United States v. Ruggiero

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 93-2774
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EDWARD L. RUGGIERO and
CHRISTOPHER S. PARKER,

Defendant-Appellants.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________

(June 19, 1995)

Before KING and JONES, Circuit Judges, and LAKE, District Judge.*

KING, Circuit Judge:

This appeal centers around the securities and wire fraud

trial of Edward L. Ruggiero and Christopher S. Parker. After a

jury trial, each of the men was convicted on multiple counts of

wire fraud and securities fraud in violation of 18 U.S.C. § 1343,

15 U.S.C. § 78, and 17 C.F.R. § 240. After the trial, the two

defendants moved for a mistrial or a new trial, alleging that

outside information gained by a juror had tainted the verdict.

The district court denied the motions. Ruggiero and Parker

*
District Judge of the Southern District of Texas, sitting
by designation.
appeal the denial of the motions, and Parker asserts that there

was insufficient evidence to support his convictions. We reject

all of Ruggiero's and Parker's contentions, and accordingly, we

affirm.

I. BACKGROUND

Ruggiero was a senior auditor at Vista Chemical Company

("Vista"), and Parker was Ruggiero's friend. Vista, a

petrochemical company, was a large concern and its stock was

publicly traded on the New York Stock Exchange. During

Ruggiero's tenure at Vista, the company became involved in

negotiations with a German chemical company, RWE-DEA, which was

interested in acquiring Vista. The negotiations were a closely

guarded company secret, and Ruggiero was not one of the few Vista

employees with official knowledge of the talks between Vista and

RWE-DEA.

During 1990, while the negotiations between RWE-DEA and

Vista were proceeding, Ruggiero and Parker began to invest in

short-term option contracts for Vista stock. In early December

of 1990, Ruggiero and Parker made very substantial purchases of

option contracts. On December 13, 1990, Vista announced that it

was being purchased by RWE-DEA at a price-per-share well in

excess of the price at which Vista stock had been trading;

accordingly, the price of Vista stock increased from $25 to $53-

3/4.1 As result of the sudden and dramatic increase in Vista

1
There was evidence adduced at trial that this large

2
stock price, Ruggiero and Parker realized profits on their

options of $665,000 and $188,000, respectively.

As soon as the sale of Vista was announced, the Securities

and Exchange Commission ("SEC") began an investigation of trades

in Vista securities. The SEC's interest was piqued by the

options trades of Ruggiero and Parker. On the same night that

the sale was announced, SEC investigators interviewed both men.

At that time, Ruggiero stated that he had engaged in his trades

based on rumors of a potential sale, his knowledge of senior

executives' trips to Germany, and the cancellation of a meeting.

Additionally, Ruggiero pointed to his belief that the stock was

undervalued as motivating his purchase of the options.

When Parker was interviewed by the SEC, he explained that

his purchases were based upon his belief that Vista was a good

take-over target and upon statements by Ruggiero that Vista stock

was undervalued. Parker also related that he learned about the

merger during the day from his broker, and that he was unaware of

whether Ruggiero had purchased any Vista options.

Parker and Ruggiero then conferred on the telephone, and

Parker called the SEC to change his story. Parker now stated

that he had learned about the sale of Vista early that morning,

and that he immediately called Ruggiero to inform him of the

increase in price indicated that the merger was not anticipated
by the market. Additionally, a "market maker" who lost money on
Ruggiero's and Parker's trades indicated that there was "no
public information in the marketplace concerning negotiations
between Vista Chemical and any other company" and that "there
were no rumors about a takeover in Vista Chemical."

3
sale. Additionally, Parker now said that he knew Ruggiero had

traded in Vista securities, as the men had engaged in frequent

discussions about their trades; in fact, in Parker's new story,

it was Ruggiero who initially suggested that the men trade in

Vista securities.

Eventually, both men were indicted and tried for violations

of the securities laws. At trial, the testimony of another Vista

employee--financial analyst Thomas Roberts--was particularly

damning to Ruggiero and Parker. Roberts was part of the Vista

team working on the sale, and he testified that Ruggiero

repeatedly asked him whether a sale to some Germans was looming.

