United States v. Lake

F IL E D
United States Court of Appeals
Tenth Circuit
PUBLISH
January 5, 2007
U N IT E D ST A T E S C O U R T O F A PP E A L S
Elisabeth A. Shumaker
Clerk of Court
T E N T H C IR C U IT

U N ITED STA TES O F A M ER ICA ,

Plaintiff - Appellee ,

v. No. 06-3140

DO UG LAS T. LAK E ,

Defendant - Appellant,

-----------------------------------------

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,

v. No. 06-3141

D A V ID C. WITTIG ,

Defendant - Appellant.

A PPE A L FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T
FO R TH E D ISTR IC T O F K A N SA S
(D .C . N O . 03-C R -40142-JA R )

Seth P. W axman, W ilmer, Cutler, Pickering, Hale & D orr, LLP, W ashington, DC,
for Defendant - Appellant Douglas T. Lake, Steven Alan Reiss, W eil, Gotshal &
M anges LLP, New York, New York, for Defendant - Appellant David C. W ittig,
(Edward C. DuM ont, Theodore D. Chuang, Demian S. Ahn, M ichael P. Spence,
Daniel S. Volchok, W ilmer, Cutler, Pickering, Hale & Dorr, W ashington, DC, on
the brief for Defendant - Appellant Douglas T. Lake, and Gregory S. Coleman,
Lisa R. Eskow, and Edw ard C. Dawson, W eil, Gotshal & M anges LLP, Austin,
Texas, on the brief for Defendant - Appellant David C. W ittig).

Richard L. Hathaway, Assistant United States Attorney (Eric F. M elgren, United
States A ttorney, Christine E. Kenney, Assistant United States A ttorney, with him
on the brief), Topeka, Kansas, for Plaintiff - Appellee .

Before H A R T Z, Circuit Judge, M cW ILL IA M S , Senior Circuit Judge, and
M cC O N N E L L , Circuit Judge.

H A R T Z, Circuit Judge.

The defendants, David C. W ittig and Douglas T. Lake, came to Kansas

from W all Street investment banks to run the state’s largest public utility, now

know n as W estar Energy, Inc. The government convinced the jury in this case

that the two men had conducted a far-reaching scheme to milk the company for all

they could through a pattern of fraud and deceit. But the prosecution hung by a

thin legal thread. Despite the scope of the alleged fraudulent scheme, all the

counts of the indictment depended on proving the efforts of the defendants to

conceal from the United States Securities and Exchange Commission (SEC) their

personal use of corporate aircraft. The attempt to prove concealment was flawed,

however, because the government produced no evidence that the defendants failed

to comply with SEC regulations governing the reporting of such personal use and

the jury was never instructed regarding the SEC’s reporting requirements. As a

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result, we must set aside the convictions on every count, most of which cannot be

retried.

The indictment charged 7 counts of wire fraud, 17 counts of money

laundering, 14 counts of circumvention of internal financial controls, and 1 count

of conspiracy to engage in these substantive offenses. A fortieth count sought

forfeiture of the fruits of the alleged offenses. The offense of wire fraud requires

a scheme to defraud and the use of an interstate wire communication to further the

scheme. Each wire-fraud count alleged the wire transmission to the SEC of a

different required report. Transmission of a required report can serve as the

predicate for a wire-fraud offense only if the report is itself false or fraudulent.

The government alleged that the reports w ere deceptive because they failed to

disclose the great value to the defendants (about $1 million each) of their personal

use of corporate aircraft. But SEC regulations require reporting only the

additional cost to the corporation incurred as a result of the corporate officer’s

personal travel, and then only if the total additional cost exceeds a certain

threshold per year for the officer. The government offered no evidence that the

additional cost to W estar of either defendant’s personal travel ever exceeded this

threshold; indeed, it offered no evidence of the additional cost to W estar for any

of the personal trips. Therefore, the jury could not possibly determine that the

reports, which disclosed no personal travel by the defendants, were false.

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Consequently, we must reverse the wire-fraud convictions because of insufficient

evidence. Further prosecution of these charges is barred by the Double Jeopardy

Clause.

As the government properly conceded at oral argument, if the wire-fraud

charges fall, then so must the money-laundering convictions. The money-

laundering charges alleged that the defendants had used the fruits of their wire-

fraud scheme to acquire various assets. If there was no wire fraud, there was no

money laundering. These charges, too, cannot be retried.

As for the circumvention charges, they were based on the failure of the

defendants to disclose their personal travel on corporate aircraft in various

internal forms used to prepare reports for the SEC. The core issue with respect to

these failures to disclose is the defendants’ intent. They argued at trial that other

W estar officers almost always failed to report such travel and that one could infer

that they thought such disclosure was unnecessary. To counter this inference, the

government offered evidence of the great value to the defendants of this travel

(again, about $1 million each), making it unlikely that they would think it

inconsequential. The defendants sought from the district court an instruction to

the jury explaining that the proper consideration was not the value of the travel to

the defendants but the (much lower) additional cost of the travel to W estar. The

court refused to give the instruction. Because this instruction could easily have

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influenced the jury in deciding whether the defendants’ failure to disclose was

with the requisite intent, we must also reverse the circumvention convictions,

although without prejudice to a retrial.

Finally, given the dependence of the conspiracy charges on the evidence

and instructions regarding the substantive charges, we must also reverse the

conspiracy convictions and remand for retrial. The forfeitures likewise cannot

stand. In light of our reversal of all the convictions on the above grounds, we

need not address a number of other issues raised by the defendants regarding the

conduct of the trial and their sentences.

I. BACKGROUND

W e summarize the evidence at trial in the light most favorable to the jury’s

verdict. See U nited States v. Espinoza, 338 F.3d 1140, 1146-47 (10th Cir. 2003).

In 1995 John Hayes, the Chief Executive Officer (CEO) of W estar (then known as

W estern Resources, Inc.), recruited M r. W ittig (a New York investment banker

who had performed services for W estar) to join W estar as Executive Vice

President of Corporate Strategy to develop and implement a diversification plan

for the utility. M r. W ittig’s original compensation included a salary of $425,000,

a relocation benefit, stock, various short- and long-term incentives, and other

benefits. By early 1999 M r. Hayes had left W estar, the Board of Directors had

appointed M r. W ittig as President, CEO, and Chairman of the Board, and

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M r. Lake, also a New York investment banker, had joined W estar as Executive

Vice President and Chief Strategic Officer.

The diversification strategy initiated in 1995 involved the acquisition of

various unregulated businesses. In 1996-97 W estar attempted to acquire ADT, a

national home-and-business security company. Although the acquisition

ultimately failed, W estar made approximately $856 million purchasing and then

selling ADT stock. In 1997 W estar acquired a home-security company, Protection

One, and bought stock in G uardian International, a security-alarm business.

W estar’s stock price increased dramatically and between 1995 and 1998 its assets

grew from $5.5 billion to $8 billion (although its long-term debt increased from

$1.6 billion to $3 billion).

