United States v. McPhail

United States Court of Appeals
For the First Circuit

No. 15-2106

UNITED STATES OF AMERICA,

Appellee,

v.

ERIC MCPHAIL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Lynch, Thompson, and Kayatta,
Circuit Judges.

William J. Cintolo, with whom Thomas R. Kiley, and Cosgrove
Eisenberg & Kiley, PC, were on brief, for appellant.
Andrew E. Lelling, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

July 26, 2016
 KAYATTA, Circuit Judge. Convicted of committing

securities fraud and conspiring to commit securities fraud under

15 U.S.C. §§ 78j(b), 78ff(a), and 18 U.S.C. § 371, Eric McPhail

was neither a corporate insider nor a trader of securities.

Rather, he received material, nonpublic information from a

corporate insider, and then passed that information along to

friends who used the information to obtain substantial trading

gains. Recently, we affirmed the conviction of one of those

trading friends. See United States v. Parigian, No. 15-1994, 2016

WL 3027702 (1st Cir. May 26, 2016). We now consider McPhail's own

conviction following a trial by jury. For the reasons that follow,

we reject McPhail's arguments on appeal and affirm his two-count

conviction.

I. Background

We summarize the evidence in a light favorable to the

jury's verdict, see United States v. Prieto, 812 F.3d 6, 9 (1st

Cir. 2016), reserving the detailed treatment of some points for

later in this opinion.

The probative bulk of the government's evidence at trial

consisted of emails sent to and from McPhail and testimony by

Angelo Santamaria, an unindicted individual who served from 2004

to 2011 as an executive at American Superconductor Corporation

("AMSC"), a publicly-traded corporation. McPhail, a tile salesman

by vocation, first met Santamaria in late 2007 at the Oakley

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Country Club in Watertown, Massachusetts. The two men became

frequent golf partners and, over the course of about a year, close

friends. Together, they traveled to Florida and Las Vegas on

vacation, attended sporting events such as the Kentucky Derby, and

gambled at casinos. They communicated daily and saw one another

several times a week. In May 2009, Santamaria loaned McPhail

$6,000 to pay off a gambling debt that McPhail was trying to hide

from his wife. Santamaria later forgave the debt entirely. When

McPhail's divorce jeopardized his spousal membership at the golf

club, Santamaria served as McPhail's lead sponsor and successfully

lobbied club members to permit McPhail to join as a member in his

own right. In 2010, Santamaria's wife asked McPhail to mediate a

marital argument that threatened Santamaria's marriage.

A frequent topic of conversation between the two friends

was Santamaria's preoccupation with the performance of his

retirement investments, which consisted largely of AMSC stock. In

the course of airing these concerns to McPhail, Santamaria

occasionally discussed nonpublic aspects of AMSC's business

activities and their potential impact on the company's stock

performance. McPhail, for example, learned several days in advance

that AMSC was about to lose its biggest customer. And on another

occasion, McPhail had a heads-up that AMSC was on the cusp of

signing an important deal that would surely influence the company's

stock market valuation.

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 There is no claim that McPhail himself traded on the

information he received from Santamaria. Rather, beginning in

July 2009, unbeknownst to Santamaria, McPhail began passing along

the upshot of the information he received in these conversations

to a set of friends, most of whom were members of a regular golfing

group. At trial, the government demonstrated that the lion's share

of this tipping occurred via email. For example, on July 23, 2009,

McPhail emailed the group:

AMSC was up another buck today ...I spoke to
someone ;) who thinks that there is going to
be an announcement on the 29th that will bump
the stock significantly followed up with
release of earnings on the 30th that will bump
it again. Look for 20, 30, 40 percent the
middle to end of next week (wednesday and
thursday).

All told, the members of the golf group and other friends of

McPhail's made nearly $500,000 by executing AMSC trades premised

on the tips from McPhail. The government indicted McPhail,

singling him out as the scheme's tipper, and a jury convicted him

on both counts.

