Criminal Securities and wire fraud Hidden commissions.

Byline: Mass. Lawyers Weekly Staff

Where a jury convicted a defendant of securities and wire fraud as well as conspiracy, the convictions should be affirmed based on evidence of the defendant's leadership role in a scheme to defraud overseas institutional investors by applying hidden commissions on the buying and selling of U.S. securities.

"Ross McLellan ('McLellan') appeals his convictions of securities and wire fraud as well as conspiracy to commit securities and wire fraud for his leadership role in a scheme to defraud overseas institutional investors by applying hidden commissions on the buying and selling of U.S. securities. First, McLellan disputes that there was sufficient evidence to sustain his securities fraud convictions under 15 U.S.C. 78j(b), 78ff(a), and 17 C.F.R. 240.10b-5 (hereinafter 'Rule 10b-5') and objects to the district court's jury instruction on the elements of said offense. Second, he protests that his wire fraud conviction under 18 U.S.C. 1343 was the product of an improper extraterritorial application of the wire fraud statute, and relatedly, he submits that it was error for the district court not to instruct the jury that it had to find a domestic application of the statute to convict. Third, he contends that the district court erred by not compelling the U.S. government to exercise its powers under Mutual Legal Assistance Treaties ('MLATs') with the United Kingdom and the Republic of Ireland to seek evidence that could have been favorable to his defense. See Mutual Legal Assistance Treaty, U.S.-U.K. and N. Ir., Jan. 6, 1994 (hereinafter 'U.S.-U.K. MLAT'); Mutual Legal Assistance Treaty, U.S.-Ir., Jan. 18, 2001 (hereinafter 'U.S.-Ireland MLAT').

"Because we hold that the relevant securities law covers misrepresentations of the commissions to be applied to securities trades by transition managers under the agency model, we find that the evidence was sufficient to sustain McLellan's convictions and that to the extent that the jury instructions may have been overbroad, any error was harmless. Moreover, we need not address whether 1343 applies extraterritorially because McLellan was convicted under a proper domestic application of the statute, and to that end, the district court's jury instructions on wire fraud...