United States v. James O'Hagan

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

Nos. 94-3714, 94-3856
___________
United States of America, *
*
Appellee-Cross- *
Appellant, *
* Appeals from the United States
v. * District Court for the
* District of Minnesota.
James Herman O’Hagan, *
*
Appellant-Cross- *
Appellee. *
*
_____________________________ *
*
Securities and Exchange *
Commission, *

Amicus on Behalf of
Appellee.

___________

Submitted: October 20, 1997
Filed: April 1, 1998
___________

Before FAGG, LAY, and HANSEN, Circuit Judges.
___________

HANSEN, Circuit Judge.

This case comes to us for a second time following a remand to this
court by the United States Supreme Court in United States v. O’Hagan, 117
S. Ct. 2199, 2220 (1997). In our prior opinion, United States v. O’Hagan,
92 F.3d 612 (8th Cir. 1996),
we reversed defendant James Herman O’Hagan’s convictions for securities
fraud, mail fraud, and money laundering. The Supreme Court reversed that
decision, holding that: (1) a defendant could be convicted of securities
fraud based on the “misappropriation theory”; and (2) the Securities and
Exchange Commission (SEC) had the authority to prohibit acts which were not
themselves fraudulent under the common law or § 10(b) of the Exchange Act.
O’Hagan, 117 S. Ct. at 2213-14, 2217. The Court remanded the case to us,
leaving for us to resolve a number of issues we had not reached in our first
decision. Id. at 2220. These issues include O’Hagan’s numerous arguments
for reversal of his convictions and challenges to his sentences. We also
now address the government’s cross-appeal asserting errors in sentencing.
We affirm O’Hagan’s securities fraud and mail fraud convictions, leave
undisturbed our prior reversal of his money laundering convictions, and
remand to the district court for resentencing.

I. Factual and Procedural Background

O’Hagan was a senior partner in the 275-lawyer Dorsey & Whitney law
firm in Minneapolis, Minnesota, specializing in medical malpractice and
securities law cases. From July 1988 through September 1988, Dorsey &
Whitney was local counsel representing Grand Metropolitan PLC (Grand Met),
a company based in London, England, regarding a contemplated tender offer
for the common stock of the Pillsbury Company (Pillsbury), headquartered in
Minneapolis.

On August 18, 1988, O’Hagan began purchasing call options for
Pillsbury stock, each option giving him the right to purchase 100 shares of
Pillsbury stock by a certain date at a specified price. Later in August and
in September, he made additional purchases of Pillsbury call options. By
the end of September, O’Hagan owned 2,500 unexpired Pillsbury call options,
more than any other individual investor in the world. O’Hagan also
purchased 5,000 shares of Pillsbury common stock in September 1988.
O’Hagan’s wholesale purchases of Pillsbury options represented a major shift
from his

2
previous avoidance of high risk option trading. The evidence showed O’Hagan
mortgaged his home to purchase some of them.

On October 4, 1988, Grand Met publicly announced its tender offer for
Pillsbury stock. The price of Pillsbury stock immediately rose from $39 per
share to almost $60 per share. Shortly after the announcement, O’Hagan
exercised his options, buying Pillsbury stock at the lower option price, and
then sold this stock at the higher market price generated by the tender
offer. O’Hagan also sold the 5,000 shares of common stock that he had
purchased in September at the lower preoffer price. O’Hagan realized a
profit of over $4 million from these securities transactions.

O’Hagan later was charged in a 57-count indictment for mail fraud,
securities fraud, and money laundering. Counts 1-20 charged him with mail
fraud in violation of 18 U.S.C. § 1341 (1988). Counts 21-37 charged him
with securities fraud in violation of § 10(b) of the Exchange Act, 15 U.S.C.
§§ 78j(b), 78ff(a), and Rule 10b-5, 17 C.F.R. § 240.10b-5 (1997),
promulgated thereunder. Counts 38-54 charged O’Hagan with securities fraud
in violation of § 14(e) of the Exchange Act, 15 U.S.C. §§ 78ff(a), 78n(e),
and Rule 14e-3, 17 C.F.R. § 240.14e-3(a) (1997), promulgated thereunder.
Counts 55-57 alleged various violations of the federal money laundering
statutes, 18 U.S.C. §§ 1956(a)(1)(B)(i) and 1957. The indictment alleged
that O’Hagan defrauded Dorsey & Whitney and its client, Grand Met, by using
for his own securities trading purposes material, nonpublic information
regarding Grand Met’s planned tender offer. The indictment also alleged that
O’Hagan used the profits he gained during this trading to conceal his
previous embezzlements and conversions of Dorsey & Whitney’s clients’ trust
funds.

A jury convicted O’Hagan on all 57 counts, and he was sentenced to 41
months’ imprisonment. The district court gave O’Hagan credit for 23 of the
30 months he served in state prison for state law convictions arising from
his theft of the client trust funds. O’Hagan then appealed his convictions
and sentences. We initially reversed

3
O’Hagan’s convictions on all counts. O’Hagan, 92 F.3d at 628. The Supreme
Court then granted certiorari, United States v. O’Hagan, 117 S. Ct. 759
(1997), reversed this court’s judgment as to all counts except the money
laundering counts, and remanded this case for further proceedings. O’Hagan,
117 S. Ct. at 2220.