II. Analysis

The government's case against McPhail is predicated on

the "misappropriation" theory of liability for insider trading

first recognized by the Supreme Court in United States v. O'Hagan,

521 U.S. 642, 652 (1997). Under this theory, an outsider who owes

no duty to a corporation or its shareholders commits the prohibited

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"deceit . . . in connection with the purchase or sale of any

security," 17 C.F.R. § 240.10b-5(c), by obtaining inside

information in confidence and then failing to disclose to the

source of the information the fact that the outsider is using the

information in breach of a duty of confidence owed to the source,

see O'Hagan, 526 U.S. at 652–53. In plain terms, when Sally tells

Joe insider information about her corporation, to be held by Joe

in confidence, and Joe then trades on that information without

telling Sally, Joe is guilty of deception (of Sally) "in connection

with the purchase or sale of any security." 17 C.F.R. § 240.10b-5;

see Parigian, 2016 WL 3027702, at *3. Such a theory of liability

can also apply when the misappropriator does not trade, but instead

obtains a benefit by revealing the information to a third person

who trades based on the misappropriated information. See, e.g.,

SEC v. Rocklage, 470 F.3d 1 (1st Cir. 2006).

Within the construct of this misappropriation theory,

McPhail trains his appellate argument on three issues: Was the

evidence sufficient to show that he knowingly breached a duty of

confidence owed to Santamaria? Did the district court's

instructions shift the burden of proof or misstate the state of

mind element of the securities fraud offense? Did he receive a

benefit as a result of his disclosure? We address each issue in

turn.

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A. Duty of Trust and Confidence

In O'Hagan, the existence of a duty of confidence owed

by the defendant was clear: O'Hagan was a lawyer who traded on

nonpublic corporate information he possessed only because the

information belonged to a client of his law firm. O'Hagan, 521

U.S. at 647–49. The Supreme Court nevertheless did not confine

application of the misappropriation theory to circumstances where

insider and misappropriator shared such a formal fiduciary

relationship. Rather, it opened the door to circumstances in which

an expectation of trust and a reliance on discretion arises outside

of a traditional fiduciary setting. See id. at 670 (referring to

"a fiduciary or other similar relation[ship] of trust and

confidence" (quoting Chiarella v. United States, 445 U.S. 222, 228

(1980)); see also Parigian, 2016 WL 3027702 at *6; United States

v. McGee, 763 F.3d 304, 314 (3d Cir. 2014), cert. denied, 135

S. Ct. 1402 (2015)(both discussing O'Hagan's "broad[ ] brush"

approach).

In an exercise of its statutory rule-making authority

that goes unchallenged by McPhail, the Securities and Exchange

Commission ("SEC") followed up on O'Hagan by promulgating a rule

in an attempt to "clarify and enhance" the groundwork of

misappropriation liability by providing a non-exhaustive list of

possible definitions of instances when such a duty might arise.

Selective Disclosure and Insider Trading, 64 Fed. Reg. 72,590,

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72,590 (proposed Dec. 28, 1999) (codified as amended at 17 C.F.R.

§ 240.10b5–2). The rule states that:

[A] "duty of trust or confidence" exists in
the following circumstances, among others:

(1) Whenever a person agrees to maintain
information in confidence; or

(2) Whenever the person communicating the
material nonpublic information and the person
to whom it is communicated have a history,
pattern, or practice of sharing confidences,
such that the recipient of the information
knows or reasonably should know that the
person communicating the material nonpublic
information expects that the recipient will
maintain its confidentiality[.]

17 C.F.R. § 240.10b5-2(b)(1)–(2).

At trial, the government focused on proving that

Santamaria and McPhail shared a "history, pattern, or practice of

sharing confidences" such that McPhail knew or "reasonably should

[have] know[n]" that Santamaria expected him to avoid sharing the

confidential business information with others. Id.

§ 240.10b5-2(b)(2). The jury apparently agreed with this argument.

The district court, in turn, rejected McPhail's timely argument

that the record contained too little evidence to support a finding

that McPhail knew or reasonably should have known that his

surreptitious disclosures breached a duty of confidence owed to

Santamaria.

We review this preserved challenge to the sufficiency of

the evidence de novo, "affirming unless we find that 'no rational

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jury could have found [the defendant] guilty beyond a reasonable

doubt.'" Prieto, 812 F.3d at 13 (alteration in the original)

(quoting United States v. Guerra–Garcia, 336 F.3d 19, 22 (1st Cir.

2003)). Assuming as we must that the jury resolved fairly

debatable issues of credibility against McPhail, the evidence that

he knew that Santamaria was expecting him to keep the inside

information secret is quite strong. Santamaria himself testified

that he twice expressly told McPhail "when [he] was in discussion

with [McPhail about] what was going on [with the company,] . . . you

can never repeat some of this stuff, and he nodded in agreement."