As M r. W ittig replaced M r. Hayes at the helm, however, the tide began to

turn. In early 1999 accounting irregularities and an SEC investigation caused

Protection One’s share price to plummet. W estar’s share price also fell sharply,

from a high of almost $44 in 1998 to about $17 by the end of 1999.

W estar hired two investment banks to help restore shareholder value. They

recommended that the regulated utility business be split from W estar’s

unregulated businesses and merge with another utility (the split-merge

transaction). W estar’s Board approved the proposal in 2000, the unregulated

businesses were split from the utility to create W estar Industries, and the search

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for a merger partner began. But the Kansas Corporation Commission (K CC) in

2001 rejected the plan, scuttling a proposed merger. It also ordered W estar to cut

rates by $20 million (w hen W estar had been seeking a $150 million rate increase).

W estar’s stock hit a low of near $9 per share in late 2002, about the time of the

departures of M r. W ittig and M r. Lake.

Although at trial the defendants portrayed the diversification efforts as

attempts to uplift and then save Westar, the government presented a far different

view. It contended that the efforts were the central feature of a wide-ranging

scheme by the defendants to loot W estar. The most ambitious prospect of the

scheme was to collect huge sums ($37 to $65 million for M r. W ittig and $18 to

$35 million for M r. Lake) from change-in-control provisions of their employment

contracts that would be triggered by completion of the split-merge transaction.

A second component of the alleged scheme was profiting by M r. W ittig

($6.1 million) and M r. Lake ($2.9 million) from complex transactions in Guardian

shares that caused a $4.2 million loss to W estar. Also parts of the alleged scheme

were acceleration of a $5.37 million signing bonus to M r. W ittig that was to have

been paid over a 10-year period beginning in 2010; improper payment of

relocation expenses; improper loans from W estar; acquisition of a split-dollar

life-insurance contract for M r. W ittig at a far greater cost to W estar than the

bonus it was ostensibly to replace; and personal use of W estar aircraft. To

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accomplish this looting, the defendants misled the Board of Directors and

connived to remove two Board members who asked challenging questions (the

tw o resigned voluntarily).

The defendants’ personal use of Westar aircraft was of central importance

to the prosecution’s case. M r. W ittig, M r. Lake, and their families apparently

flew on the aircraft on numerous personal trips. The flight logs, however, always

listed the purpose of the trip as “business.” To identify personal trips, the

government had an accountant, John M eara, review the logs and select those trips

on which (1) only a defendant’s family members and non-W estar employees were

passengers, (2) the flight took place over a weekend or holiday or the defendant’s

calendar noted a vacation, and (3) there w as no business entry on the defendant’s

calendar within 24 hours of arrival. Personal use of the aircraft violated a Westar

ethics policy that forbade personal use of corporate property in the absence of a

policy allowing such use, although the defendants apparently were not alone in

this violation. Evidence indicated that a number of other W estar executives

(including W estar’s general counsel) and directors flew family members on

corporate aircraft between 1995 and 2002.

Federal law required W estar to submit annually to the SEC a 10-K Annual

Report, see 17 C.F.R. § 249.310 (2002) and a 14A Proxy Statement, see id.

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§ 240.14a-3 (2002). 1 The 10-K presents information about the company’s

finances, business activities, and management. See Form 10-K available at

http://www.sec.gov/about/forms/form10-k.pdf (last visited Dec. 9, 2006). The

14A presents, among other things, information about the compensation for the

CEO and the next four most highly compensated officers of the company. See id.

§ 240.14a-101 Item 8 (requiring information set forth in 17 C.F.R. § 229.402); id.

§ 229.402(a)(3) (persons for whom disclosure is required). W estar electronically

submitted these reports to the SEC; they are available to the public. See 17

C.F.R. § 232.101(a)(iii) (2002). To assist him in preparing these annual filings,

W estar’s general counsel distributed to its directors and officers annual Director

and Officer (D & O) questionnaires that requested the recipients to disclose all

compensation they had received that year, including any personal benefits. Each

questionnaire provided a nonexhaustive list of examples of “possible personal

benefits,” including home repairs and improvem ents, personal travel expenses,

and personal use of Westar property, such as cars, planes, apartments, or vacation

homes.

M r. W ittig and M r. Lake both failed to list their personal use of corporate

aircraft as compensation on the D& O questionnaires. In this failure they had

1
The 2002 versions of the cited regulations were in effect at all times
pertinent to this case.

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company. Between 1995 and 2002, out of all the directors and officers to whom a

D& O questionnaire was distributed, only W estar general counsel John Rosenberg

in 1998 and W estar director R.A. Edwards in 2002 disclosed personal use of

corporate aircraft. Among those who failed to disclose personal use were W estar

general counsel Rick Terrill and his assistant, and later successor, Larry Irick.

W estar did not disclose any personal use of corporate aircraft in its SEC filings,

even for M r. Rosenberg and M r. Edw ards.

A central issue at trial was w hether M r. W ittig and M r. Lake acted with

wrongful intent in failing to report on the D & O questionnaires their personal use

of company planes. Highly pertinent to the assessment of that intent is whether

the personal use had to be reported to the SEC. The defendants asserted that SEC

regulations governing the 10-K and 14A forms required disclosure of personal

airplane use only if the “aggregate incremental cost” exceeded a certain

threshold— the lesser of $50,000 and 10% of annual salary plus bonuses— and that

their use did not meet this threshold. The government argued that all

compensation had to be disclosed, cash and noncash, regardless of the amount.

But the government made no effort to inform the jury of what was specifically

required by SEC regulations, contending that the regulations were irrelevant.

Rather, it focused on the extremely high value of the personal trips. Accountant

M eara testified to the “charter value” of the trips, informing the jury of the cost

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per hour of renting on the open market a similar plane for the trips. In calculating

the charter value of the trips, he included the cost of “dead head” flights in which

an empty plane returned to its base after delivering passengers or flew from its

base to pick up passengers. He computed a total charter value for the period 1998

to 2002 of approximately $1 million each for M r. W ittig and M r. Lake.

To support its contention that M r. W ittig’s failure to report his personal

travel w as a w illful violation of the law, the government offered evidence of tw o

occasions on which he had directed nondisclosure. First, in 2000 W estar’s chief

financial officer (CFO ) had discussed with M r. W ittig the tax consequences of the

personal airplane use and how the company should account for it. He informed

M r. W ittig that the corporation’s tax department recommended that W estar begin

imputing airplane use to the employees, so that the travel would be deductible to

the corporation but taxable income to employees. M r. W ittig decided that W estar

would not change its policy.

Second, in 2001, when the KCC was scrutinizing W estar’s split-merge plan,

Arthur Andersen LLP, W estar’s outside accounting firm, suggested to W estar’s

internal auditor, Jeanette Tryon, that she conduct an audit of corporate airplane

logs. She met with M r. W ittig to inform him of the audit and determine the

location of the flight logs. M r. W ittig told her that she was not to do the audit

because the KCC would likely want the results. She informed Arthur Anderson of

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the refusal, but it did not pursue the matter with her during her remaining brief

time with the company. A day or two after her conversation with M r. W ittig, the

CFO offered M s. Tryon an attractive (but voluntary) severance package although

she had been told just a few weeks earlier that the company wanted her to stay

despite layoffs in her department. She accepted the package and left soon

thereafter.

