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United States v. Jiau

United States Court of Appeals, Second Circuit

October 23, 2013

UNITED STATES of America, Appellee,
v.
Winifred JIAU, aka Wini, aka Sealed Defendant 1, Defendant-Appellant, Donald Longueuil, Son Ngoc Nguyen, aka Sonny, Defendants.

Argued: April 10, 2013.

Page 148

[Copyrighted Material Omitted]

Page 149

Randa D. Maher, Law Office of Randa Maher, Great Neck, NY, and Winifred Jiau, pro se, Dublin, CA, for Appellant.

David I. Miller (Jenna M. Dabbs and Diane Gujarati, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern

Page 150

District of New York, New York, NY, for Appellee.

Before: KEARSE, WALKER, and CHIN, Circuit Judges.

JOHN M. WALKER, JR., Circuit Judge:

Defendant-Appellant Winifred Jiau was convicted, following a jury trial in the District Court for the Southern District of New York (Jed Rakoff, Judge ), of conspiracy to commit securities fraud and wire fraud, in violation of 18 U.S.C. § 371, and insider trading, in violation of 15 U.S.C. §§ 78j(b) and 78ff, 17 C.F.R. § 240.10b-5 and 18 U.S.C. § 2. This opinion addresses Jiau's claims on appeal that (1) the district court erred in admitting evidence that she claims was recorded in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-22 (" Title III" ), and (2) the evidence against her was insufficient. We reject these arguments and affirm the conviction.[1]

I. BACKGROUND

From September 2006 to December 2008, Jiau operated an insider trading scheme that involved a pair of tippers who worked at publicly-traded companies, Son Ngoc Nguyen of NVIDIA Corporation and Stanley Ng of Marvell Technology Group, Ltd., and a pair of tippees who were hedge fund managers, Samir Barai of Tribeca Capital Management and later Barai Capital Management (" BCM" ) and Noah Freeman of Sonar Capital Management and later SAC Capital. Jiau worked as a contract employee at NVIDIA and as a consultant who provided information about the semiconductor industry to financial analysts. At each of those jobs, she was aware of the rules against disclosing material non-public information.

Jiau's scheme was to obtain from her tippers earnings data of their employer companies and convey this data to her tippees before those companies' quarterly financial results were publicly released. The tippees compared the data with Wall Street analysts' published expectations and unpublished rumors known as the " whisper." If the data indicated that earnings would fail to meet expectations, the tippees would " go short" by selling their stock positions in the companies before the financial reports were made public. If the data showed that earnings would likely exceed Wall Street's expectations, the tippees would " go long" by buying the stock.

To provide an incentive, Jiau promised the tippers insider information for their own private trading. She also engaged in her own insider trading. After a three-week trial, a jury convicted Jiau of conspiracy to engage in insider trading and one substantive count of insider trading. On September 21, 2011, the district court sentenced her to ...


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