     11-3591-cr(L)
     United States v. Goffer
 1
 2                      UNITED STATES COURT OF APPEALS
 3                          FOR THE SECOND CIRCUIT
 4
 5
 6                              August Term, 2012
 7
 8      (Argued: March 11, 2013                Decided: July 1, 2013)
 9
10                          Docket No. 11-3591-cr(L)
11
12
13                        UNITED STATES OF AMERICA,
14
15                                                               Appellee,
16
17                                    -v.-
18
19             ZVI GOFFER, CRAIG DRIMAL, MICHAEL KIMELMAN,
20
21                                                Defendants-Appellants,
22
23   JASON GOLDFARB, ARTHUR CUTILLO, EMANUEL GOFFER, DAVID PLATE,
24
25                                                           Defendants.*
26
27
28   Before:
29                   WALKER, SACK, AND WESLEY, Circuit Judges.
30
31
32
33
34
35   Defendants Zvi Goffer, Michael Kimelman, and Craig Drimal
36   appeal from convictions of conspiracy to commit securities
37   fraud in violation of 18 U.S.C. § 371 and securities fraud
38   in violation of 15 U.S.C. §§ 78j(b) and 78ff and sentences
39   entered in the Southern District of New York (Richard J.
40   Sullivan, Judge). Defendants allege that (1) wiretap

          *
            The Clerk of the Court is directed to amend the caption in
     the case to conform with the above.

                                        1
 1   evidence is inadmissible in prosecutions of securities
 2   fraud; (2) the jury lacked sufficient evidence to prove
 3   Defendants’ knowledge of the insider source; (3) the jury
 4   instructions on conscious avoidance were improper after the
 5   Supreme Court’s decision in Global-Tech Appliances, Inc. v.
 6   SEB S.A., -- U.S. --, 131 S.Ct. 2060 (2011); (4) the
 7   district court improperly excluded a rejected plea bargain;
 8   and (5) the sentences were higher than other white-collar
 9   defendants receive for comparable thefts. We hold that (1)
10   wiretap evidence is admissible where the wiretap was
11   lawfully obtained, and wire fraud remains a predicate
12   offense to obtain a wiretap; (2) there was sufficient
13   evidence from which a jury could reasonably infer
14   Defendants’ mens rea; (3) conscious avoidance law was not
15   altered by Global-Tech; (4) the district court properly
16   excluded evidence of a rejected plea bargain; and (5)
17   Defendants’ sentences were reasonable in light of the
18   magnitude of their theft and the 18 U.S.C. § 3553(a)
19   factors. The judgment of the district court is accordingly
20   AFFIRMED.
21
22
23
24
25            ALEXANDER MARTIN DUDELSON, Law Office of Alexander
26                 M. Dudelson, Brooklyn, NY, for Appellant Zvi
27                 Goffer.
28
29            MICHAEL S. SOMMER (Morris J. Fodeman, Scott D.
30                 Tenley, on the brief), Wilson Sonsini Goodrich
31                 & Rosati, P.C., New York, NY, for Appellant
32                 Michael Kimelman.
33
34            ARLENE VILLAMIA-DRIMAL, Weston, CT, for Appellant
35                 Craig Drimal.
36
37            ANDREW L. FISH, Assistant United States Attorney
38                 (Richard C. Tarlowe, Assistant United States
39                 Attorney, on the brief), for Preet Bharara,
40                 United States Attorney for the Southern
41                 District of New York, New York, NY, for
42                 Appellee United States of America.
43
44
45

                                  2
 1   WESLEY, Circuit Judge:

 2        Defendants Zvi Goffer, Michael Kimelman, and Craig

 3   Drimal were convicted in the United States District Court

 4   for the Southern District of New York (Richard J. Sullivan,

 5   Judge) of conspiracy to commit securities fraud in violation

 6   of 18 U.S.C. § 371 and securities fraud in violation of 15

 7   U.S.C. §§ 78j(b) and 78ff, 17 C.F.R. §§ 240.10b-5 and

 8   240.10b-5-2, and 18 U.S.C. § 2.1    Goffer and Kimelman were

 9   convicted after a 13-day jury trial; Drimal pled guilty.

10   Goffer was convicted of two counts of conspiracy to commit

11   securities fraud and twelve counts of securities fraud;

12   Kimelman was convicted of conspiracy to commit securities

13   fraud and two counts of securities fraud; and Drimal pled

14   guilty to conspiracy to commit securities fraud and five

15   counts of securities fraud.    Drimal and Goffer appeal their

16   sentences and Kimelman and Drimal challenge their

17   convictions based on evidentiary rulings, jury instructions,

18   and sufficiency of the evidence.2



          1
            Jason Goldfarb also filed a notice of appeal but no brief;
     his appeal was dismissed by an order of this court dated March
     16, 2012.
          2
             We address Defendants’ additional arguments in a related
     order. United States v. Goffer, 2013 WL --(2d Cir. 2013)
     (summary order).

                                     3
 1                              Background

 2        Goffer, Kimelman, and Drimal, along with non-party

 3   defendants, conducted a double-blind, high-volume insider

 4   trading network that led the participants to acquire over

 5   $10 million in profits.    Goffer, who worked as a proprietary

 6   trader3 at the Schottenfeld Group, LLC (“Schottenfeld”),

 7   spearheaded the conspiracy.

 8        In 2007, Drimal traded from the offices of the Galleon

 9   Group (“Galleon”), a firm led by Raj Rajaratnam.      Kimelman,

10   previously an attorney at a New York law firm, traded for

11   Quad Capital (“Quad”), a proprietary trading firm.      In late

12   2007, Kimelman, Goffer, and Goffer’s brother Emanuel

13   established a new trading firm, Incremental Capital

14   (“Incremental”), though they retained their other positions.

15    In early 2008, Kimelman left Quad to trade with Emanuel,

16   and Goffer began trading at Galleon.     Kimelman and Goffer

17   spoke often and shared information that led them to trade in

18   the same stocks.   In 2007 and 2008, Kimelman and Goffer

19   traded 151 stocks within five days of each other, including

20   88 stocks that they both traded on the same day.



          3
            Proprietary traders use the firm’s capital to make trades
     and retain half of the profits that they earn.

                                     4
 1   I.   The Conspiracy

 2        In the summer of 2007, Arthur Cutillo and Brian

 3   Santarlas, attorneys at Ropes & Gray LLP, met with Jason

 4   Goldfarb, a workers’ compensation attorney who had attended

 5   law school with Cutillo.   Goldfarb indicated to the Ropes &

 6   Gray attorneys that he had a friend who traded stocks and

 7   would pay for information about corporate acquisitions.     The

 8   Government showed at trial that Goffer was this friend.

 9   What followed was a series of “tips” in which Cutillo and/or

10   Santarlas would obtain material non-public information and

11   pass it to Goldfarb, who, in turn, would pass it to Goffer.

12   Goffer distributed these “tips,” which frequently related to

13   impending takeovers, to friends and partners.   Based on

14   these tips, Goffer and his co-conspirators would acquire

15   positions in the targeted companies and profit from the

16   takeover’s effect on the share price.