M r. W ittig and M r. Lake were indicted in December 2003 in the United

States District Court for the District of Kansas. In the superseding indictment

seven counts charged both men with wire fraud. See 18 U.S.C. § 1343. Each

count alleged the above-described scheme to loot W estar; the counts differed only

in that each alleged a different wire transmission: four 10-K Annual Reports (one

for each year from 1998 through 2001) and three 14A Proxy Statements (one for

each year from 2000 through 2002). Seventeen money-laundering counts charged

the defendants w ith having engaged in monetary transactions in criminally

derived property. See id. § 1957. Seven of these counts were based on

transactions of M r. W ittig at Capital City Bank— namely, increases in his line of

credit and subsequent draws on that line of credit secured by property obtained

through the wire fraud. The other 10 money-laundering counts alleged sales of

W estar stock obtained through the wire fraud. Fourteen counts charged the

defendants with having circumvented internal financial controls. See 15 U.S.C.

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§§ 78m(b)(5) & 78ff. Thirteen of these alleged that the defendants had

circumvented internal controls by failing to report personal use of corporate

aircraft on 13 different annual D& O questionnaires for W estar, W estar Industries

(a subsidiary of W estar), and Protection One. (M r. W ittig did not fill out

anything in the 2002 D& O reports for the three corporations.) The remaining

circumvention count alleged that M r. W ittig had circumvented internal controls

by prohibiting W estar’s internal auditor from performing an audit of corporate

aircraft use. The conspiracy count charged the defendants with having conspired

to commit wire fraud, money laundering, and circumvention. Finally, the fortieth

count of the indictment sought forfeiture of everything each had acquired as a

result of the conspiracy, wire-fraud scheme, and money laundering. See 18

U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c).

The defendants’ first trial ended in a mistrial on December 20, 2004,

because the jury failed to agree on a verdict. See United States v. Wittig, 425 F.

Supp. 2d 1196, 1204 (D . Kan. 2006). They were retried six months later. See id.

At the close of the government’s evidence, M r. W ittig and M r. Lake moved under

Fed. R. Crim. P. 29(a) for a judgment of acquittal. The district court reserved its

ruling; and the jury found M r. W ittig guilty on all counts and M r. Lake guilty on

30. The jury decided that many, but not all, of the assets listed in the forfeiture

count should be forfeited. After the verdict M r. W ittig and M r. Lake renewed

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their motions for acquittal and alternatively sought a new trial. The district court

denied both motions.

The district court sentenced M r. W ittig to 18 years’ imprisonment, fined

him $5 million, and ordered him to pay restitution of almost $14.5 million. It

sentenced M r. Lake to 15 years’ imprisonment, fined him $5 million, and ordered

him to pay restitution of about $2.8 million.

II. D ISC U SSIO N

A. W ire Fraud

The w ire-fraud statute, 18 U.S.C. § 1343, states:

W hoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means of
false or fraudulent pretenses, representations, or promises, transm its
or causes to be transmitted by means of wire, radio, or television
com munication in interstate or foreign com merce, any writings,
signs, signals, pictures, or sounds for the purpose of executing such
scheme or artifice, shall be fined under this title or imprisoned not
more than 20 years, or both.

(emphasis added). The statute tracks language of the mail-fraud statute, id.

§ 1341, substituting the italicized language above for the language italicized

below in the mail-fraud statute, w hich states in pertinent part:

W hoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means of
false or fraudulent pretenses, representations, or promises . . . for the
purpose of executing such scheme or artifice or attempting to do so,
places in any post office or authorized depository for mail matter,
any matter or thing whatever to be sent or delivered by the Postal

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 Service . . . shall be fined under this title or imprisoned not more
than 20 years, or both. 2

(emphasis added). Interpretations of § 1341 are authoritative in interpreting

parallel language in § 1343. See Pasquantino v. United States, 544 U.S. 349, 355

n.2 (2005).

The elements of the offense of wire fraud in this case are (1) a scheme to

defraud, (2) an interstate w ire communication, and (3) a purpose to use the w ire

communication to execute the scheme. See U nited States v. Janusz, 135 F.3d

1319, 1323 (10th Cir. 1998). The third element is the central dispute on this

2
The entire text of § 1341 is:
W hoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means of
false or fraudulent pretenses, representations, or promises, or to sell,
dispose of, loan, exchange, alter, give away, distribute, supply, or
furnish or procure for unlawful use any counterfeit or spurious coin,
obligation, security, or other article, or anything represented to be or
intimated or held out to be such counterfeit or spurious article, for
the purpose of executing such scheme or artifice or attempting to do
so, places in any post office or authorized depository for mail matter,
any matter or thing whatever to be sent or delivered by the Postal
Service, or deposits or causes to be deposited any matter or thing
whatever to be sent or delivered by any private or comm ercial
interstate carrier, or takes or receives therefrom, any such matter or
thing, or knowingly causes to be delivered by mail or such carrier
according to the direction thereon, or at the place at which it is
directed to be delivered by the person to whom it is addressed, any
such matter or thing, shall be fined under this title or imprisoned not
more than 20 years, or both. If the violation affects a financial
institution, such person shall be fined not more than $1,000,000 or
imprisoned not more than 30 years, or both.

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appeal. In other words, were the wire communications “transmitted . . . for the

purpose of executing [the] scheme”? 18 U.S.C. § 1343.

The wire communications that allegedly violated § 1343 were seven filings

of reports with the SEC: 10-K Annual Reports for 1998 to 2001 and annual 14A

Proxy Statements for 2000 to 2002. The defendants contend that the third

element was not established at trial because these reports were required by law

and the government failed to prove that they contained anything false. W e agree.

Corporations are required by law to file both the 10-K report, see 17 C.F.R.

§ 249.310(a) (Form 10-K shall be used for annual reports required by 15 U.S.C.

§§ 78m or 78o(d)); and the Schedule 14A, see 17 C.F.R. § 240.14a-3 (information

specified in Schedule 14A must be provided to persons whose proxies are

solicited); see also 15 U.S.C. § 78n(a) (issuers wishing to solicit proxies must

follow rules prescribed by SEC). As w e shall explain, the government failed to

show that there was anything false or fraudulent about any of the reports upon

which the seven wire-fraud counts rested. As far as the trial evidence showed,

even in the absence of a fraudulent scheme the seven reports would have been

filed and the contents would have been the same. In this circumstance, one

cannot say that the wire transmissions were “for the purpose of executing [the]

scheme.” The reports were filed because they had to be, not because of any

unlawful scheme. Of course, a filing required by law could be used to further a

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scheme if it was itself false or fraudulent; but the government did not show that

there was anything misleading in the reports. Consequently, we cannot see how

their filing advanced the alleged fraudulent scheme or how one could say that the

defendants’ purpose in filing them was to advance the scheme.