Under cross examination, Santamaria was asked, "[B]efore July

2009, did you tell Eric not to repeat anything you told him?" to

which he replied, "I have a recollection of twice saying it to

him," though he could not identify with certainty the dates on

which these conversations occurred. He further testified that, in

his memory, one such conversation occurred in the country club's

parking lot and another took place at a bar the two men frequented.

While the record is silent as to when exactly Santamaria

made these statements to McPhail, the record does contain emails

from McPhail from which one can reasonably infer that he had been

informed, or otherwise knew, that he was not allowed by Santamaria

to pass along the information from the get-go. For example, in

July of 2009, McPhail told his buddies "Try this one....AMSC...

watch it July 30th." When one of his buddies replied, "[W]hat's

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the inside scoop on July 30 Eric?" McPhail replied, "I am not

allowed to say....trust me if you want." Thereafter, McPhail began

sharing more information, as follows:

Well boys....went to the Sox game with a
friend of mine tonight. He seems to think
that AMSC has a $100 Million deal with China
that should be signed very shortly. It could
be done in the next few days... if it is not
done/announced by Thursday, it will not be
announced until the week of the 12th because
all of China shuts down on vacation for 10
days- starting Friday. This announcement
should spike them close to 10%. Furthermore,
circle October 29th for the next big day...it
could/should be as good as the last one,
provided the market cooperates that day.

I like Pinot Noir and love steak....looking
forward to getting paid back.

Good Luck....SHHHHHHHHHHHHH!!!!!!!!!!!!!!!!!!

In other emails, McPhail expressly recognized that the information

"[p]robably will not be released to public for a while, if ever,"

and that it was "inside info." McPhail's emails referred to "a

friend of mine" or "my buddy" or "my friend" or "him" or

"someone ;)", never referring to Santamaria by name.

Most tellingly, despite their extremely close friendship

and frequent interaction on the golf course, in bars, and at

entertainment venues, McPhail never told Santamaria what he was

doing with the information. A reasonable jury could easily

conclude based on this evidence that McPhail knew that Santamaria

was sharing with him in confidence inside information that he

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expected was not being shared further, much less for trading AMSC

stock.

This is not to say that the case was entirely one-sided.

Santamaria's testimony was subject to attack because it materially

changed over time. Also, on one occasion, McPhail heard Santamaria

tell a third individual known to hold AMSC stock that he hoped

that person would "not . . . get hurt" like Santamaria was going

to get hurt, perhaps implying that Santamaria expected him to trade

on the warning. All of this was grist for the defense's key

argument that Santamaria gave "[t]he same general information" to

McPhail that he gave to "everybody." The jury, however, was not

persuaded. On the whole, we cannot say that the jury was

"[ir]rational" because it declined to credit one of McPhail's

counter-narratives at trial. Guerra–Garcia, 336 F.3d at 22.

McPhail also argues that the government's evidence was

insufficient because it failed to prove that there was an explicit

agreement to keep everything quiet--that both parties shared a

perfectly symmetrical understanding of the relationship's

expectations. McPhail refers to this argument as his "mutuality

argument." It is not entirely clear exactly what McPhail means by

the term "mutuality." He tells us in his brief that that he uses

the term as a "thematic buzzword to frame his defense" that there

must exist a "mutual understanding" between the parties to

establish the relevant duty. He seems to be saying that nothing

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short of evidence of an explicit agreement to keep confidential

information confidential can give rise to the kind of duty that

qualifies under O'Hagan's framework. That is, merely showing that

the recipient of the information knew from the "pattern and

practice" of the relationship that the information ought to be

kept confidential is not enough.

This argument quickly runs into two formidable legal

obstacles. First, it simply reads away the SEC's rule hinging one

definition of the trust and confidence relationship on the facts

known to the person "to whom [confidential information] is

communicated." 17 C.F.R. § 240.10b5-2(b)(2). Hearing from McPhail

no argument that the SEC exceeded its statutory authority in

including this set of circumstances as one example of such a

relationship, we assume without deciding that Rule 10b5-2(b)(2)

constitutes a valid exercise of administrative rulemaking. See

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.

837, 842–43 (1984).

Second, and more fundamentally, McPhail's position is at

odds with the basic legal tenets governing the formation of legally

cognizable relationships that give rise to mutually enforceable

duties. The SEC's rule does no more than reflect the traditional

position of agency law that a fiduciary relationship can "evolve[]

by implication from the conduct of the parties." CNE Direct, Inc.

v. Blackberry Corp., No. 15-1954, 2016 WL 1732762, at *4 (1st Cir.

