Case: 19-1105 Document: 145-1 Page: 1 Date Filed: 03/25/2021

Nos. 19-1105, 1136, 1190, 1237

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

UNITED STATES OF AMERICA,

Appellee
v.

DAVID GIBSON,
ROBERT V. A. HARRA, JR.,
WILLIAM B. NORTH, and
KEVYN RAKOWSKI
Appellants

Appeal from the United States District Court

for the District of Delaware
(Crim. Action No. 15-cr-23-RGA)

Petition for Panel Rehearing by Appellee

United States of America

DAVID C. WEISS
UNITED STATES ATTORNEY

Whitney C. Cloud
Assistant United States Attorney
Chief of Appeals

Lesley F. Wolf
Assistant United States Attorney
1313 North Market Street
Wilmington, DE 19801
Attorneys for Appellee
 Case: 19-1105 Document: 145-1 Page: 2 Date Filed: 03/25/2021

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................ii

INTRODUCTION ...................................................................................... 1

ARGUMENT ............................................................................................. 4

A. The Court’s Decision on Falsity Improperly Limits the Role of the

Trial Court. ............................................................................................. 4

B. The Court’s Remedy on the False Statement Counts Wrongly

Reverses the Verdict Based on a New Legal Standard Without
Allowing the Government to Introduce Evidence to Satisfy that
Standard. .............................................................................................. 12

C. The Court’s Vacatur of Counts 1 and 2 Is Incorrect under Its

Sufficiency-of-the-Evidence Holding. ................................................... 15

CONCLUSION ........................................................................................ 19

CERTIFICATE OF COMPLIANCE ........................................................ 20

CERTIFICATION OF FILING AND SERVICE ..................................... 21

i
 Case: 19-1105 Document: 145-1 Page: 3 Date Filed: 03/25/2021

TABLE OF AUTHORITIES

CASES
Baldwin v. University of Pittsburgh Medical Center,
636 F.3d 69 (3d Cir. 2001) ...................................................................... 9

Berckeley Inv. Grp., Ltd. v. Colkitt,

455 F.3d 195 (3d Cir. 2006) .......................................................... 6, 8, 14

Connecticut v. Johnson, 460 U.S. 73 (1983)............................................ 18

Sabri v. United States, 541 U.S. 600 (2004) ........................................... 13

Skilling v. United States, 561 U.S. 358 (2010) ....................................... 17

United States National Bank v. Village at Lakeridge,

138 S. Ct. 960 (2018) .............................................................................. 9

United States v. Andrews, 681 F.3d 509 (3d Cir. 2012) .................... 16, 17

United States v. Brooks, 681 F.3d 678 (5th Cir. 2012) ............................. 6

United States v. Clay, 832 F.3d 1259 (2016)............................................. 7

United States v. Harra, 985 F.3d 196 (3d Cir. 2021) ...................... passim

United States v. Katzin, 769 F.3d 163 (3d Cir. 2014) ............................... 9

United States v. Lawrence, 405 F.3d 888 (10th Cir. 2005) ....................... 7

United States v. Migliaccio, 34 F.3d 1517 (10th Cir. 1994)...................... 7

United States v. Nasir, 982 F.3d 144 (3d Cir. 2020) ......................... 13, 15

United States v. Prigmore, 243 F.3d 1 (1st Cir. 2001) .......................... 5, 8

ii
 Case: 19-1105 Document: 145-1 Page: 4 Date Filed: 03/25/2021

United States v. Sussman, 709 F.3d 155 (3d Cir. 2013) ........................... 9

United States v. Syme, 276 F.3d 131 (3d Cir. 2002) ............................... 16

United States v. Whiteside, 285 F.3d 1345 (11th Cir. 2002)................. 6, 7

United States v. Willson, 708 F.3d 47 (1st Cir. 2013)............................... 6

United States v. Wilmington Trust Corporation

(D. Del. Oct. 5, 2017) ........................................................................ 8, 14

United States v. Wright, 665 F.3d 560 (3d Cir. 2012)............................. 16

