17‐2444 (L)
United States v. Afriyie

                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT
                            ____________________

                                 August Term, 2018

 (Argued: November 14, 2018                                 Decided: July 8, 2019)

                            Docket Nos. 17‐2444, 17‐4045

                               ____________________

UNITED STATES OF AMERICA,

                                 Appellee,

                    v.

JOHN AFRIYIE,

                           Defendant‐Appellant.

                               ____________________

Before: JACOBS, POOLER, and WESLEY, Circuit Judges.

      John Afriyie appeals from a judgment of conviction entered on July 28,

2017, an order of forfeiture entered on July 27, 2017, and a restitution order

entered on December 11, 2017, by the United States District Court for the

Southern District of New York (Paul A. Engelmayer, J.), following a one‐week
jury trial. The jury found Afriyie guilty of both counts with which he was

charged: (1) securities fraud, in violation of 15 U.S.C. §§ 78j(b) and 78ff, and 17

C.F.R. § 240.10b‐5, and (2) wire fraud, in violation of 18 U.S.C. § 1343. Afriyie was

sentenced principally to 45 months’ imprisonment, to be followed by three years’

supervised release. The district court imposed forfeiture in the amount of

$2,780,720.02 and restitution in the amount of $663,028.92.

      We affirm the judgment of conviction, finding no error in the district

court’s jury instructions, admission of lay testimony, and calculation of loss. We

hold that, as a matter of law, forfeiture is not limited to the amount of funds

acquired through illegal transactions in an insider‐trading scheme; rather,

forfeiture may extend to appreciation of those funds. We therefore affirm the

forfeiture calculation and order in this case. Because Lagos v. United States, 138 S.

Ct. 1684 (2018), decided after Afriyie’s sentencing, addresses the categories of

fees recoverable under the Mandatory Victims Restitution Act, limited remand to

recalculate restitution is appropriate.

      Affirmed in part, vacated in part, and remanded.

                               ____________________

                          ROBERT A. CULP, Garrison, N.Y., for Defendant‐
                          Appellant.



                                          2
                          EDWARD A. IMPERATORE, Assistant United States
                          Attorney (Christine Magdo, Daniel B. Tehrani, Assistant
                          United States Attorneys), for Geoffrey S. Berman,
                          United States Attorney for the Southern District of New
                          York, New York, N.Y., for Appellee.

POOLER, Circuit Judge:

      John Afriyie appeals from a judgment of conviction entered on July 28,

2017, an order of forfeiture entered on July 27, 2017, and a restitution order

entered on December 11, 2017, by the United States District Court for the

Southern District of New York (Paul A. Engelmayer, J.), following a one‐week

jury trial. We affirm the judgment of conviction, finding no reversible error in the

district court’s jury instructions, admission of lay testimony, and calculation of

loss. We hold that, as a matter of law, forfeiture is not limited to the amount of

funds acquired through illegal transactions in an insider‐trading scheme; rather,

forfeiture may extend to appreciation of those funds. We therefore affirm the

forfeiture calculation and order in this case. Because Lagos v. United States, 138 S.

Ct. 1684 (2018), decided after Afriyie’s sentencing, addresses the categories of

fees recoverable under the Mandatory Victims Restitution Act, we vacate the

restitution order and remand for the district court to recalculate restitution.




                                          3
                                  BACKGROUND

      In January 2015, Afriyie began working as an investment analyst for MSD

Capital (“MSD”). As an investment analyst, Afriyie researched potential

investments for MSD and made recommendations regarding those investments.

MSD barred its employees from trading in any individual securities from their

own accounts.

      In January 2016, Apollo Global Management (“Apollo”), a private equity

firm, was considering acquiring ADT Corp. (“ADT”), a publicly traded company

in the home security and alarm industry. Apollo contacted several investment

firms, including MSD, to raise capital in order to make this acquisition. After

MSD expressed an interest in investing, Apollo agreed to provide MSD with

material nonpublic information (“MNPI”) about the ADT deal.