II. Money Laundering Convictions

In our initial opinion, we reversed O’Hagan’s convictions for money
laundering and the government did not seek review of that ruling by the
Supreme Court. O’Hagan, 117 S. Ct. at 2219 n.24. Thus, the Supreme Court
left undisturbed that portion of our prior opinion. Id. Therefore,
O’Hagan’s money laundering convictions remain reversed. We now address the
parties’ arguments that were not resolved in our prior opinion and which
were reserved to us in the Supreme Court’s opinion.

III. Rule 10b-5 Securities Fraud Convictions

O’Hagan argues that his convictions for securities fraud in violation
of Rule 10b-5 must be reversed because the government failed to prove that
he “willfully” violated the rule. O’Hagan claims that in order to prove
willfulness, the government must establish that he both knew what acts Rule
10b-5 prohibited and that he intentionally committed acts in violation of
the rule. Section 10(b) of the Exchange Act provides, in relevant part:

Any person who willfully violates any provision of this chapter
. . . or any rule or regulation thereunder the violation of
which is made unlawful. . . shall upon conviction be fined not
more than $100,000, or imprisoned not more than five years, or
both . . . ; but no person shall be subject to imprisonment
under this section for the violation of any rule or regulation
if he proves that he had no knowledge of such rule or
regulation.

4
15 U.S.C. § 78ff(a) (1987).1

O’Hagan bases his argument on the following language from the Supreme
Court’s opinion in this case:

Vital to our decision that criminal liability may be sustained
under the misappropriation theory, we emphasize, are two sturdy
safeguards Congress has provided regarding scienter. To
establish a criminal violation of Rule 10b-5, the Government
must prove that a person “willfully” violated the provision.
See 15 U.S.C. § 78ff(a). Furthermore, a defendant may not be
imprisoned for violating Rule 10b-5 if he proves that he had no
knowledge of the rule. See ibid.

O’Hagan, 117 S. Ct. at 2214 (footnote omitted).

Contrary to O’Hagan’s present claim, we think it is clear that the
Supreme Court was simply explaining that the statute provides that a
negligent or reckless violation of the securities law cannot result in
criminal liability; instead, the defendant must act willfully. See 15
U.S.C. § 78ff(a). The Court also explained that the defendant has an
affirmative defense to imprisonment if he proves he did not know of the
rule or regulation pursuant to which he was convicted. See id. O’Hagan
offered no such proof at trial or sentencing. Contrary to O’Hagan’s claim,
the Supreme Court, in holding that the misappropriation theory could be a
basis for criminal liability under Rule 10b-5, did not create a requirement
that a defendant know that his acts were in violation of Rule 10b-5. We
must therefore interpret § 10(b) to determine what the term “willfully”
requires.

1
The 1988 amendments to this section, providing for a fine of “not more than
$1,000,000" and imprisonment for “not more than 10 years” for convictions, were not
applicable to actions occurring before November 19, 1988. See Pub. L. 100-704, § 9
(1988). Because O’Hagan’s securities transactions occurred before that date, the older
statute applies.
5
 The meaning of the term “willfully” varies with the context in which
the term is used. See Ratzlaf v. United States, 510 U.S. 135, 141 (1994);
(“‘Willful,’ as this Court has recognized, is a ‘word of many meanings,’
and ‘its construction [is] often . . . influenced by its context.’”)
(quoting Spies v. United States, 317 U.S. 492, 497 (1943) (alteration and
ellipses in original)). Although O’Hagan cites cases recognizing that
“willfully” sometimes requires knowledge that one’s acts are in violation
of the law, these cases are an exception to the “general rule that
ignorance of the law or a mistake of law is no defense to criminal
prosecution.” Cheek v. United States, 498 U.S. 192, 199-200 (1991)
(explaining that the Court “carv[ed] out an exception” to the general rule
for criminal income tax offenses because of the “complexity of the tax
laws”); Ratzlaf, 510 U.S. at 143-46 (explaining that because illegal cash
transaction structuring is not “inevitably nefarious” and could occur for
a benign reason, a willful violation requires the defendant’s knowledge
that his acts violate the law). The rationale of Cheek and Ratzlaf, that
knowledge of the law is required in order to prevent criminal conviction
for conduct that may often be innocently undertaken, does not apply to §
10(b). Criminal conviction for violation of rules and regulations
implementing § 10(b) necessarily involves fraudulent conduct and breaches
of duty by the defendant. Such acts do not involve conduct that is often
innocently undertaken.

More importantly, the text of § 10(b) itself requires us to reject
the interpretation O’Hagan urges. The statute specifically provides that
lack of knowledge of a rule or regulation is an affirmative defense to
imprisonment, rather than conviction. 15 U.S.C. § 78ff(a) (“no person
shall be subject to imprisonment under this section for the violation of
any rule or regulation if he proves that he had no knowledge of such rule
or regulation”) (emphasis added).2 Courts that have interpreted
“willfully” in § 10(b) have reached the same conclusion that we reach in
this case: “willfully” simply requires

2
The statute provides no such defense to the imposition of a fine. O’Hagan, 117
S. Ct. at 2214, n.13.
6
the intentional doing of the wrongful acts—no knowledge of the rule or
regulation is required. See United States v. Charnay, 537 F.2d 341, 351-52
(9th Cir.), cert. denied, 429 U.S. 1000 (1976); United States v. Dixon, 536
F.2d 1388, 1395 (2d Cir. 1976) (Friendly, J.).