17        Goffer’s network used prepaid cellular telephones to

18   avoid detection; these phones – used by the attorneys and

19   the traders – were destroyed after each successful tip.

20   See, e.g., Tr. 429-31, 436-37; Gov’t Ex. 114, 127.

21   Throughout the relevant time period, Goffer spoke with co-

22   conspirators, especially Kimelman, guardedly when on the


                                   5
 1   phone. For instance, he described the P.F. Chang’s tip as “a

 2   good thing” but “nothing I’m going to talk about on the

 3   telephone.” Gov’t Ex. 145.    Goffer often asked Kimelman to

 4   meet in person or “in the street” when conveying sensitive

 5   information.    They also discussed countermeasures and ways

 6   to avoid detection, suspecting that high-volume trades in

 7   little-traded companies immediately prior to their

 8   acquisition could raise regulatory eyebrows. Goffer relied

 9   on Kimelman to provide him with insights into the meaning of

10   legal documents associated with the acquisitions, including

11   revised merger agreements, settlement agreements, signature

12   pages, and limited guarantees, inter alia.

13   II. The 3Com Tip

14       The first tip presented at trial related to Bain

15   Capital’s bid to acquire 3Com.     When Cutillo and Santarlas

16   learned about the progress of the deal – for example, by

17   finding documents entitled “closing agenda” or “signature

18   papers” on Ropes & Gray’s document management system or on a

19   communal printer - they reported this progress to Goldfarb,

20   who passed it on to Goffer.    Goffer shared information

21   relating to the takeover bid with some of his co-

22   conspirators.   Goffer frequently convened a group of co-


                                    6
 1   conspirator traders (typically including Emanuel, Kimelman,

 2   and David Plate, another Schottenfeld trader) at a bar where

 3   the group would discuss the progress of the takeover bid and

 4   any new information that Goffer had received regarding the

 5   plans.

 6         On August 7, 2007, Goffer, Drimal, Emanuel, and Plate

 7   began acquiring 3Com stock based on the material nonpublic

 8   information that Goffer received from Goldfarb.      Gov’t Ex.

 9   10.   That evening, Goffer had a 25-minute phone conversation

10   with Kimelman.4   The next day, Kimelman purchased 94,200

11   shares of 3Com stock.    That week, forbidden from purchasing

12   more 3Com stock by Quad’s risk management team, Kimelman

13   sent an otherwise wordless email to Goffer into which he had

14   pasted an instant message conversation with Quad’s risk

15   management expert.

16         Goffer also provided details about the acquisition and

17   the sources of his information to Drimal; Drimal passed both

18   on to David Slaine, a cooperating witness.      Drimal explained

19   that the information came from an attorney from “Ropeson”

20   who risked “his whole . . . career and maybe going to jail”

21   by sharing these tips.    Gov’t Ex. 206, 208.


           4
            This conversation predated, and therefore was not recorded
     by, the wiretaps employed by Government investigators in this
     case.

                                     7
 1        On September 27, 2007, Goffer told Plate and other co-

 2   conspirators that the acquisition of 3Com would happen the

 3   next day.   Goffer had learned that the signature papers were

 4   prepared and he confirmed with Kimelman, who verified, based

 5   on his background as an attorney, that signature papers

 6   “were what they sounded like; they were something that took

 7   place at the end of a deal.”    Tr. 831-32, 1067.    Kimelman

 8   was either present or was consulted over the phone.      Bain

 9   announced its acquisition of 3Com the next day; the co-

10   conspirators all profited.5    Goffer told Plate that he

11   needed to pay his source, and identified those who were

12   contributing (including Drimal); the co-conspirators paid

13   Santarlas, Cutillo, and Goldfarb $25,000 each.

14   III. Other Tips

15        In November 2007, Santarlas overheard other Ropes &

16   Gray associates discussing a client’s upcoming acquisition

17   of Axcan.   Santarlas, who did not work on mergers and

18   acquisitions, accessed at least four documents on the Ropes

19   & Gray document management system relating to the

20   acquisition; he and Cutillo shared the tip with Goldfarb.


          5
            Goffer earned $378,608; Kimelman earned $243,716 in his
     Quad account and $16,687 in another account; and Drimal earned
     $4,535,000. Gov’t Ex. 10.

                                     8
 1   Goldfarb passed the attorneys’ information to Goffer, who

 2   disseminated it (at a minimum) to Drimal and Slaine.     Drimal

 3   shared the information with Michael Cardillo, a Galleon

 4   trader, though he again attributed the tip to “Ropeson”

 5   attorneys.    Tr. 1106.   Drimal and Plate purchased Axcan

 6   stock and benefitted from the Axcan acquisition announced on

 7   November 29, 2007; Drimal gained $1,984,867.    Goffer did not

 8   trade Axcan because it was a small, rarely-traded stock and

 9   he did not want to attract regulatory attention.     Tr. 657-

10   58.

11         In February 2008, Santarlas learned about a possible

12   takeover of P.F. Chang’s China Bistro, Inc. (“P.F. Chang’s”)

13   from a colleague; he conveyed this information to Goldfarb,

14   who shared it with Goffer. Tr. 131-34, Gov’t Ex. 2.     A few

15   days later Goffer called Kimelman to seek his advice, but

16   noted that it was “nothing I’m going to talk about on the

17   telephone.”    Gov’t Ex. 145.   Kimelman agreed to come into

18   Manhattan to “figure out our plan of attack.”     Id.   Goffer,

19   Emanuel, and Kimelman decided to purchase P.F. Chang’s stock

20   as part of an acquisition of a broad restaurant portfolio to

21   disguise their use of the inside information.     Tr. 849-50.

22   Goffer instructed the group that “everything’s got to be


                                     9
 1   printed out” to help them “go about . . . justifying a

 2   trade.”   Gov’t Ex. 149.     No P.F. Chang’s acquisition was

 3   announced in 2008.

 4       In March 2008, Cutillo and Santarlas observed that deal

 5   documents for Bain Capital’s acquisition of Clear Channel

 6   Communications, Inc. (“Clear Channel”) were laid out in a

 7   “closing room” at the law firm, apparently ready for

 8   execution, and reported that closing was imminent.

 9   Unbeknownst to these tippers, neither of whom worked on the

10   deal, the Clear Channel acquisition was staged so that the

11   lenders could be sued for specific performance.      When the

12   deal did not close as anticipated, Goffer, Kimelman, and

13   Drimal all suffered losses on their Clear Channel

14   investments.

15       In May, there was more Clear Channel activity at the

16   Ropes & Gray offices.      Cutillo passed the information to

17   Goldfarb, who told Goffer.      Tr. 494-95, Gov’t Ex. 198.

18   Goffer summoned Kimelman for an “urgent meeting;”

19   immediately afterwards, he called another trader and told

20   him to purchase Clear Channel call options for “everybody.”

21   Gov’t Ex. 199, 201.     Over the next two business days, Clear

22   Channel publicly announced that it was in settlement talks


                                      10
 1   with the lenders and that an amended merger agreement had

 2   been reached.     The market reacted favorably to this news and

 3   Goffer earned over $1 million in profits in his Galleon

 4   account trading on this tip.