      Around this time, MSD’s compliance department sent a “potential

restriction” email to its investment professionals. The email indicated that MSD

would receive MNPI about a “U.S. listed alarm monitoring services company”

because of a “financing opportunity in connection with a potential take‐private

transaction by . . . Apollo Global” that was “expected to close in [the first half of]




                                          4
2016.” App’x at 186‐87; Trial Tr. at 473‐77, ECF No. 109.1 Afriyie received this

email.

         The next morning, on January 28, Afriyie accessed the ADT and Apollo

research folders on MSD’s shared drive. After doing so, he purchased his first

ADT call option. That afternoon, MSD added ADT to its list of “restricted”

securities, and Afriyie received an email to this effect. Taken together, the

restriction emails Afriyie received informed him that Apollo was planning to

acquire ADT. The next day, Afriyie purchased an additional 35 ADT call options.

On February 2, although he was not assigned to work on the ADT project,

Afriyie accessed documents specific to the Apollo‐ADT deal stored on MSD’s

shared drive. He subsequently purchased over 2,000 additional ADT call options

over the course of the ensuing two weeks.

         On February 16, Apollo publicly announced its planned acquisition of

ADT. ADT’s stock price rose by 47.5%, and the value of Afriyie’s investment in

ADT call options increased by 6,000% in one day. Over the course of the

following week, Afriyie sold his options for a total profit of $1,564,071.60. In late




1All ECF citations are to the district court docket, United States v. Afriyie, No. 16‐
cr‐377 (S.D.N.Y. Feb. 27, 2017).

                                           5
February and March 2016, he wired a portion of the proceeds out of his

brokerage account and into a separate savings account.

      Afriyie was arrested and released on bail on April 13, 2016. Two days later,

he changed the name on the email address associated with the brokerage account

from his own name to his mother’s name and later deactivated the email account.

Afriyie also called TD Ameritrade and, on several occasions, pretended to be his

mother on the phone.

      On June 1, 2016, an indictment was filed charging Afriyie with two counts

of criminal activity stemming from trading on MNPI obtained from his

employer. Count One charged him with securities fraud, in violation of 15 U.S.C.

§§ 78j(b) and 78ff, and 17 C.F.R. § 240.10b‐5. Count Two charged him with wire

fraud, in violation of 18 U.S.C. § 1343. Following a week‐long trial, a jury found

Afriyie guilty of both counts. The district court sentenced him principally to a

term of 45 months’ imprisonment, followed by three years’ supervised release,

and it imposed forfeiture in the amount of $2,780,720.02 and restitution in the

amount of $663,028.92. Afriyie is serving his sentence.




                                         6
                                    DISCUSSION

        On appeal, Afriyie primarily argues that 1) there was reversible plain error

in the district court’s jury instructions; 2) the district court plainly erred in

admitting certain lay testimony; 3) the district court erred in calculating the loss

and forfeiture amounts; and 4) remand in order to recalculate restitution is

appropriate. For the following reasons, we reject Afriyie’s first three arguments.

However, as the government concedes, limited remand for recalculation of

restitution is appropriate in light of Lagos v. United States, 138 S. Ct. 1684 (2018),

decided after Afriyie’s sentencing.

   I.      Jury Instructions

        “We review challenged jury instructions de novo but will reverse only if all

of the instructions, taken as a whole, caused a defendant prejudice.” United States

v. Bok, 156 F.3d 157, 160 (2d Cir. 1998). It is the defendant’s burden to show

prejudice. United States v. Nektalov, 461 F.3d 309, 313‐14 (2d Cir. 2006) (internal

quotation marks omitted). “[A] jury instruction is erroneous if it misleads the

jury as to the correct legal standard or does not adequately inform the jury on the

law.” Bok, 156 F.3d at 160 (internal quotation marks omitted).