O’Hagan next claims that there was insufficient evidence for the Rule
10b-5 convictions. “We will reverse for insufficient evidence only if a
reasonable fact-finder must have a reasonable doubt about an essential
element of the offense.” United States v. Moore, 98 F.3d 347, 349 (8th Cir.
1996). We view the evidence in the light most favorable to the government.
United States v. Shoffner, 71 F.3d 1429, 1433 (8th Cir. 1995).

O’Hagan was convicted under the “misappropriation theory,” which
requires the government to prove that he obtained information that was
material and nonpublic, that he used this information to trade securities,
and that he breached a duty owed to the source of the information. O’Hagan,
117 S. Ct. at 2207. Our review of the evidence convinces us that each of
these essential elements was proven by sufficient evidence.

O’Hagan initiated a conversation with a Dorsey & Whitney partner,
Thomas Tinkham, who was handling Grand Met’s local work, a few days before
August 26, 1988, regarding plans by a client of the firm to make a tender
offer for Pillsbury. O’Hagan told Tinkham that he understood Tinkham was
doing work on a takeover of Pillsbury. Tinkham acknowledged this and sought
input from O’Hagan on whether the firm should represent a client interested
in making a tender offer for a local company, an issue to be discussed by
several partners at an August 26, 1988, meeting.

From this conversation O’Hagan obtained material, nonpublic
information about Pillsbury stock. He learned that a client of his law firm
(and therefore a client of his) was preparing to make a tender offer for
Pillsbury stock. He learned that his law firm was working on the takeover.
The jury could also have reasonably concluded from his

7
large purchases of Pillsbury options and stock which occurred after his
meeting with Tinkham, taken together with his extensive knowledge of how the
securities market operates, that he also knew that the plan was soon to be
implemented.3 This information was not available to the public and was
important because “[w]hen a tender offer is announced, usually the price of
the target company rises.” See SEC v. Maio, 51 F.3d 623, 628 n.3 (7th Cir.
1995). This was clearly material information because there is a substantial
likelihood that a reasonable investor would consider it important to know
in deciding whether to buy, sell, or hold Pillsbury stock. See Basic Inc.
v. Levinson, 485 U.S. 224, 231 (1988) (citing TSC Indus., Inc. v. Northway,
Inc., 426 U.S. 438, 449 (1976)).

Despite O’Hagan’s claims to the contrary, contemporaneous media
reports speculating that Pillsbury would be taken over by Grand Met do not
render the information O’Hagan learned immaterial or nonpublic. Financial
analysts testified that these media reports were “not taken seriously,” and
were dismissed because “newspapers are always having articles of rumors.”
The market as a whole attributed little to these reports as evidenced by the
lack of significant movement in Pillsbury stock price upon dissemination of
the stories. The reports themselves concerned only speculation about a
takeover of Pillsbury, whereas O’Hagan now had firsthand, concrete knowledge
that a client and his law firm were preparing a plan to take over Pillsbury.
The information that O’Hagan obtained went beyond that which had been
publicly disseminated.4 We believe a reasonable investor would have
considered this

3
O’Hagan makes much of the fact that he apparently did not know the identity
of the company interested in acquiring Pillsbury. This, however, is of little significance
because first, the price of the target company usually rises after the announcement of
a tender offer irrespective of who the offeror is, and second, he owed a duty to any and
all of the law firm’s clients.
4
The Second Circuit reached the same conclusion on facts similar to this case.
See United States v. Mylett, 97 F.3d 663, 666-67 (2d Cir. 1996) (inside information of
a merger that had been the subject of media speculation is nonpublic information), cert.
denied, 117 S. Ct. 2509 (1997).
8
additional information about what Dorsey & Whitney and its client were doing
vis-a-vis Pillsbury to have “significantly altered the ‘total mix’ of
information [then] available.” TSC Indus., 426 U.S. at 449.

O’Hagan also traded in securities based on this material, nonpublic
information. On Friday, August 26, following a series of conversations with
one of his brokers, Steuart Evans, O’Hagan authorized Evans to buy 500
October Pillsbury option contracts. On that same day, O’Hagan authorized
another broker, Pat Kinnahan, to purchase 50 Pillsbury option contracts.
Evans purchased for O’Hagan’s account an additional 1,022 October option
contracts between August 29, 1988, and September 7, 1988, based on a
misunderstanding of his previous conversation with O’Hagan. On September
7, 1988, O’Hagan learned of these additional purchases and expressly
authorized and ratified them. On this same date, O’Hagan authorized Evans
to purchase additional Pillsbury option contracts, so that O’Hagan would own
a total of 2,000 option contracts. Evans then bought these additional
contracts between September 7, 1988 and September 12, 1988. Also on
September 7, 1988, O’Hagan directed Kinnahan to purchase another 50
Pillsbury option contracts, which she did. On September 19, 1988, O’Hagan
instructed Evans to buy 500 November option contracts, although the broker
was only able to purchase 100. On September 20 and 21, 1988, O’Hagan agreed
to purchase another 300 October option contracts. On September 20, 1988,
O’Hagan also authorized Michael Mulligan to buy 5,000 shares of Pillsbury
stock for him.

Finally, there was sufficient evidence that O’Hagan breached duties
that he owed to the source of his information. He owed both Grand Met, his
firm’s client, and Dorsey & Whitney, his firm, duties of trust and
confidentiality, and a duty not to use the client’s confidential information
for his own benefit. He breached these duties when he traded in securities
based on the information he learned because of the firm’s

9
representation of Grand Met. It was for the jury to decide from the
abundance of evidence presented to it concerning what information was
available from what sources whether O’Hagan used the information he acquired
in his conversation with Tinkham about the planned takeover of Pillsbury
when he thereafter traded in Pillsbury securities, or whether he made the
trades based on other information available to him in the market. After a
careful review, we conclude there was sufficient evidence to support
O’Hagan’s Rule 10b-5 convictions by the jury.