United States v. Yeaman, 194 F.3d 442 (3d Cir. 1992)........................... 16

United States v. Zwick, 199 F.3d 672 (3d Cir. 1999) ........................ 13, 15

STATUTES
18 U.S.C. § 666 ........................................................................................ 13

iii
 Case: 19-1105 Document: 145-1 Page: 5 Date Filed: 03/25/2021

INTRODUCTION

Pursuant to Federal Rule of Appellate Procedure 40, the United

States respectfully moves for rehearing of the panel’s decision in this

case. In a matter of first impression, the Court announced a new

standard for false statement prosecutions in situations of arguable

ambiguity; the Court then applied this framework to the existing case,

resulting in reversal of defendants’ convictions on Counts 4 through 19,

and vacatur of Counts 1 and 2. Although the opinion clarifies the falsity

standard for arguably ambiguous reporting requirements, three aspects

of the Court’s opinion necessitate correction for this case and for future

false statement prosecutions.

First, in articulating the new standard of falsity, the Court limits

the role of the trial court in a manner inconsistent with precedent and

that could present practical problems. The Court’s core holding is

straightforward: to prove a defendant’s statements false, the government

must prove either (a) that the applicable reporting requirement is

unambiguous or that the government’s interpretation is the only

objectively reasonable one, and that the defendant’s statement under

that interpretation was false; or (b) if the reporting requirement is

1
 Case: 19-1105 Document: 145-1 Page: 6 Date Filed: 03/25/2021

ambiguous, that the defendant’s statement was false under each

objectively reasonable interpretation presented by the parties. United

States v. Harra, 985 F.3d 196, 215 (3d Cir. 2021). But the opinion goes

further to state that when the trial court determines that a reporting

requirement is ambiguous, the determination of whether the defendant’s

proffered alternative interpretation is reasonable is to be made by the

jury, not the court. And relatedly, the opinion does not require a

defendant to make a threshold showing in support of an alternative

interpretation. Thus, under the Court’s framework, the jury is tasked

with sole responsibility for evaluating the reasonableness of an

alternative interpretation, whether or not that interpretation is tied to

any record evidence. This result makes the opinion an outlier among the

other out-of-circuit examples from which the opinion drew support.

Second, the Court erred in its remedy. After announcing the new

falsity standard, the Court concluded that the government had not

presented sufficient evidence to satisfy its burden of proving that the

government’s interpretation of “past due” in the applicable regulations

was the only objectively reasonable one. The Court therefore reversed

the false statement convictions, Counts 4 through 19, and directed entry

2
 Case: 19-1105 Document: 145-1 Page: 7 Date Filed: 03/25/2021

of judgments of acquittal on those counts. But under Third Circuit

precedent, when the Court applies a new legal standard for the first time,

the appropriate remedy is vacatur. That is particularly appropriate here

where the very evidence this Court identified as potentially supporting

an exclusive objective reasonableness determination was limited by the

trial court at the defendants’ request. See, e.g., id. at 220 n.18.

Accordingly, the government requests that the Court revise the remedy

for Counts 4 through 19.

Third, because the Court rooted its false statement decision in

sufficiency of the evidence, it should have affirmed defendants’

convictions on conspiracy and securities fraud charges since the

government presented a valid alternative basis for conviction on these

counts. In the final part of the opinion, the Court acknowledged that

Counts 1 and 2 rested on a legally and factually sufficient alternate

theory of liability: that the mass, short-term extension of loans

approaching maturity was another fraud, supporting conviction. But

then the Court wrongly assumed legal invalidity as to the jury

instructions required vacatur of the remaining counts. In order to

3
 Case: 19-1105 Document: 145-1 Page: 8 Date Filed: 03/25/2021

harmonize this part of the opinion with the core holding and with case

law, the Court should affirm the convictions in Counts 1 and 2.

ARGUMENT

A. The Court’s Decision on Falsity Improperly Limits the

Role of the Trial Court.