                                            7
       First, Afriyie argues that the district court committed plain error2 in failing

to explain to the jury what constitutes a fiduciary duty under the legal standard

set forth in United States v. Chestman, 947 F.2d 551 (2d Cir. 1991). Under Chestman,

“a person violates [17 C.F.R. § 240.10b‐5] when he misappropriates material

nonpublic information in breach of a fiduciary duty or similar relationship of

trust and confidence and uses that information in a securities transaction.” Id. at

566.

       At the charge conference, Afriyie did not object to the district court’s

proposed instruction regarding fiduciary relationship, which the court had

issued to the parties in advance of the meeting. Accordingly, we review only for

plain error. See United States v. Crowley, 318 F.3d 401, 412 (2d Cir. 2003). At trial,

the district court instructed the jury:

       In order to find that the government has established . . . that the
       defendant engaged in an insider trading scheme, you must find that
       the government has proven beyond a reasonable doubt each of the
       following two factors, that taken together, constitute an insider
       trading scheme under the federal securities law. The two facts are as
       follows:

       One, that the defendant had a relationship of trust and confidence
       with MSD Capital;

2“To establish plain error, the defendant must establish (1) error (2) that is plain
and (3) affects substantial rights.” United States v. Villafuerte, 502 F.3d 204, 209 (2d
Cir. 2007).

                                           8
      Two, that the defendant violated his duty of trust and confidence by
      using material, nonpublic information that he obtained by virtue of
      his relationship with MSD Capital to trade ADT securities for his
      own personal benefit.

      Now, in order for you to establish the first factor concerning the
      existence of a relationship of trust and confidence, you must
      welcome all of the facts and circumstances and ask whether both the
      defendant and MSD Capital recognized that their relationship
      involved trust and confidence.

App’x at 52‐53.

      Afriyie argues that the district court’s instruction failed to explain what

constitutes a fiduciary duty or similar relationship of trust and confidence,

omitted the key elements of reliance and de facto control, and failed to instruct

the jury that there can be no breach absent a duty to disclose. An express

agreement of confidentiality may establish fiduciary status. See Chestman, 947

F.2d at 571. Afriyie does not dispute that on his first day of employment with

MSD, he signed a confidentiality agreement. The agreement stated: “I

understand that my employment with MSD creates a relationship of confidence

and trust between MSD and me.” Trial Tr. at 192, ECF No. 101. Afriyie presented

no evidence to counter this agreement or to indicate that he lacked a fiduciary or

other similar relation of trust and confidence with MSD. Accordingly, any error

in the district court’s instruction did not result in prejudice; viewing the charge



                                          9
actually given as a whole, see United States v. Feliciano, 223 F.3d 102, 116 (2d Cir.

2000), the outcome of the trial would have been the same had Afriyie received

the instruction he sought.

      Second, Afriyie argues that the district court failed to instruct the jury that

the burden of proof remained on the government at all times, and thus it failed to

convey his theory‐of‐the‐defense instruction. Afriyie did not object or renew his

request for his submitted instruction following the charge conference.

Accordingly, we review only for plain error. See Crowley, 318 F.3d at 412‐14. At

trial, the court instructed the jury:

      If the government proves beyond a reasonable doubt . . . that the
      defendant engaged in an insider trading scheme, it must then prove
      that the defendant engaged in that scheme knowingly, willfully, and
      with intent to defraud MSD Capital . . . . It is for you to determine
      whether the government has established beyond a reasonable doubt
      such knowledge and intent on the part of the defendant.

      Because an essential element of the crime charged is intent to
      defraud, good faith on the part of the defendant is a complete
      defense to the charge of insider trading. That is, the law is not
      violated if the defendant held an honest belief that his acts were
      proper and not [in] furtherance of any unlawful scheme. A person
      who acts on a belief or reason honestly held that turns out to be
      wrong is not punishable under these statutes.

App’x at 55‐57.