 5       Schottenfeld trader Gautham Shankar provided several

 6   tips to Goffer, including acquisitions of Kronos, Inc. and

 7   Hilton Hotels Corp. (“Hilton”).      Tr. 650-51.   Goffer,

 8   Kimelman, Drimal, and Emanuel benefitted from trading on

 9   this inside information.     Profits from these illegal trades

10   were included in calculating the loss amount for sentencing

11   purposes, but the trades were not charged at trial.

12   IV. Recruitment of David Slaine

13       In the fall of 2007, Goffer and Kimelman recruited

14   David Slaine to join Incremental Capital. The co-

15   conspirators hoped that Slaine, who unbeknownst to them was

16   working as a cooperating witness after his own arrest for

17   insider trading, would provide them with the financial

18   backing to get their insider trading-fueled business off the

19   ground.   Kimelman urged Goffer to tell Slaine that he would

20   “get great information” by investing with Incremental.

21   Gov’t Ex. 114A.     Goffer mentioned that he had received tips

22   about certain acquisitions before they happened, including


                                     11
 1   3Com, Axcan, and Hilton.    Gov’t Ex. 212.   Goffer jokingly

 2   told Slaine that the information came from a construction

 3   worker, but when pushed he elaborated “you [are] probably

 4   better off not knowing where they were coming from...[Y]ou

 5   don’t want to know where it’s coming from obviously.”     Gov’t

 6   Ex. 222.   Kimelman chimed in, asserting that the source was

 7   that “[g]uy fixing that pothole down there.”     Id.

 8   V.   Trial and Sentencing

 9        The Government’s evidence at trial included testimony

10   from Slaine, Santarlas, Plate, Cardillo, and a Ropes & Gray

11   partner.   It also included recordings of Slaine’s

12   conversations with Goffer, Kimelman, Drimal, and Emanuel;

13   wiretap recordings of Goffer’s conversations with Kimelman,

14   Drimal, Emanuel, and others; instant messages and e-mails

15   sent between the co-conspirators; telephone records; and

16   trading records.

17        Defendants were convicted on all counts.    The district

18   court sentenced Drimal (who pled guilty) to 66 months’

19   imprisonment, Goffer to 120 months’ imprisonment, and

20   Kimelman to 30 months’ imprisonment.    The district court

21   also entered forfeiture orders of $11 million, $10,022,931,

22   and $289,079 against Drimal, Goffer, and Kimelman,

23   respectively.

                                    12
 1                              Discussion

 2        Defendants challenge (1) the admission of wiretap

 3   evidence in support of their securities-fraud convictions;

 4   (2) the sufficiency of the evidence to support Kimelman’s

 5   conviction on the substantive counts of insider trading; (3)

 6   the district court’s jury instructions on conscious

 7   avoidance;6 (4) the district court’s exclusion of evidence

 8   that Kimelman rejected a plea bargain; and (5) the sentences

 9   they were issued.   Other arguments raised by Defendants are

10   addressed in a related summary order.     Goffer, 2013 WL --.

11   I.   Lawfully-Obtained Wiretap Evidence Is Admissible in a
12        Securities Fraud Prosecution
13
14        Defendants contend that the district court erred in

15   permitting the Government to introduce evidence obtained

16   through wiretaps because securities fraud is not a predicate

17   offense under Title III of the Omnibus Crime Control and

18   Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. (“Title

19   III”), and because the evidence was not intercepted

20   incidentally to an otherwise lawful wiretap.     See 18 U.S.C.

21   §§ 2516(1), 2517(5).   Concurring with the analysis of a

          6
            “The Supreme Court appears to now prefer the appellation
     ‘willful blindness.’” United States v. Ferguson, 676 F.3d 260,
     278 n.16 (2d Cir. 2011). However, “[b]ecause the parties used
     the term ‘conscious avoidance’ below, we continue to use that
     term for purposes of this case.” United States v. Coplan, 703
     F.3d 46, 89 n.39 (2d Cir. 2012).

                                    13
 1   recent and related case in the Southern District of New

 2   York, we hold that the evidence was lawfully obtained and

 3   therefore properly admitted.    See United States v.

 4   Rajaratnam, No. 09-cr-1184(RJH), 2010 WL 4867402, at *1-6

 5   (S.D.N.Y. Nov. 24, 2010), aff’d, No. 11-4416-cr, -- F.3d –-,

 6   2013 WL 3155848 (2d Cir. June 24, 2013).

 7        Defendants assert two flaws with the wiretap evidence

 8   that the Government adduced at trial.7    First, they allege

 9   that the wiretap evidence should be excluded because

10   securities fraud is not a predicate offense under Title III.

11   Second, they allege that the intercepts are not admissible

12   in a securities fraud prosecution unless interception of

13   information relating to securities fraud is inadvertent.

14   Neither argument is persuasive.

15        Title III contains an exclusionary rule prohibiting the

16   use at trial of “unlawfully intercepted” communications.       18



          7
            Drimal also contends that the wiretap intercepts were
     predicated on “dishonest manipulation by the government” and (we
     presume) that they should therefore have been excluded. “A
     defendant who pleads guilty unconditionally . . . waives all
     challenges to prosecution except those going to the court’s
     jurisdiction.” United States v. Lasaga, 328 F.3d 61, 63 (2d Cir.
     2003). Drimal, who entered an unconditional guilty plea, waived
     this meritless argument. Moreover, the wiretap applications
     specify the nature of Goffer’s scheme and explicitly note that
     securities fraud (a) will be uncovered and (b) is not a predicate
     offense for Title III.

                                    14
 1   U.S.C. §§    2518(10)(a)(i), 2515.   To benefit from the

 2   exclusionary rule, Defendants have to establish that the

 3   wiretaps were illegal.

 4       Section 2517(5) of Title III governs the use of

 5   evidence obtained on a wiretap “relating to offenses other

 6   than those specified in the order of authorization or

 7   approval.”    18 U.S.C. § 2517(5).   “[T]he purpose of

 8   § 2517(5) . . . is to prevent ‘subterfuge searches,’ in

 9   which the government uses a warrant authorizing seizure of

10   one type of evidence as a license to collect evidence of an

11   offense not covered by the authorization.”     United States v.

12   Smith, 726 F.2d 852, 865 (1st Cir. 1984).     “‘[O]ther’

13   offenses under Section 2517(5) may include offenses, federal

14   as well as state, not listed in Section 2516 so long as

15   there is no indication of bad faith or subterfuge by the

16   federal officials. . . .”    In re Grand Jury Subpoena Served

17   on Doe, 889 F.2d 384, 387 (2d Cir. 1989).

18       When an authorized wiretap intercepts “communications

19   relating to offenses other than those specified in the order

20   of authorization,” 18 U.S.C. § 2517(5), “disclosure or use”

21   of those communications is permissible provided “a

22   subsequent application . . . made to a judge of competent


                                    15
 1   jurisdiction [demonstrates] the good faith of the original

 2   application.”     United States v. Marion, 535 F.2d 697, 700

 3   (2d Cir. 1976).    “Such subsequent application would include

 4   a showing that the original order was lawfully obtained,

 5   that it was sought in good faith and not as a subterfuge

 6   search, and that the communication was in fact incidentally

 7   intercepted during the course of a lawfully executed order.”

