United States v. Gilbertson, No. 18-3745 (8th Cir. 2020)
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The Eighth Circuit affirmed defendant's conviction for 14 counts of aiding and abetting wire fraud, one count of conspiracy to commit securities fraud, and six counts of aiding and abetting securities fraud. Defendant's convictions stemmed from his involvement in a market manipulation scheme.
The court held that the evidence was sufficient for a reasonable jury to find that defendant's conduct was fraudulent and manipulative within the meaning of the statutes in question; the evidence was sufficient to show nondisclosure or active concealment of a material fact where a jury could easily find that a reasonable investor would have found material the fact that a corporate insider had, through a nominee, purchased more than half of the freely tradeable stock and was directing that nominee and others to trade the stock at pre-arranged prices for the purpose of triggering tens of millions of dollars in bonus payments that would likely cripple the corporation; the district court did not abuse its discretion or plainly err in admitting lay opinion testimony; and the district court did not abuse its discretion in ordering restitution in the amount of $15,135,361.
Court Description: [Benton, Author, with Loken and Kelly, Circuit Judges] Criminal case - Criminal law and sentencing. The evidence was sufficient to show defendant committed securities and wire fraud by fraudulent and manipulative schemes to control the price and sales of shares; the government proved that defendant omitted, concealed and lied about multiple material facts; the jury could easily find that a reasonable investor would have found material the fact that defendant, a corporate insider, had, through a nominee, purchased more than half of the company's tradeable stock and was directing the nominee and others to trade the stock at pre-arranged prices for the purpose of triggering tens of millions of dollars in bonuses for himself that would likely cripple the corporation; the court did not err in admitting lay opinion testimony on manipulation; no error in ordering defendant to pay $15.1 million in restitution, the undisputed amount he and the other noteholders obtained from the corporation due to defendant's scheme; restitution is not a criminal punishment that must be proved to a jury. Judge Kelly, concurring.
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