                                          10
         There was no error. “[T]he district court must advise the jury in

unambiguous terms that the government at all times bears the burden of proving

beyond a reasonable doubt that the defendant had the state of mind required for

conviction on a given charge.” United States v. Scully, 877 F.3d 464, 476 (2d Cir.

2017). The district court did so here. See App’x at 55‐57; see also App’x at 30

(“[T]he burden remains on the government to prove all elements of each offense

beyond a reasonable doubt.”). Furthermore, as detailed above, the district court

explained that “good faith on the part of the defendant is a complete defense,”

App’x at 56‐57, thus conveying Afriyie’s theory that he lacked knowledge that he

was trading based on MNPI. There was therefore no error in the district court’s

good faith instruction.

   II.      Admission of Lay Testimony

         “We review evidentiary rulings for abuse of the district court’s broad

discretion, reversing only when the court has acted arbitrarily or irrationally.”

Nektalov, 461 F.3d at 318 (internal quotation marks omitted). Where, as here, the

defendant did not object, we review only for plain error. See United States v. Hsu,

669 F.3d 112, 118 (2d Cir. 2012).




                                           11
      Afriyie challenges the admission of nonexpert testimony on whether

certain information provided by Apollo was nonpublic; the likelihood of the

Apollo‐ADT deal; and projections of Apollo’s pricing of ADT stock. To begin,

Afriyie asserts that MSD employee‐witness Sharmit Grover “was permitted,

without basis, to offer expert opinions about documents, usurping the jury’s

province and calling them ‘material’ or ‘nonpublic’ when the documents were

created by or for Apollo and consequently the witness[] had no basis for the

opinions.” Appellant’s Br. at 35.

      “The Federal Rules of Evidence allow the admission of fact testimony so

long as the witness has personal knowledge, while opinion testimony can be

presented by either a lay or expert witness.” United States v. Cuti, 720 F.3d 453,

457‐58 (2d Cir. 2013) (citations and footnote omitted). “[T]he distinction between

statements of fact and opinion is, at best, one of degree.” Beech Aircraft Corp. v.

Rainey, 488 U.S. 153, 168 (1988). “[P]ersonal knowledge of a fact is not an absolute

to Rule 602’s foundational requirement, which may consist of what the witness

thinks he knows from personal perception. Similarly, a witness may testify to the

fact of what he did not know and how, if he had known that independently

established fact, it would have affected his conduct or behavior.” Cuti, 720 F.3d




                                          12
458‐59 (internal quotation marks and citation omitted). If the witness is not

testifying as an expert, the witness’ opinion is limited to those opinions which

are “(a) rationally based on the witness’s perception; (b) helpful to clearly

understanding the witness’s testimony or to determining a fact in issue; and (c)

not based on scientific, technical, or other specialized knowledge within the

scope of Rule 702.” Fed. R. Evid. 701. An employee’s testimony “grounded in”

an investigation he undertook in his role as an employee is admissible under

Rule 701; to the extent the employee’s testimony reflects “specialized knowledge

[resulting from] extensive experience,” however, it is not. Bank of China v. NMB

LLC, 359 F.3d 171, 181‐82 (2d Cir. 2004).

         Grover is a managing director at MSD Partners, an entity related to MSD

Capital, and he worked on the Apollo‐ADT transaction.3 Grover testified that

around January 2016, Apollo entered into a nondisclosure agreement with MSD

and had confidential discussions with Grover and others about whether MSD

would provide financing for the acquisition. Grover reviewed many nonpublic

documents as part of his work determining whether MSD should provide

financing. He testified that the nonpublic deal documents were saved on MSD’s




3   We refer to both entities collectively as “MSD.”

                                            13
shared drive. Grover further explained how he used and evaluated the

documents in evaluating the economics of the proposed transaction.