 8   Id. (quoting S. Rep. No. 90-1097, at 2189 (1968)).     We

 9   perceive no reason why the principle undergirding this rule

10   - that disclosure or use of communications intercepted

11   incidentally to an otherwise lawful, good faith wiretap

12   application does not violate Title III - should not apply

13   when the Government forthrightly discloses the probability

14   of intercepting “communications relating to other offenses”

15   ex ante, at the time it makes its initial wiretap

16   application.    “Congress did not intend that a suspect be

17   insulated from evidence of one of his illegal activities

18   gathered during the course of a bona fide investigation of

19   another of his illegal activities merely because law

20   enforcement agents are aware of his diversified criminal

21   portfolio.”     United States v. McKinnon, 721 F.2d 19, 23 (1st

22   Cir. 1983).


                                     16
 1        In this case, Government investigators indicated in the

 2   wiretap applications that, in addition to wire fraud, they

 3   expected to uncover evidence of securities fraud (which,

 4   they expressly noted, is “not a predicate offense under 18

 5   U.S.C. § 2516”).    This representation ensured that the

 6   wiretaps were not obtained as a “subterfuge” or to

 7   surreptitiously investigate crimes other than those about

 8   which they informed the court.8

 9        “[W]hen the government investigates insider trading for

10   the bona fide purpose of prosecuting wire fraud, it can

11   thereby collect evidence of securities fraud, despite the

12   fact that securities fraud is not itself a Title III

13   predicate offense.”     Rajaratnam, 2010 WL 4867402, at *6.

14   The ten judges reviewing wiretap applications in this case

15   found that the Government proved that it had a good-faith

16   investigation of wire fraud and/or money laundering.          The

17   fact that the Government also informed the approving courts

18   that Defendants were involved in a conspiracy to commit

19   securities fraud did not immunize Defendants from otherwise



          8
            Kimelman argues that not every case of insider trading will
     involve wire fraud. We do not reach the question of whether insider
     trading not involving wire fraud might permit a court to approve a
     wiretap; we instead focus on the case at hand in which Defendants’
     conduct constituted both.

                                       17
 1   lawful interception of communications related to their wire

 2   fraud.   The wiretap evidence was lawfully obtained and

 3   properly admitted.

 4   II. The Jury Had Sufficient Evidence to Convict Kimelman of
 5       Securities Fraud
 6
 7        Kimelman challenges the sufficiency of the evidence

 8   supporting his substantive securities fraud conviction for

 9   his purchase of 15,000 shares of 3Com stock on August 10,

10   2007 and 5,000 shares of 3Com stock on September 25, 2007.

11   Specifically, he contends that the Government did not prove

12   that Goffer had tipped him about 3Com or that he knew or

13   consciously avoided knowing that Goffer had material

14   nonpublic information about 3Com that was disclosed in

15   violation of a fiduciary duty.9     More specifically, he

16   argues that the Government’s main evidence, an unrecorded

17   phone call he had with Goffer on August 7 and an email he

18   wrote to Goffer on August 15, does not indicate that he

19   received a tip from Goffer or knew that any such tip was

20   based on illegally-disclosed information.     He also insists

21   that a discussion he had with the other co-conspirators on


          9
            Kimelman does not challenge, and we therefore do not
     discuss, any elements of insider trading aside from the knowing
     use of material nonpublic information obtained in violation of a
     fiduciary duty.

                                    18
 1   September 27, on the eve of the deal’s announcement, cannot

 2   count as proof of his awareness of the earlier fraud.

 3       “[A] liable tippee must know that the tipped

 4   information is material and non-public . . . ‘and the tippee

 5   knows or should know that there has been a breach’” of

 6   fiduciary duty.     SEC v. Obus, 693 F.3d 276, 287 (2d Cir.

 7   2012) (emphasis retained) (quoting Dirks v. SEC, 463 U.S.

 8   646, 660 (1983)).    The Government did not need to prove that

 9   Kimelman knew the identity or nature of the source if he

10   knew that the information was illegally obtained.     Id.     In

11   denying Kimelman’s Rule 29 motion, the district court

12   described this as “a verdict that could go either way” and

13   “certainly a close case,” but decided that the “jury’s

14   verdict [was not] unreasonable such that it should be

15   overturned.”   Reviewing de novo and “crediting ‘every

16   inference that the jury may have drawn’ in the government’s

17   favor,” we agree.     United States v. Hassan, 578 F.3d 108,

18   122 (2d Cir. 2008) (quoting United States v. Finley, 245

19   F.3d 199, 202 (2d Cir. 2001)).

20       A court examines each piece of evidence and considers

21   its probative value before determining whether it is

22   unreasonable to find “the evidence in its totality, not in


                                     19
 1   isolation,” sufficient to support guilt beyond a reasonable

 2   doubt.   United States v. Autuori, 212 F.3d 105, 114 (2d Cir.

 3   2000).   This requirement is particularly critical where, as

 4   here, some evidence derives its probative force from other

 5   evidence.   “‘[T]he jury’s verdict may be based entirely on

 6   circumstantial evidence.’”   United States v. Santos, 541

 7   F.3d 63, 70 (2d Cir. 2008)(quoting United States v.

 8   Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995)).    Moreover, we

 9   need not find that every reasonable jury would have

10   convicted Kimelman; we affirm “if we find that any rational

11   trier of fact could have found the essential elements of the

12   crime beyond a reasonable doubt.”    United States v. Stewart,

13   590 F.3d 93, 109 (2d Cir. 2009) (internal quotation marks

14   omitted, emphasis in original).

15       Kimelman argues that we should exclude from our

16   analysis evidence related to activity after the trades at

17   issue.   We reject this argument.   Kimelman’s knowledge of

18   the illicit nature of Goffer’s source after the trades is

19   still probative (though not in itself sufficient to

20   establish his knowledge before the trades).

21       Evidence indicating a defendant’s knowing participation

22   in a later stock manipulation scheme is relevant to the


                                   20
 1   earlier scheme where, for example, it shows that a defendant

 2   was “conversant in the language of stock manipulation.”

 3   United States v. Rutkoske, 506 F.3d 170, 177 (2d Cir. 2007).

 4   This analysis applies equally in the context of insider

 5   trading.   “Relevancy cannot be reduced to [a] mere

 6   chronology; whether the similar act evidence occurred prior

 7   or subsequent to the crime in question is not necessarily

 8   determinative to its admissibility[ and therefore its

 9   probative value].”    United States v. Ramirez, 894 F.2d 565,

10   569 (2d Cir. 1990).   Subsequent acts are frequently

11   probative as to intent.    See, e.g., United States v.

