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United States v. Xie

United States Court of Appeals, Fifth Circuit

October 31, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee
TINGHUI XIE, also known as Kelly Xie, also known as Kelly Liu, Defendant-Appellant

          Appeal from the United States District Court for the Middle District of Louisiana

          Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.

          W. EUGENE DAVIS, Circuit Judge.

         In this insider trading case, defendant-appellant Kelly Liu[1] was convicted of one count of conspiracy to commit securities fraud in violation of 18 U.S.C. §§ 2 and 371 and two counts of securities fraud in violation of 15 U.S.C. §§ 78j(b) and 78(ff). On appeal, Liu challenges the sufficiency of the evidence supporting her conviction. She also contends the district court abused its discretion in denying her a severance. Concluding that the evidence was sufficient and that the district court did not abuse its discretion in denying a severance, we AFFIRM.


         Viewed in the light most favorable to the verdict, the relevant facts are as follows.[2] In March 2012, Chicago Bridge and Iron, N.C. ("CB&I") expressed interest in acquiring The Shaw Group ("Shaw"). Both companies were publicly traded, and both had approximately $6 billion in revenue. By May 2012, Toshiba Corporation ("Toshiba") became interested in joining CB&I, and the two companies approached Shaw to discuss an acquisition. The next two months saw both sides hurriedly conduct their due diligence to obtain information in preparation for the possible acquisition. At some point prior to July 4, 2012, Toshiba dropped out, but CB&I never wavered in its negotiations to acquire Shaw. On July 4, 2012, Shaw and CB&I reached a tentative deal, and after final due diligence, CB&I on July 30, 2012 announced its agreement to acquire Shaw.

         Defendant-appellant Kelly Liu ("Liu") took an active role in obtaining Shaw's financial information to satisfy CB&I's due diligence requests. Liu had been in Shaw's five-person Financial Planning & Analysis Group (FP&A) since 2011. As such, Liu was no stranger to due diligence; she had worked on several of Shaw's acquisitions of smaller companies. Her group regularly assisted with market analysis and due diligence for these acquisitions, and thus became familiar with the high level of secrecy involved in handling this information. Because of her access to restricted information, Shaw considered her an "insider" and provided her and others in her department the company's policy on insider trading.

         As Liu and her team conducted final due diligence in the weeks leading up to the closing, Liu's codefendants purchased Shaw stocks and call options. The trial centered on the actions of Liu, together with Salvador "Sammy" Russo, III ("Russo"), Diemo Ho ("Diemo"), and Victory Nam Ho ("Vic"). Codefendant Russo was Liu's live-in boyfriend at the time of the offense. The two had been dating since 2006. Diemo was their neighbor and Liu's close friend. Codefendant Vic was Diemo's older brother and an acquaintance of Liu's.[3]

         From July 18 to 27, 2012, a flurry of communications occurred between the above parties. Call records revealed a pattern: Liu and Diemo would communicate by phone or text, Diemo would immediately thereafter phone or text Vic, and Diemo would then quickly phone or text Liu. Conversations peaked on the days Vic and Russo purchased stocks and options in Shaw; the communications between the parties throughout July were strikingly high. During some of these conversations, IP addresses[4] used by Liu and Diemo accessed Vic's brokerage account to investigate Shaw stock price. Russo directed his mother to purchase stocks on July 19, 2012, and Vic purchased his Shaw call options eight days later. When Vic purchased his options, he wrote to a representative of optionsXpress in a recorded online chat to confirm that he could sell the options on July 30, 2012, the day Shaw announced the acquisition.

         Following the July 30 announcement of CB&I's purchase of Shaw, the price of Shaw stock rose roughly $15 per share. Within forty minutes of the announcement, the parties again communicated back and forth. Russo held onto the stock in his mother's account, eventually making a $2800 cash profit. Vic, meanwhile, sold his Shaw call options on July 30 for a profit of $294, 000 (over 3500% in gains).

         When Vic filed his 2012 tax returns, he failed to report these profits despite receiving a 1099 tax form. After his tax preparer reminded him to pay taxes on gains, Vic responded that he was "in trouble," but he did not seek to amend his 2012 return. During trial, the district court provided limiting instructions to the jury regarding their consideration of the evidence of Vic's failure to report his capital gains when evaluating the charges against Liu.

