EDNY is the proper venue, where Washington securities fraud defendant called and emailed potential investors in that district. A jury found Washington defendants guilty of conspiracy to commit wire fraud and securities fraud, and of substantive securities fraud. The government appealed from an order vacating on venue grounds the substantive securities fraud conviction of one defendant who called and emailed potential investors in the EDNY, contending that the evidence sufficiently established venue in the EDNY. The Second Circuit remanded with instructions to reinstate the conviction and resentence accordingly, determining that venue was proper in the EDNY as a defendant is not required to aid and abet the criminal activity occurring within the district of venue. (8/15/2016) Lange.
Panel interprets statutory definition of ‘investment adviser’ in a case of first impression. Appellant Miller, who sold investors phony “promissory notes,” was sentenced to 10 years in prison after pleading guilty of securities fraud and tax evasion. Miller contended that the district court improperly applied the Sentencing Guidelines “investment adviser enhancement” as he was not an “investment adviser” under the Investment Advisers Act. In a case of first impression, the Third Circuit had to interpret the statutory definition of “investment adviser.” The panel affirmed, determining that Miller was an investment adviser, despite the fact that he failed to register as such, because he was in the business of providing securities advice. (8/12/2016) Miller.