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May 2, 2016) (quoting Theos & Sons, Inc. v. Mack Trucks, Inc.,

729 N.E.2d 1113, 1120 n.13 (Mass. 2000)). Evidence of a "history,

pattern, or practice of sharing confidences" between the insider

and the misappropriator is nothing more than evidence that a

relationship of trust and confidence arose by implication. We see

no indication in O'Hagan or Chiarella that these traditional

principles are somehow inapplicable when the relationship in

question arises outside of a strict, formal business setting. Cf.

McGee, 763 F.3d at 314 (holding that "the imposition of a duty to

disclose under Rule 10b5–2(b)(2) when parties have a history,

pattern or practice of sharing confidences does not conflict with

Supreme Court precedent").1

McPhail argues, finally, that while the evidence may

have showed that he and Santamaria discussed confidential personal

information, it did not follow that McPhail knew that Santamaria

also expected him to keep the business disclosures secret. The

jury, though, was entitled to reject such a proposed boundary on

the extent of the two buddies' confidential relationship. Rational

jurors could have instead credited the weight of countervailing

evidence showing that the exchange of information was part and

parcel to the kinds of confidences the two men routinely shared.

1 For the foregoing reasons, we also reject what is, in any
event, a perfunctory suggestion in McPhail's brief on appeal that
the district court should have said something in its instructions
about a "mutuality" requirement.

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B. Mens Rea

We turn now to McPhail's state of mind. McPhail argues,

in substance, that even if the evidence supported a finding that

a duty of confidence existed and that he knew he was breaching it,

the district court did not require that the jury find that he had

such an awareness. Rather, it instructed the jury that it need

only find that McPhail "knew or reasonably should have known" that

Santamaria expected him to keep the information secret.2

McPhail's preservation of this argument has been

halting, bordering on waiver. He actually proposed instructing

jurors that a duty of confidence could be inferred from a history

of sharing confidences if "the recipient of the information knows

or reasonably should know" that he is expected to hold the

information in confidence. At the charge conference, his counsel

2The relevant jury instructions tracked the language of
Rule 10b5-2(b):

By law, in this case, a relationship in which
the defendant has a duty of trust or
confidence to Mr. Santamaria could arise under
the following circumstances: One, whenever
the defendant has agreed to keep information
confidential; or, two, whenever the parties
have a history, pattern or practice of sharing
confidences such that the recipient of the
information knew or reasonably should have
known that the person communicating the
material, nonpublic information expected that
the recipient would maintain its
confidentiality.

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then told the district court that such a formulation was

inconsistent with the statute's language in criminalizing only

willful violations of the securities fraud regulations. Counsel

asked "I would either ask that you . . . explain what knowingly

and willfully means at the time that you use [the 'knew or

reasonably should have known' formulation] or excise that portion

that says [']should have known[']." Noting that the draft

instructions already twice referenced the willfulness requirement,

the district court replied, "I think the instructions are

appropriate and straightforward on this point. I will read through

them, particular[ly] in section [two] with an eye toward how the

intent, knowledge, and willfulness instruction is incorporated as

to both count [one] and count [two]."

The following day, the district court read instructions

that both included willfulness language3 and stated that:

[T]he government must prove . . . beyond a
reasonable doubt . . . that Mr. McPhail had a
duty of trust and confidence to Mr. Santamaria
as discussed earlier, and that Mr. McPhail was
entrusted with material, nonpublic
information that he knew or reasonably should
have known he was supposed to keep
confidential.

3
"To act 'willfully,'" the court instructed, "means to act
voluntarily and intelligently and with the specific intent that
the underlying crime be committed, that is to say, with bad
purpose, either to disobey or disregard the law, not to act by
ignorance, accident or mistake."

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At sidebar, the court then asked counsel if there were any

objections to the instructions. McPhail's counsel renewed several

other objections that he had previously made, but neither renewed

nor raised any objections at all to the use of the "knew or

reasonably should have known" language.

Then, in his main brief on appeal, McPhail returned his

focus to the "knew or reasonably should have known" formulation,

this time contending that it "shifted the burden of proof on the

question of the existence of a duty of trust and confidence."

