Summary
In United States v. Coriaty, 2001 WL 1910843 (S.D.N.Y. 2001), the district court granted in part a motion for a judgment of acquittal, holding that under the Second Circuit's case law, there was simply no evidence to sustain a conviction on one element of a securities fraud charge.
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99 Cr. 1251 (N.T).
July 26, 2001
OPINION
The defendant, Ehab Coriaty, brings a motion pursuant to Federal Rule of Criminal Procedure 33 for a new trial. On March 21, 2001, Coriaty was convicted of eight counts of wire fraud, in violation of Sections 1343, 1341 and 2 of Title 18 of the United States Code; one count of conspiracy to commit securities fraud and wire fraud, in violation of Section 371 of Title 18 of the United States Code; and one count of securities fraud, in violation of Section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b), and Section 240.10b-5 of Title 17 of the Code of Federal Regulations.
Coriaty bases his motion upon the grounds that: (1) the verdict is contrary to the law; (2) the verdict is contrary to the weight of the evidence; (3) the evidence was insufficient as a matter of law to sustain the convictions; (4) the trial court erred in failing or refusing to grant his motions for judgment of acquittal at the close of the government's case and at the close of all of the evidence; (5) the trial court erred in refusing to give his requested jury instructions on securities fraud and his theory of defense or theory of the case; and (6) the predecessor district judge erred in denying his motions to transfer the trial to the Southern District of Florida and for issuance of a subpoena to the government's key and complaining witnesses pursuant to Rule 17(c). As a result of the alleged errors, Coriaty believes he has been deprived of a fair trial contrary to the due process clause of the Fifth Amendment.
For the following reasons, Coriaty's conviction on the charge of securities fraud is set aside. Coriaty's motion for a new trial is denied in its entirety.
DISCUSSION
A. Coriaty's Motion
At the end of the government's case and at the close of all of the evidence at trial, Coriaty made motions for a judgment of acquittal on all of the charges on the grounds of insufficiency of evidence pursuant to Federal Rule of Criminal Procedure 29. The Court denied both motions.See Trial Tr. at 857-58, 1281. In his motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, Coriaty argues that he should be granted a new trial on several bases, one of which is the Court's refusal to grant the motions for a judgment of acquittal. The Court treats this contention as a post-verdict motion for judgment of acquittal under Federal Rule of Criminal Procedure 29(c) and evaluates the sufficiency of the evidence under the standards applicable to a Rule 29 motion. See United States v. Lincoln, 630 F.2d 1313, 1316 (8thCir. 1980); Fed.R.Crim.P. 29(a) ("The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal . . . after the evidence on either side is closed if the evidence is insufficient to sustain a conviction" of an offense charged in the indictment or information.). All claims that do not involve the sufficiency of the evidence will be evaluated under the standards pertaining to Rule 33.
B. Claims Evaluated Under Standards of Rule 33
1. Standard of Review
The Court may grant a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 "if the interests of justice so require." Fed.R.Crim.P. 33. The defendant bears the burden of proving the need for a new trial. See United States v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995). The decision to grant a Rule 33 motion rests within the broad discretion of the trial judge. See United States v. Zane, 507 F.2d 346, 347 (2d Cir. 1974). In deciding whether to grant such a motion, the judge is not required to view the evidence in the light most favorable to the prosecution. See Lincoln, 630 F.2d at 1319. In addition, the judge is permitted to weigh the evidence and evaluate the credibility of the witnesses. See United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). The Court's discretion is, however, not unlimited. The Court should only grant a new trial when it "concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred." Lincoln, 630 F.2d at 1319. Motions pursuant to R. 33 should be granted only in exceptional circumstances. See United States v. Costello, 255 F.2d 876, 879 (2d Cir. 1958).