This is an easier case than Parr v. United States, 363 U.S. 370 (1960), in

which the Supreme Court found no violation of the mail-fraud statute. The

scheme in that case was the misappropriation of school-district funds for the

personal benefit of the defendants. The mailings, including “letters, tax

statements, checks and receipts,” were all “legally compelled mailings” related to

the assessment and collection of taxes by the school district. Id. at 389. The

taxes collected, of course, were the source of the funds that were then

misappropriated. There could be no doubt that the collection of tax money was

necessary to accomplish the defendants’ scheme; after all, if no taxes were

collected, there would be no money to misappropriate. Nevertheless, in setting

aside the convictions the Court wrote:

[W ]e think it cannot be said that mailings made or caused to be made
under the imperative command of duty imposed by state law are
criminal under the federal mail fraud statute, even though some of
those who are so required to do the mailing for the District plan to
steal, when or after received, some indefinite part of its moneys.

Nor, in the light of the facts in this record, can it be said that
the mailings . . . constituted false pretenses and misrepresentations to
obtain money.

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Id. at 391-92. As summarized in Schmuck v. United States, 489 U.S. 705, 713 n.7

(1989):

[Parr] held . . . that in the absence of any evidence that the tax levy
was increased as part of the fraud, the mailing element of the offense
could not be supplied by mailings “made or caused to be made under
the imperative command of duty imposed by state law,” 363 U.S. at
391. . . . [T]he mailings of the tax documents in Parr were the direct
product of the school district’s state constitutional duty to levy taxes
. . . and would have been made regardless of the defendants’
fraudulent scheme . . . .

M ost other circuits to address the issue have interpreted Parr to hold that

“mailings of documents which are required by law to be mailed, and which are

not themselves false and fraudulent, cannot be regarded as mailed for the purpose

of executing a fraudulent scheme.” United States v. Curry, 681 F.2d 406, 412

(5th Cir. 1982); see United States v. Cross, 128 F.3d 145, 149-52 (3d Cir. 1997);

United States v. Gray, 790 F.2d 1290, 1298 (6th Cir. 1986), rev’d on other

grounds sub nom. M cNally v. United States, 483 U.S. 350 (1987); United States v.

Boyd, 606 F.2d 792, 794 (8th Cir. 1979) (alternative holding). A divided panel of

the Seventh Circuit did not read Parr so broadly, see United States v. Green, 786

F.2d 247, 249-51 (7th Cir. 1986), but we think that the dissent in that case had the

better of the argument. Not only did the Green majority opinion adopt an

unconvincingly crabbed interpretation of Parr, but it failed to explain how a

nonmisleading mailing compelled by law can be for the purpose of furthering a

fraudulent scheme. As the dissent pointed out, “So far as appears, [the defendant]

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mailed [the notices that were the predicate for the mail-fraud charges] only

because it was his official duty. . . . If he hadn’t mailed the letters he would have

been fired.” Id. at 255. In any event, even under Green, “the government [must]

prove that legally-required mailings were important to the successful execution of

the fraud,” id. at 250, and there was, as we shall see, no such proof in this case.

W e now explain why the seven filed reports were not false or fraudulent, at

least as far as the trial evidence shows. W e note that the district court incorrectly

instructed the jury that the truth of the reports was irrelevant, see Aplt. App.

Vol. III at A00730 (Instruction No. 24); but we are not reversing the wire-fraud

convictions because of a faulty instruction. W e are reversing because of a lack of

sufficient evidence; even if the jury had been correctly instructed, it could not

properly have found that the reports w ere false or fraudulent.

W hether the reports were false depends on what is required to be reported.

An SEC regulation mandates that companies follow Form 10-K when filing the

annual reports required by § 13 of the Securities Exchange Act of 1934, 15 U.S.C.

§ 78m. See 17 C.F.R. § 249.310 (2002). A second regulation requires companies

wishing to solicit proxies to provide the solicited persons with a publicly filed

statement containing the information specified in Schedule 14A. See id.

§ 240.14a-3 (2002). For both Form 10-K and Schedule 14A, information

regarding executive compensation must be furnished in accordance with

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Regulation S-K , Item 402, id. § 229.402 (2002). See SEC Form 10-K, Item 11,

available at http://www.sec.gov/about/forms/form10-k.pdf (last visited Dec. 1,

2006); 17 C.F.R. § 240.14a-101, Item 8 (2002).

Because of the central importance of the executive-compensation disclosure

requirements to our analysis, we discuss at length Item 402 of Regulation S-K .

Item 402(a)(2) states that the Item

requires clear, concise and understandable disclosure of all plan and
non-plan compensation awarded to, earned by, or paid to the
[covered] executive officers . . . and directors . . . by any person for
all services rendered in all capacities to the registrant and its
subsidiaries, unless otherwise specified in this item.

Id. § 229.402(a)(1) (2002). Disclosure is made in a Summary Compensation

Table which contains columns in which to report the various components of

compensation. Columns (a) and (b) provide the name and position of the officer

and the fiscal year reported on. See id. § 229.402(b)(2)(I), (ii). Annual

compensation is reported in columns (c), (d), and (e) according to the following

directions in Item 402:

The Table shall include:

...

(iii) Annual compensation (columns (c), (d), and (e)),
including:

(A) The dollar value of base salary (cash and non-cash)
earned by the named executive officer during the fiscal year
covered (column (c));

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 (B) The dollar value of bonus (cash and non-cash)
earned by the named executive officer during the fiscal year
covered (column (d)); and

(C) The dollar value of other annual compensation not
properly categorized as salary or bonus, as follows (column
(e)):

(1) Perquisites and other personal benefits, securities or
property, unless the aggregate amount of such
compensation is [less than] the lesser of either $50,000
or 10% of the total of annual salary and bonus reported
for the named executive officer in columns (c) and (d);

(2) Above-market or preferential earnings on restricted
stock, options, SA Rs [stock appreciation rights] or
deferred compensation paid during the fiscal year or
payable during that period but deferred at the election of
the named executive officer;

(3) Earnings on long-term incentive plan compensation
paid during the fiscal year or payable during that period
but deferred at the election of the named executive
officer;

(4) Amounts reimbursed during the fiscal year for the
payment of taxes; and

(5) The dollar value of the difference between the price
paid by a named executive officer for any security of the
registrant or its subsidiaries purchased from the
registrant or its subsidiaries (through deferral of salary
or bonus, or otherwise), and the fair market value of
such security at the date of purchase, unless that
discount is available generally, either to all security
holders or to all salaried employees of the registrant.

-21-
Id. § 229.402(b)(2) (2002). In addition to annual compensation, the table must

disclose (in columns (f), (g), and (h)) any long-term compensation, such as

awards of restricted stock and payouts under a long-term incentive plan, see id.

§ 229.402(b)(2)(iv), and (in column (I)) all other compensation, such as change-

in-control payments, annual contributions to defined contribution plans, and

insurance premiums paid by the company, see id. § 229.402(b)(2)(v).