         The indictment charged Liu with committing insider trading and entering into a conspiracy with Russo and Vic to do so. Before trial, the district court rejected Liu's pre-trial motion for severance, and the motion was re-urged and denied at every available opportunity. Liu filed her timely notice of appeal a week after the court imposed her sentence of sixteen months per count to run concurrently.


         A. Insider Trading Elements

         Section 10(b) of the Securities Exchange Act of 1934 and the Securities and Exchange Commission's Rule 10b-5 impose civil and criminal liability for insider trading. The Act "prohibit[s] 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."[5] In Dirks v. SEC, the Supreme Court held that when a corporate insider shares material, nonpublic information with someone in breach of his or her fiduciary duty for personal gain, the corporate insider may be held liable as a "tipper."[6]

         Consistent with Supreme Court precedent, the district court instructed the jury of the following six elements required to convict a tipper of insider trading: (1) that the defendant disclosed material, nonpublic information to another person, (2) that the disclosure was made for personal purpose in breach of the defendant's fiduciary duty as a corporate insider, (3) that the defendant anticipated that the other person would trade on the basis of the information, (4) that the other person unlawfully traded, (5) that the defendant acted knowingly, willfully, and with the intent to defraud, and (6) that the insider trading scheme involved the use of some instrumentality of interstate commerce.[7]

         1. Sufficiency of the Evidence

         This court reviews preserved challenges to the sufficiency of the evidence de novo.[8] "Though de novo, this review is nevertheless highly deferential to the verdict."[9] Under this standard, "the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."[10] This court must "view the evidence in the light most favorable to the verdict and draw all reasonable inferences from the evidence to support the verdict."[11] "Determining the weight and credibility of the evidence is within the sole province of the jury."[12]

         Liu challenges the sufficiency of the evidence to establish that she possessed and disclosed material, nonpublic information, and that she acted with scienter to support her conviction for insider trading. She also challenges the sufficiency of the evidence to show that she conspired with her codefendants to commit insider trading. Each of these issues will be discussed in turn.

         a. Possession

         Liu first argues that the evidence was insufficient to show that she possessed any information concerning the buyout. Specifically, she stresses that she merely had potential access to information, which is insufficient to establish possession.

         The Government, however, presented evidence showing that Liu deduced that an acquisition was about to occur. On May 29, 2012, Liu received CB&I and Toshiba's 22-page due diligence request for "Project Jewel," a code name for the acquisition. This was followed by a number of other requests for additional information. CFO Brian Ferraioli testified that a member of FP&A "could easily have inferred" from the due diligence requests that a company was seeking to purchase Shaw. In addition, FP&A Manager Rebecca Wallace testified that she and Liu took a private phone call from a Morgan Stanley investment banker on July 16, 2012 while at lunch, discussing "sensitive information" concerning EBITDA (an important metric for a buyout).[13] Wallace stated it was "pretty easy to guess" what was happening, both from the involvement of investment bankers and the inquiry about EBITDA. Liu's group also assisted in the buyout by running the "Maggie"[14] forecasting model for Morgan Stanley, which assessed Shaw's worth for the acquisition. FP&A updated Maggie at least twice in May and June 2012, which was atypical; ordinarily Maggie was updated every six months. Liu's coworker James McMahon (a member of the FP&A team) testified that based on these updates he believed Shaw was selling itself and assumed Liu, who had this same information, believed the same.

         The Government presented evidence that Liu had been told of the impending sale. CFO Ferraioli testified that he told Wallace about the planned sale of Shaw weeks before Shaw announced the deal, and coworker Meredith Guedry (a member of the FP&A team) in turn testified that Wallace told her team, including Liu, about CB&I's pending acquisition of Shaw prior to the announcement.[15] Guedry's detailed testimony about her conversations with Liu in June added credibility to her conclusion that she had "no doubt" Liu knew that the sale was pending. Indeed, Guedry explained that she and Liu discussed the acquisition at length. Fearing her job was at risk due to the acquisition, Guedry left Shaw's Baton Rouge office in late June; Guedry testified that Liu knew why she was leaving and agreed with her decision.

