No.

23-

In the
Supreme Court of the United States

Devon Archer,

Petitioner,

v.

United States of America,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Matthew L. Schwartz
Counsel of Record
Craig Wenner
David Barillari
K atherine Zhang
Boies Schiller Flexner
55 Hudson Yards, 20th Floor
New York, New York 10001
(212) 446-2300
mlschwartz@bsfllp.com

Counsel for Petitioner

324503

A
(800) 274-3321 • (800) 359-6859
 i

QUESTIONS PRESENTED

1. Federal Rule of Criminal Procedure 33 permits

a district court to order a new trial “if the interest of
justice so requires.” The district court here exercised its
discretion under Rule 33 to order a new trial, concluding
that the entirely circumstantial evidence weighed so
heavily against the verdict that there was a “real concern
that [Petitioner] is innocent” and that letting his “guilty
verdict stand would be a manifest injustice.”

On the government’s interlocutory appeal, the

Second Circuit reversed, holding that—contrary to the
approach taken in every other Circuit—district courts
lack discretion to grant a new trial under Rule 33 based
on the weight of the evidence unless there is also some
evidentiary or instructional error, or “the evidence was
patently incredible or defied physical realities.” United
States v. Archer, 977 F.3d 181, 188 (2d Cir. 2020) (“Archer
I”),1 annexed as Appendix C. Absent such circumstances,
a district court “must defer to the jury’s resolution
of conflicting evidence.” App. 31a. Following remand,
sentencing, and final judgment, the Court of Appeals
adhered to the rule announced in Archer I.

The first question presented is whether Rule 33

affords district courts discretion to reweigh the evidence
when evaluating a new trial motion, as eleven other federal
courts of appeals have held to varying degrees, or whether
the rule requires a district court to defer to the verdict

1. In case citations, all emphases are added and all internal

alterations, citations, and quotation marks are omitted unless
otherwise noted.
 ii

unless there is some concern beyond the weight of the

evidence, as the Second Circuit held in this case?

2. The second question presented is whether a

criminal defendant can forfeit an argument of plain error
from a conceded Guidelines miscalculation. The district
court here made a simple arithmetic error in calculating
Petitioner’s guidelines, resulting in a higher sentencing
range. The error went unnoticed until argument on
Petitioner’s appeal. Following supplemental briefing, the
government conceded error but argued that it was waived.
The Second Circuit disagreed, holding that the argument
was forfeited rather than waived, but nonetheless refused
to consider the argument at all, declining to engage in
plain error review. United States v. Archer, 2023 WL
3860530, at *6 n.2 (2d Cir. June 7, 2023) (“Archer II”),
annexed as Appendix A.
 iii

PARTIES TO THE PROCEEDINGS

Petitioner is Devon Archer, who was defendant-

appellee below.

Respondent is the United States of America, which

was plaintiff-appellant below.
 iv

RELATED CASES

The following cases are directly related:

• United States v. Archer, No. 22-539, U.S. Court of

Appeals for the Second Circuit. Judgment entered
June 7, 2023.

• United States v. Archer, No. 18-3727, U.S. Court of

Appeals for the Second Circuit. Judgment entered
October 7, 2020.

• United States v. Galanis, No. 16-CR-371 (RA), U.S.

Court of Appeals for the Second Circuit. Judgment
entered November 15, 2018.
 v

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . iii

RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

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

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

FEDERAL RULES PROVISIONS INVOLVED . . . . . 7

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 7

REASONS FOR GRANTING THE PETITON . . . . . 14

I. T H E C OU RT SHOU LD GR A N T
REVIEW TO CLA RIFY DISTRICT
COURTS’ AUTHORIT Y TO ORDER
A N EW TRI A L BA SED ON THE
WEIGHT OF THE EVIDENCE . . . . . . . . . . . 15
 vi

Table of Contents
Page
A. T he S e c ond C i r c u it ’s D e c i s ion
Conflicts with Those of Other Circuits,
Which Permit Rule 33 New Trials
Based Solely on the Weight of the
Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

B. The Second Circuit’s Standard Departs

from this Court’s Precedents on
Granting a New Trial Based on the
Weight of the Evidence. . . . . . . . . . . . . . . . . 24

C. This Question is Impor tant and

Recurring. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

D. This Case Is an Ideal Vehicle to Resolve

the Question Presented. . . . . . . . . . . . . . . . 28

II. T H E C O U R T S H O U L D G R A N T
REVIEW TO CLARIFY THE RULES
FOR CORRECTING PLAIN ERROR
FROM SENTENCING GUIDELINES
MISCALCULATIONS . . . . . . . . . . . . . . . . . . . . 29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
 vii

TABLE OF APPENDICES
Page
Appendix A — opinion of the united
states court of appeals FOR THE
SECOND CIRCUIT, FILED JUNE 7, 2023 . . . . . 1a