This case presented a new question for the Circuit as to the correct

burden of proof for false statements based on arguably ambiguous

regulations. Tying its decision to due process and fair warning

requirements, the Court held that in the face of an arguably ambiguous

regulation, the government must prove “either that its interpretation is

the only reasonable one or that the defendant’s statement is false under

each reasonable interpretation.” Id. at 214. Further, the Court made

clear that “[a]t the outset of a trial, the judge must determine, as a

preliminary question . . . , whether a reporting requirement is

ambiguous.” Id. at 217.

However, in announcing the new standard, the Court’s opinion

further stated that if the trial court finds a reporting requirement

ambiguous, and the defendant proffers an alternative interpretation,

then whether the defendant’s alternative interpretation is reasonable is

4
 Case: 19-1105 Document: 145-1 Page: 9 Date Filed: 03/25/2021

to be decided not by the court, but by the jury. Id. at 217 (“while the judge

retains an essential role in a false statement trial involving an

ambiguous reporting requirement, the question of the reasonableness of

a proffered interpretation of that requirement is for the jury”). Moreover,

the opinion does not expressly require any threshold evidentiary showing

by the defendant to support an alternative interpretation before it may

be presented to the jury. Those features make this decision an outlier

among other circuits in falsity cases and among the Third Circuit in other

contexts evaluating objective reasonableness.

The Court’s failure to afford the trial court any gatekeeping role in

what does and does not reach the jury is inconsistent with out-of-circuit

case law relied upon by the Court. Regulations may be capable of

multiple interpretations, but that does not mean that there are multiple

reasonable interpretations. But rather than requiring threshold

evidentiary support for an alternative interpretation, the Court’s decision

demands that the jury evaluate its reasonableness, without any practical

limitation. Compare United States v. Prigmore, 243 F.3d 1, 18 (1st Cir.

2001) (“We also think it apparent that, if the evidence at trial gives rise

to a genuine and material dispute as to the reasonableness of a

5
 Case: 19-1105 Document: 145-1 Page: 10 Date Filed: 03/25/2021

defendant’s asserted understanding of applicable law, the judge, and not

the jury, must resolve the dispute.”) (emphasis added).

Like Prigmore, many other circuit cases are instructive on this

point. Following the Eleventh Circuit’s decision in United States v.

Whiteside, 285 F.3d 1345 (11th Cir. 2002), which held that “the

government bears the burden of proving beyond a reasonable doubt that

the defendant's statement is not true under a reasonable interpretation

of the law,” id. at 1351, most circuit courts have held that a defendant

must identify evidence in the record suggesting his proffered

interpretation is reasonable. See United States ex rel. Purcell v. MWI

Corp., 807 F.3d 281, 288 (D.C. Cir. 2015) (noting that the “interpretive

questions whether [a term] … is ambiguous and whether [a defendant]’s

interpretation is objectively reasonable are legal questions” and

requiring defendant to challenge the government’s interpretation on the

basis of record); United States v. Willson, 708 F.3d 47, 58 (1st Cir. 2013)

(affirming refusal of a requested instruction on ambiguity where

defendant failed to present any evidence “at trial that he actually held

the interpretation that he argues the court was obligated to present to

the jury”); United States v. Brooks, 681 F.3d 678, 708 (5th Cir. 2012)

6
 Case: 19-1105 Document: 145-1 Page: 11 Date Filed: 03/25/2021

(noting an arguable ambiguity instruction is only appropriate “where the

defendant’s claimed interpretation of the ambiguous terms is reasonable

and is supported by the record.”); United States v. Lawrence, 405 F.3d

888, 898 (10th Cir. 2005) (cabining the arguable ambiguity instructions

to situations “where there is evidence supporting the defendant’s

interpretation as reasonable”) (citing United States v. Migliaccio, 34 F.3d

1517 (10th Cir. 1994)).

Even the Eleventh Circuit requires evidence in support of the

reasonableness of a defendant’s interpretation prior to allowing a

defendant to present that interpretation to the jury. In United States v.