Roberts also testified that while at first he denied any

knowledge of a sale, he eventually told Ruggiero that

negotiations regarding a sale were taking place. After this

initial disclosure, Roberts related that he repeatedly updated

Ruggiero on the status of negotiations. On December 6, 1990,

Roberts was informed by a Vista attorney that RWE-DEA had offered

to purchase Vista for fifty-five dollars a share and that a Vista

board meeting was scheduled for December 12, 1990. The attorney

also told Roberts that if all went well at the board meeting, the

sale would be announced on December 13. Roberts testified that

he relayed this information to Ruggiero. Finally, Roberts

recounted that after the SEC investigation began, Ruggiero

contacted Roberts and told Roberts that the SEC did not know

anything, that they would deny knowledge of the December 6

4
statements, and that "[i]f everyone stands tall" no one has

anything to worry about.2

At the conclusion of the trial, Parker and Ruggiero were

convicted on all counts. The day after the convictions were

handed down, one of the jurors in the trial, Rick Stuhr,

contacted the district court case manager and stated that another

juror had told him that she knew that Ruggiero had been fired

from another company for stealing. The district court judge then

called Stuhr on the telephone and discerned that the other juror

was Nelda Neely. That same day, the district court held a

hearing in his chambers with Neely, counsel, and the case

manager.

During the hearing, Neely testified that one afternoon,

while the trial was still ongoing, but when the jury had been

dismissed for the afternoon, she was looking through a co-

worker's Rolodex when she discovered one of Roberts's business

cards from a former job. Neely asked her co-worker about

Roberts, and the co-worker replied that Roberts was a "real nice

man." Neely also asked her co-worker if he knew Ruggiero, and

the co-worker responded affirmatively. Neely realized that she

should not ask any more questions, and she "let the matter drop."

2
Roberts's credibility was impeached at trial. He
admitted that he himself had illegally traded in Vista stock and
that he had passed inside information to his brother as well as
to Ruggiero. Roberts also lied to the SEC on two occasions and
lied under oath in a deposition. According to the government,
however, "[a] week after his deposition . . . Roberts voluntarily
approached the SEC and told the full truth without negotiating
any immunity for prosecution."

5
Later that afternoon, Neely's co-worker approached her and

informed Neely that "Ruggiero had been in trouble at Global

Marine [Ruggiero's former employer] for selling drillstring . .

. for his private benefit." Neely did not receive any further

information about Ruggiero, and she also testified that there was

no discussion of "whether or not [Roberts] was an honest person

or anything along those lines."

Neely also recounted that she did not discuss the

information she had learned with any of the jurors until after

the verdict was returned. After the verdict, however, Neely told

Stuhr, who apparently had been reluctant to convict, "Rick if

it's any consolation to you . . . this isn't the first time this

guy has been in trouble."

The defendants moved for a mistrial or a new trial, alleging

that the outside information learned by Neely had tainted the

verdict. The district court, however, denied the defendant's

motion, finding and concluding that:

[T]he misconduct on the part of the juror did not
interfere with the jury's function. In short, the
juror did not reveal this information to the remainder
of the panel and there is no reason to believe the
truth is, otherwise.

The Court is of the opinion that, although the
juror violated the Court's order concerning
investigation and research, no taint reached the panel.

Both Ruggiero and Parker appeal the district court's denial

of the motion. Additionally, Parker argues that there was

insufficient evidence to support his convictions.

6
 II. DISCUSSION

A. Effect of the Outside Information

Ruggiero and Parker argue that their trial was prejudiced as

a result of the extrinsic information gained by Neely.

Specifically, the two men argue that the introduction of

extrinsic evidence to the jury is presumptively prejudicial, and

they contend that the government failed to rebut this

presumption. Ruggiero and Parker also aver that the extrinsic

information in this case was especially prejudicial because it

"revealed that Roberts (the government's star witness) was a

`good guy' and that . . . Ruggiero's employment from another

company (Global Marine) had been terminated because inventory had

come up missing (i.e., he was a `thief')." Additionally,

Ruggiero and Parker maintain that the effect of this information

was magnified in light of the importance of Roberts's testimony

and the weight assigned to it by the jurors. Finally, the

defendants contend that the fact that only one juror had this

information did not mitigate its prejudicial effect because the

defendants were entitled to a unanimous verdict.