IV. Section 14(e) and Rule 14e-3(a) Convictions

O’Hagan argues that his securities fraud convictions under § 14(e) of
the Exchange Act and Rule 14e-3(a) must be reversed. Section 14(e)
provides:

It shall be unlawful for any person . . . to engage in any
fraudulent, deceptive, or manipulative acts or practices, in
connection with any tender offer . . . . The [SEC] shall, for
the purposes of this subsection, by rules and regulations
define, and prescribe means reasonably designed to prevent,
such acts and practices as are fraudulent, deceptive, or
manipulative.

15 U.S.C. § 78n(e). The SEC has promulgated rules and regulations pursuant
to this section, including Rule 14e-3(a), which provides:

If any person has taken a substantial step or steps to
commence, or has commenced, a tender offer (the “offering
person”), it shall constitute a fraudulent, deceptive or
manipulative act or practice within the meaning of section
14(e) of the Act for any other person who is in possession of
material information relating to such tender offer which
information he knows or has reason to know is nonpublic and
which he knows or has reason to know has been acquired directly
or indirectly from:
. . . .

10
 (3) Any . . . person acting on behalf of the offering
person . . . to
. . . cause to be purchased or sold any of such securities . .
. or any option or right to obtain . . . any of the foregoing
securities, unless within a reasonable time prior to any
purchase or sale such information and its source are publicly
disclosed by press release or otherwise.

17 C.F.R. § 240.14e-3(a) (emphasis added).

O’Hagan first argues that his convictions violate due process because
he did not have fair notice of what constitutes “a substantial step or
steps” towards a tender offer under Rule 14e-3(a). O’Hagan did not raise
this claim in the district court or in his initial briefing to this court.
He raised it for the first time in his briefing before the Supreme Court.
See O’Hagan, 117 S. Ct. at 2219. O’Hagan has therefore waived this claim.
See United States v. Darden, 70 F.3d 1507, 1549 n.18 (8th Cir. 1995)
(“Appellants generally must raise and brief all issues in their opening
brief.”), cert. denied, 116 S. Ct. 1449 (1996). We see no compelling reason
to address it, particularly when O’Hagan himself was a practicing lawyer
specializing in securities law work. Likewise, O’Hagan claims that the due
process clause requires this court to read into Rule 14e-3(a) a requirement
that he had knowledge of the substantial step or steps taken prior to the
tender offer. O’Hagan raised this argument for the first time in his brief
to the Supreme Court. See O’Hagan, 117 S. Ct. at 2219. Therefore, this
claim has not been preserved. See Darden, 70 F.3d at 1549 n.18. We decline
to address it.

O’Hagan next claims that the jury was improperly instructed on the
Rule 14e-3(a) counts because the jury was informed he did not have to know

11
that substantial steps had been taken prior to the tender offer.5 We reject
this argument. Rule 14e-3(a)

5
The jury was instructed:

With respect to [the Rule 14e-3(a) counts], you must find that
Grand Met had taken one or more substantial steps to commence
its tender offer for Pillsbury stock at the time that O’Hagan had
purchased the relevant Pillsbury securities. It is not necessary for
a bidder to make a tender offer for you to find that substantial steps
toward such an offer have been taken or made. Nor is it necessary
that you find that the defendant knew that the substantial steps had
been taken. It is enough that you find one or more substantial steps
were in fact taken.

(Trial Tr. Vol. XII at 39) (emphasis added).
12
requires that “any person” must have taken “a substantial step or steps”
towards the tender offer. 17 C.F.R. § 240.14e-3(a). The rule does not
require the defendant to have knowledge of these acts. Instead, the
defendant need only “know[] or have reason to know” that the material
information is “nonpublic and has been acquired directly or indirectly from”
the tender offeror in some way. Id.

Next, O’Hagan argues that the SEC exceeded its rulemaking authority
in promulgating Rule 14e-3(a) because § 14(e) does not grant the SEC
authority to prohibit conduct that occurs in advance of a tender offer. We
reject this argument. Section 14(e) prohibits “fraudulent, deceptive or
manipulative acts or practices, in connection with any tender offer.” 15
U.S.C. § 78n(e) (emphasis added). This section also directs the SEC to
promulgate rules that “define” these acts and “prescribe means reasonably
designed to prevent” these acts. Id. The expansive language of § 14(e)
shows that “Congress intended § 14(e) to be a broad antifraud remedy in the
area of tender offers.” S.E.C. v. Mayhew, 121 F.3d 44, 53 (2d Cir. 1997).
Acts occurring after a substantial step towards a tender offer has been made
qualify as acts occurring in connection with a tender offer. Thus, we hold
Rule 14e-3(a), prohibiting conduct occurring after “a substantial step or
steps” have been taken towards a tender offer, does not exceed the SEC’s
broad authority pursuant to § 14(e) to prohibit conduct “in connection with
any tender offer.” To decide otherwise would be contrary to both the
language and purpose of § 14(e).