2. Denial of Coriaty's Jury Instructions
Coriaty argues that the Court erred in failing to present three instructions on his theories of the case to the jury, all of which were supported by the evidence presented during the trial. See Def.'s Mot. for New Trial at 6-7. Coriaty requested the Court to give the following instructions to the jury:
(1) You have heard evidence that Mr. Coriaty neither suggested the purchase and sale of any specific security, nor persuaded Nicole Durr to obtain a mortgage so as to enable her [to] buy any particular security, nor securities in general.
If you so find, then you must acquit Mr. Coriaty (that is, find him "not guilty") of counts I and II of the indictment.
(2) You have heard evidence that Mr. Coriaty took neither money nor securities belonging to Nicole Durr through fraud or any scheme to defraud, using the facilities of interstate commerce (i.e., wire transfers or telephone calls). You have heard evidence that all funds which entered any banking account associated with Mr. Coriaty were licit, legal, and/or properly received.
If you so find, then you must acquit Mr. Coriaty (i.e. find him "not guilty") of any or all of such counts from III through XVIII of the indictment in respect of which you make any such findings.
(3) You have heard evidence to the effect that the Defendant, Ehab Coriaty, never conspired or agreed or combined with anybody, including but not limited to Howard Rosen, to defraud Nicole Durr in respect of the purchase or sale of securities, and in respect of the transfer of funds into and out of one or more bank accounts associated with Mr. Coriaty.
If you so find, you must acquit Mr. Coriaty (i.e., find him "not guilty") of any count or counts in respect of which you so find.
It is well-settled that a criminal defendant is entitled to a jury charge which reflects the defense theory, as long as there is any foundation for it in the evidence, regardless of how weak or incredible the evidence appears. See United States v. Dove, 916 F.2d 41, 47 (2d Cir. 1990); United States v. Durham, 825 F.2d 716, 718-19 (2d Cir. 1987). Here, it is not apparent from the instructions or from Coriaty's motion for a new trial what particular theories Coriaty advances in his defense. He provides no alternative, innocuous explanation for his conduct, nor does he provide a defense negating any of the elements of the charged crimes. See, e.g., United States v. Bok, 156 F.3d 157, 161 (2d Cir. 1998) (in an action against him for attempted personal tax evasion and for making false statements on an income tax return, defendant requested a charge characterizing money withdrawn from corporation "as a nontaxable return of capital that he had invested in the corporation rather than as a taxable dividend."); Durham, 825 F.2d at 719 (where government had to prove appellants' specific intent to commit arson, "[a]ppellants' defense was directed specifically at negating the element of specific intent"); United States v. Badalamente, 507 F.2d 12, 22 (2d Cir. 1974) (defendant requested charge elaborating on his defense of noninvolvement and distinguishing it from co-defendant's entrapment and withdrawal defense). Additionally, Coriaty fails to point to facts on the record that would support his requested charges, contrary to the requirements of the Second Circuit. See Bok, 156 F.3d at 164k (trial court properly rejected defendant's proposed instruction because there was no factual basis in the record supporting his defense); compare Durham, 825 F.2d at 719 (defense theory had a "basis in law and in the evidence").
Coriaty's requested instructions tell the jury that he did not commit the crimes charged but do not advance a coherent defense theory. In particular, the proposed instructions simply suggest facts and conclusions favorable to Coriaty, such as that he did not engage in any illegal behavior, commit fraud or conspire to commit securities and wire fraud. The Court is not required to include such statements because as long as the charge is fair to both sides, the Court "is not required to review or marshal the evidence for the jury and has broad discretion to decide which facts, if any, it will mention in its comments to the jury." United States v. GAF Corp., 928 F.2d 1253, 1263 (2d Cir. 1991).