      The documents about which Grover testified were already in evidence

because they were introduced by an MSD IT specialist who retrieved them from

the shared drive. Furthermore, Grover testified based upon his firsthand

participation in the evaluation of the potential transaction. Therefore, the district

court did not err in permitting Grover to testify as to whether certain information

was nonpublic.

      With respect to Grover’s testimony regarding the likelihood of the Apollo‐

ADT deal and his projections of Apollo’s pricing of ADT stock, Grover referred

to his firsthand participation in the evaluation of the potential transaction. Unlike

in cases cited by Afriyie, Grover had contemporaneous involvement with the

transactions at issue, compare with Bank of China, 359 F.3d at 181‐82; he explained

how he compiled the summary chart, compare with United States v. Citron, 783

F.2d 307, 316‐17 (2d Cir. 1986); and he did not provide his opinion as to Afriyie’s

role in the charged fraud, compare with United States v. Groysman, 766 F.3d 147,

158‐62 (2d Cir. 2014).




                                         14
      Nevertheless, Grover’s testimony about the investigation he undertook in

his role as an employee also referred to his specialized knowledge. For example,

when asked whether “[i]n [his] experience, there are instances in which a private

equity firm may say one thing publicly and do a different thing privately,”

Grover responded, “Yes . . . . [S]aying that transactions are difficult to do [is

intended to make] sellers . . . reduce their expectations on sale price . . . . It’s the

. . . type of dynamic that plays out in the investments world.” Trial Tr. at 489‐90

(emphasis added). Similarly, Grover testified that his analysis of Apollo’s pricing

of ADT stock was “the type of analysis that an analyst would perform,” and that

his underlying assumptions—including assumptions regarding fees and

expenses, as well as estimates of the number of outstanding ADT purchase

options—were “commonly used metrics in the industry.” Trial Tr. at 511‐12.

      Although Grover’s testimony at times noted or was colored by his

specialized knowledge, any error in admitting it was not plain. The government

presented overwhelming evidence that Afriyie had accessed MSD’s confidential

information regarding ADT before making the trades at issue, and Grover’s

opinion about how these documents could have helped Afriyie commit insider

trading merely went toward explaining an internal process. The jury could




                                           15
readily have determined that Afriyie used confidential information to

fraudulently trade, even if the precise ways in which he used that information

were unclear. Because any error was not plain and did not affect Afriyie’s

substantial rights, we affirm.

   III.   Loss and Forfeiture

      “We review the district court’s factual findings at sentencing for clear

error, bearing in mind that the standard of proof at sentencing is a

preponderance of the evidence.” United States v. Cacace, 796 F.3d 176, 191 (2d Cir.

2015) (internal quotation marks omitted). Afriyie argues that, at minimum, his

case should be remanded for resentencing proceedings because he “was

sentenced as if it were a certainty that the jury convicted on every transaction,”

which “infected the sentencing record as to loss calculations, forfeiture, and

restitution.” Appellant’s Br. at 45.

   A. Loss Calculation

      The Presentence Report determined that a 16‐level enhancement applied

because Afriyie’s insider‐trading gain was $1.53 million. See U.S.S.G. §§

2B1.4(b)(1) and 2B1.1(B)(1)(I). This figure, $1.53 million, is the profit Afriyie made

by selling the ADT call options. Afriyie objected to the loss calculation. Because




                                         16
the jury returned a general verdict, he argued, first, the district court should have

enhanced his sentence only for the smallest gain he made on a single trade, and

second, if the district court were to consider all of his trades as relevant conduct,

it should have applied a clear and convincing evidentiary standard.

      At sentencing, the district court, agreeing with the Presentence Report,

found that the evidence reflected a $1.53 million gain. The district court

discussed two reasons in particular underlying its conclusion as to loss:

      I am not persuaded by that argument [that the court is limited to
      considering only the gain attributed to the trade that yielded the
      smallest gain] for two independent reasons: First, at sentencing the
      Court is to make an independent calculation of how the guidelines
      apply. Here, even on the theory that the defense posits that the jury
      found Mr. Afriyie guilty based on just one trade and did not base its
      guilty verdict on any other trades, the Court finds based on the
      overwhelming evidence at trial that this was a unitary scheme.
      Every trade by Mr. Afriyie in [ADT], every one of the exotic call
      options that he customized and purchased was based on . . . MNPI
      that he had obtained from MSD’s database; to wit, information that
      Apollo planned [to acquire] ADT at a significant stock price
      premium.