13
 O’Hagan challenges the sufficiency of the evidence supporting his Rule
14e-3(a) convictions, claiming substantial steps prior to a tender offer had
not occurred. Our review of the record convinces us that there was
sufficient evidence to support the guilty verdicts. Extensive evidence was
presented regarding the substantial steps that Grand Met had taken to
commence a tender offer for Pillsbury stock prior to O’Hagan’s securities
trading. Grand Met had retained law firms in New York and Minneapolis to
advise it on the tender offer for Pillsbury and had determined how it would
finance the tender offer. On August 16, 1988, Grand Met’s board of
directors had approved the acquisition of all shares of Pillsbury through
a tender offer, and a launch date for the takeover effort had been
identified. A reasonable jury could easily conclude that Grand Met had
taken substantial steps to commence a tender offer for Pillsbury.

O’Hagan also contends that his securities fraud convictions under both
Rule 10b and Rule 14e-3 must be reversed because the indictment was not
returned within the applicable statute of limitations. O’Hagan asserts that
the applicable statue of limitations is one year after the discovery of the
violation, or three years after the violation actually occurred, citing
Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991).
We disagree with this assertion. The Court in Lampf was addressing the
issue of which limitations period to apply to a private cause of action
brought pursuant to § 10(b). Id. at 352. The proper limitations period for
the criminal securities fraud counts brought against O’Hagan is the five-
year statute of limitations set forth in 18 U.S.C. § 3282 (1988). See
United States v. United Med. & Surgical Supply Corp., 989 F.2d 1390, 1398
(4th Cir. 1993). Thus, the securities fraud indictment must have been
brought within five years of the completion of O’Hagan’s securities fraud.
See Pendergast v. United States, 317 U.S. 412, 418 (1943) (“Statute of
limitations normally begin to run when the crime is complete.”). The
indictment in this case was returned on December 17, 1992, less than five
years after the securities

14
law violations. We therefore reject O’Hagan’s argument that his securities
fraud convictions were barred by the statute of limitations.6

V. Mail Fraud Convictions

O’Hagan contends that his mail fraud convictions must be reversed.
He first asserts that the indictment charging him with mail fraud is
defective because it fails to charge him with an essential element of mail
fraud—that he defrauded the victim of a property right.

We review de novo a challenge to the sufficiency of an indictment.
United States v. Morris, 18 F.3d 562, 567 (8th Cir. 1994). “[A]n indictment
is sufficient if it, first, contains the elements of the offense charged and
fairly informs a defendant of the charge against which he must defend, and,
second, enables him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87,
117 (1974). This rule ensures that the grand jury has considered and found
all essential elements of the offense charged. United States v. Zangger,
848 F.2d 923, 925 (8th Cir. 1988). An indictment should not be read in a
hyper technical fashion and should be “deemed sufficient unless no
reasonable construction can be said to charge the offense.” Morris, 18 F.3d
at 568 (internal quotation omitted). It is not necessary “for a particular
word or phrase [to] appear in the indictment when the element is alleged ‘in
a form’ [that] substantially states the element.” United States v. Mallen,
843 F.2d 1096, 1102 (8th Cir.) cert. denied, 488 U.S. 849 (1988). However,
“[i]f an essential element of the charge has been omitted from the
indictment, the

6
We also reject O’Hagan’s contention that venue was improper for the securities
fraud convictions. 18 U.S.C. § 78aa provides that “[a]ny criminal proceeding may be
brought in the district wherein any act or transaction constituting the violation
occurred.” O’Hagan conducted all of his trading in Pillsbury securities, the acts or
transactions constituting the securities law violations, while he was in Minnesota. The
criminal proceeding was properly brought in the District of Minnesota.
15
omission is not cured by the bare citation of the charging statute.”
Zangger, 848 F.2d at 925. If an essential element is omitted from the
indictment, then the defendant’s Fifth Amendment right to be tried on
charges found by a grand jury has been violated. Id.

Applying these principles here, we conclude that the indictment was
sufficient. Paragraph 2 of the indictment alleged that O’Hagan engaged in
a scheme and artifice to defraud Grand Met and Dorsey & Whitney by
purchasing Pillsbury securities while in possession of material, nonpublic
information regarding Grand Met’s planned tender offer for Pillsbury stock.
Paragraph 14 charged that Dorsey & Whitney was asked to provide legal
services to Grand Met in connection with Grand Met’s tender offer for
Pillsbury stock and that O’Hagan learned of the future tender offer and
Dorsey & Whitney’s representation through Tinkham. The indictment,
reasonably read, charges O’Hagan with the fraudulent use of confidential
business information held by Grand Met and Dorsey & Whitney. Confidential
business information is considered “property” as that term is used in the
federal mail fraud statute. Carpenter v. United States, 484 U.S. 19, 25-27
(1987). The specific term “property” does not need to be used here because
the element is alleged in a form that substantially states the element. See
Mallen, 843 F.2d at 1102. Thus, the indictment, reasonably read, alleges
that O’Hagan defrauded Grand Met and Dorsey & Whitney of property under the
mail fraud statute.

O’Hagan next argues that there is insufficient evidence to support his
mail fraud convictions. Specifically, O’Hagan claims that the mailing of
securities trading confirmation slips to him by his brokers cannot support
a conviction for mail fraud. He bases his argument on two grounds. First,
he asserts that because the mailings were required by law they cannot, as
a matter of law, be the basis for a mail fraud conviction, citing Parr v.
United States, 363 U.S. 370, 391 (1960). Second, he contends that even if
the law did not require the mailings, the confirmation slips were not mailed
in furtherance of his scheme to defraud.