Coriaty cites Durham in support of his argument that the Court should have provided instructions reflecting his theory of the case. In Durham, the disputed charge involved the crime of conspiracy to commit arson. The defendants sought a charge reflecting their theory that they never intended to commit arson, but rather intended to dupe the undercover agents into paying them advance money to engage in criminal activity. The court in Durham recognized a criminal defendant's right to a charge reflecting the theory of defense. 825 F.2d at 718. However, the Durham court made clear that the fault of the lower court lay in "never explicitly spell[ing] out to the jury that in this instance it had to find specific intent to commit arson as opposed to an intent to `dupe' the agents of" a sum of money. Id. The court's instructions were found inadequate because they "linked the element of specific intent only to intent to violate the law in general, but not to intent to burn the subject building." Id. at 719. Viewing the charge in its entirety, theDurham court found that "the jury might easily have been confused as to what constituted a valid legal defense to the counts charged." Id. at 720.
The Court sees no such possibility for confusion emanating from its refusal to give Coriaty's requested instructions. With respect to all of the crimes of which Coriaty was convicted, the Court provided clear instructions on what the government needed to prove for each element of the offense. For the element of intent for the crime of wire fraud, the Court emphasized that the government was required to establish beyond a reasonable doubt that Coriaty "knowingly and willfully devised or participated in the scheme or artifice to defraud, with knowledge of its fraudulent nature and with specific intent to defraud" and also provided the definition of intent to defraud. Trial Tr. at 1374-75, 1378-81.
For the crime of securities fraud, the Court emphasized that the government was required to establish that Coriaty "acted willfully, knowingly, and with intent to defraud" and also provided the definition of intent to defraud. Id. at 1385, 1387-88. For the element of intent for the crime of conspiracy, the Court emphasized that the government was required to prove that Coriaty agreed to accomplish the object of the conspiracy, that is, securities or wire fraud. Id. at 1392-93, 1395-96. Additionally, the Court stated that "an essential element of each of the objects of the conspiracy charged is intent to defraud, [and that] good faith on the part of a defendant is a complete defense to the charge in the indictment," and "the burden is on the government to prove fraudulent intent and consequent lack of good faith beyond a reasonable doubt." Id. at 1398.
In light of comprehensive and detailed instructions on the elements of each crime, the possible defense of good faith, the presumption of innocence, and the requisite burden of proof, the Court rejects Coriaty's contention that the instructions were incomplete or unfair. See Badalamente, 507 F.2d at 22 (where lower court refused to include defendant's instructions detailing his theory of defense and distinguishing it from co-defendants' defense, defendant's theory was fairly presented to jury by the court's "general instructions about a defendant's presumption of innocence, the quantum of proof needed to overcome it, and the instruction that the government's case against each defendant on [each] count must be separately considered").
As the government contends, because "all of the Court's instructions, taken as a whole, fully apprised the jury on the law, . . . and did not in any way prejudice the defendant," there was no error in the omission of Coriaty's requested instructions. Letter from Gov't to Judge Tsoucalas (May 23, 2001), at 6 (citing Badalamente, 507 F.2d at 22); see also United States v. Vasquez, 82 F.3d 574, 577 (2d Cir. 1996) ("A conviction will not be overturned for refusal to give a requested charge . . . unless that instruction is legally correct, represents a theory of defense with basis in the record that would lead to acquittal, and the theory is not effectively presented elsewhere in the charge."). Accordingly, Coriaty's motion for a new trial based on the Court's rejection of his jury instructions is denied.
3. Denial of Transfer; Denial of Defendant's Motion Made Pursuant to Federal Rule of Criminal Procedure 17(c) for the Issuance of Subpoenas
Federal Rule of Criminal Procedure 21(b) provides that "[f]or the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to that defendant . . . to another district." The trial judge possesses a great degree of discretion in determining whether the interests of justice require a transfer. See United States v. Maldonado-Rivera, 922 F.2d 934, 966 (2d Cir. 1990).
After careful consideration, the preceding district judge exercised the broad discretion afforded by Federal Rule of Criminal Procedure 21(b) and denied Coriaty's motion for a transfer. See Mem. Order of United States District Judge Deborah A. Batts (Aug. 2, 2000), at 3-12. Coriaty comes before this Court after the trial contending that the Court's failure to transfer the trial eroded his ability to present witnesses and marshal evidence. See Def.'s Mot. for New Trial at 7. Coriaty's arguments fail for two reasons. First, at no point during the trial did Coriaty raise this issue. Second, Coriaty makes his conclusory allegation without providing any evidence of its truth. Coriaty had a full and fair opportunity to present his case, and he has not demonstrated how he was hindered in his defense by the fact that the trial was conducted in this district. Accordingly, Coriaty's motion for a new trial on the ground that the case should have been transferred is denied.
