470 F.Supp.3d 383
S.D.N.Y.2020Background
- Indictment and verdict: Akshay Aiyer was indicted May 10, 2018 for a single-count Sherman Act §1 conspiracy to fix prices and rig bids in CEEMEA FX markets (Oct 2010–at least July 2013); a jury found him guilty on November 20, 2019.
- Evidence the Government presented: cooperating co‑conspirator testimony (Jason Katz, Christopher Cummins), Bloomberg chat logs, Reuters trading data, expert analysis, and testimony from asset‑manager customers.
- Representative trading episodes (used at trial): coordinated ruble trades (Oct–Nov 2010, Feb 2012), hiding/passing trades and interdealer transfers (Dec 2011), a coordinated stop‑loss/run on ZAR (Jan 18, 2012), spoofing and undoing trades (Sept 2012), and May 2013 trades and texts within the limitations period.
- Post‑verdict motions: Aiyer moved under Fed. R. Crim. P. 29 for acquittal (arguing insufficiency and that a court‑level economic inquiry was required to displace per se treatment) and under Rule 33 for a new trial (arguing evidentiary error, jury confusion, prejudicial summation, exclusion of procompetitive evidence, witness unreliability, and weight of the evidence).
- Ruling: District Judge Koeltl denied both motions, holding the evidence (communications + trading episodes) was sufficient to permit a reasonable jury to find a per se price‑fixing/bid‑rigging conspiracy and that no manifest injustice or other extraordinary circumstance warranted a new trial.
Issues
| Issue | Government's Argument | Aiyer's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence (Rule 29) | Evidence (cooperator testimony, chats, trade data) permits reasonable jury to find a per se price‑fixing/bid‑rigging conspiracy and Aiyer knowingly joined it | Evidence insufficient; many episodes lawful or vertical/interdealer transactions; Court must perform a detailed economic inquiry before applying per se rule | Denied — viewing evidence in Government’s favor, a rational jury could convict beyond a reasonable doubt |
| Applicability of per se rule | Horizontal agreements among competitor traders to fix prices / rig bids are per se unlawful; means/methods (interdealer trades, spoofing, cancellations) can be used to effectuate the conspiracy | Certain conduct (interdealer trades, spoofing, cancelled trades, alleged vertical relationships) cannot be the basis for per se liability without economic inquiry | Denied — per se rule applies; means/methods need not be independently unlawful to be part of a per se conspiracy |
| Admissibility and prejudice of evidence (ruble/zloty, interdealer, spoofing) | Such evidence is relevant to show the conspiracy’s object and means; jury was instructed spoofing/cancellations alone do not establish guilt | Admission of that evidence was unfairly prejudicial and invited conviction on improper grounds | Denied — evidence admissible and any prejudice cured by jury instructions; no manifest injustice |
| New trial based on witness credibility / weight of evidence (Rule 33) | Credible cooperator testimony corroborated by trading data and chat logs; no exceptional circumstances to overturn jury credibility findings | Cooperators Katz and Cummins were inconsistent/unreliable; verdict against weight of evidence | Denied — no exceptional circumstances; credibility/resolution of conflicts were for jury; verdict not a manifest injustice |
Key Cases Cited
- United States v. Desena, 287 F.3d 170 (2d Cir. 2002) (standard for Rule 29 sufficiency review)
- United States v. Blaszczak, 947 F.3d 19 (2d Cir. 2019) (deference to jury in criminal antitrust sufficiency)
- United States v. Autuori, 212 F.3d 105 (2d Cir. 2000) (jury credibility / inferences standards)
- Arizona v. Maricopa County Medical Society, 457 U.S. 332 (U.S. 1982) (per se condemnation of horizontal price‑fixing)
- Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (U.S. 2007) (categories of per se unlawful restraints)
- Gelboim v. Bank of America Corp., 823 F.3d 759 (2d Cir. 2016) (horizontal price‑fixing allegations among banks)
- Socony‑Vacuum Oil Co. v. United States, 310 U.S. 150 (U.S. 1940) (foundational statement that price‑fixing is per se unlawful)
- United States v. Koppers Co., 652 F.2d 290 (2d Cir. 1981) (bid‑rigging is per se violation)
- United States v. Apple, Inc., 791 F.3d 290 (2d Cir. 2015) (distinguishing vertical vs. horizontal restraints; narrow exceptions to per se rule)
- United States v. Salmonese, 352 F.3d 608 (2d Cir. 2003) (continuing conspiracy and overt act doctrine)
- Zafiro v. United States, 506 U.S. 534 (U.S. 1993) (jury instruction/cure for potential prejudice)
- United States v. Rea, 958 F.2d 1206 (2d Cir. 1992) (jury choice between competing inferences)