We often have stated that "[i]n any trial there is initially

a presumption of jury impartiality." United States v. O'Keefe,

722 F.2d 1175, 1179 (5th Cir. 1983); accord United States v.

Winkle, 587 F.2d 705, 714 (5th Cir.), cert. denied, 444 U.S. 827

(1979). This presumption, however, may be attacked, and

"[p]rejudice may be shown by evidence that extrinsic factual

matter tainted the jury's deliberations." O'Keefe, 722 F.2d at

7
1179; accord Winkle, 587 F.2d at 714; United States v. Howard,

506 F.2d 865 (5th Cir. 1975).

When "a colorable showing of extrinsic influence appears, a

court must investigate the asserted impropriety." Winkle, 587

F.2d at 714; accord United States v. Sanchez-Sotelo, 8 F.3d 202,

212 (5th Cir. 1993), cert. denied, 114 S. Ct. 1410 (1994).

Further, it is well-settled that "a defendant is entitled to a

new trial when extrinsic evidence is introduced into the jury

room `unless there is no reasonable possibility that the jury's

verdict was influenced by the material that improperly came

before it.'" United States v. Luffred, 911 F.2d 1011, 1014 (5th

Cir. 1990) (quoting Llewellyn v. Stynchombe, 609 F.2d 194, 195

(5th Cir. 1980)); accord Sanchez-Sotelo, 8 F.3d at 212; United

States v. Ortiz, 942 F.2d 903, 913 (5th Cir. 1991), cert. denied,

504 U.S. 985 (1992); Winkle, 587 F.2d at 714. This rule creates

a rebuttable presumption of prejudice to the defendant, and "the

government has the burden of proving the harmlessness of the

breach." Luffred, 911 F.2d at 1014.

Generally, a court is limited in its ability to inquire

about a jury's deliberations. Federal Rule of Evidence 606(b)

8
forbids a juror from testifying about the deliberative process,3

and we have noted that:

the rule separately bars juror testimony regarding at
least four topics: (1) the method or arguments of the
jury's deliberations, (2) the effect of any particular
thing upon an outcome in the deliberations, (3) the
mindset or emotions of any juror during deliberation,
and (4) the testifying juror's own mental process
during the deliberations.

Ortiz, 942 F.2d at 913; see also Llewellyn, 609 F.2d at 196

("Inquiries that seek to probe the mental processes of jurors . .

. are impermissible."); Howard, 506 F.2d at 868 ("Well-

established case law forbids the eliciting of juror testimony

regarding the jury's mental processes, or the influences that any

particular evidence had upon the jury's conclusion."). We have

also stated, however, that "juror testimony concerning

prejudicial extraneous information is a horse of another hue,"

Ortiz, 942 F.2d at 913, for the rule expressly provides that "`a

3
The Rule states:

Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter or
statement occurring during the course of the jury's
deliberations or to the effect of anything upon that or
any other juror's mind or emotions as influencing the
juror to assent to or dissent from the verdict or
indictment or concerning the juror's mental processes
in connection therewith, except that a juror may
testify on the question whether extraneous prejudicial
information was improperly brought to the jury's
attention or whether any outside influence was
improperly brought to bear upon any juror. Nor may a
juror's affidavit or evidence of any statement by the
juror concerning a matter about which the juror would
be precluded from testifying be received for these
purposes.

Fed. R. Evid. 606(b).

9
juror may testify on the question whether extraneous prejudicial

information was improperly brought to the jury's attention.'"

Id. (quoting Fed. R. Evid. 606(b)). Accordingly, we have stated

that:

Post-verdict inquiries into the existence of
impermissible extraneous influences on a jury's
deliberations are allowed under appropriate
circumstances so that a jury-man may testify to any
facts bearing upon the question of the existence of any
extraneous influence, although not as to how far that
influence operated upon his mind.

Llewellyn, 609 F.2d at 196 (internal quotations and citations

omitted); accord Sanchez-Sotelo, 8 F.3d at 212; Howard, 506 F.2d

at 869.