12   Germosen, 139 F.3d 120, 127-28 (2d Cir. 1998).    Here,

13   Kimelman’s participation in Goffer’s ongoing scheme led to

14   later transactions that “so closely paralleled the charged

15   conduct that it was probative regardless of the temporal

16   difference.”   United States v. Curley, 639 F.3d 50, 61 (2d

17   Cir. 2011).

18       If we focus on the evidence in the record from prior to

19   the public announcement of Bain’s bid for 3Com on September

20   28, 2007, and credit every inference that the jury could

21   have drawn in the Government’s favor, we find ample support

22   for the jury to conclude that Kimelman was tipped by Goffer


                                    21
 1   and knew or consciously avoided knowing that Goffer’s tip

 2   about 3Com was based on nonpublic information illegally

 3   disclosed in breach of a fiduciary duty.

 4         The Kimelman-Goffer telephone call of August 7, though

 5   unrecorded, marked a change in Kimelman’s 3Com stock trading

 6   behavior.   Prior to August 7, Kimelman day-traded 3Com stock

 7   in smaller quantities of 1,000, 2,000 and 5,000 shares,

 8   including on August 5, just two days before the call.

 9   Kimelman did not maintain those positions but sold them

10   before the end of each trading day.     On August 8, the day

11   after the evening phone call, however, Kimelman bought

12   94,200 shares of 3Com, easily his largest single-day

13   purchase, which he did not sell.     In the subsequent days and

14   weeks, he continued to add to that position - buying another

15   24,000 shares on August 9 and 15,000 more shares on August

16   10.   He maintained the accumulated position until after the

17   3Com merger bid was announced; when the share price shot up,

18   he sold the position and profited.

19         Kimelman was so aggressive in acquiring 3Com that his

20   employer at Quad restrained him from making further

21   purchases of 3Com stock.   Despite the warning from Quad,

22   Kimelman managed to buy 5,000 more shares of 3Com on



                                   22
 1   September 25.    From August 7 to 8, Kimelman's behavior

 2   changed from being very cautious about 3Com to suddenly

 3   becoming very confident.    Such a sudden change in a

 4   defendant’s stock trading pattern, which cannot be readily

 5   explained by other reasons, could be probative of trading on

 6   insider information.    See United States v. Smith, 155 F.3d

 7   1051, 1069 (9th Cir. 1998)(recognizing “situations in which

 8   unique trading patterns or unusually large trading

 9   quantities suggest that an investor had used inside

10   information”).

11       His e-mail to Goffer on August 15, with news of Quad’s

12   restraint indicates at the very least, that the two were

13   actively discussing the trading in 3Com shares.       Kimelman’s

14   new 3Com trading behavior matched that of Goffer and of the

15   other co-conspirators who were tipped by Goffer on August 7.

16   And like the others, Kimelman cashed out of his 3Com

17   positions shortly after Bain’s bid was announced.       Parallel

18   trading patterns among co-conspirators can be another

19   indicator of insider trading.    See, e.g., SEC v. Warde, 151

20   F.3d 42, 47-48 (2d Cir. 1998).       In this case, the manner in

21   which Kimelman sold the stock is at least suggestive of the

22   motive he had for buying it, which was not for long term

23   investment value, but in anticipation of a particular event.

                                     23
 1       Also revealing is the discussion Kimelman had with

 2   Goffer on the eve of the 3Com deal’s announcement on

 3   September 27.     Goffer asked about the significance of

 4   signature pages in a pending transaction, and Kimelman

 5   explained that the preparation of the signature pages meant

 6   that a deal signing was imminent.     As a former associate at

 7   a leading corporate law firm, Kimelman had to know that

 8   Goffer, in asking such a question, was privy to the inner

 9   workings of a pending transaction to be aware of the status

10   of signature pages.     Since Goffer had no legal basis to have

11   access to such information, Kimelman must therefore have

12   known or was aware of a high probability that this insider

13   information was made available to Goffer in breach of a

14   fiduciary duty.     Indeed, it was from this exchange that

15   Plate, who testified about the conversation, became

16   convinced that Goffer’s tip was illegally obtained.

17        Kimelman also argues that much of the Government’s

18   evidence applied equally convincingly to Plate, who claimed

19   at trial that he did not know of Goffer’s inside source

20   until the “signature pages” conversation.     However, a

21   rational juror could readily infer from the trust that

22   Goffer showed in Kimelman by asking him about the signature

23   pages and the matter-of-fact manner in which Kimelman

                                     24
 1   answered - without astonishment as to Goffer’s knowledge or

 2   expression of concern about the sensitivity of such

 3   information - that Kimelman shared a relationship of trust

 4   with Goffer that Plate did not.     This, in turn, would

 5   support an inference that Kimelman had some degree of prior

 6   awareness of Goffer’s illegal source of information, even if

 7   the jury also concluded that Plate had no such awareness.

 8   Moreover, the jury was free not to credit Plate’s

 9   self-serving testimony that he did not know about the source

10   of the inside information.    “[W]e defer to a jury’s

11   assessments with respect to credibility [as long as they

12   are] ‘reasonably based on evidence presented at trial.’”

13   United States v. Torres, 604 F.3d 58, 67 (2d Cir. 2010)

14   (quoting United States v. Ceballos, 340 F.3d 115, 125 (2d

15   Cir. 2003)).

16       After September 2007, evidence of his knowledge of the

17   fraud becomes overwhelming and Kimelman does not deny the

18   sufficiency of the showing in support of his conspiracy

19   conviction.    Goffer later described Kimelman and Emanuel as

20   members of his “inner circle” or “tight circle.”     A rational

21   juror could find that this circle came together well before

22   those statements were made and prior to the beginning of the

23   3Com trades.    The government produced evidence from July

                                    25
 1   2007 showing that the trio bought and profited from shares

 2   of Hilton Hotels shortly after Goffer received an insider

 3   tip.        Goffer and Emanuel, along with co-conspirators outside

 4   the “inner circle,” bought shares of 3Com on August 7.

 5   Kimelman’s habit of feigning indifference to the source of

 6   Goffer’s information in the presence of co-conspirators not

 7   within the “inner circle” also continued in the subsequent

 8   months.

 9          Viewed in its totality, the Government’s proof provides

10   enough evidence for a reasonable jury to conclude that

11   Kimelman was guilty beyond a reasonable doubt of insider

12   trading in 3Com.        The jury’s verdict is supported by

13   sufficient evidence and is not unreasonable; we affirm

14   Kimelman’s conviction.

15   III. The Conscious Avoidance Jury Instructions Were Proper

16          Over Kimelman’s objections,10 the district court

17   instructed the jury on the theory of “conscious avoidance,”



            10
            The Government urges plain error review, maintaining that
     Kimelman did not specifically object to the conscious avoidance
     instruction as to each charge or request that the district court
     limit the instructions to the conspiracy charge. However,
     Defendants went to lengths to ensure that their objections to all
     conscious avoidance instructions were preserved, and the district
     court acknowledged that “[e]verybody’s preserving their
     objections [to the conscious avoidance instructions].” We
     therefore engage in de novo review. United States v. Kozeny, 667
     F.3d 122, 130 (2d Cir. 2011).

