of such nature, [that the
evidence] would probably produce an acquittal.
Quiles, 618 F.3d at 388-389 (quoting United States v.
Saada, 212 F.3d 210, 216 (3d Cir. 2000)). To warrant a
new trial based on impeachment evidence, there must be
“a factual link between the heart of the witness’s
testimony at trial and the new evidence” and “[t]his link
must suggest directly that the defendant was convicted
wrongly.” Id. at 392 (citation omitted).
McGee argues that a new trial is warranted based on
an affidavit by Tyler D., which came to light during civil
discovery after his criminal conviction. He maintains that he
was previously unable to find a witness willing to deny that
the statement “what you hear here, stays here” was made at
the AA meetings he and Maguire attended. Appellant’s Br. at
40. McGee contends that this evidence would rebut the
existence of a relationship of trust or confidence related to
AA and “surely would produce an acquittal.” Id.
McGee fails to meet the five requirements for a new
trial based on newly discovered evidence. First, he fails to
explain what diligence he used to procure Tyler D.’s
testimony although he has known Tyler D. and attended AA
with him since 2005. Tyler D. actually testified on behalf of
McGee at his criminal sentencing, yet McGee fails to clarify
why he did not offer Tyler D.’s testimony at trial before
31
sentencing. Additionally, the affidavit does not “suggest
directly that the defendant was convicted wrongly” or attack
the heart of Maguire’s testimony. Quiles 618 F.3d at 392. As
noted above, even if confidentiality is not a tenet of AA, Rule
10b5-2(b)(2) requires only a “history, pattern, or practice” of
sharing confidences between the two parties. 17 C.F.R.
§ 240.10b5-2(b)(2). Tyler D.’s affidavit disputing what was
said at AA meetings does not undermine Maguire’s testimony
detailing his confidential relationship with McGee related to
sobriety. The District Court therefore acted well within its
discretion in holding that the affidavit did not warrant a new
trial.
V.
For the foregoing reasons we will affirm. Rule 10b5-
2(b)(2) warrants Chevron deference and is based on a
permissible reading of § 10(b). Moreover, a rational juror
could find that McGee and Maguire had a relationship of trust
or confidence based on their history, pattern or practice of
sharing confidences related to sobriety to support a conviction
for securities fraud. In addition, there was sufficient evidence
to support a perjury conviction, and the District Court did not
exceed permissible discretion in denying McGee’s motion for
a new trial based on newly discovered evidence.
*****
The judgment of the District Court will be affirmed.
32