Thus, in determining whether the government has successfully

rebutted the presumption of prejudice and shown that there is no

reasonable possibility that the jury was improperly influenced,

the district court is to examine "the content of the extrinsic

material, the manner in which it came to the jury's attention,

and the weight of the evidence against the defendant." Luffred,

911 F.2d at 1014; accord Llewellyn, 609 F.2d at 195.

If, after undertaking such an analysis, the district court

refuses to grant a new trial, we have stated that we will upset

the district court's decision only for an abuse of discretion.

Ortiz, 942 F.2d at 913; Sanchez-Sotelo, 8 F.3d at 212.

Additionally, we have noted that "[a]n appellate court should

accord great weight to the trial court's finding that the

[extrinsic] evidence in no way interfered with any juror's

decision." O'Keefe, 722 F.2d at 1179.

10
 In the instant case, we find that the district court did not

abuse its discretion in concluding that the government rebutted

the presumption that Neely's outside investigation prejudiced the

jury. Neely's statements regarding the extrinsic evidence

support the district court's decision, and the content of the

statements heard by Neely does not undermine the district court's

conclusion. While Neely heard that Roberts was a "real nice

man," she also heard Roberts testify that he had lied to the SEC,

that he had lied under oath, and that he had engaged in illegal

stock transactions. Similarly, although Neely heard that

Ruggiero had been accused of stealing company property, she also

had the opportunity to hear Ruggiero testify about the events

surrounding his options transaction. Further, Neely heard the

extrinsic evidence only after all of the evidence had been

introduced, and she did not relay any of the information she had

heard to other jurors until after the jury had determined the

verdict.

Additionally, the weight of the other evidence adduced at

trial supports the district court's decision. The government

presented strong evidence against both Ruggiero and Parker,

establishing that the two men began regularly trading in Vista

options after Roberts began to give them information. Further,

there was evidence that the trades coincided with times that the

sale of Vista was most likely, and the options purchased by the

men were only of value if the company was sold quickly.

11
 We have affirmed a district court's determination that the

government overcame the presumption of prejudice in cases

involving far more egregious juror misconduct. For example, in

Ortiz, we found no error in the district court's conclusion that

the government rebutted the presumption of prejudice raised by:

one juror's investigation of an airport involved in drug

smuggling operations; a second juror's visit to an apartment

complex described in the trial and that juror's description of

that complex to other jurors during deliberations; and a third

juror's statement "that she knew one of the individuals mentioned

during the trial . . . and that she knew he was a drug dealer and

that the people on trial were guilty." Ortiz, 942 F.2d at 913.

Considering only the objective factors surrounding the extrinsic

evidence, we find that the district court's refusal to grant a

new trial or a mistrial was not an abuse of discretion.4

4
Ruggiero argues that the district court improperly
inquired into Neely's thought processes. The district court
asked Neely, "[d]o you believe that on learning that [extrinsic
information] that it had any effect on your ability to be fair
and impartial about the evidence in the case?" Neely responded
negatively. While this testimony may have been inadmissible
under Federal Rule of Evidence 606(b), we need not reach the
question of the effect of the evidence which may or may not have
been admissible. There is no indication that the district court
considered this evidence in its decision, and our conclusion that
the district court did not abuse its discretion in denying the
defendants' motion for a new trial or a mistrial is based only
the admissible evidence and the factors we articulated Luffred
and Llewellyn. See United States v. Maree, 934 F.2d 196, 201
(9th Cir. 1991) (noting that when examining whether juror
misconduct warranted a new trial and when presented with
declarations part of which were inadmissible under Rule 606(b),
an appellate court's review was "limited to the admissible
portions of the declarations"); Howard, 506 F.2d at 869
(instructing a district court to "disregard the portions of the
affidavit purporting to reveal the influence the alleged

12
B. Sufficiency of the evidence

Parker challenges his convictions for insufficient evidence.

In challenging the 10b-5 convictions, Parker contends that

because he was not an employee of Vista and had no fiduciary duty

to the company, he can only be held liable for violations of the

securities law if he knew that Ruggiero had inside information

and that Ruggiero was breaching a duty by disclosing that

information to Parker. Parker alleges that the government failed

to prove these elements. Similarly, with regard to the

conviction for violating the tender offer rules of § 14e of the

Securities Exchange Act of 1934, Parker argues that the

government failed to "present any evidence that Mr. Parker either

(1) was in possession of material, nonpublic information

regarding the merger or (2) acquired information about Vista from

an employee acting on behalf of Vista." Finally, Parker argues

that since the convictions on the securities fraud claims fail

for lack of evidence, there was also insufficient evidence to

prove the intent to defraud required to sustain a conviction for

wire fraud. We reject all of Parker's contentions.