      The Court finds without any hesitation that each and every one of
      those trades occurred when Mr. Afriyie was in possession of that
      MNPI and that that confidential and highly material and market‐
      moving information was the impetus for each and every one of Mr.
      Afriyie’s purchase of call options. And, of course, after the
      announcement of the Apollo‐ADT transaction, those call options
      were very much in the money and proved to be extremely valuable,
      and Mr. Afriyie exercised them.



                                         17
      ....

      The second reason—and again, it’s independent of the first—is that
      the jury’s forfeiture finding compels the same result. That finding
      was made by a preponderance of the evidence. That is the same
      standard that governs the Court’s guidelines determination as to
      gain. The jury found that the full $1.53 million represented gains
      from the insider trading scheme, and it did so in the face of the same
      argument made here, which is that the information known to Mr.
      Afriyie and known to the public were at times of the different trades.
      So, the bottom line, the Court finds a 16‐level upward adjustment
      for gain to be appropriate.

App’x at 99‐101.

      Afriyie relies on United States v. Sturdivant, 244 F.3d 71 (2d Cir. 2001) to

argue that where a jury returns a general verdict, “sentencing must be based on

the least punitive possible verdict.” Appellant’s Br. at 46. But here, unlike in

Sturdivant, the district court did not “erroneously assume[] that [the] defendant

had been convicted based on” multiple transactions. Sturdivant, 244 F.3d at 77.

Instead, the district court acknowledged the general verdict and cited two

independent bases for its calculation: the evidence at trial and the jury’s

forfeiture verdict. The loss calculation was not clearly erroneous; indeed,

remanding for resentencing would simply require the district court to reiterate

the determinations that it already has made.




                                         18
   B. Forfeiture Calculation

      Afriyie next asserts that the “same flaws” as to the loss calculation

“afflicted the forfeiture determination albeit more profoundly.” Appellant’s Br.

at 49. We disagree.

       “[18 U.S.C.] § 981(a)(2)(B) supplies the definition of ‘proceeds’ in cases

involving fraud in the purchase or sale of securities.” United States v. Contorinis,

692 F.3d 136, 145 n.3 (2d Cir. 2012). Pursuant to Section 981(a)(2)(B), “[t]he

definition of proceeds for insider trading violations is the amount of money

acquired through the illegal transactions resulting in the forfeiture, less the direct

costs incurred in providing the goods or services.” Id. at 145 (internal quotation

marks omitted). “In any case tried before a jury, if the indictment or information

states that the government is seeking forfeiture, the court must determine before

the jury begins deliberating whether either party requests that the jury be

retained to determine the forfeitability of specific property if it returns a guilty

verdict.” Fed. R. Crim. P. 32.2(b)(5)(A).

      In the forfeiture phase of the trial, the court issued the following jury

instruction, to which Afriyie did not object:

      The term “proceeds” means the amount of money acquired through
      the illegal transaction or transactions engaged in by the defendant,



                                            19
      less the direct costs he incurred in engaging in this transaction or
      transactions.

      The proceeds of transactions that you do not determine to constitute
      insider trading, if any, are, of course, not proceeds of crimes. Your
      determination at this stage of whether a particular transaction
      constitutes insider trading by the defendant, is governed by the
      preponderance of the evidence standard.

      ....

      Assets purchased with crime proceeds are forfeitable even if they
      increase or appreciate in value, to grow greater than the original
      monies obtained from the crime. Where the present balance of a
      particular account is attributable to the appreciation made from the
      criminal proceeds in that account, the assets and funds in that
      account constitute or are derived from fraud proceeds and,
      therefore, are forfeitable.