Coriaty also claims that the preceding judge erred in denying his motion for an order pursuant to Federal Rule of Criminal Procedure 17(c) for issuance of subpoenas against non-parties Nicole Durr and Donald Warner. After careful consideration, the preceding judge found that Coriaty failed to carry his burden of demonstrating that the material sought was evidentiary and relevant, and that the application for the material was made in good faith. See Mem. Order of United States District Judge Deborah A. Batts (Aug. 2, 2000), at 16-22. Coriaty again makes conclusory statements without presenting any evidence or arguments showing that the ruling was in error. Accordingly, Coriaty's motion for a new trial on the ground that his Rule 17(c) motion should have been granted is denied.
C. Claims Evaluated Under Standards of Rule 29
1. Standard of Review
Pursuant to the standards applicable to Rule 29 motions, the Court must affirm the defendant's conviction if, in viewing the evidence in the light most favorable to the government, it finds that "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). "The reviewing court must view as a whole all of the trial evidence and defer to the jury's assessment of witness credibility and the jury's resolution of conflicting testimony." United States v. Middlemiss, 217 F.3d 112, 117 (2d Cir. 2000). The government's proof does not need to exclude "`every possible hypothesis of innocence.'"United States v. Desimone, 119 F.3d 217, 223 (2d Cir. 1997) (quotingUnited States v. Friedman, 998 F.2d 53, 59 (2d Cir. 1993)). Defendants challenging their convictions on grounds of sufficiency bear a "`heavy burden.'" Middlemiss, 2l7 F.3d at 117 (quoting United States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994)).
"A post-verdict motion for judgment of acquittal puts in issue the sufficiency of the evidence to sustain the verdict," and "is in this respect precisely like an appeal from a judgment of conviction on the ground that the evidence was not sufficient to sustain the verdict on which the judgment was entered." United States v. Lincoln, 630 F.2d 1313, 1316 (8th Cir. 1980); United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000).
The Court also notes that the jury may base its verdict on circumstantial evidence alone, see United States v. Valenti, 60 F.3d 941, 945 (2d Cir. 1995), including its verdict on a charge of conspiracy. See Desimone, 119 F.3d at 223 (citing United States v. Gordon, 987 F.2d 902, 907 (2d Cir. 1993)). "[T]he conspiratorial agreement itself may be established by proof of a tacit understanding among the participants, rather than by proof of an explicit agreement." Id. (citing Gordon, 987 F.2d at 906).
2. Wire Fraud; Conspiracy to Commit Wire Fraud
All the evidence presented at trial was more than sufficient to establish that Coriaty was guilty of wire fraud and conspiracy to commit wire fraud. At trial, the jury heard testimony from the victim, Nicole Durr, as well as from several other people involved in the events leading up to Coriaty's conviction. The jury heard testimony that Coriaty instructed Durr's investment manager to wire money into a trading account, and that the money eventually was wired into Coriaty's personal account and the account of a co-conspirator, Howard Rosen. Durr testified that she did not authorize Coriaty to liquidate her trading account and transfer the money to his own account. The jury also heard testimony concerning Coriaty's efforts to conceal the whereabouts of the victim's money and his refusal to give the victim copies of her own account statements.
Discussion of conspiracy to commit securities fraud is not necessary since Coriaty was convicted of only one count of conspiracy, and the Court finds sufficient evidence to sustain the charge of conspiracy to commit wire fraud.
