                                                                 NOT PRECEDENTIAL

                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT
                                      _____________

                                           No. 13-2539
                                          _____________

                                UNITED STATES OF AMERICA

                                                  v.

                                      CHRISTOPHER RAD,

                                                            Appellant


                         On Appeal from the United States District Court
                                  for the District of New Jersey
                            (District Court No.: 3-11-cr-00161-001)
                            District Judge: Honorable Joel A. Pisano


                           Submitted under Third Circuit LAR 34.1(a)
                                        March 3, 2104

                                 (Opinion filed: March 14, 2014)

                 Before: RENDELL, SMITH and HARDIMAN, Circuit Judges



                                           OPINION


       RENDELL, Circuit Judge:

       On appeal, Christopher Rad urges that the District Court denied him a fair trial by

misinterpreting the CAN-SPAM Act and preventing his counsel from properly defending

his case by “changing the rules” of the trial during the trial. (Appellant’s Br. at 27.)

                                              1
       Rad was on trial for alleged securities fraud and illegal spamming.1 The

complicated nature of the scheme is detailed in the Government’s brief but is not material

to this appeal. What is material is that the defense took the position at trial that if a

person who received the emails that Rad sent had “opted-in,” i.e. consented to receive

emails, they would not fall within the definition of “commercial electronic mail” under

the civil provisions of the CAN-SPAM Act, because they were “transactional or

relationship” messages, and thus not unlawful. See 15 U.S.C. § 7702(2)(A)-(B). During

the trial, the District Court ruled that opting-in did not convert the message into a

“transactional or relationship” message, and so instructed the jury.

       The difficulty with Rad’s argument on appeal is that he essentially urges that he

was prejudiced because the Government did not object to this incorrect statement of the

law earlier in the trial, so that he continued to pursue a flawed defense. He also urges that

he was prejudiced by the District Court’s allowing him pursue his incorrect theory early

in the trial, only later telling the jury that it was not correct and should be disregarded.

Counsel urges that the jury should have decided whether the opt-ins were “transactional

or relationship email” messages, but the Court ruled that there was no basis in the record

for the jury to consider that issue.2


1
  Specifically, Rad was charged with conspiracy to commit securities fraud, under 15
U.S.C. §§ 78j(b) and 78ff, as well as conspiracy to falsify header information in multiple
emails, under 18 U.S.C. § 1037(a)(3). Rad was also charged with multiple substantive
violations of the CAN-SPAM Act, for illegal spamming, under 18 U.S.C. §§ 1037(a)(1)-
(4).
2
  The Court specifically stated in part, “there is no transaction that [the recipients] entered
into with . . . Mr. Rad, for that matter, or any of the securities which were being discussed
in the particular e-mails.”2 (App. 188.)
                                               2
       In his brief, Rad explains his “position” regarding the applicability of the

exclusion based on the recipients’ “opt-in” status: “it was Mr. Rad’s position that as far as

he knew or requested, all e-mails were sent only to persons who had opted in to receive

information about stocks, and thus there was a ‘relationship’ between such opt-ins and

the mailers of the stock information.” (Appellant’s Br. at 31-32.) Specifically, Rad

claimed that as certain of his compatriots purchased, from a third party, lists of email

addresses of people who sought stock information, such people had therefore “opted-in”

to the receipt of his emails.

       Noticeably lacking from Rad’s brief, however, is any support in law for the notion

that someone who agreed to receive an email therefore had a “relationship” with the

eventual mailer. The statutory definition of a “transactional or relationship” message that

Rad references requires that the primary purpose of the communication is to deliver

goods or services “that the recipient is entitled to receive under the terms of a transaction

that the recipient has previously agreed to enter into with the sender.” 15 U.S.C. §

7702(17)(A)(v). Rad fails to see the disconnect between the recipient’s having opted-in

to receive information, versus a recipient’s receiving a follow-up good or service

pursuant to the terms of a previous transaction with the sender.3 Rad has never indicated

– either before the District Court or on appeal – that any previous transactions had ever

taken place between any of the recipients and the sender(s) of the spam at issue; indeed

there were none.

3
 The other potentially applicable definition of transactional or relationship emails, 15
U.S.C. § 7702(17)(A)(i), also contains the requirement of a prior transaction with the
sender.
                                              3
       Further, Rad’s alleged lack of a fair trial was due not to any dilatory conduct on

the part of the Government in not objecting at the first possible moment during the trial,

nor to the District Court’s appropriate ruling that the defense theory was a misstatement

of the law. Rather, the trial proceeded as it did with the resulting need for defense

counsel to abandon one of his arguments, because he chose a line of defense that was

lacking in support, as a matter of law, so as to be misleading to the jury. The District

Court had every right to prevent this. The Government urges that the fact that the ruling

was belated was a result of defense counsel’s failure to test his theory in pretrial motions.

We agree.

       In any event, Rad did not object to the supposedly delayed nature of the ruling and

curative instruction by the District Court. Accordingly, his claim of a due process

violation on that ground is reviewed for plain error. Because the District Court did not

err, let alone plainly, Rad’s claim fails. We reach a similar conclusion as to Rad’s claim

that a mistrial should have been declared once one of the defense arguments was deemed

not credible. (Appellant’s Br. at 35.) Rad never requested a mistrial and the District

Court did not commit plain error in allowing the trial to proceed.

       In sum, Rad erroneously interpreted the CAN-SPAM Act at trial and continues to

advance the same mistaken argument on appeal. He has also failed to show that he was

denied a fair trial. Accordingly, we will affirm the judgment of the District Court.




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