App’x at 76‐77, 79. The jury then received a forfeiture special verdict form, which

required it to make specific findings as to the funds in the savings and brokerage

accounts and whether the money in those accounts constituted proceeds directly

or indirectly obtained as a result of the convictions on Counts One and Two. The

jury had to indicate whether the full amount of funds, or some lesser portion,

was forfeitable. It concluded that the full amount was derived from the proceeds

of Afriyie’s crimes.

      The district court imposed forfeiture in the amount of $2,780,720.02. This

amount represents $2,632,893.39, which is the liquidated value of the assets



                                        20
formerly held in the brokerage account and seized on May 16, 2016, together

with $147,826.63, the amount of proceeds of the offenses wired from the

brokerage account into the savings account between February 17 and March 24,

2016.

        Afriyie’s key challenge on appeal concerns the appreciated value. As noted

above, proceeds here include “the amount of money acquired through the illegal

transactions resulting in the forfeiture, less the direct costs incurred in providing

the goods or services.” Contorinis, 692 F.3d at 145 (internal quotation marks

omitted). The jury instruction as to “proceeds” was thus correct. Afriyie goes on

to argue, however, that insider‐trading forfeiture is limited to the funds acquired

through illegal transactions and excludes any appreciation of those funds.

        Under 18 U.S.C. § 981(a)(1)(C), as incorporated by 28 U.S.C. § 2461(c),4 a

defendant convicted of insider trading must forfeit “[a]ny property, real or

personal, which constitutes or is derived from proceeds traceable” to the offense.

18 U.S.C. § 981(a)(1)(C) (emphasis added). We have yet to squarely address the

import of “derived from” as it relates to appreciated value in an insider‐trading


4“While § 981(a)(1)(C) is a civil forfeiture provision, it has been integrated into
criminal proceedings via 28 U.S.C. § 2461(c). This roundabout statutory
mechanism allows a court to order forfeiture in criminal securities fraud
proceedings.” Contorinis, 692 F.3d at 145 n.2.

                                          21
scheme. Cf. United States v. Kalish, No. 6‐cr‐656(RPP), 2009 WL 130215, at *6

(S.D.N.Y. Jan. 13, 2009) (“[I]t is a fair conclusion that the present balance in the

Lehman Brothers account is attributable to appreciation made from the TFS

proceeds in various investment accounts. Therefore, this Court finds that the

entire $2.4 million in assets currently in the Lehman Brothers account constitutes

or was derived from fraud proceeds and thus is forfeitable.”), aff’d, 626 F.3d 165,

168 (2d Cir. 2010).

      We hold that as a matter of law, forfeiture may extend to the appreciation

of funds acquired through illegal transactions in an insider‐trading scheme.

There is simply no basis in the text to conclude, as Afriyie argues, that Section

981(a)(2), which defines “proceeds,” restricts Section 981(a)(1)(C) from applying

to funds that have appreciated in value. A defendant convicted of insider trading

must forfeit property “which constitutes . . . proceeds,” 18 U.S.C. § 981(a)(1)(C),

defined as “the amount of money acquired through the illegal transactions,” id.

§ 981(a)(2)(B). Thus, if Section 981(a)(1)(C) applied only to property “which

constitutes . . . proceeds,” Afriyie’s argument may have teeth. But the text

provides that a defendant convicted of insider trading must also forfeit property

which is “derived from proceeds traceable” to the offense. Id. § 981(a)(1)(C). The




                                          22
plain text compels our conclusion that a defendant convicted of insider trading

must forfeit the appreciation of funds acquired through illegal transactions in an

insider‐trading scheme, because such funds are “derived from proceeds

traceable” to the offense. Id.