The witnesses' testimony was entirely consistent with the government's presentation of a substantial number of bank and brokerage records implicating Coriaty in the crimes of which he was convicted. These records traced several wires or transfers of money going out of the victim's accounts and eight transfers going to the account of the defendant and eight transfers going to the account of Rosen. Additionally, witnesses testified about meetings between Coriaty and Rosen regarding the management of Durr's money, which occurred after Durr had expressed her dislike of Rosen and her desire to exclude him from participation in her financial affairs. Finally, the jury heard the guilty plea of Rosen, who admitted that he agreed to commit fraud with others, and that he and others wired money from the victim's account into his account and the account of others.
In sum, the Court finds that the evidence presented at trial was more than sufficient to support the jury's verdict that Coriaty was guilty of wire fraud and conspiracy to commit wire fraud. Accordingly, Coriaty's convictions for wire fraud and conspiracy to commit wire fraud are affirmed.
Furthermore, the weight of the evidence preponderates heavily in favor of the verdict. Thus, even under the less restrictive standards applicable to Rule 33 motions, there is no basis to grant a new trial on the basis that the verdict was contrary to the weight of the evidence.See United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) ("the trial court has broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29"); United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992) (same); United States v. Ferguson, 49 F. Supp.2d 321, 323, 330 (S.D.N.Y. 1999), aff'd, 246 F.3d 129 (2d Cir. 2001) (trial court has broader discretion with respect to a motion made pursuant to Rule 33 because it may weigh the evidence, evaluate the credibility of witnesses and is not required to view the evidence in the light most favorable to the prosecution).
3. Securities Fraud
Coriaty contends that the government failed to satisfy the requirements of Section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5, insomuch as the government failed to show how the "intrinsic, monetary value" of the securities was affected by Coriaty's actions, See Def.'s Mot. for New Trial at 4. In particular, Coriaty focuses on the "in connection with" language of the statute and rule, contending that the requisite nexus between his actions and the securities was not proven.
Section 10 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) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.15 U.S.C. § 78j(b).
Rule 10b-5 provides:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, . . . [t]o make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, . . . in connection with the purchase or sale of any security.17 C.F.R. § 240.10b-5.
The Court finds merit in Coriaty's arguments and concludes that there was insufficient evidence to sustain the conviction for securities fraud. The jury heard evidence that Coriaty fraudulently induced Durr's investment manager, Donald Warner, to sell her holdings in her investment account and transfer the money to an account controlled by Coriaty, from which it was ultimately transferred to the personal accounts of Coriaty and Rosen. Based on the evidence presented at trial, the jury could find that Coriaty lied to Warner when Coriaty said that he needed the proceeds of the sale of the securities for a legitimate purpose. There was also evidence that Coriaty lied to Durr when she inquired about her investment and requested account statements, and that he evaded Durr's inquiries after she discovered the money was missing. The jury could also validly conclude that Coriaty misled Durr about Rosen's participation in her financial affairs.
These misrepresentations, however, were not made "in connection with" the sale of the securities. There was no evidence at trial showing that Coriaty misled Durr or Warner as to the nature or value of the securities. Contrary to the government's contentions, any misrepresentations made as to Rosen's involvement in Durr's investments did not relate to the nature or value of the securities. The connection between the misrepresentations and the sale of the securities is too tenuous to satisfy the "in connection with" requirement of the securities laws.