In evaluating the findings of a jury, we do not inquire

whether the "evidence excludes every reasonable hypothesis of

innocence or is wholly inconsistent with every conclusion except

that of guilt." United States v. Pigrum, 922 F.2d 249, 254 (5th

prejudicial extrinsic material had upon the jurors, and it must
avoid examination of any other aspect of the juror's mental
processes").

13
Cir.), cert. denied, 500 U.S. 936 (1991). Rather, we have stated

that we will "sustain the verdict if a rational trier of fact

could have found all elements of the offense beyond a reasonable

doubt." United States v. Osum, 943 F.2d 1394, 1404 (5th Cir.

1991); see also United States v. Mergerson, 4 F.3d 337, 341 (5th

Cir. 1993) ("The standard of review in assessing a challenge to

the sufficiency of the evidence in a criminal case is whether a

reasonable trier of fact could have found that the evidence

established guilt beyond a reasonable doubt." (internal

quotations omitted)), cert. denied, 114 S. Ct. 1310 (1994).

Moreover, as we have often noted, "[o]n appeal, this court must

view the evidence . . . and all inferences reasonably drawn from

it, in the light most favorable to the verdict." Osum, 943 F.2d

at 1404; accord Mergerson, 4 F.3d at 341. Finally, we have

stated that this standard applies regardless of whether the

conviction is based on direct or circumstantial evidence.

Mergerson, 4 F.3d at 341.

Section 10(b) of the Securities Exchange Act of 1934 and the

rules promulgated under it, particularly Rule 10b-5, prohibit

insider trading.5 As the Supreme Court described, there are two

5
Section 10(b) provides in part that:

It shall be unlawful for any person, directly or
indirectly, by the use of any means or instrumentality
of interstate commerce or of the mails, or of any
facility of any national securities exchange--

(b) To use or employ, in connection with the
purchase or sale of any security registered on a
national securities exchange or any security not
so registered, any manipulative or deceptive

14
elements of a Rule 10b-5 violation: "`(i) the existence of a

relationship affording access to inside information intended to

be available only for a corporate purpose, and (ii) the

unfairness of allowing a corporate insider to take advantage of

that information by trading without disclosure.'" Dirks v. SEC,

463 U.S. 646, 653-54 (1983) (quoting Chiarella v. United States,

445 U.S. 222, 229 (1980)). The prohibitions under 10b-5 are not

animated by the nonpublic nature of the information traded. See

id. (noting that "there can be no duty to disclose where the

person who has traded on inside information was not [the

corporation's] agent, . . . was not a fiduciary, [or] was not a

person in whom the sellers [of the securities] had placed their

device or contrivance in contravention of such
rules and regulations as the Commission may
prescribe as necessary or appropriate in the
public interest or for the protection of
investors.

15 U.S.C. § 78j(b).

The applicable rule provides that:

It shall be unlawful for any person, directly or
indirectly, by use of any means or instrumentality of
interstate commerce, or of the mails or of any facility
of any national securities exchange,
(a) To employ any device, scheme, or artifice to
defraud,
(b) To make any untrue statement of a material
fact or to omit to state a material fact necessary
in order to make the statements made, in the light
of the circumstances under which they were made
not misleading, or
(c) To engage in any act, practice, or course of
business which operated or would operate as a
fraud or deceit upon any person, in connection
with the purchase or sale of any security.

17 C.F.R. § 240.10b-5.

15
trust and confidence." (internal quotations omitted)). Rather,

liability under § 10b-5 attaches by virtue of the relationship

between the shareholders and the individual trading on inside

information. Id.

Further, an individual need not have a direct relationship

with the company to violate the securities law by trading on

inside information; a "tippee", one who acquires information from

an insider, may also violate the rules against inside

information. The Supreme Court has stated that "a tippee assumes

a fiduciary duty to the shareholders of a corporation not to

trade on material nonpublic information only when the insider has

breached his fiduciary duty to the shareholders by disclosing the

information to the tippee and the tippee knows or should know

that there has been a breach." Dirks, 463 U.S. at 660.