McPhail's main brief did not even mention the words "scienter" or

"mens rea." Not until his reply brief did McPhail return

foursquare to his previously abandoned argument that the jury

instruction was error because it failed to require that the jury

find that he actually "knew" that Santamaria expected him to keep

the information secret.

The government argues forfeiture for failure to preserve

the argument in the district court. It also argues waiver, both

because McPhail's submitted instructions invited the district

court to use the now challenged formulation, see United States v.

Kakley, 741 F.2d 1, 3 (1st Cir. 1984), and because McPhail failed

to raise the issue adequately in his opening brief on appeal.

The waiver argument is close. McPhail did propose the

instruction, then he sort of withdrew it, and then, by silence, he

arguably made it appear that he still wanted it. McPhail's main

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brief on appeal, in turn, only glancingly backs into the issue,

highlighting the "knew or reasonably should have known

instruction," but never really developing the scienter argument in

any direct manner. On the other hand, the government seemed to

perceive the argument lurking in McPhail's main brief, as the

government included in its main brief a defense of the district

court's "scienter requirement," with specific reference to the

"knew or should have known" language.

Ultimately, we need not reach the question of waiver.

Even assuming no waiver, we find a clear forfeiture, triggering a

review for only plain error, which we then find is not present

here. We have been unflaggingly clear that to preserve a jury

instruction objection, "a litigant must lodge a specific objection

and state the grounds for the objection after the court has charged

the jury and before the jury begins deliberations," and that

"[o]bjections registered during pre-charge hearings are

insufficient to preserve the issue." United States v. Roberson,

459 F.3d 39, 45 (1st Cir. 2006). Here, by failing to renew the

objection to the "knew or reasonably should have known" language

after the instructions were given--especially in light of the

district court's conscientious invitation soliciting any and all

of counsel's objections for the record--McPhail's attorney failed

to preserve the question for de novo review. See Prieto, 812 F.3d

at 17. Instead, we review the district court's instruction only

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for plain error, the existence of which requires, among other

things, a finding that the challenged instruction was "clear or

obvious error." United States v. Riccio, 529 F.3d 40, 46 (1st

Cir. 2008).

Our own recent decision in Parigian suggests that the

instruction was likely error. See 2016 WL 3027702, at *3–*5. But

we have not actually held that it is error, and at least two

circuits have expressly blessed the "knew or reasonably should

have known" standard. See United States v. Hughes, 505 F.3d 578,

593 (6th Cir. 2007); United States v. Evans, 486 F.3d 315, 324–25

(7th Cir. 2007). The language at issue also appears in the

relevant SEC rule routinely applied in civil Rule 10b5 cases, and

thus plausibly presents as a presumptively proper candidate for

inclusion in the instructions in criminal Rule 10b5 cases when

courts are not prompted to consider the different mens rea

presumptions applicable to criminal cases. See 17 C.F.R.

§ 240.10b5-2(b)(2). All in all, the error, if any, here is simply

not obvious enough to require that we proceed further with the

plain error inquiry. See Henderson v. United States, 133 S. Ct.

1121, 1130 (2013) (to make a successful claim of plain error

premised on subsequent change in the law, appellant must show

alleged error "plainly" conflicts with a "holding"); United States

v. LaPlante, 714 F.3d 641, 644 (1st Cir. 2013) (if one prong of

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conjunctive plain error test is not satisfied, "our analysis starts

and ends with that prong").

Finally--and somewhat confusingly--McPhail tries out

another argument: that the district court's instruction

permitting jurors to convict if they found that McPhail should

have known, but did not know that he was required to keep the

Santamaria information confidential somehow impermissibly shifted

the burden of proof from the government to McPhail. In support of

this argument, McPhail does little more than rehash his complaints

with the court's instructions on the duty of confidentiality, which

we have earlier discussed. McPhail points us to no burden-shifting

error, much less the obvious error required to successfully advance

this new argument. He isolates no remark from the prosecutor or

mistake by the district court that would overcome the court's

"strong and explicit instructions about the burden of proof, the

presumption of innocence, and the fact that the court, not counsel,

is the source of the applicable law." United States v. Madsen,

809 F.3d 712, 718 (1st Cir.), cert. denied, 136 S. Ct. 1394 (2016).

At no point during McPhail's trial did the burden of proof shift.