The government’s sole challenge to the reports of defendants’

compensation is that the reports failed to disclose the defendants’ personal use of

corporate aircraft. But the government did not show at trial that disclosure was

required. Use of corporate aircraft is a “perquisite” governed by Regulation S-K

Item 402(b)(2)(iii)(C)(1). See John W . W hite, Dir., Div. of Corp. Fin., U.S. Sec.

& Exch. Comm’n, Remarks Before the Practising Law Institute Executive

Compensation Program: Principles M atter (Sept. 6, 2006), in Practising Law

Institute Corporate Law and Practice Course Handbook Series, PLI Order

No. 9151 at 396 (N ov. 2006), also available at

http://www.sec.gov/news/speech/2006/spch090606jww.htm (last visited Nov. 22,

2006) (Director W hite Remarks); David Yermack, Flights of Fancy,

Sternbusiness, Fall/W inter 2004, available at

http://www.stern.nyu.edu/Sternbusiness/fall_winter_2004/flights.html (last visited

Nov. 22, 2006) (Yermack, Flights of Fancy); see also 71 Fed. Reg. 6542-01, 6553

-22-
(Feb. 8, 2006) (proposed regulation) (perquisites include “personal travel using

vehicles owned or leased by the company”). Disclosure of perquisites is required

only if their aggregate value for the year exceeds a threshold equal to the lesser of

$50,000 and 10% of the executive’s annual salary and bonuses. See 17 C.F.R.

§ 229.402(b)(2)(iii)(C)(1) (2002). For most years at issue, $50,000 was the

threshold for each defendant (because their salaries plus bonuses exceeded

$500,000 in those years), although M r. W ittig’s threshold was apparently $40,868

in 1999, and M r. Lake’s was apparently $12,341 in 1998 and $26,685 in 1999.

There was no evidence that the value of personal travel ever exceeded the

reporting threshold. (The government has not pointed to any perquisite other than

personal travel as contributing toward the reporting threshold.)

To be sure, the government contended that the value of personal flights far

exceeded $50,000 a year for each defendant. It computed the value of a flight by

determining what a charter flight for the same trip would cost (including the costs

of chartering a plane to fly from the corporate plane’s base to the departure point

for the trip and from the trip’s destination point back to the base). This is not an

unreasonable method of measuring the value of the trips to M r. W ittig and

M r. Lake. But it is not the method required by the SEC. Regulation S-K states:

“Perquisites and other personal benefits shall be valued on the basis of the

aggregate incremental cost to the registrant and its subsidiaries.” Id. § 229.402,

-23-
Instructions to Item 402 (b)(2)(iii)(C) (2002). The natural interpretation of this

language is that the value of a trip is to be computed solely on the basis of the

actual additional cost incurred by the corporation in providing the transportation.

Thus, for example, if the corporate airplane is flying to N ew York on business

and a member of the W ittig family goes along for pleasure, the value is only the

extra cost of adding a passenger. The extra cost may be as little as the cost of

additional fuel to fly with the weight of one more passenger plus luggage. Even

when the trip is solely for pleasure, the cost to the corporation may be modest. If

the pilot is on a salary and is not working overtime, the extra cost might be

limited to fuel and maintenance. Although no regulation explains how to

determine “aggregate incremental cost,” the interpretation above is the

interpretation adopted by every treatment of the subject we have found, including

a statement by an SEC official. See James E. Cooling & Joanne M . Barbera,

Personal Use of the Company Aircraft: IRS vs. FAA vs. SEC, Cooling & Herbers,

P.C., at 3 (2005) available at http://www.coolinglaw.com/arts.htm (last visited

D ec. 11, 2006); D irector White Remarks at 396; Richard L. Handley & Stewart H .

Lapayowker, Compliance Feature: Corporate Aircraft: Four Common

Compliance Issues, ACCA Docket, Nov.-Dec. 2003, at 29. Suffice it to say that

the government did not introduce (or even offer) any evidence concerning the cost

to W estar of the alleged personal trips benefitting the defendants.

-24-
 The government suggests that even if the reports to the SEC were not false

(because they contained all required information), they were fraudulent. It

contends that the reports were misleading because, regardless of SEC

requirements, investors and the public would have expected disclosures of

personal travel in those reports. It asserts: “W estar had a well-known practice of

disclosing ALL compensation (both cash and non-cash) of the top six executives

of the company, including defendants. W estar’s practice was to include amounts

of less than $1,000.” A plee. Br. at 97 (footnotes omitted). To support this

assertion, the government at trial pointed to W estar’s disclosure of various items

of compensation on the Summary Compensation Table in its 14A proxy statement

for 1997. The Table disclosed (1) dividend equivalents of less than $10,000; (2)

$4,750 paid on behalf of M r. W ittig under the company’s defined contribution

plan; (3) premiums of $652 paid for term life insurance; (4) $825,000 paid to

M r. W ittig under the company’s relocation plan; (5) a lump-sum payment of

$17,000 to M r. W ittig in lieu of a base-salary increase; and (6) car-allowance

payments of $11,997 to various individuals.

The government’s argument is essentially that because the company

voluntarily disclosed so many other items of compensation, the report lulled

people into believing that it would also have reported personal use of corporate

aircraft if there had been any. But this argument has merit only if the items

-25-
pointed to on the 1997 statement were not required to be reported. The

defendants responded, through testimony of Rick Terrill, former W estar general

counsel, that many items must be disclosed regardless of amount. The

government failed to show that any reported item w as not required to be

disclosed. And it appears that an effort to do so would have been vain.

Regulation S-K requires a company to report, regardless of amount, all payments

of preferential dividend equivalents, see 17 C.F.R. § 224.402(b)(2)(iii)(C)

Instruction 4; all payments under a defined-contribution plan (hence the reporting

of the $4,750 payments), see id. § 229.402(b)(2)(v)(D ) (2002); and all payments

for term life insurance (hence the reporting of the $652 term-life premiums), see

id. § 229.402(b)(2)(v)(E). It must also disclose “all plan and non-plan

compensation,” id. § 229.402(a)(2). Regulation S-K defines plan to include:

[a]ny plan, contract, authorization or arrangement, whether or not set
forth in any formal documents, pursuant to which the following may
be received: cash, stock, restricted stock or restricted stock units,
phantom stock, stock options, SARs, stock options in tandem with
SA Rs, warrants, convertible securities, performance units and
performance shares, and similar instruments. A plan may be
applicable to one person. Registrants may omit information
regarding group life, health, hospitalization, medical reimbursement
or relocation plans that do not discriminate in scope, terms, or
operation, in favor of executive officers or directors of the registrant
and that are available generally to all salaried employees.

Id. § 229.402(a)(7)(ii) (emphasis added). The relocation plan discriminated in

favor of executives, so the payment to M r. W ittig had to be disclosed. And the

-26-
payments in lieu of a salary increase and the car allowance were both contractual

payments of cash and therefore had to be disclosed. The government cannot

contend that W estar reported compensation beyond what was required by law

without establishing what the law required.