                                        26
 1   which permits a jury to convict a defendant for

 2   “deliberately clos[ing] his eyes to what would otherwise

 3   have been obvious to him.”    United States v. Gansman, 657

 4   F.3d 85, 94 (2d Cir. 2011).   Kimelman appeals the issuance

 5   and the substance of jury instructions on conscious

 6   avoidance as to the illicit origins of Goffer’s tips.

 7   Finding no flaw in either, we affirm.

 8       A.   There Was a Factual Predicate for the Instruction

 9       “A conscious avoidance instruction ‘may only be given

10   if (1) the defendant asserts the lack of some specific

11   aspect of knowledge required for conviction [] and (2) the

12   appropriate factual predicate for the charge exists, i.e.

13   the evidence is such that a rational juror may reach the

14   conclusion beyond a reasonable doubt that the defendant was

15   aware of a high probability of the fact in dispute and

16   consciously avoided confirming that fact.’”    United States

17   v. Svoboda, 347 F.3d 471, 480 (2d Cir. 2003) (quoting United

18   States v. Ferrarini, 219 F.3d 145, 154 (2d Cir. 2000))

19   (internal alterations and some quotation marks omitted).      In

20   this case, the first prong is met; Kimelman claimed

21   ignorance at trial as to the source of the 3Com tip.

22   However, Kimelman contends that there was insufficient

23   evidence (1) for a juror to conclude that he was aware of a

                                    27
 1   high probability that the 3Com tip came from an insider and

 2   chose to avoid confirming that fact, and (2) for a juror to

 3   conclude that he ever knew about the illicit nature of

 4   Goffer’s information.   We disagree.

 5       For substantially the same reasons discussed above,

 6   there was ample evidence supporting the inference that if

 7   Kimelman did not know about those facts, that he had to have

 8   consciously avoided becoming aware of them.   First, given

 9   the 25-minute telephone conversation he had with Goffer on

10   the evening of August 7, the abrupt and pronounced change in

11   his trading pattern of 3Com stock immediately thereafter,

12   his subsequent outreach to Goffer about 3Com trading on

13   August 15, and the fact that Goffer had shared the tip with

14   other co-conspirators whom Kimelman knew, a rational juror

15   was entitled to conclude that Kimelman was aware of a high

16   probability that Goffer had insider information about 3Com.

17   Second, the fact that Goffer asked about signature pages on

18   the eve of the 3Com deal announcement and the routine manner

19   in which Kimelman answered the question, again provides the

20   basis for a juror to conclude that he was aware of a high

21   probability that the source of Goffer's information was

22   illegal.



                                   28
 1       With respect to Kimelman’s conscious avoidance of

 2   knowledge of Goffer’s sources throughout the conspiracy,

 3   Kimelman’s challenge lacks any merit.    While he and Kimelman

 4   were recruiting Slaine for Incremental, Goffer told Slaine

 5   that he was “better off not knowing where [his tips] were

 6   coming from.”   Gov’t Ex. 222.    That way, Goffer continued,

 7   if “someone from the government ever ask[ed] you where did

 8   [that tip] come from.   You [would] be like, I don’t freakin’

 9   know where it came from.”   Building on Goffer’s (facetious)

10   assertion that his source was a construction worker,

11   Kimelman added that it was a “[g]uy fixing that pothole down

12   there.”   His additions to this conversation about the need

13   for plausible deniability underscore Kimelman’s conscious

14   avoidance of knowledge as to Goffer’s source.     The jury was

15   entitled to hear the conscious avoidance instruction.

16       Kimelman’s argument that the Government’s evidence

17   sought to prove actual knowledge rather than conscious

18   avoidance is both unsupported and irrelevant.     “Red flags

19   about the legitimacy of a transaction can be used to show

20   both actual knowledge and conscious avoidance.”     United

21   States v. Ferguson, 676 F.3d 260, 278 (2d Cir. 2011) (citing

22   United States v. Nektalov, 461 F.3d 309, 316-17 (2d Cir.

23   2006)).

                                      29
 1       B.   The Content of the Instructions Was Proper

 2       Kimelman alleges that the district court erred in

 3   declining to amend its jury instructions to accord with the

 4   Supreme Court’s ruling in Global-Tech Appliances, Inc. v.

 5   SEB S.A., -- U.S. --, 131 S. Ct. 2060 (2011).    Specifically,

 6   Kimelman contends that the Global-Tech decision required

 7   that jury charges indicate that “the mental state of

 8   recklessness is insufficient for a finding of conscious

 9   avoidance.”   Because Global-Tech did not alter the conscious

10   avoidance standard, we hold that the district court’s

11   refusal to amend the jury instructions to accord with

12   Global-Tech was not error.

13       In Global-Tech, the Supreme Court synthesized conscious

14   avoidance holdings from eleven circuit courts in order to

15   import the doctrine from criminal law to patent law.    131 S.

16   Ct. at 2070 n.9 and 2068-72.    The Court did not alter or

17   clarify the doctrine, but instead identified the common

18   ground among the Courts of Appeals:

19       [A]ll [Courts of Appeals] appear to agree on two
20       basic   requirements:    (1)   the   defendant   must
21       subjectively believe that there is a high probability
22       that a fact exists and (2) the defendant must take
23       deliberate actions to avoid learning of that fact.
24       We think these requirements give willful blindness an
25       appropriately    limited    scope   that    surpasses
26       recklessness and negligence.
27
28   Id. at 2070 (emphasis added).

                                     30
 1        Kimelman urges us to believe that this language, built

 2   upon, inter alia, Second Circuit precedent in Svoboda, 347

 3   F.3d at 477-78, was designed to alter the substantive law.

 4   Global-Tech simply describes existing case law.       In so

 5   holding, we follow other decisions in this Circuit since

 6   Global-Tech that have applied the traditional conscious

 7   avoidance doctrine.      See, e.g., United States v. Coplan, 703

 8   F.3d 46, 90 (2d Cir. 2012); Ferguson, 676 F.3d at 278-79.

 9        The district court’s instructions in this case properly

10   imposed the two requirements discussed by the Global-Tech

11   decision.11     Kimelman requested that the district court

          11
               The district court instructed that:

          [A] defendant’s knowledge may be established by proof
          that the defendant you are considering deliberately
          closed his eyes to what otherwise would have been obvious
          to him. If you find beyond a reasonable doubt that the
          defendant’s ignorance was solely and entirely the result
          of a conscious purpose to avoid learning the truth, then
          this element may be satisfied. However, guilty knowledge
          may not be established by demonstrating that the
          defendant was merely negligent, foolish or mistaken.
               If, for example, you find beyond a reasonable doubt
          that the defendant you are considering was aware that
          there was a high probability that he obtained information
          that had been disclosed in violation of a duty of trust
          and confidential [sic] but deliberately and consciously
          avoided confirming this fact, then you may find that the
          defendant acted knowingly. However, if you find that the
          defendant actually believed that the information he
          obtained was not disclosed in violation of a duty of
          trust and confidence, he may not be convicted. It is
          entirely up to you whether you find that the defendant
          you are considering deliberately closed his eyes and any
          inferences to be drawn from the evidence on this issue.

     Tr. 2019-20 (emphasis added).