C. Personal Benefit

The Supreme Court has instructed that, in the classical

insider trading context,4 whether a corporate insider has breached

4 "Under the 'traditional' or 'classical theory' of insider
trading liability, § 10(b) and Rule 10b–5 are violated when a

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his or her duty in sharing material nonpublic information pivots,

in part, on "whether the insider personally will benefit, directly

or indirectly, from his disclosure." Dirks v. SEC, 463 U.S. 646,

662 (1983). Assuming that this principle extends to tippers in

misappropriation cases, McPhail argues that the government failed

to prove that he anticipated a legally recognizable personal

benefit in return for sharing the information with his golf

buddies. He challenges both the sufficiency of the government's

personal benefit evidence and the district court's instructions to

jurors regarding what kind of benefit he had to have expected for

the crime to have been consummated. McPhail objected on both

grounds in district court, and we review the denial of these

objections de novo. See United States v. Berríos–Bonilla, 822

F.3d 25, 32 (1st Cir. 2016) (refusal to instruct); Prieto, 812

F.3d at 13 (sufficiency).

The district court instructed jurors on this point at

length, but McPhail objects only to the final sentence of those

instructions:

You may find that Mr. McPhail received or
expected to receive a direct or indirect
benefit from providing inside information to
others if you find that he gave the
information to others with the intention of
benefiting himself in some tangible or
intangible way or as a gift with the goal of

corporate insider trades in the securities of his corporation on
the basis of material, nonpublic information." O'Hagan, 521 U.S.
at 651–52.

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 maintaining or furthering a personal
friendship.

McPhail takes issue with the emphasized "or" above, which permitted

the jury to "find that Mr. McPhail received or expected to receive

a direct or indirect benefit" if they determined that, at a

minimum, "he gave the information to others . . . as a gift with

the goal of maintaining or furthering a personal friendship."

This instruction, McPhail argues, amounts to legal error

in light of the Second Circuit's recent decision to "adopt[] a

more discriminating definition of the benefit to a tipper in a

classical insider trading case," Parigian, 2016 WL 3027702, at *8

(citing United States v. Newman, 773 F.3d 438, 452 (2d Cir. 2014),

cert. denied, 136 S. Ct. 242 (2015)), and the Supreme Court's more

recent grant of certiorari to review the personal benefit question

posed by United States v. Salman, 792 F.3d 1087 (9th Cir. 2015),

cert. granted in part, 136 S. Ct. 899 (2016).

McPhail is correct that the nature of the personal

benefit requirement in insider trading cases is the source of some

inter-circuit tension likely to be resolved by the Supreme Court

in its next term. But "[h]ow this will all play out, we do not

venture to say because, as a three-judge panel, we are bound to

follow this circuit's currently controlling precedent." Parigian,

2016 WL 3027702, at *8.

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 That precedent dictates affirmance: McPhail does not

argue that the instruction given by the district court fails to

align with the law in this Circuit. We have in the past only

entertained the assumption that personal benefit to a tipper need

be shown in a misappropriation case, see Rocklage, 470 F.3d at 7

n.4; SEC v. Sargent, 229 F.3d 68, 77 (1st Cir. 2000), and have

said that if such a showing is required, it is satisfied by

benefits as thin as "reconciliation with [a] friend" and the

maintenance of "a useful networking contact," Sargent, 229 F.3d at

77, or "the mere giving of a gift to a relative or friend,"

Rocklage, 470 F.3d at 7 n.4.

At closing, the government argued that McPhail

anticipated receiving two broad types of "personal benefits":

"concrete" ones and "more subtle" ones. Among the "concrete"

benefits identified at trial were McPhail's expectations that he

would receive a free dinner, wine, and a massage parlor visit from

the beneficiaries. The government further reminded jurors of

evidence that McPhail had given an AMSC stock tip to a close friend

that yielded a nearly $200,000 profit, arguing further that McPhail

ultimately benefited from a $3,000 "kickback" from that grateful

friend.5 "[M]ore subtl[y]," the government argued, McPhail stood

5 McPhail argues that the tip to his friend was no "gift" and
that the $3,000 deposit into his bank account the day after his
friend liquidated his AMSC profits was no kickback. But a rational
juror could certainly have disagreed.

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to benefit from the group's general gratitude for his largesse.

Jurors were told: "It makes him one of the guys, they're all kind

of impressed."

Under the governing Rocklage and Sargent standards, the

cumulative weight of this evidence was surely sufficient to show

that McPhail anticipated receiving a personal benefit in return

for the tips. We see no error.

III. Conclusion

For the foregoing reasons, we affirm McPhail's criminal

convictions.

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