In short, the government failed to present evidence from which the jury

could infer beyond a reasonable doubt that any of the reports wired to the SEC

was false, fraudulent, or even misleading. Under Parr, 363 U.S. 370, as we

understand it, the wire-fraud charges w ere not proved. And even if we were to

adopt a less-restrictive view of Parr, we fail to see how one could infer from the

evidence at trial that a purpose of submitting the reports w as in any fashion to

further the alleged fraudulent scheme. The reports (w hich, for all we can tell,

were correct) were filed because they had to be.

Because there was insufficient evidence to sustain the wire-fraud charges,

we must reverse the convictions. Under the Double Jeopardy Clause, the

government is not entitled to another chance to prove its case, so we do not

remand for a new trial on these charges. See Burks v. United States, 437 U.S. 1,

18 (1978); Anderson v. M ullin, 327 F.3d 1148, 1155 (10th Cir. 2003).

B. M oney L aundering

The money-laundering statute, 18 U.S.C. § 1957, forbids a person from

“knowingly engag[ing] or attempt[ing] to engage in a monetary transaction in

-27-
criminally derived property of a value greater than $10,000 and is derived from

specified unlawful activity.” Id. § 1957(a). The government must prove five

elements: that the defendant “(1) engaged or attempted to engage, (2) in a

monetary transaction, (3) in criminally derived property, (4) knowing that the

property is derived from unlawful activity, and (5) the property is, in fact, derived

from specified unlawful activity.” United States v. Dazey, 403 F.3d 1147, 1163

(10th Cir. 2005). “Criminally derived property” is “any property constituting, or

derived from, proceeds obtained from a criminal offense.” 18 U.S.C.

§ 1957(f)(2). “Specified unlawful activity” is any of a number of offenses listed

in 18 U.S.C. § 1956(c)(7), see id. § 1957(f)(3); it includes wire fraud, see id.

§§ 1956(c)(7)(A), 1961(1)(B).

The indictment in this case stated that the specified unlawful activity was

wire fraud. Accordingly, the laundering counts required proof of wire fraud.

But, as we explained in the preceding section, wire fraud was not proved. The

government conceded at oral argument that reversal of the wire-fraud counts

would require reversal of the money-laundering convictions. W e reverse those

convictions. As was true of the wire-fraud charges, these charges cannot be

retried.

C. C ircum vention of In ternal C ontrols

-28-
 W e also must set aside the circumvention convictions, although the

government is not foreclosed from retrying them. In pertinent part the

circumvention statute, 15 U.S.C. § 78m(b)(5), states: “N o person shall knowingly

circumvent or knowingly fail to implement a system of internal accounting

controls or knowingly falsify any book, record, or account described in paragraph

(2).” Paragraph (2) states:

Every issuer which has a class of securities registered pursuant to
section 78l of this title and every issuer w hich is required to file
reports pursuant to section 78o(d) of this title shall—

(A) make and keep books, records, and accounts, which, in
reasonable detail, accurately and fairly reflect the transactions
and dispositions of the assets of the issuer;

(B) devise and maintain a system of internal accounting
controls sufficient to provide reasonable assurances that—

(i) transactions are executed in accordance with
management’s general or specific authorization;

(ii) transactions are recorded as necessary (I) to permit
preparation of financial statements in conformity with
generally accepted accounting principles or any other
criteria applicable to such statements, and (II) to
maintain accountability for assets;

(iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and

(iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences; . . .

-29-
15 U.S.C. § 78m(b)(2).

All but one of the circumvention counts charged the defendants w ith

circumvention by failing to report personal use of corporate aircraft on annual

D& O questionnaires for W estar, W estar Industries, and Protection One (a home-

security firm acquired by W estar). There is no question that W ittig and Lake

failed to report such personal use on the questionnaires. The issue for trial was

whether their failure was w ith the requisite intent.

M r. Lake testified that he did not record personal use of company planes on

the D& O forms because “I didn’t think my personal use was material. . . . [T]he

vast majority of my flights involved me traveling all over the place on business.

And flights that I thought were purely personal were a small fraction of that.”

Aplt. App. Vol. XXXIX at 11533. M r. W ittig did not testify. In support of their

position that their failure to disclose was neither knowing nor willful, they

presented evidence that on only two occasions between 1995 and 2002 did any

officer or director report personal travel on a D& O form, and, in particular, the

corporation’s general counsel neither reported his own personal flights nor took

action when others failed to report. The essence of the government’s contrary

argument was that the value of the personal flights w as so great that their

disclosure was obviously material, the defendants w ished to conceal their

personal flights from shareholders and the public, and any self-proclaimed

-30-
ignorance of disclosure requirements was an intentional ignorance. The

government obtained from the court an instruction informing the jury that

“knowledge can be inferred if the defendant deliberately blinded himself to the

existence of a fact.” Id. Vol. III at 00718 (Instruction No. 14).

To assess the defendants’ intent in not reporting this travel, the jury needed

to know the purpose of the D& O forms. The cover of each form was in the

following format:

[Name]

[Y ear]

ANN UAL QUESTIONN AIRE

[Corporation]

Information Furnished by Each Director,

Nominee for Director, and Officer

For Use in [Year] Proxy Statement

and in Various Reports to the Securities

and Exchange Commission and State

Regulatory Commissions

Id. Vol. LIV at 15595, 15616, 15636, 15656, 15677, 15699, 15719, 15741, 15760,

15779 (emphasis added). The parties did not address what, if any, information on

-31-
these forms was required by state agencies; so the only relevant purpose of the

forms was to prepare SEC filings.

As we previously discussed in setting aside the wire-fraud convictions,

Regulation S-K required disclosure of an executive’s personal use of corporate

aircraft only if the additional cost incurred by the corporation exceeded a

threshold equal to the lesser of $50,000 or 10% of the executive’s salary plus

bonuses during the year, and the government offered no substantial proof that this

threshold was ever exceeded by either defendant. Thus, there was no evidence

that the defendants’ failure to disclose information in the D& O forms ever caused

a material omission in SEC reports. To be sure, this fact is not dispositive of

defendants’ intent. They may have thought that there was a risk that their travel

would be publicly reported, and fear of such reporting may have caused them to

refuse to report their personal travel on the D& O forms. Nevertheless, in

assessing the state of mind of each defendant, the jury would likely be influenced

by knowing that the omission on the D& O forms apparently did not cause any

errors in the reports to the SEC.

The jury, however, was not fairly informed of what the SEC required. The

defendants had to rely on a witness, Rick Terrill, W estar’s general counsel during

the alleged conspiracy. He testified that the SEC measured the value of personal

aircraft use on an increased-cost basis and that reporting was required only if the

-32-
value exceeded $50,000. Counsel for each defendant referred to this testimony in

final argument. But M r. Terrill’s bona fides was easily challenged by the

government; the prosecutor in closing argument asserted that M r. Terrill had

actively worked to prevent various disclosures, “running interference for

M r. W ittig.” Id. Vol. XLVIII at 13923.

