United States v. Aiyer

• Citation: 470 F.Supp.3d 383
• Decision Date: 06 July 2020
• Docket Number: 18cr333 (JGK)
• Parties: UNITED STATES of America v. Akshay AIYER, Defendant.
• Court: U.S. District Court — Southern District of New York

470 F.Supp.3d 383

UNITED STATES of America

v.Akshay AIYER, Defendant.

18cr333 (JGK)

United States District Court, S.D. New York.

Signed July 6, 2020

Kevin Bradford Hart, DOJ-Atr., Washington, DC, Bryan Serino, Eric C. Hoffmann, Grace Pyun, Jeffrey Daniel Martino, Department of Justice Antitrust Division, Katherine Calle, United States Department of Justice - Antitrust, Benjamin Douglas Victor Sirota, US Dept. of Justice, New York, NY, David Chu, DOJ-USAO, San Diego, CA, for United States of America.

Martin B. Klotz, Jocelyn Mara Sher, Joseph Thompson Baio, Michael Steven Schachter, Samuel MacLain Kalar, Willkie Farr & Gallagher LLP, New York, NY, for Defendant.

OPINION & ORDER

JOHN G. KOELTL, District Judge:

On November 20, 2019, the jury in this case found the defendant, Akshay Aiyer, guilty of participating in a conspiracy to restrain trade in violation of the Sherman Act, 15 U.S.C. § 1. The defendant now moves for a judgment of acquittal notwithstanding the jury verdict pursuant to Federal Rule of Criminal Procedure 29(c)¹ and in the alternative for a new trial pursuant to Federal Rule of Criminal Procedure 33. For the reasons explained below, both motions are denied .

I.

On May 10, 2018, the grand jury returned an indictment charging the defendant with one count of conspiracy to restrain trade in violation of Section 1 of the Sherman Act. ECF No. 1. The indictment charged that the defendant, while working at JPMorgan Chase² as a trader in the foreign exchange ("FX") market, conspired with Jason Katz, Christopher Cummins, and Nicolas Williams³ from at least as early as October 2010 until at least July 2013 "to suppress and eliminate competition by fixing prices of, and rigging bids and offers for, [Central and Eastern European, Middle Eastern, and African Emerging Markets currencies ("CEEMEA") ] traded in the United States and elsewhere" in violation of Section One of the Sherman Act. Id. at 6-7. The indictment alleged that the defendant and his coconspirators carried out the conspiracy through near-daily conversations in private chat rooms, phone conversations, text messages, and other means of communication in which they revealed their trading positions, trading strategies, bids and offers to customers, customer orders, and other relevant information in order to coordinate their bids and offers for CEEMEA currencies and thereby fix certain prices for CEEMEA currencies. Id. at 7-8.

The trial began on October 30, 2019 with jury selection. On November 20, 2019 the jury returned a verdict of guilty against the defendant on the single count of conspiracy to restrain trade in violation of the Sherman Act. The defendant now moves for a judgment of acquittal pursuant to Rule 29 or in the alternative for a new trial pursuant to Rule 33.

II.

To succeed on a motion for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, the defendant must show that no rational trier of fact, viewing the evidence in the light most favorable to the Government, could have found the defendant guilty beyond a reasonable doubt of the essential elements of the crime charged. See United States v. Desena, 287 F.3d 170, 176 (2d Cir. 2002). A defendant raising a challenge to the sufficiency of the evidence "bears a heavy burden because a reviewing court must consider the evidence in the light most favorable to the prosecution and uphold the conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Blaszczak, 947 F.3d 19, 30 (2d Cir. 2019) (emphasis in original) (internal quotation marks omitted); see also United States v. Harvey, 746 F.3d 87, 89 (2d Cir. 2014) (per curiam).

In considering the sufficiency of the evidence, the Court must "view the evidence presented in the light most favorable to the government, and ... draw all reasonable inferences in its favor." United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000). The Court must analyze the pieces of evidence "not in isolation but in conjunction," United States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994), and must apply the sufficiency test "to the totality of the government's case and not to each element, as each fact may gain color from others," United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999).

"[T]o avoid usurping the role of the jury," the Court must "not substitute [its] own determinations of credibility or relative weight of the evidence for that of the jury." Autuori, 212 F.3d at 111 (internal citation omitted). Thus, the Court must "defer to the jury's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence." United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998). The jury's verdict "may be based entirely on circumstantial evidence." United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995) ; see also United States v. Aleskerova, 300 F.3d 286, 292 (2d Cir. 2002) ; United States v. Sattar, 395 F. Supp. 2d 79, 82-83 (S.D.N.Y. 2005), aff'd sub nom., United States v. Stewart, 590 F.3d 93 (2d Cir. 2009).