Clay, 832 F.3d 1259, 1299 (2016), for example, the court rejected

defendants’ invocation of Whiteside,1 noting the defendants in Whiteside

“genuinely believed their interpretation was correct,” in contrast to Clay

where evidence “shows that the defendants did not believe it, knew what

was required, and knew their answers were false.” Id. at 1298-99. As

the Clay opinion aptly recognized, like the alternative interpretations

1 As Clay noted, in Whiteside, the trial record reflected trial testimony

from a government witness that the regulations at issue “can be
interpreted in different ways,” and competing expert testimony as to the
meaning of the regulations. Whiteside, 285 F.3d at 1352.

7
 Case: 19-1105 Document: 145-1 Page: 12 Date Filed: 03/25/2021

posed by defendants in the instant case, the defense arguments were

simply “post-hoc interpretation.” Id. at 1299.

Each of these decisions contrasts with the Court’s opinion in two

significant ways. First, these decisions require a defendant to ground his

proffered interpretation of an ambiguous reporting requirement in the

factual record. Second, they recognize that an initial determination of

the reasonableness of a competing interpretation is a question of law for

the trial court. 2 See, e.g., Purcell, 807 F.3d at 288; Prigmore, 243 F.3d at

18.

The Court’s reliance on cases in other contexts stating that

objective reasonableness is for the jury was misplaced. See Harra, 985

F.3d at 214 n.12 & 216 n.15. Those cases involved whether historical

facts satisfied a legal standard of reasonableness, such as whether an

2 As discussed infra, the defendants in this case actually agreed that the
trial court should make the determination of reasonableness. Indeed, in
August 2017, defendants sought to preclude expert testimony about these
practices and customs as improper legal opinions under Berckeley Inv.
Grp., Ltd. v. Colkitt, 455 F.3d 195, 218 (3d Cir. 2006), and the court
agreed. United States v. Wilmington Trust Corporation, 15-cr-23-RGA,
ECF Nos. 381 & 559 (D. Del.). The defendants maintained this view prior
to jeopardy attaching. Only after the trial court ruled as a matter of law
that the regulations were unambiguous and that the defendants’
interpretation was unreasonable did the defendants argue that the
question of objective reasonableness must be presented to the jury.
8
 Case: 19-1105 Document: 145-1 Page: 13 Date Filed: 03/25/2021

accommodation was “reasonable” or whether a defendant’s mitigation

efforts were “reasonable”—in other words, classic applications of law to

facts that generally are for the factfinder. Cf. United States National

Bank v. Village at Lakeridge, 138 S. Ct. 960, 966 (2018). This case, by

contrast, involves the entirely different question whether an

interpretation of a legal text is reasonable; that is much closer to a pure

question of law more appropriate for a court to decide. See, e.g., Baldwin

v. University of Pittsburgh Medical Center, 636 F.3d 69, 77-78 (3d Cir.

2001) (where terms of contract may be ambiguous parties should be

permitted to present evidence to allow court to address objectively

reasonable meaning of term). Judges of course make threshold

determinations in the context of criminal defense theories, too. United

States v. Sussman, 709 F.3d 155, 178 (3d Cir. 2013) (stating that a theory

of defense instruction must not only propose a correct statement of law,

but also be supported by the evidence); United States v. Katzin, 769 F.3d

163, 185 n.21 (3d Cir. 2014) (stating that courts “routinely…make

difficult determinations of reasonableness” in Fourth Amendment

context). At a minimum, the cases on which the Court relied make clear

that even in those other contexts, prior to submitting competing

9
 Case: 19-1105 Document: 145-1 Page: 14 Date Filed: 03/25/2021

interpretations of reasonableness to a jury, judges make the threshold

determinations. The opinion errs in displacing this role of the district

court.