And the government, which had devoted substantial time in its case to

establishing the charter value of the alleged personal flights, argued to the court

and the jury that it was this charter value that mattered. For example, in closing

argument the prosecutor added figures for M r. Lake’s admittedly personal flights

and concluded, “For a total of $208,000 in chartered valued flights. M aterial.”

Id. Vol. XLVIII at 13946. Particularly ironic is the government’s obtaining from

the district court an instruction that informed the jury that a defendant could be

charged with knowledge of something that he deliberately blinded himself to.

One purpose of the instruction was to allow the jury to find that the defendants

knew what was required to be reported on their D& O forms. Yet, at least as far

as the trial evidence showed, there was no necessity to report their travel on

corporate aircraft because it would not need to be reported to the SEC in any

event. W hat the defendants allegedly blinded themselves to may well have been

that there was no good reason to report their personal travel.

-33-
 To respond to the government’s arguments, the defendants requested the

district court to instruct the jury on what disclosure was required by the SEC.

The court denied the request. In the context of this case, we hold that this refusal

was reversible error. W hen a defendant’s defense is so dependent on an

understanding of an applicable law, the court has a duty to instruct the jury on

that law, rather than requiring the jury to decide whether to believe a witness on

the subject or one of the attorneys presenting closing argument. Indeed, it is

ordinarily improper to have a w itness testify regarding w hat the applicable law is;

it is the trial judge’s duty to inform the jury on the matter. See Specht v. Jensen,

853 F.2d 805, 807-08 (10th Cir. 1988) (en banc); United States v. Vreeken, 803

F.2d 1085, 1091 (10th Cir. 1986). It was error for the district court to abdicate its

responsibility in this regard and let opposing counsel argue their competing

theories, especially when the defendants’ view of the law was the correct one.

Accordingly, the convictions for failure to complete properly the D& O forms

must be set aside.

W e further hold that the remaining circumvention conviction must also be

reversed. That conviction rested on M r. Wittig’s directive to an auditor not to

audit the corporation’s flight logs and his refusal to provide the logs to her. W e

of course are in no position to assess M r. W ittig’s intent, and we readily

acknowledge that he may have intended to circumvent W estar’s internal controls

-34-
by forbidding the audit. But we doubt that the jury could fairly appraise

M r. W ittig’s mens rea without being properly informed of the governing law. W e

have concluded that the district court’s failure to instruct the jury on the SEC’s

regulations constituted error. The government bears the burden of showing that

this error w as harmless w ith regard to the remaining circumvention count. Yet it

has not even argued harmless error to this court.

D. C onspiracy

1. N eed for N ew T rial

The defendants were also convicted of a conspiracy to comm it wire fraud,

money laundering, and circumvention. The verdict forms show that the jury

found all three objects of the conspiracy. One can be guilty of a conspiracy to

commit an offense without committing the substantive offense itself. See United

States v. Horn, 946 F.2d 738, 745 (10th Cir. 1991). For example, the defendants

may have conspired to commit wire fraud without succeeding in committing wire

fraud itself because the filings with the SEC fortuitously turned out to be

accurate. Nevertheless, our reasons for reversing the substantive convictions

convince us that we also must reverse the conspiracy convictions of both

M r. W ittig and M r. Lake. The jury could not accurately evaluate the conspiracy

allegations without being informed regarding what was required to be in the SEC

filings. Those requirements are a critical consideration not only with respect to

-35-
conspiracy to commit wire fraud (because no crime would be committed unless

the SEC filings were false or fraudulent), but also conspiracy to commit money

laundering (which requires w ire fraud as a predicate offense) and conspiracy to

circumvent (because the conspirators must have agreed to commit an offense that

requires knowing and willful circumvention of internal controls instituted to

satisfy SEC requirements). Accordingly, we set aside the conspiracy convictions.

2. C onspiracy to Circum vent

The defendants have not argued that there was insufficient evidence to

support the conspiracy verdict, so we need not consider w hether a new trial is

barred by the Double Jeopardy Clause. They do, however, contend that portions

of the conspiracy charges are legally unsound. If that contention were correct, w e

would need not only to set aside the convictions on those charges but also to

prohibit retrial. W e therefore address that contention.

The defendants assert that (1) conspiracy to circumvent is not a crime and

(2) a conviction for circumvention cannot be predicated on coconspirator liability.

(Each was convicted on some counts of circumvention based on the other’s failure

to report personal travel on a D& O form.) They rely on the language of 15

U.S.C.§ 78m(b), whose pertinent provisions are:

(2) Every issuer which has a class of securities registered pursuant to
section 78l of this title and every issuer w hich is required to file
reports pursuant to section 780(d) of this title shall—

-36-
 (A) make and keep books, records, and accounts, which, in
reasonable detail, accurately and fairly reflect the transactions
and dispositions of the assets of the issuer;

(B) devise and maintain a system of internal accounting
controls sufficient to provide reasonable assurances that—

(i) transactions are executed in accordance with
management’s general or specific authorization;

(ii) transactions are recorded as necessary (I) to permit
preparation of financial statements in conformity with
generally accepted accounting principles or any other
criteria applicable to such statements, and (II) to
maintain accountability for assets;

(iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and

(iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences; and

(C) notwithstanding any other provision of law, pay the
allocable share of such issuer of a reasonable annual
accounting support fee or fees, determined in accordance with
section 7219 of this title.

....

(4) No criminal liability shall be imposed for failing to comply with
the requirements of paragraph (2) of this subsection except as
provided in paragraph (5) of this subsection.

(5) No person shall knowingly circumvent or knowingly fail to
implement a system of internal accounting controls or knowingly
falsify any book, record, or account described in paragraph (2).

-37-
They argue that conspiracy to circumvent is not a crime because paragraph (4)

limits criminal liability to that specified in paragraph (5), and paragraph (5) does

not include liability for coconspirators.

W e disagree. The criminal-penalty provision for the Securities Exchange

Act of 1934 is 15 U.S.C. § 78ff, which states:

(a) W illful violations; false and misleading statements

Any person who willfully violates any provision of this chapter . . .
or any rule or regulation thereunder the violation of which is made
unlawful or the observance of which is required under the terms of
this chapter, or any person who willfully and knowingly makes, or
causes to be made, any statement in any application, report or
document required to be filed under this chapter or any rule or
regulation thereunder . . . which statement was false or misleading
with respect to any material fact, shall upon conviction be fined not
more than $5,000,000, or imprisoned not more than 20 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.

Under 18 U.S.C. § 371, “[i]f two or more persons conspire either to comm it any

offense against the United States, or to defraud the United States, or any agency

thereof in any manner or for any purpose, and one or more of such persons do any

act to effect the object of the conspiracy, each shall be fined under this title or

imprisoned not more than five years, or both.” M oreover, a “conspiracy

participant is legally liable for all reasonably foreseeable acts of his or her

coconspirators in furtherance of the conspiracy.” United States v. Brewer, 983

-38-
F.2d 181, 185 (10th Cir. 1993) (citing Pinkerton v. United States, 328 U.S. 640

(1946) and United States v. Kissel, 218 U.S. 601, 608 (1910)).