III.

There was sufficient evidence introduced at trial from which the jury could have found as follows.

A.

This case concerns the FX market and an alleged conspiracy consisting of traders working at various large, well-capitalized banks to fix the prices for CEEMEA currencies in the FX market.⁴ At trial, the jury heard testimony from the Government's background expert, David DeRosa; two of the defendant's alleged coconspirators, Jason Katz and Christopher Cummins, who had previously pleaded guilty to violating the Sherman Act and were cooperating with the Government pursuant to their plea agreements; three asset managers who were customers of the alleged coconspirators, Amy Flynn, Robert Davis, and Denise Simon; the Government's expert, Ross Waller; and the defendant's expert, Richard Lyons.

As early as 2007, Christopher Cummins, a trader at Citibank responsible for CEEMEA currencies, and Jason Katz, a trader at Standard Bank, Barclays, and then BNP, who was also responsible for trading CEEMEA currencies, were friendly with each other and were in an ongoing Bloomberg chat group known as "Old Gits" with a number of other traders in New York. Tr. at 161-64, 286, 827-29, 363. The defendant was not a member of the Old Gits chat group. At all relevant times, Nicholas Williams, who was also not a member of the Old Gits chat group, worked at Barclays Bank in New York and traded CEEMEA currencies. Id. at 163. At all relevant times, the defendant worked at JP Morgan Chase in New York trading CEEMEA currencies. Id. at 164.

Katz first met the defendant in 2010. The two began socializing outside of work and communicating almost daily through Bloomberg chat and texting about the markets as well as their respective trading positions. Id. at 860, 867. As time passed, and Katz and the defendant began to trust each other, they began to discuss trading in a way that, as Katz testified, "could be more beneficial to each other."⁵ Id. at 868. The transactions that are central to the conspiracy alleged in this case began in about October 2010. See, e.g., Tr. at 943; GX-101.

On May 24, 2011, the defendant told Katz over Bloomberg chat that he "shifted a lot of usd zar recently" and told Katz that "u shud introduce me to the zar mafia." GX-108, at 6; Tr. at 876. Katz testified that the defendant had recently begun to trade South African rand [ZAR] more frequently and Katz believed that the defendant's statement was the defendant's way of asking Katz to introduce the defendant to the "bigger players" in the South African rand market in New York and in Johannesburg. Tr. at 876.

Cummins and the defendant met for the first time in May 2011 after being introduced to each other at a dinner for traders working at different banks in New York City. Id. at 208-09; GX-24. In June 2011, at the same time that Katz was about to take an industry-mandated three-month leave of absence in between his work at Barclays and BNP, Katz told Cummins that Cummins should develop a relationship with the defendant in order for Cummins and the defendant to discuss trading matters in Katz's absence. Tr. at 209-10. Subsequently, on June 20, 2011, the defendant contacted Cummins over Bloomberg chat and told Cummins that "I mainly caleld cause i am new to doing usd zar [rand] and jason [Katz] was my eyes and ears so you got any thoughts?" GX 115, at 2; Tr. at 214.

After Cummins told the defendant that trading in the South African rand was all about information, the defendant told Cummins that "me and jason were good at it"; Cummins replied "yeah, we got to communicate"; then the defendant replied "done." GX-115, at 2; Tr. at 214.

After that initial conversation, the defendant and Cummins began talking regularly during the workday via Bloomberg chat and by phone and would spend time together socially as well. Tr. at 210. Cummins testified that although his friendship with Katz had been very close, over time Cummins began to become closer to the defendant than he was with Katz because Katz "kind of moved to the peripheral"; this was in part because the defendant and Cummins worked at institutions with similar trading strategies, had similar clients, and were charged with handling more risk than Katz handled. Id. at 239-40.

Cummins testified, in substance, that he, Katz, the defendant, and Nicholas Williams had an ongoing "understanding" whereby they "would help each other when another trader needed to buy or sell in the market to achieve a more advantageous price." Id. at 699. Cummins testified that pursuant to this understanding, the defendant and his coconspirators would, among other things, "only place one bid in the market rather than two or three[.]" Id. Cummins testified: "There were times when customers would call through and seek prices from one of us, and then by being in the same chatroom with the...