A proper recognition of the need for this gatekeeping function would

warrant reconsidering the ultimate outcome in this case. The district

court performed its function of interpreting the regulation and

determining whether the defendants’ alternative interpretation was

reasonable. Although this Court disagreed with the district court’s

finding on regulatory ambiguity, this Court erroneously overlooked the

other key holding finding the defendants’ post-hoc interpretation

unreasonable. That secondary holding is correct: all of the relevant

evidence pointed to the defendants having shared the government’s

understanding of “past due.” For example, Defendant Gibson provided a

definition of “past due” that conforms precisely to Circumstance 4 in the

Call Report Instructions. (A9686; A10933-35.) Additionally, in

encouraging lenders to obtain loan renewals and extensions, Defendant

North stated that such documentation was necessary “to allow the

system to report a true past due number without a lot of adjustments that

10
 Case: 19-1105 Document: 145-1 Page: 15 Date Filed: 03/25/2021

could raise issues for us in the future.” A10994. 3 By contrast, the record

is devoid of evidence that the defendants contemporaneously struggled

with the relevant instructions, debated the correct circumstance applying

to their loans, or accessed guidance from any regulator. Without such

evidence, the district court rightly found their interpretation

unreasonable.

By applying the unprecedented standard created by the Court, the

absence of any conflicting interpretive evidence in the record becomes

irrelevant. Under the Court’s decision, post-hoc argument by counsel

mandates that the jury, and not the court, determine whether such an

interpretation was reasonable. This will not vindicate due process or fair

notice: it will simply promote legal creativity.

The Court should reconsider its decision and should restore the

proper role for trial courts in separating genuinely reasonable alternative

interpretations from post-hoc creations. Without this gatekeeping

3
In October 2009, Defendant Harra mandated that matured loans “that
require extensions need to be worked-on currently and kept current and
up to date.” A11018 (emphasis added). And Defendant Rakowski
handwrote a note on top on an email linking waived and matured loans
to the Call Report and noted, “Regulators asked for Past Due in Call
Report, that is everything.” Id. (emphasis in original).
11
 Case: 19-1105 Document: 145-1 Page: 16 Date Filed: 03/25/2021

function, false statement prosecutions in the Third Circuit will be an

outlier from other circuit courts and from other objective reasonableness

determinations in this circuit. Correction of this part of the opinion is

necessary for this case and for future prosecutions.

B. The Court’s Remedy on the False Statement Counts

Wrongly Reverses the Verdict Based on a New Legal
Standard Without Allowing the Government to Introduce
Evidence to Satisfy that Standard.

The Court’s decision established a new legal standard in this

Circuit for false statement prosecutions in the context of arguably

ambiguous regulations: the government must prove there is only one

objectively reasonable interpretation, or that the defendants’ statements

are false under all reasonable interpretations. Harra, 985 F.3d at 208 &

215. The Court acknowledged that proving objective reasonableness

might require custom and practice evidence showing a widely accepted

meaning, but the record lacked this sort of evidence. Id. at 220 n.18.

Measured against the new falsity standard, the Court concluded that the

government failed to present sufficient evidence to meet its burden,

requiring entry of a judgment of acquittal. Id. at 219-20. But given that

this Court announced a new standard, the government should have the

opportunity to present such evidence in a retrial, especially given that

12
 Case: 19-1105 Document: 145-1 Page: 17 Date Filed: 03/25/2021

the defendants themselves precluded the very evidence this Court

theorized could have satisfied the new standard.

In reversing the false-statement counts without affording the

government the opportunity to meet its burden in light of a new legal

standard, the Court failed to apply this Court’s relevant prior precedent,

including the recent en banc opinion in United States v. Nasir, 982 F.3d

144, 176 (3d Cir. 2020) (“Though a failure of proof usually results in

acquittal, the Double Jeopardy Clause is not implicated when the law has

changed on appeal. Retrial is thus allowed and warranted.”) (internal

citations omitted). See also United States v. Zwick, 199 F.3d 672, 687-88

(3d Cir. 1999) (abrogated by Sabri v. United States, 541 U.S. 600 (2004)).

As Nasir recognized, allowing the government to prove its case under a

newly announced legal standard that renders the evidence insufficient

finds support in other circuits as well. See Nasir, 982 F.3d at 176 n.42

(citing other circuit decisions).