Criminal liability for coconspirators is entrenched in federal law. The

defendants, however, would have us carve out an exception to this traditional rule

for circumvention violations. To be sure, on rare occasions it is apparent that a

coconspirator should not be criminally liable because of the statutory description

of the substantive offense. For example, in Gebardi v. United States, 287 U.S.

112 (1932), the Supreme Court considered whether a woman who consented to be

transported across state lines for immoral purposes in violation of the M ann Act

could be found guilty of conspiring to violate the Act, which imposed a criminal

penalty on one who transported a woman in interstate commerce for immoral

purposes. See id. at 118-23. In holding that she could not, the Court determined

that “the failure of the M ann Act to condemn the woman’s participation in those

transportations which are effected with her mere consent” showed an “affirmative

legislative policy to leave her acquiescence unpunished.” Id. at 123. Similarly,

in United States v. Castle, 925 F.2d 831 (5th Cir. 1991) (per curiam), the court

found that foreign officials could not be charged with conspiracy to pay bribes

under the Foreign Corrupt Practices Act because Congress had “excluded from

prosecution for the substantive offense” such officials, who are “the very

individuals whose participation was required in every case.” Id. at 835. The

-39-
defendants in Gebardi and Castle had clearly conspired to commit a substantive

offense; the woman in Gebardi had agreed to be transported between states for

immoral purposes, and the foreign official in Castle had agreed to be paid a bribe.

But in both cases the role of the defendant coconspirator was so central to the

comm ission of the substantive offense that the failure of the statute defining the

substantive offense to prohibit that role explicitly was a compelling indication of

legislative intent not to punish such a coconspirator. The defendants here,

however, have not argued, and could not argue, that their alleged roles in criminal

violations of 15 U.S.C. § 78m(b)(2) are of that nature. The involvement of one

defendant as a coconspirator was hardly essential for the other defendant to

commit the substantive circumvention offense.

Instead, the defendants rely on the language of paragraphs (4) and (5) of

§ 78m(b), which states that criminal liability for violations of paragraph (2) can

be imposed only if a person “knowingly circumvent[s] or knowingly fail[s] to

implement a system of internal accounting controls or knowingly falsif[ies] any

book, record, or account described in paragraph (2).” Paragraph (5) certainly

limits criminal liability in two respects. First, only certain types of violations of

paragraph (2) can be the basis of criminal prosecution— namely, circumvention of

or failure to implement a system of internal accounting and falsifying a book,

record, or account. Second, paragraph (5) imposes an additional scienter

-40-
requirement for criminal liability. In addition to the willfulness required by

§ 78ff, the violation must be knowing. W e recognize that § 78ff provides that a

defendant cannot be imprisoned if “he proves that he had no knowledge of [the

violated] rule or regulation.” But this provision does not perform the same w ork

as the “knowingly” requirement of paragraph (5): Paragraph (5), unlike the lack-

of-knowledge provision in § 78ff, applies to lack of knowledge of a statutory

provision; paragraph (5) shifts the burden of persuasion regarding knowledge

from the defendant to the government; paragraph (5) makes lack of knowledge a

complete defense, not just a barrier to imprisonment; and the “knowingly”

requirement of paragraph (5) may not be congruent with a requirement of

“knowledge of the rule.” Although it may be unclear what a “knowing”

requirement adds to the willfulness required by § 78ff, there is little doubt that

Congress has thought it adds something. See United States v. Dixon, 536 F.2d

1388, 1395 (2d Cir. 1976) (Friendly, J.) (commenting on use of “willfully” in one

provision of § 78ff and use of “willfully and knowingly” in another).

W hat the defendants contend is that § 78m(b)(4) and (5) also impose a third

limit on criminal liability— namely, limiting liability to only the actual perpetrator

of the deed, excusing any coconspirator (or aider or abettor, for that matter).

They read the statutory language as implicitly overriding 18 U.S.C. § 371 and the

hoary doctrine that holds coconspirators liable for commission of a reasonably

-41-
foreseeable substantive offense. W e disagree. Traditionally there is no need for

the statute setting forth the substantive offense to make any reference to liability

for conspiracy. That job is performed by 18 U.S.C. § 371. To say, as

§ 78m(b)(4) does, that criminal liability shall be imposed only in certain

circumstances would ordinarily be understood as only a restriction on the scope of

the substantive offense, not as an implied repeal of traditional liability for

partners in crime. Perhaps one could be tempted to construe § 78m(b)(4) as

having the purpose of limiting such liability if there were no other apparent

purpose for the provision. But there is such an apparent purpose— limiting the

criminal liability of all persons (principals as well as aiders, abettors, and

coconspirators) who violate a highly technical statutory requirement by adding a

scienter requirement and confining criminal liability to only a subset of statutory

violations.

Supporting our view is the absence of any apparent reason why Congress

would want to single out § 78m(b)(2) by excluding coconspirator liability. The

limitations on criminal liability in § 78m(b)(4) and (5) protect the coconspirator

as well as the principal. The coconspirator must act willfully and knowingly and

is criminally liable only for a subset of violations of paragraph (2). It escapes us

why a coconspirator would then need greater protection than would the principal

perpetrator.

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 In sum, the liability of coconspirators is a well-entrenched feature of

federal criminal law . If C ongress wishes to limit it in certain circumstances, we

would expect it to be explicit about what it is doing. See Kaiser Steel Corp. v.

M ullins, 455 U.S. 72, 88 (1982) (“repeals by implication are disfavored” (internal

quotation marks omitted)); United States v. Hahn, 359 F.3d 1315, 1321-22 (10th

Cir. 2004) (en banc) (same). M oreover, we see no reason why Congress would

wish to eliminate the liability of coconspirators with respect to violations of

§ 78m(b)(2). Accordingly, we reject the defendants’ contention that they can be

convicted only as principals. Cf. United States v. O’Hara, 960 F.2d 11, 13 (2d

Cir. 1992) (upholding guilty plea to aiding and abetting violation of § 78m(b)(2),

but no argument made concerning effect of § 78m(b)(4), (5).)

D. R ecusal of Judge on R etrial

Finally, the defendants contend that the trial judge displayed such bias in

the first two trials that she should not be permitted to preside at any trial on

remand. W e are not persuaded. Certainly the defendants disagreed with a

number of her rulings, and we have held that several of the defendants’

contentions were correct. But those rulings did not display a disqualifying bias.

See Liteky v. United States, 510 U.S. 540, 555 (1994) (“judicial rulings alone

almost never constitute a valid basis for a bias or partiality motion”).

III. C O N C L U SIO N

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 W e REVERSE the defendants’ convictions for wire fraud and money

laundering, and these counts cannot be retried. W e also REVERSE their

convictions for conspiracy and circumvention, though without prejudice to retrial.

The forfeiture count is also REVERSED and REM ANDED for retrial.

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