                                       31
 1   insert the word “reckless” into a list of mental states that

 2   were insufficient.   However, Global-Tech makes clear that

 3   instructions (such as those in this case) that require a

 4   defendant to take “deliberate actions to avoid confirming a

 5   high probability of wrongdoing” are inherently inconsistent

 6   with “a reckless defendant . . . who merely knows of a

 7   substantial and unjustified risk of such wrongdoing.”     131

 8   S. Ct. at 2070-71.   The district court’s instructions were

 9   consistent with Global-Tech; we therefore affirm Kimelman’s

10   conviction.

11   IV. Evidence of Kimelman’s Rejection of a Plea Bargain Was
12       Properly Excluded
13
14       Kimelman contends that the district court erred in

15   excluding his rejection of a plea bargain.   “The trial

16   court’s . . . assessment that the probative value of

17   relevant evidence is [] substantially outweighed by the

18   danger of unfair prejudice [is] reviewed only for an abuse

19   of discretion.”   United States v. Khalil, 214 F.3d 111, 122

20   (2d Cir. 2000) (internal quotation marks omitted).     Kimelman

21   argues by analogy to United States v. Biaggi, 909 F.2d 662,

22   690-93 (2d Cir. 1990), in which we held that the defendant’s

23   decision to forgo immunity out of an insistence that he was

24   innocent was probative of his “consciousness of innocence.”

25   Id. at 690.

                                   32
 1          The defendant in Biaggi was offered complete immunity.

 2   Id.    Relying on the difference between this and “an offer to

 3   plead guilty to reduced charges,” we held that a defendant’s

 4   decision to reject an offer of immunity was probative.             Id.

 5   at 690-91.       We did “not decide whether a defendant is

 6   entitled to have admitted a rejected plea bargain.”            Id. at

 7   691.

 8          This case differs from Biaggi because the excluded

 9   evidence here lacked any probative value.         Kimelman has

10   detailed the “devastating collateral consequences” flowing

11   from the entry of a criminal conviction against him.12

12   Although the parties disagree as to the terms of the

13   rejected plea offer, both parties concede that it would have

14   entailed a conviction.         This was not a case where the

            12
                 Kimelman wrote that:

            The effects of [his] arrest, trial and conviction have
            been devastating to him, personally, emotionally,
            professionally and financially. [He] will never again
            work in the securities industry, and will be stripped of
            his trading licenses.      He will no longer hold his
            credential as a Chartered Financial Analyst.           In
            addition, [he] will no longer be entitled to the
            privilege of practicing law. Upon the conclusion of his
            sentence, [he] will be left with the daunting task of
            finding a career without the ability to return to any of
            the professions he has known for the past fourteen years.
            His finances are in shambles . . . with several hundred
            thousand dollars of debt outstanding.        And he has
            suffered the personal embarrassment and shame that
            accompanies a high profile arrest, trial and conviction.

     Kimelman Sentencing Memorandum at 14.

                                         33
 1   defendant was permitted to walk away scot free and declined

 2   to do so out of a strong belief of his innocence.     Rejecting

 3   this offer was, in this case, an indication “that the

 4   defendant prefer[red] to take his chances on an acquittal by

 5   the jury, rather than accept the certainty of punishment

 6   after a guilty plea.”     Id.

 7        The district court briefly discussed the prejudicial

 8   effects of admitting this evidence, including the likelihood

 9   of jury confusion.   Admission would require the “collateral

10   consequences” of a conviction to be discussed at length,

11   requiring an already complex trial to gain additional and

12   unnecessary dimensions.     We find that the trial court was

13   within its “latitude” in excluding Kimelman’s rejection of a

14   plea agreement under Federal Rule of Evidence 403.      See

15   Holmes v. South Carolina, 547 U.S. 319, 324-25 (2006).

16   V.   Defendants’ Sentences Were Reasonable

17        Goffer and Drimal challenge the substantive and

18   procedural reasonableness of their sentences.     The role of

19   appellate courts in sentencing is important but limited.

20   “We review the work of district courts under a ‘deferential

21   abuse-of-discretion standard.’”      United States v. Cavera,

22   550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall v.

23   United States, 552 U.S. 38, 41 (2007)).


                                     34
 1       A.   Defendants’ Sentences Were Procedurally Reasonable

 2       Defendants contend that the district court committed

 3   procedural error in sentencing them.      In reviewing

 4   sentencing for procedural errors, we first look for “error

 5   in the district court’s calculation of the [United States

 6   Sentencing] Guidelines range.”       Id. at 194.   Here, Drimal

 7   argues that the district court erred in its loss

 8   calculations and Goffer contends that the district court

 9   failed to consider disparities between co-defendants.

10            1.   The Loss Calculation Was Proper

11       In calculating the “loss” attributable to Drimal’s

12   trading, the district court took account of the Probation

13   Office’s Presentence Investigation Report as well as

14   submissions from the parties.     The district court accepted

15   the Government’s assertion that Drimal realized gains of

16   between $7 and $20 million, resulting in a Guidelines

17   enhancement of 20 points.    See U.S.S.G. §§ 2B1.4(b)(1),

18   2B1.1(b)(1)(K).   Drimal asserted that his gains were between

19   $2.5 and $7 million, for an enhancement of 18 points.

20   U.S.S.G. § 2B1.1(b)(1)(J).   Drimal alleges two errors in the

21   calculation of the loss amount.

22


                                     35
 1       First, Drimal contends that the district court

 2   committed procedural error by failing “to deduct losses

 3   resulting from trades that emanated from the same” insider

 4   sources as provided the tips that gave him $11 million in

 5   profits.     We interpret this argument as relating to the

 6   Clear Channel trades Drimal made based on the attorneys’

 7   misunderstanding of inside information.     We find no

 8   precedent indicating that additional illegal trades made on

 9   material nonpublic information that result in losses should

10   mitigate the sentences of insider traders.     Cf. U.S.S.G. §

11   2B1.1 n.3.     If two defendants are identical save that

12   Defendant A engaged in one more insider trade than Defendant

13   B, there is no case in which Defendant A deserves a lesser

14   punishment than Defendant B.     That Defendant A’s additional

15   criminal activity backfired does not affect that calculus.

16   The district court did not err in excluding these losses

17   from its calculation.

18       Drimal also contends the district court erred in

19   considering the Hilton trades for the calculation of the

20   loss amount.     This contention relies on Drimal’s assertion

21   that he did not know that the Hilton trades were based on

22   inside information until two months later (when he was


                                     36
 1   recorded making statements that clearly demonstrate his

 2   awareness that his profits from the Hilton trade were

 3   illegally-obtained profits of insider trading).      Reviewing

 4   the district court’s fact-finding at sentencing, we find no

 5   error in the court’s extensive and well-reasoned analysis.