In Zwick, the Court held for the first time that a bribery conviction

under 18 U.S.C. § 666 required that the government prove that a federal

interest was implicated by the defendant’s offense conduct. (The

Supreme Court overturned this substantive holding in Sabri, without

13
 Case: 19-1105 Document: 145-1 Page: 18 Date Filed: 03/25/2021

disrupting Zwick’s discussion of remedies.) Instead of penalizing the

government, because the district court had restricted the government’s

proof of a federal interest, the Court vacated the defendant’s conviction

and remanded for a new trial. Id. at 688.

The same issues arose in this case. The trial court here limited the

government’s proof, based upon defendants’ objections. Pretrial, the

government disclosed its intent to introduce evidence of the regulators’

and other laypersons’ understanding of the term “past due” through the

expert testimony of long-time Federal Reserve and SEC employees. The

defendants argued that such testimony should be excluded as improper

legal opinions, designed to usurp the province of the jury. See Berckeley,

455 F.3d at 218 (allowing expert testimony concerning customs and

practice to prove scienter, but barring such testimony for determining

ultimate issue of fact). The trial court sided with the defendants,

interpreting the proposed testimony to offer improper opinions as to what

the agencies themselves would have considered “past due,” as evidence

of falsity. United States v. Wilmington Trust Corporation, Crim. Action

No. 15-23-RGA, ECF No. 559, at *1-2 (D. Del. Oct. 5, 2017). The

defendants vigilantly policed this ruling throughout trial, consistently

14
 Case: 19-1105 Document: 145-1 Page: 19 Date Filed: 03/25/2021

asserting that no witness should be permitted to testify as to the meaning

of “past due,” beyond the regulations themselves.

Now, this very same type of “term of art” or “widely accepted

meaning evidence,” that defendants consistently and successfully moved

to exclude from evidence, is precisely what the Court asserts the

government should have offered to prove its case. Harra, 985 F.3d at 220

n.18. Accordingly, consistent with Nasir and Zwick, the proper remedy

for Counts 4-19 should be vacatur with remand for new trial, under the

new falsity standard.

C. The Court’s Vacatur of Counts 1 and 2 Is Incorrect under

Its Sufficiency-of-the-Evidence Holding.

The Court should have affirmed the convictions on the fraud and

conspiracy counts because, as it acknowledged, those convictions were

based on a legally valid and independent theory involving the mass

extension process and were supported by sufficient evidence. Id. at 221-

25. Nevertheless, the Court vacated these convictions for retrial,

applying the harmless error standard, on the ground that the convictions

“were also premised on the Waiver Practice Theory,” “which is legally

invalid.” Id. at 223 (citing United States v. Wright, 665 F.3d 560, 570-71

15
 Case: 19-1105 Document: 145-1 Page: 20 Date Filed: 03/25/2021

(3d Cir. 2012)) and United States v. Andrews, 681 F.3d 509 (3d Cir.

2012)).

That was erroneous because, as the Court itself recognized earlier

in its opinion, the waiver-practice theory on which the false-statement

counts were based was not a “legally invalid” theory. Id. at 215 (“an

ambiguous reporting requirement is not necessarily fatal to a false

statement conviction”). Instead, the court reversed those convictions on

sufficiency-of-the-evidence grounds. Id. at 217-18, 220. And where a

fraud or conspiracy count has alternate theories of guilt, and the

government fails by not presenting sufficient evidence to support one

theory, the conviction on the alternate theory must be affirmed. See

United States v. Yeaman, 194 F.3d 442, 452 (3d Cir. 1992) (where “the

government advanced other alternative, legally valid theories at trial

that were supported by sufficient evidence . . . [the court is] required to

presume that the jury found the defendant guilty beyond a reasonable

doubt on a theory supported by the evidence.”); see also United States v.