16
 We reject O’Hagan’s first argument. SEC Rule 10b-10 requires brokers
to disclose certain information in writing to their customers when they
trade securities for their customers. 17 C.F.R. § 240.10b-10 (1997). These
written disclosures are often called confirmation slips. Rule 10b-10 makes
it “unlawful for any broker” to trade securities unless the broker “gives
or sends” these confirmation slips to the customer. Id. (emphasis added).
Thus, contrary to O’Hagan’s arguments, the Rule does not require brokers to
mail confirmation slips to customers. It only requires such slips to be
given or sent to the customer.

We also reject O’Hagan’s contention that the mailing of the
confirmation slips did not further his scheme to defraud. The federal mail
fraud statute reaches “only those limited instances in which the use of the
mails is a part of the execution of the fraud.” Schmuck v. United States,
489 U.S. 705, 710 (1989) (internal quotes omitted). “To be part of the
execution of the fraud, however, the use of the mails need not be an
essential element of the scheme. It is sufficient for the mailing to be
incident to an essential part of the scheme or a step in the plot.” Id. at
710-11 (internal quotes, alterations, and citations omitted). To determine
if this requirement has been met, the “relevant question at all times is
whether the mailing is part of the execution of the scheme as conceived by
the perpetrator at the time.” Id. at 715.

O’Hagan’s scheme to defraud involved not only the unlawful purchases
of Pillsbury securities, but also the use of the profits obtained from the
illegal trading to conceal his prior misappropriation of client funds. The
confirmation slips informed O’Hagan that the Pillsbury securities had been
purchased and provided him a record of his purchases. See United States v.
Grossman, 843 F.2d 78, 86 (2d Cir. 1988) cert. denied, 488 U.S. 1040 (1989);
see also United States v. Naftalin, 606 F.2d 809, 811 (8th Cir. 1979) (“[C]ourts rather uniformly have held that
the mailings of confirmation slips are sufficiently related to a scheme to defraud in the sale of stock to provide
jurisdiction for criminal charges under the Securities Act.”). This record-keeping function aided
O’Hagan in his scheme to defraud. The jury could reasonably conclude

17
that the confirmation slips helped O’Hagan keep track of his numerous
Pillsbury option contract purchases made at various prices, in different
quantities, with different strike prices, different expiration dates, and
from different brokers, particularly given O’Hagan’s testimony before the
SEC that he called one of his brokers after he received a confirmation slip
to inquire about that option’s expiration date. We have little difficulty
rejecting O’Hagan’s claim and concluding that the confirmation slips aided
in O’Hagan’s scheme to defraud.

O’Hagan next claims the district court erred in instructing the jury
on the mail fraud counts. Mail fraud requires the government to prove “the
existence of a plan or scheme to defraud, that it was foreseeable that the
scheme would cause the mails to be used, and that the use of the mails was
for the purpose of carrying out the fraudulent scheme.” United States v.
Goodman, 984 F.2d 235, 237 (8th Cir.1993). O’Hagan challenges the jury
instruction defining the first essential element of mail fraud—the scheme
to defraud. This instruction provided that

The crime of mail fraud has four essential elements, [the first
of which is that] the defendant voluntarily and intentionally
devised or made up a scheme to defraud Grand Met or Dorsey &
Whitney out of money, property, or property rights by
purchasing Pillsbury securities while in possession of material
nonpublic information, and using the profits obtained therefrom
to conceal his previous use and possession of client trust
funds.

(Trial Tr. Vol. XII at 21) (emphasis added).

O’Hagan argues that the instruction erroneously allowed the jury to
convict him of mail fraud if it found he purchased Pillsbury securities
while merely possessing, rather than using, material nonpublic information.
Central to O’Hagan’s contention is that the mail fraud indictment alleged
that his scheme to defraud was the securities fraud he committed trading
Pillsbury securities. O’Hagan claims that to establish this

18
essential element of a scheme to defraud the government was required to
prove he committed securities fraud, which in turn requires the government
to prove that he traded Pillsbury securities “on the basis of,” rather than
“while in possession of,” the material, nonpublic information he obtained
while at Dorsey & Whitney.

Assuming without deciding that for O’Hagan to be convicted of
securities fraud he must have traded “on the basis of” material, nonpublic
information, rather than just trading “while in possession of” this
information, we hold that any error in the challenged instruction was
harmless.7 The jury was instructed that in order to convict O’Hagan on the
Rule 10b-5 securities fraud counts it had to find that he “used” the
material, nonpublic information “to trade securities with the intent to
defraud.” (Trial Tr. Vol. XII at 28.) Similarly, to convict O’Hagan of the
Rule 14e-3 securities fraud counts the jury had to find that O’Hagan
“purchased or caused to be purchased Pillsbury common stock or options on
Pillsbury common stock using this material nonpublic information.” (Id. at
38.) Because O’Hagan was found guilty on all the securities fraud counts,
the jury necessarily must have found that he traded in Pillsbury securities
while using the material, nonpublic information. We find it highly
unlikely that the jury convicted O’Hagan of mail fraud based on his mere
possession of the material, nonpublic information, when in the securities
fraud counts they found he used, not merely possessed, this information when
trading in Pillsbury securities. Because

7
In United States v. Teicher, 987 F.2d 112, 119-21 (2d Cir.), cert. denied 510
U.S. 976 (1993), the Second Circuit opined that “knowing possession” of material
nonpublic information obtained from a breach of duty should be sufficient for a criminal
violation of Rule 10b-5. The court explained that “[u]nlike a loaded weapon which
may stand ready but unused, material information can not lay idle in the human brain.”
Id. at 120. However, the Second Circuit found it unnecessary to resolve the issue
because it held that even if the district court erred in instructing the jury that mere
possession of the information was sufficient for conviction, the error was harmless. Id.
at 121.
19
O’Hagan suffered no prejudice from the challenged instruction, we hold any
error in the instruction was harmless.

