United States v. Gordon
2013 U.S. App. LEXIS 5251
| 10th Cir. | 2013Background
- Gordon, a former Tulsa securities attorney, was convicted on multiple counts in a pump-and-dump scheme affecting several Pink Sheet stocks.
- Co-conspirators used backdated records and Rule 144 opinions to render shares freely tradable and funded promotions through mass faxes, emails, and magalogs.
- Promotional campaigns and nominee accounts obscured ownership and coordinated trading to inflate stock prices for illicit gains in National Storm, Deep Rock, and Global Beverage.
- The government seized and pursued forfeiture of Gordon’s residence and law-firm accounts, and sought substitute assets after the conviction.
- Gordon appeals on Sixth Amendment, evidentiary sufficiency, obstruction, Fifth Amendment, juror dismissal, Speedy Trial Act, and sentencing/forfeiture issues; the court affirms all findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sixth Amendment and pretrial restraints | Gordon asserts government-imposed restraints deprived him of counsel of choice | Government improperly constrained assets to hinder defense | No Sixth Amendment violation established |
| Sufficiency of evidence for fraud | Gordon argues no duty to disclose; insufficiency of misstatement/omission | Government proved fraudulent intent and material misrepresentations | Evidence sufficient to sustain convictions under 10b/1343 and related counts |
| Obstruction of official proceeding | Creation of false IPG document aimed to block forfeiture | No proof of official proceeding or obstruction | Sufficient evidence of intent and substantial step; count upheld |
| Fifth Amendment and use of evidence about testimony | Testimony about others taking the Fifth tainted Gordon’s rights | Fifth Amendment protections violated by improper references | No improper comment; Fifth Amendment rights adequately protected |
| Speedy Trial Act continuances | Continuances were improperly justified | Ends-of-justice findings supported by record | Continues justified; no Speedy Trial Act violation |
Key Cases Cited
- Wenger v. United States, 427 F.3d 840 (10th Cir. 2005) (distinguishes § 17(b) from § 10b/Rule 10b-5 theories in securities cases)
- United States v. Ware, 577 F.3d 442 (2d Cir. 2009) (sufficiency of evidence in pump-and-dump context)
- Schiff v. United States, 602 F.3d 152 (3d Cir. 2010) (duty to disclose under § 10b depends on circumstances; not a blanket safe harbor)
- United States v. Monholland, 607 F.2d 1311 (10th Cir. 1983) (substantial steps toward a crime; focus on firm criminal intent)
- United States v. Reich, 479 F.3d 179 (2d Cir. 2007) (obstruction of proceeding analysis; nexus between actions and proceeding)