Syme, 276 F.3d 131, 136 (3d Cir. 2002) (affirming conviction based on

alternative theory of liability, even where evidence presented as to other

theory may have been insufficient). Thus, the Court’s reliance on Wright

16
 Case: 19-1105 Document: 145-1 Page: 21 Date Filed: 03/25/2021

and Andrews is inapposite. Unlike Wright and Andrews, which both

arose in the wake of the Supreme Court’s ground-shifting decision in

Skilling v. United States, 561 U.S. 358 (2010), here the government did

not present a legally invalid charging theory (i.e. one that could never be

proven); it simply failed to meet its burden of proof. Harra, 985 F.3d at

220 n.18. Therefore, the proper remedy consistent with this Court’s

precedent is affirmance of Counts 1 and 2.

To the extent the Court believed that instructional error warranted

vacating those convictions, see Harra, 985 F.3d at 224-25, that too was

mistaken. The Court specifically declined to find that the instructions on

the false-statement counts were erroneous. Id. at 217 n.16. And given

that those instructions were not found to be erroneous, then the

instructions on the fraud and conspiracy counts could not possibly be

rendered legally erroneous even if they were “rife with references to the

falsity of Defendants’ representations about past due loans,” id. at 224.

Such references would at most constitute references to an alternative

legally valid theory, which (as just discussed) does not provide a basis to

vacate the convictions based on insufficiency of evidence supporting that

theory.

17
 Case: 19-1105 Document: 145-1 Page: 22 Date Filed: 03/25/2021

Moreover, the trial court also gave the jury instructions on not just

one, but multiple specific unanimity instructions expressly relating to

Counts 1 and 2. A8343 (unanimity with regard to object of conspiracy);

A8348 (unanimity with regard to overt acts); A8350 (unanimity as to

objects of conspiracy); A8352 (unanimity as to violation of securities fraud

statute). Against this backdrop, where the jury heard the mass

extensions were distinct from the waivers, and received a specific

unanimity charge, the Court should “assume juries for the most part

understand and faithfully follow instructions.” Connecticut v. Johnson,

460 U.S. 73, 85 n.14 (1983).

18
 Case: 19-1105 Document: 145-1 Page: 23 Date Filed: 03/25/2021

CONCLUSION

For the foregoing reasons, the Court should grant rehearing in

order to: 1) clarify the legal standard for falsity; 2) remedy its reversal of

Counts 4 through 19 on a newly announced legal theory; and 3) affirm

the convictions in Counts 1 and 2.

Respectfully submitted,

DAVID C. WEISS,
UNITED STATES ATTORNEY

Whitney C. Cloud
Assistant United States Attorney
Chief of Appeals

By: /s/ Lesley F. Wolf

Lesley F. Wolf
Assistant United States Attorney

19
 Case: 19-1105 Document: 145-1 Page: 24 Date Filed: 03/25/2021

CERTIFICATE OF COMPLIANCE

I hereby certify as an Assistant United States Attorney for the

District of Delaware that:

(1) This petition contains 3,527 words, excluding those parts

exempted by Fed. R. App. P. 32(f), and thus does not exceed the

3,900-word limit established by Fed. R. App. P. 40(b)(2).

(2) This petition complies with the typeface and typestyle

requirements of Fed. R. App. 32(a)(5)–(6) because it has been

prepared using Microsoft Word 2019’s proportionally spaced 14-

point Century Schoolbook typeface.

(3) The text of the PDF copy of this petition is identical to the text of

the paper copies.

(4) The PDF copy of the petition was prepared on a computer that is

automatically protected by a virus detection program, namely a

continuously updated version of McAfee Endpoint Security, and

no virus was detected.

/s/ Lesley F. Wolf

Lesley F. Wolf
Assistant United States Attorney

Dated: March 25, 2021

20
 Case: 19-1105 Document: 145-1 Page: 25 Date Filed: 03/25/2021

CERTIFICATION OF FILING AND SERVICE

I hereby certify that on March 25, 2021, I caused the foregoing

Petition for Rehearing to be electronically filed with the Clerk of the

United States Court of Appeals for the Third Circuit through the

Court’s CM/ECF system. I further certify that all participants in the

case are registered CM/ECF users and that service will be accomplished

by the appellate CM/ECF system.

/s/ Lesley F. Wolf

Lesley F. Wolf
Assistant United States Attorney

Dated: March 25, 2021

21