         Liu relies on three district court cases to argue this evidence was insufficient to establish possession, yet they are all readily distinguishable. First, in S.E.C. v. Horn, the Northern District of Illinois held that while the defendant had potential access to information, that alone could not establish possession of material, nonpublic information.[16] Similarly, in S.E.C. v. Truong, the Northern District of California concluded that there was no evidence that the defendant had trading information, for he "was not made privy to confidential sales and financial information in the normal course of his duties."[17] Lastly, in S.E.C. v. Schvacho, the Northern District of Georgia, after conducting a bench trial, determined that a correlation between stock purchases and a few phone calls between two friends required too much conjecture.[18] In contrast to these cases, the evidence adduced at trial provided the jury with a sufficient basis to conclude that Liu actually possessed information about the impending sale of Shaw.

         b. Materiality

         Liu next argues that the evidence was insufficient to show that the information she possessed concerning the acquisition of Shaw was material. Liu underscores that any information she possessed was speculative and founded on rumor.

         Based on Supreme Court precedent, the district court charged the jury without objection that information is material "if a reasonable investor would consider it significant in the decision whether to invest, such that it alters the total mix of information available about the proposed investment."[19] The court also clarified that "confirmation by an insider of facts or rumors that the company had not confirmed publicly itself may constitute material, nonpublic information."

         As materiality "depends on the facts," it "is to be determined on a case-by-case basis."[20] While this court has not addressed this issue in the context of tipper liability, the Second Circuit has. In United States v. Mylett, for example, the defendant, the Vice President of Labor Relations at AT&T, told his friend that a newspaper article speculating a merger between AT&T and an unnamed company was true, because he had conducted a feasibility study of the merger and had been told by his supervisor not to discuss the article.[21] On appeal, the court determined that a reasonable investor would find this information valuable, even if the merger was speculative. It held that a $6 billion acquisition could be considered "an event of great magnitude," in part due to the "sharp jump" in the stock price after the announcement.[22] The court also found that there was a high probability of acquisition because the company had hired an investment bank, outside counsel, and accountants in preparation.[23] Similarly, in S.E.C. v. Mayhew, the Second Circuit held that a tip to the defendant that an acquisition was in the works was material.[24] The court concluded that because the information came from an insider and the merger discussions were "actual and serious," a "lesser level of specificity" was necessary to constitute material information.[25]

         On the other hand, the Fourth Circuit in Taylor v. First Union Corp. held that information being withheld concerning talks between banks did not constitute material information.[26] Two banks in separate states held a meeting to discuss the possibility of "developing a relationship."[27] Following a Supreme Court decision declaring interstate banking to be constitutional, the two banks again met, this time to consider a merger. The Fourth Circuit determined that those discussions were "preliminary, contingent, and speculative."[28] "At best, the merger discussions culminated in a vague 'agreement' to establish a relationship," with "no agreement as to the price or structure of the deal."[29]

         This present case poses a stark contrast to Taylor. The information available to Liu in May 2012 when CB&I sent its 22-page due diligence request showed that the companies' negotiations concerning a possible sale of Shaw were quite serious. As the summer progressed, Liu observed that Maggie had been updated out of cycle. She also participated on multiple calls with Morgan Stanley bankers who, referencing "the other side," discussed the metric. Other members of FP&A eventually informed her that Shaw was being bought. Liu emphasizes that she did not know the price or other details of the deal, such as the buyer's identity, but materiality in this instance does not demand that the tipper know all the details of the proposed transaction. Here, talks of an acquisition were far beyond speculation. That the information came from Liu, a deemed "insider," made it all the more likely to affect the mix of total information available for the reasonable investor. Thus, the jury had sufficient evidence to conclude the information was material.

         c. Nonpublic

         Liu makes a conclusory claim that the information in question was public. Arguments not briefed are waived.[30] In any event, the information surrounding Shaw's acquisition was clearly nonpublic. Information becomes public when it is disclosed "to achieve a broad dissemination to the investing public generally and without favoring any special person or group."[31] Here, the evidence sufficiently showed that CB&I and Shaw kept the deal a secret until they announced the acquisition. Indeed, the companies went to great lengths to keep discussions confidential. ...

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