In this regard, the holding of the United States Court of Appeals for the Second Circuit in Chemical Bank v. Arthur Anderson Co., 726 F.2d 930 (2d Cir. 1984), is controlling. In Chemical Bank, the banks loaned money to a parent corporation, which pledged its subsidiary's stock as collateral. The parent corporation defaulted on the loan and the banks sued it, claiming that they were induced to lend the money on the basis of misrepresentations in the audits involving the subsidiary's stock. The Second Circuit found that no violation of the securities laws was presented because the alleged misrepresentations did not involve the value of the subsidiary's stock. The Second Circuit explained that
[t]he purpose of § 10(b) and Rule 10b-5 is to protect persons who are deceived in securities transactions — to make sure that buyers of securities get what they think they are getting and that sellers of securities are not tricked into parting with something for a price known to the buyer to be inadequate or for a consideration known to the buyer not to be what it purports to be.Chemical Bank, 726 F.2d at 943. Cases involving different facts and interpreting Chemical Bank have held that unless the misrepresentations relate to the nature or value of the securities themselves, the "in connection with" requirement of Section 10(b) and Rule 10b-5 is not satisfied. See Manufacturer's Hanover Trust Co. v. Smith Barney, Harris Upham Co., 770 F. Supp. 176, 181 (S.D.N.Y. 1991) ("Misrepresentations or omissions involved a securities transaction but not pertaining to the securities themselves cannot form the basis of a violation of Section 10(b) or Rule 10b-5."); Citibank, N.A. v. K-H Corp., 745 F. Supp. 899, 904 (S.D.N.Y. 1990) (because the "misrepresentation did not relate to the nature or value of the corporation's stock, . . . [it] was not made in connection with the purchase or sale of securities."); Bochicchio v. Smith Barney, Harris Upham Co., 647 F. Supp. 1426, 1429 (S.D.N.Y. 1986) ("Under the law of this Circuit, in order to be actionable under § 10(b) and Rule 10b-5, material misrepresentations or omissions must pertain to the securities themselves."); Bernstein v. Misk, 948 F. Supp. 228, 242-43 (E.D.N.Y. 1997) ("[M]isrepresentations or omissions involved in securities transactions but not pertaining to the securities themselves cannot form the basis of a § 10(b) or Rule 10b-5 claim."); compare United States v. Rudi, 902 F. Supp. 452, 456-57 (S.D.N.Y. 1995) (distinguishing Chemical Bank and holding that defendant's alleged fraud occurred in connection with the sale of bonds when it caused entity to sell bonds for less than they would have sold them but for the fraud).
The fact pattern in Bochicchio is comparable to the case at bar. See also Manufacturer's Hanover Trust Co., 770 F. Supp. 176. In Bochicchio, the plaintiffs brought an action alleging that the manager of their brokerage account made unauthorized sales of their securities, forged their endorsements on the proceed checks, converted the proceeds of the sales and made unauthorized withdrawals from their accounts. 647 F. Supp. at 1429. The court dismissed the claims brought under the securities laws, finding that the "in connection with" requirement was not satisfied. The complaint alleged nothing more than a conversion of property that happened to involve a securities investment account, and there was no allegation that the plaintiffs made any investment decisions, other than the decision to open the account, based upon the manager's alleged activities. Similarly, Coriaty fraudulently induced Warner to execute sales of Durr's securities and converted the proceeds of the sales. Like the manager in Bochicchio, Coriaty influenced Durr's initial decision to invest in the securities market; there was, however, no evidence at trial that Coriaty's misrepresentations were connected to the nature or value of the securities.
Because there was no evidence presented at trial demonstrating that the misrepresentations involved the nature or value of the securities themselves, Coriaty's conviction for securities fraud cannot stand. In accordance with the foregoing, the Court sets aside Coriaty's conviction for securities fraud.
The Court must address one final issue. Because the Court finds that there was insufficient evidence to sustain Coriaty's conviction pursuant to Rule 29, the Court must also decide "whether any motion for a new trial should be granted if the judgment of acquittal is thereafter vacated or reversed," and it must specify the grounds for its determination. Fed.R.Crim.P. 29(d). Accordingly, the Court conditionally denied Coriaty's motion for a new trial if the appellate court should find evidence sufficient to support the conviction for securities fraud and reinstate the conviction. The ground for this determination is simple: Coriaty suffered no unfairness or prejudice at trial. He has failed to demonstrate that a miscarriage of justice occurred with respect to any aspect of this case. Thus, even if the appellate court finds that there is sufficient evidence to support the conviction for securities fraud, this Court finds no other possible basis for relief.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that defendant's conviction for securities fraud is set aside; and it is further
ORDERED that defendant's motion for a new trial is denied in its entirety.