VI. Sentencing

A.

Both parties claim that the district court erred in its sentencing of
O’Hagan. At sentencing, all of the 57 counts of conviction were subject to
the grouping rules of USSG § 3D1.2. The mail fraud convictions (Counts 1-
20) were governed by the fraud guideline, USSG § 2F1.1; the securities fraud
convictions (Counts 21-54) were also governed by USSG § 2F1.1 and § 2F1.2;
and the money laundering convictions were governed by USSG § 2S1.1 and §
2S1.2. Section 3D1.2(d), one of the grouping rules, requires that counts
be grouped together when the offense level is determined largely on the
basis of the total amount of harm or loss. Moreover, § 3D1.2(d)
specifically provides that offenses covered by USSG §§ 2F1.1, 2F1.2, 2S1.1,
and 2S1.2 are to be grouped together for sentencing. Accordingly, the
presentence investigation report (PSIR) first (1) grouped the twenty
individual mail fraud counts together, (2) grouped the individual securities
fraud counts (21-54) together, and (3) grouped the three individual money
laundering counts (55-57) together. Then the mail fraud group of counts and
the securities fraud group of counts were themselves grouped together in one
larger group pursuant to § 3D1.2(b). That larger group containing all the
combined fraud counts was then itself grouped together with the group
containing the money laundering counts pursuant to § 3D1.2(c) because the
unlawful fraudulent activities represented by Counts 1-54 were the basis for
a two-level specific offense characteristic increase under the money
laundering guideline, see § 2S1.2(b)(1)(B). Consequently, all of the counts
of conviction were then contained in one larger group for Sentencing
Guideline range determination. In those circumstances, the most serious
counts, i.e., those carrying the highest offense level, in this case the
money laundering counts, determine the offense level for the entire group.
See USSG § 3D1.3(a). That

20
is why the district court stated that the money laundering counts were the
driving factor in determining the total offense level of 24. (Sent. Tr. at
33.) Finding that the case was not within the heartland of money laundering
cases, but that it was really an insider trading case, the district court
departed downward two levels pursuant to USSG § 5K2.0, which resulted in an
offense level of 22. That offense level, when coupled with O’Hagan’s
government-conceded Criminal History Category I, resulted in a guideline
range of 41-51 months. The district court sentenced O’Hagan at the bottom
of the range to 41 months’ confinement on all of the individual counts, and
then gave him credit against the 41-month federal sentences for 23 of the
30 months he had served in a Minnesota state prison for his state theft
convictions.

Our unappealed and unreversed prior reversal of the money laundering
counts removes from the district court’s Sentencing Guidelines’
determination those counts which drove the 41-month sentences. With the
money laundering counts out of the sentencing equation, the defendant’s
sentences must be redetermined taking into account only the fraud
convictions. Fortunately, the district court took the necessary extra time
at sentencing to determine what the offense level would be for the fraud
counts themselves. (See Sent. Tr. at 32.) The court determined the
starting point as level 8 pursuant to USSG § 2F1.2(a), the guideline for
insider trading. It then added eleven levels from § 2F1.1(b)(1)(L) to
account for the more than $5 million in “gain resulting from the offense(s)”
as required by § 2F1.2(b)(1) (1987).8 The court arrived

8
The district court correctly used the 1987 version of § 2F1.1, effective at the
time O’Hagan committed his securities fraud offenses, to sentence O’Hagan.
Application of the 1993 version of § 2F1.1, in force at the time of O’Hagan’s October
27, 1994, sentencing, see 18 U.S.C. § 3553(a)(4), would have produced a larger
increase in O’Hagan’s base offense level, resulting in a harsher sentence. See USSG
§ 2F1.1 (1993) (gain of over $5 million results in a 14-level increase). Imposing this
harsher sentence would be a violation of the ex post facto clause of the constitution.
See United States v. Bell, 991 F.2d 1445, 1452 (8th Cir. 1993) (“[T]he ex post facto
clause is violated if a defendant is sentenced under the Guidelines in effect at the time
of sentencing when those Guidelines produce a sentence harsher than one permitted
under the Guidelines in effect at the time the crime is committed.”). USSG § 1B1.11
(1993) requires that a court use the Guidelines Manual in effect on the date that the
defendant is sentenced unless its use would violate the ex post facto clause. In that
event, the Guidelines Manual in effect on the date the offense of conviction was
committed should be used in its entirety. United States v. Lenfesty, 923 F.2d 1293,
1299 (8th Cir. 1991); see also United States v. Lance, 23 F.3d 343, 344 (11th Cir.
1994) (collecting cases).
21
at the $5 million plus figure by adding together the $1.9 million O’Hagan
had misappropriated from his clients represented by the Minnesota state
court convictions with the $4.2 million in gain he realized from his
Pillsbury stock transactions. The court then found that O’Hagan had
breached a position of trust pursuant to USSG § 3B1.3 and assessed a two-
level enhancement, which resulted in a total offense level of 21 (8 + 11 +
2 = 21) for the grouped fraud counts. The guideline range for a Level 21
- Criminal History Category I offender is 37 to 46 months. We note that
O’Hagan’s present 41-month sentences fall at the midpoint of that range.
Because the mail fraud and securities fraud counts were grouped together,
the court made no separate findings as to the mail fraud counts’ offense
level. O’Hagan made no objection to the grouping of the fraud counts at
sentencing. Even assuming that the mail fraud counts’ offense level would
be less if calculated separately, the application of § 3D1.3 would again
require that the higher offense level attributable to the insider trading
fraud counts be used to sentence all counts within the larger group composed
of all of the fraud counts (1-54). As noted above, USSG § 3D1.2(d) requires
the grouping of all counts governed by §§ 2F1.1 and 2F1.2. See also USSG
§ 5G1.2(b).