      Afriyie’s final two arguments urging us to conclude the contrary are

unavailing. First, he argues that this Court should apply the rule of lenity

because “proceeds” is ambiguous. This is because, Afriyie argues, Section

981(a)(2)(B) “strictly limits ‘proceeds’ to ‘the amount of money acquired through

the illegal transactions . . . less the direct costs incurred in providing the goods

or services,’” while Section 981(a)(2)(A) “extends ‘proceeds’ to include ‘property

of any kind obtained directly or indirectly, as the result of the commission of the

offense.’” Appellant’s Reply Br. at 24 (alteration in original) (quoting 18 U.S.C. §

981(a)(2)). According to Afriyie, Congress wanted “indirect” acquisition to apply

under Section 981(a)(2)(A), but not Section 981(a)(2)(B). For the reasons above,

however, it cannot be said that “after seizing everything from which aid can be

derived, we can make no more than a guess as to what Congress intended,” such

that the rule of lenity applies here. Reno v. Koray, 515 U.S. 50, 65 (1995) (citation

and internal quotation marks omitted).




                                          23
      Second, Afriyie argues that when defense counsel indicated that Afriyie

accepted the verdict but wanted to testify that certain trades were not insider

trading, the government “threatened [him] with a perjury enhancement” and

thus “he was intimidated into only testifying as to forfeiture calculation rather

than specific trades as intended.” Appellant’s Reply Br. at 27. This, Afriyie

asserts, mandates retrial on forfeiture.

         “[A] defendant pressing such a claim must show bad faith on the part of

the government.” United States v. Williams, 205 F.3d 23, 29 (2d Cir. 2000). “[I]n

order to elevate this misconduct to a due process violation, the defendant must

demonstrate that the absence of fundamental fairness infected the trial; the acts

complained of must be of such quality as necessarily prevents a fair trial.” Id. at

29‐30 (internal quotation marks omitted). Here, there is no indication that the

precautionary statements about perjury rose to the level of intimidation. Afriyie

has failed to show bad faith or the absence of fundamental fairness with respect

to such precautions, and we affirm the district court’s calculation of forfeiture.

   IV.     Restitution

      The district court ordered that Afriyie pay $663,028.92 in restitution to his

former employer, MSD. This amount “correspond[ed] to expenses [MSD]




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incurred as a result of its participation in investigations into, and the eventual

trial concerning, Afriyie’s insider trading while working as an analyst at MSD.”

Order of Restitution at 1, ECF No. 178.5 After Afriyie’s sentencing, the Supreme

Court issued its decision in Lagos v. United States, 138 S. Ct. 1684 (2018). In Lagos,

the Court interpreted the Mandatory Victims Restitution Act and held that a

private firm’s legal fees as to a corporate victim’s private investigation and

related civil case were not compensable as “necessary” restitution. Id. at 1688‐89.

Afriyie submitted a supplemental brief addressing Lagos and seeking remand to

determine the correct restitution amount. The government “consents to a limited

remand to allow the District Court to determine whether certain categories of

expenses encompassed in the original restitution award were incurred ‘during

participation in the investigation or prosecution of the offense,’ 18 U.S.C. §

3663A(b)(4), consistent with the Supreme Court’s guidance in Lagos.” Appellee’s

Br. at 58‐59. Accordingly, remand to recalculate restitution is appropriate.




5Although the district court held at Afriyie’s sentencing hearing that MSD was
entitled to $691,046.62 in restitution, MSD “voluntarily disclaimed restitution for
expenses associated with counsel’s monitoring of, and attendance at,
proceedings in this case.” Order of Restitution at 2, ECF No. 178. Accordingly,
MSD sought $663,028.92, rather than $691.046.42. Id.

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                                CONCLUSION

      We have considered the remainder of Afriyie’s arguments and find them

to be without merit. For the foregoing reasons, the judgment of conviction and

order of forfeiture are hereby AFFIRMED, the restitution order is VACATED,

and the case is REMANDED.




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