 6              2.   The District Court Considered Disparities
 7                   Between Defendants
 8
 9        Goffer asserts that the district court did not account

10   for sentencing disparities between similarly-situated

11   defendants.     This argument contains both a procedural and

12   substantive challenge.     To the extent that Goffer asserts

13   that the district court did not consider the sentences of

14   similarly-situated defendants, his claim lacks merit.13      The

15   district court weighed “the need to avoid unwarranted

16   sentencing disparity between Mr. Goffer and similarly

17   situated defendants.”     The district court distinguished

18   between Goffer and his co-defendants and also described

19   Goffer’s role as a “leader[] of a fraudulent enterprise” who

20   “recruited people” and poisoned other traders. Sentencing

21   Tr. 228.   The district court demonstrated that it weighed


          13
            To the extent that it is an assertion that Goffer, as a
     white collar defendant, should benefit from the leniency of other
     courts towards other white collar defendants, we address this
     argument as part of the substantive reasonableness inquiry.

                                     37
 1   the need for similar sentences among similarly-situated

 2   defendants; however, the court rejected Goffer’s contentions

 3   as to who was situated similarly.

 4       B.    Defendants’ Sentences Were Substantively Reasonable

 5       Goffer and Drimal challenge their sentences as

 6   substantively unreasonable, contending that their (120-month

 7   and 66-month, respectively) sentences are disproportionate

 8   to sentences meted out to other white collar criminals.14

 9   Believing that the district court’s well-reasoned analysis

10   was appropriate, we affirm.

11       In reviewing a sentence for substantive reasonableness,

12   we do “not substitute our own judgment for the district

13   court’s on the question of what is sufficient to meet the

14   [18 U.S.C.] § 3553(a) considerations in any particular

15   case.”   Cavera, 550 F.3d at 189 (citing United States v.

16   Fernandez, 443 F.3d 19, 27 (2d Cir. 2006)).    “We will

17   instead set aside a district court’s substantive

18   determination only in exceptional cases where the trial

19   court’s decision ‘cannot be located within the range of


         14
            Although defendants’ challenges to their sentences also
     sound of Eighth Amendment jurisprudence, so construed they are
     devoid of merit. See United States v. DiTommaso, 817 F.2d 201,
     217 (2d Cir. 1987). We therefore assume the challenges focus on
     the substantive reasonableness of the sentences.

                                    38
 1   permissible decisions.’” Id. (quoting United States v.

 2   Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).

 3       “[A] district court may vary from the Guidelines range

 4   based solely on a policy disagreement with the Guidelines,

 5   even where that disagreement applies to a wide class of

 6   offenders or offenses.”   Id. at 191 (citing Kimbrough v.

 7   United States, 552 U.S. 85, 107-08 (2007)).   Defendants in

 8   this case assert that several district court judges have

 9   chosen to exercise this ability to issue below-Guidelines

10   sentences to white collar criminals.   Goffer and Drimal

11   raise broad questions as to how harsh federal courts are,

12   and how harsh they should be, in sentencing white collar

13   defendants.   We need not answer either question.

14       Assuming arguendo that some judges have chosen as a

15   policy matter not to sentence white collar criminals to the

16   harshest permissible punishments, this does not entitle

17   other white collar criminals to lighter punishments than are

18   reasonable under the Guidelines, 18 U.S.C. § 3553(a), and

19   the totality of the circumstances of their individual case.

20   See, e.g., United States v. Rigas, 583 F.3d 108, 121-24 (2d

21   Cir. 2009); United States v. Bonilla, 618 F.3d 102, 110 (2d

22   Cir. 2010).


                                   39
 1            1.     Goffer’s Sentence Was Substantively Reasonable

 2       Goffer faced a maximum of 20 years’ imprisonment for

 3   each of 12 counts of securities fraud.    Goffer had an

 4   offense level of 32 and a criminal history category of I,

 5   yielding a Guidelines range of 121 to 151 months’

 6   imprisonment.    The Probation Office recommended that he be

 7   sentenced to 121 months’ imprisonment.

 8       In reaching its determination, the district court

 9   considered “Goffer’s entire life from the circumstances of

10   his birth, his upbringing, educational background and

11   opportunities, work history, family relationships . . .

12   [and] the facts and circumstances of these crimes.”

13   Sentencing Tr. 12.    The court also considered “[t]he need to

14   avoid unwarranted sentencing disparity between Mr. Goffer

15   and similarly situated defendants.”    Id. at 13.

16       The totality of the circumstances in this case included

17   reasons to believe that Goffer had played a positive role in

18   the lives of his family and friends, but also that Goffer

19   orchestrated and ran a large-scale cash-for-tips scheme to

20   fuel an insider trading conspiracy.    Goffer took steps to

21   disguise his wrongdoings by distributing disposable cell

22   phones, using fake research to cover his illegal trades, and

23   refusing to speak about sensitive topics on the telephone.

                                    40
 1       Goffer’s corrosive influence on the integrity of the

 2   financial markets and on the expectation of trust and

 3   confidence between attorney and client required a

 4   significant punishment.     We do not find that his below-

 5   Guidelines sentence of 120 months’ imprisonment was

 6   unreasonable or disproportionate to the severity of his

 7   crimes.

 8             2.   Drimal’s Sentence Was Substantively Reasonable

 9       Drimal contends that his sentence of 66 months’

10   imprisonment was substantively unreasonable in light of his

11   community service and his commitment to his family.     Drimal

12   faced a maximum of 20 years’ imprisonment on five counts of

13   securities fraud.    His offense level of 25 and Criminal

14   History Category of I led to a Guidelines range of 57 to 71

15   months’ imprisonment.     The Probation Office recommended a

16   57-month sentence.

17       Drimal, who traded more heavily based on insider

18   information than any other defendant in the conspiracy,

19   asserts that his community service and commitment to his

20   family should mitigate his wrongdoing.     The district court

21   took note of his positive activities in sentencing Drimal.

22   The district court also noted that Drimal, who “earned”

23   approximately $11,497,888 from trading on insider

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 1   information, did not have the same compelling social

 2   disadvantages that frequently lead to and help explain

 3   criminal behavior.15

 4        In light of the magnitude of his insider trading, which

 5   had major deleterious effects on the market, Drimal was no

 6   small-time criminal.    The district court noted Drimal’s lack

 7   of respect for the law and his deliberate decision, weighing

 8   the risks, that insider trading “was a game worth playing.”

 9   Sentencing Tr. 48.     The district court’s assertion that

10   insider trading requires high sentences to alter that

11   calculus is a Congressionally-approved example of giving

12   meaning to the 18 U.S.C. § 3553(a) factors.     The district

13   court’s well-reasoned sentencing took account of the

14   totality of circumstances, including Drimal’s motivations,

15   his positive role in his family and the community, his

16   knowledge that what he was doing was wrong, and the severity

17   of his crimes.   We affirm.

18

19


          15
            Contrary to Drimal’s assertions on appeal, the district
     court did not reveal a vendetta against the rich when it noted
     that Drimal did not have compelling reasons to warp the financial
     markets. Instead, Judge Sullivan recognized the same moral
     principles that make Jean Valjean more sympathetic than Gordon
     Gekko.

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1                            Conclusion

2       For the foregoing reasons, the judgments of conviction

3   and the sentencing orders of the district court are AFFIRMED.

4   Defendants’ additional arguments are addressed in the

5   corresponding summary order.   See Goffer, 2013 WL --.




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