O’Hagan did object to the court’s calculation of the amount of the
“gain resulting from the offenses,” and to the court’s two-level enhancement
for abuse of a position of trust. Because the correctness of the court’s
separate guidelines determination with respect to the fraud counts (1-54)
needs to be determined in order to decide if O’Hagan should be resentenced
on those counts, we proceed to consider O’Hagan’s objections.

22
 With respect to the “gain resulting from the offense,” O’Hagan
contends that the court erred in including the $1.9 million he purloined
from his clients and for which he was convicted in state court. As noted
above, the district court added the $1.9 million to the $4.2 million
realized in the stock transactions to arrive at a total amount above the
$5,000,000 “add 11 levels” break point contained in USSG § 2F1.1(b)(L)
(1987). If the $1.9 million were not included, only 10 levels for gain
would be added, which would result in a combined offense level of 20
yielding a guidelines range of 33 to 41 months. We note that O’Hagan’s
present 41-month sentences fall at the top of that range.

O’Hagan’s criminal conduct in pilfering his client’s trust funds to
the tune of $1.9 million, which resulted in his eight state court theft
convictions and his service of a 30-month prison sentence, had the potential
for affecting his federal sentences in three separate ways. First, as shown
above, if that conduct is considered as part of his “relevant conduct”
pursuant to USSG § 1B1.3, the inclusion of the $1.9 million raises his total
offense level by one level. Second, if the prior state court sentences are
for “unrelated cases,” then they are counted for criminal history purposes.
See USSG § 4A1.2(a)(2) comment. (n.3). In O’Hagan’s case, the PSIR
considered the state court sentences to be “unrelated” and assessed O’Hagan
three criminal history points for the prior convictions and placed him in
Criminal History Category II where the sentencing ranges are higher. Third,
if his prior state court sentences were imposed in “unrelated cases,” he
would not be able even to argue that he should receive credit against his
federal sentences for any of the time served in state prison. He could only
logically argue he was entitled to credit if the federal and state cases
were somehow factually tied together.

At sentencing, O’Hagan formally objected to the assessment of the
three criminal history points and to his Criminal History Category II
designation. He argued strongly that the federal indictment recited the
facts of his prior “embezzlements” at length, and that much of the
government’s evidence at the federal trial was devoted to showing

23
those thefts. The government, while initially believing that the three
criminal history points were correctly assessed, finally conceded that the
state court prosecuted conduct was “inextricably intertwined” with the
charges contained in the federal indictment and agreed that no criminal
history points should be assessed and that O’Hagan was a Criminal History
Category I offender. (See Sent. Tr. at 6.) O’Hagan also argued hard at
sentencing that because the government had conceded that the prior state
court sentences were so closely related to his federal crimes he should
receive full credit against his federal sentences for all of the 30 months
he spent in state prison. The district court agreed that the prior state
sentences were “related cases” for criminal history purposes. (Sent. Tr.
at 30) (“I concur in the government's tardy but timely recognition that the
present offenses for which you will be sentenced are intimately involved in
the prior offenses for which you previously did time.”)) (Sent. Tr. at 33-
34) (“Here you are in category one in terms of your sentence. The Hennepin
County District Court convictions for theft were obviously a part of this
transaction.”)) The district court also agreed that O’Hagan should receive
some credit for the state time served and, as noted, credited 23 months
against the 41-month sentences in an exercise of departure discretion. (See
Sent. Tr. at 35.) Having convinced both the government and the district
court that his state crimes were part and parcel of his federal criminal
conduct so as to preclude counting them for criminal history purposes, and
having convinced the district court that the state crimes were “obviously”
part of the federal conduct so as to justify and receive 23 months’ credit,
we find it totally inconsistent for O’Hagan to claim that the thefts were
not “relevant conduct” so as to preclude including their dollar amount in
the gain realized. Indeed, a strong argument can be made that he should be
estopped from so asserting. However, we prefer to decide the issue
outright. After a close examination of O’Hagan's total conduct, we conclude
that the district court’s fact findings regarding the amount of gain are not
clearly erroneous, and that it committed no error when it decided that the
thefts from the clients were relevant conduct pursuant to USSG § 1B1.3 and
added the $1.9 million to the $4.2 million in stock transactions in
calculating O’Hagan's offense level.

24
 O’Hagan next claims that the district court’s enhancement of his
offense level by two levels for abuse of a position of trust pursuant to
USSG § 3B1.3 was erroneous. He claims that the adjustment may not be
employed because an abuse of trust is already included in the offense of
securities fraud itself under the misappropriation theory. See USSG § 3B1.3
(“This adjustment may not be employed if an abuse of trust . . . is included
in the base offense level. . .”) We disagree.

To be convicted under the “misappropriation theory,” O’Hagan had to
breach a duty he owed to Grand Met or Dorsey & Whitney when he used the
material nonpublic information to trade in Pillsbury stock. “The