Section 14(e) of the Securities Exchange Act of 1934

prohibits fraud and other manipulative acts in conjunction with

tender offers.6 See 15 U.S.C. § 78n(e); United States v.

6
Section 14(e) provides that:

It shall be unlawful for any person to make any untrue
statement of a material fact or omit to state any
material fact necessary in order to make the statements
made, in the light of the circumstances under which
they are made, not misleading, or to engage in any
fraudulent, deceptive, or manipulative acts or
practices, in connection with any tender offer or
request or invitation for tenders, or any solicitation
of security holders in opposition to or in favor of any
such offer, request, or invitation. The Commission
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.

16
Chestman, 947 F.2d 551, 561 (2d Cir. 1991), cert. denied, 503

U.S. 1004 (1992). To establish a violation of this section, the

government must prove that a defendant traded on information that

he knew had been acquired directly or indirectly from either the

company, a company official, or a person acting on the company's

behalf. Finally, the Supreme Court has noted that in proving

scienter in fraud cases, "circumstantial evidence can be more

than sufficient." Herman & MacLean v. Huddleston, 459 U.S. 375,

391 n.30 (1983).

In the instant case, there was sufficient evidence to

support Parker's convictions for violations of § 10b and § 14e.

15 U.S.C. § 78n(e).

The relevant rule under this section, Rule 14(e), provides
that:

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 had reason to know has been acquired directly
or indirectly from:
. . .

(3) Any officer, director, partner or employee or
any other person acting on behalf of the offering
person or such issuer, to purchase or sell or cause to
be purchased or sold any of such securities or any
securities convertible into or exchangeable for any
such securities or any option or right to obtain or to
dispose of 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.

17
As to the § 10b convictions, it seems clear that a rational juror

could find that Ruggiero was in possession of inside information.

Roberts testified that he gave Ruggiero inside information, and

there is no question that a rational juror could credit his

testimony.

Similarly, there was sufficient evidence for the jury to

conclude that Parker knew or should have known that Ruggiero's

information was gained via the breach of a fiduciary duty.

After the investigation into his transactions commenced, Parker

lied to the SEC, conferred with Ruggiero, and then changed his

story. A reasonable juror could conclude that these actions

indicated that Parker knew the information that he received from

Ruggiero was improperly acquired, and that the evidence was

sufficient for a reasonable juror to find knowledge or at least

recklessness. Moreover, the timing of Parker's and Ruggiero's

option purchases (coinciding with sale signals no one else in the

market noticed) provide ample evidence of Parker's knowledge

regarding the sources of Ruggiero's information.

In addition to supporting the 10b conviction, Parker's

knowledge of Ruggiero's position as an internal auditor also

provides evidence from which a rational juror could conclude that

Parker knew the information on which he was trading was acquired

from a Vista employee in violation of § 14e. Simply put, there

was ample evidence for the jury to conclude that Parker knew or

should have known that Ruggiero was an employee of Vista and that

Ruggiero had acquired the information improperly.

18
 Finally, we have stated that "[t]o sustain a conviction

for wire fraud under 18 U.S.C. § 1343, the government must

present evidence of (1) a scheme to defraud, and (2) the use of,

or causing the use of, wire communications in furtherance of the

scheme." United States v. Keller, 14 F.3d 1051, 1056 (5th Cir.

1994). Additionally, "[t]he government must prove a specific

intent to defraud, which requires a showing that the defendant

intended for some harm to result from his deceit." United States

v. Loney, 959 F.2d 1332, 1337 (5th Cir. 1992).

In the instant case, Parker argues that the government

failed to prove that Parker "engage[d] in securities fraud either

as a tippee or in connection with a tender offer. No evidence

exists, therefore, that [Parker] participated in a scheme to

defraud." As noted above, we reject Parker's contention that

there was insufficient evidence to support the securities law

convictions. Accordingly, we find that there was sufficient

evidence that Parker used the wires in furtherance of the fraud,

thereby violating 18 U.S.C. § 1343.

III. CONCLUSION

For the foregoing reasons, we AFFIRM.

19