Appendix b — DENIAL OF REHEARING

of t h e un i t ed s ta t e s c ou rt
of appeals F O R T H E S E C O N D
CIRCUIT, FILED JULY 18, 2023 . . . . . . . . . . . . . 16a

Appendix c — opinion of the united

states court of appeals for the
second circuit, dated october 7, 2020 . 18a

A ppendi x D — opinion of the

united states DISTRICT court
FOR THE SOUTHERN DISTRICT OF
NEW YORK, FILED NOVEMBER 15, 2018 . . . . 54a

Appendix E — TRANSCRIPT EXCERPT

FROM the united states DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK, FILED FEBRUARY 28, 2020 . . . 134a

Appendix F — order of the united

states court of appeals for the
second circuit, dated may 10, 2023 . . . 143a
 viii

TABLE OF CITED AUTHORITIES

Page
Cases:

Aetna Cas. & Sur. Co. v. Yeatts,

122 F.2d 350 (4th Cir. 1941) . . . . . . . . . . . . . . . . . . . . 28

Crumpton v. United States,

138 U.S. 361 (1891) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 25

Gasperini v. Ctr. for Humanities, Inc.,

518 U.S. 415 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Johnson v. Zerbst,
304 U.S. 458 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Levy v. United States,

545 U.S. 1101 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Maryland v. King,
567 U.S. 1301 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Metro. R.R. Co. v. Moore,

121 U.S. 558 (1887) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Molina-Martinez v. United States,

578 U.S. 189 (2016) . . . . . . . . . . . . . . . . . . . . . 30, 31, 32

Quackenbush v. Allstate Ins. Co.,

517 U.S. 706 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Rosales-Mireles v. United States,

138 S. Ct. 1897 (2018) . . . . . . . . . . . . . 30, 31, 32, 33, 34
 ix

Cited Authorities
Page
Tibbs v. Florida,
457 U.S. 31 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

United States v. A. Lanoy Alston, D.M.D., P.C.,

974 F.2d 1206 (9th Cir. 1992) . . . . . . . . . . . . . . . . 23, 24

United States v. Atkinson,

297 U.S. 157 (1936) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

United States v. Berry,

No. 20 Cr. 84, 2022 WL 1515397
(S.D.N.Y. May 13, 2022) . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Brodie,

295 F.2d 157 (D.C. Cir. 1961) . . . . . . . . . . . . . . . . . . . 22

United States v. Burks,

974 F.3d 622 (6th Cir. 2020) . . . . . . . . . . . . . . . . . . 2, 23

United States v. Courtney,

816 F.3d 681 (10th Cir. 2016) . . . . . . . . . . . . . . . . . . . 29

United States v. Jackson,

327 F.3d 273 (4th Cir. 2003) . . . . . . . . . . . . . . . . . . . . 29

United States v. Johnson,

302 F.3d 139 (3d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . 23

United States v. Landesman,

17 F.4th 298 (2d Cir. 2021) . . . . . . . . . . . . . . . . . . 13, 24
 x

Cited Authorities
Page
United States v. Levy,
391 F.3d 1327 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . 31

United States v. Lincoln,

630 F.2d 1313 (8th Cir. 1980) . . . . . . . . . . . . . . . . 21, 23

United States v. Lopez,

576 F.2d 840 (10th Cir. 1978) . . . . . . . . . . . . . . . . . . . 22

United States v. Martinez,

763 F.2d 1297 (11th Cir. 1985) . . . . . . . . . . . . . . . . . . 23

United States v. Merlino,

592 F.3d 22 (1st Cir. 2010) . . . . . . . . . . . . . . . . . . . 2, 23

United States v. Morales,

902 F.2d 604 (7th Cir. 1990), amended,
910 F.2d 467 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . 20

United States v. Olano,

507 U.S. 725 (1993) . . . . . . . . . . . . . . . . . . . . . . 6, 30, 31

United States v. Rafiekian,

68 F.4th 177 (4th Cir. 2023) . . . . . . . . . . 1, 2, 17, 18, 19,
22, 23, 24, 26, 27

United States v. Robertson,

110 F.3d 1113 (5th Cir. 1997) . . . . . . . . . . . . . . . . . 2, 22

United States v. Rothrock,

806 F.2d 318 (1st Cir. 1986) . . . . . . . . . . . . . . . . . . . . 23
 xi

Cited Authorities
Page
United States v. Sears,
2023 WL 395024 (6th Cir. Jan. 25, 2023) . . . . . . . . . 22

United States v. Smith,

331 U.S. 469 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 26

United States v. Stacks,

821 F.3d 1038 (8th Cir. 2016) . . . . . . . . . . . . . . 3, 20, 21

United States v. Washington,

184 F.3d 653 (7th Cir. 1999) . . . . . . . . . . . . . . . 3, 19, 20

United States v. Witt,

43 F.4th 1188 (11th Cir. 2022) . . . . . . . . . . . . . . . . . . .23

United States v. Wolff,

892 F.2d 75 (4th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . 25

United States v. Yu-Leung,

51 F.3d 1116 (2d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . 31

Statutes and Other Authorities:

18 U.S.C. § 3731 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Barron & Holtzoff, Federal Practice & Procedure

§ 2281 (Rules ed. 1958) . . . . . . . . . . . . . . . . . . . . . . . . 22
 xii

Cited Authorities
Page
Drafting Histor y of the Federal Rules of
Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Fed. R. Crim. P. 29 . . . . . . . . . . . . . . . . . . . . . . . . . 8, 18, 21

Fed. R. Crim. P. 33 . . . . . . . . . . . . 1, 2, 3, 4, 5, 8, 11, 12, 13,

14, 15, 16, 19, 20, 21, 22,
23, 24, 25, 26, 28

Fed. R. Crim. P. 33(a) . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 16

Fed. R. Crim. P. 52(b) . . . . . . . . . . . . . . . . . 6, 7, 29, 30, 31

U.S.S.G. § 3B1.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
 1

INTRODUCTION

This case affords the Court the opportunity to address

an important question about the role of the district judge
in a federal criminal trial, which has divided the circuits:
whether a district court may grant a new trial based solely
on concerns about the weight of the evidence. The Court
has never previously addressed this question under Rule
33 of the Federal Rules of Criminal Procedure, although
the Court’s pre-Rules precedent holds that a district court
does have such discretion. Nonetheless, the circuit courts
are divided, with the Second Circuit now located on the far
end of the spectrum of approaches in holding that a district
court has no such discretion unless it first identifies some
other error that casts the verdict into doubt, such as the
mistaken introduction of important evidence or an error
in the jury instructions.

As the Fourth Circuit recently explained, the

approach adopted by the Second Circuit “make[s] little
sense.” United States v. Rafiekian, 68 F.4th 177, 189
(4th Cir. 2023). In cases (such as this one) that rely
on circumstantial evidence of guilt, “[b]arring the
district court from granting a new trial based solely on
disagreement with the jury’s inferences of guilt would
place this class of cases beyond the reach of the new-trial
standard, which would mean that when the government
has introduced less direct evidence, district courts are
more constrained in their ability to grant a new trial.
That can’t be right.” Id. at 190 (emphasis in original). Ten
other circuits agree (to various degrees) that a district
court must have some discretion to reweigh the evidence
under Rule 33, while the Second Circuit now holds that the
district courts have no such discretion. The Court should
 2

grant review to resolve this important and recurring

question.

1. Like the Fourth Circuit, the other courts of

appeals have recognized that district courts must have
some discretion to reweigh the evidence when deciding
whether to grant a new trial under Rule 33 “in the
interest of justice.” Fed. R. Crim. P. 33(a). Some courts
of appeals expressly hold that the district judge functions
as a “thirteenth juror,” whose role is to consider all of the
evidence anew, including the credibility of witnesses. E.g.,
Rafiekian, 68 F.4th at 186; United States v. Robertson,
110 F.3d at 1120 n.11 (5th Cir. 1997). Other courts of
appeals hold that a district court must defer to the
jury’s credibility determinations but is free to consider
competing evidentiary inferences. See United States v.
Burks, 974 F.3d 622, 628 (6th Cir. 2020); United States v.
Merlino, 592 F.3d 22, 32–33 (1st Cir. 2010).

The Second Circuit, however, denies district courts

any ability to reweigh the evidence, holding that a district
court “must defer” to the verdict so long as the jury was
“entitled” to convict—i.e., so long as the evidence was
legally sufficient. App. 28a n.3, 43a. In doing so, the Second
Circuit dramatically deepened an existing circuit split:
Archer I expressly conflicts with decisions of three other
courts of appeals, and is inconsistent with the holdings
of every other geographic court of appeals. The Second
Circuit’s holding that a district court “must defer” to a
verdict unaffected by evidentiary or instructional error
“absent a situation in which the evidence was patently
incredible or defied physical realities,” App. 30a-31a, is in
direct conflict with decisions of the Seventh and Eighth
circuits, in addition to the Fourth. Those courts have held,
 3

consistent with the text of Rule 33, that the question is

“whether the verdict is against the manifest weight of the
evidence,” regardless of whether it was “contrary to the
laws of nature or otherwise incapable of belief.” United
States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999);
see also United States v. Stacks, 821 F.3d 1038, 1046 (8th
Cir. 2016).

2. The Second Circuit’s decision is also at odds with

this Court’s pre-Rule 33 precedent. In Crumpton v.
United States, this Court confirmed that even where there
is sufficient evidence to convict, district courts presiding
over criminal trials may, as “a matter of discretion,”
grant “a new trial upon th[e] ground” that the verdict
was “manifestly against the weight of evidence.” 138
U.S. 361, 364 (1891). And in United States v. Smith, this
Court suggested that Rule 33 at least maintained, if not
expanded upon, all the grounds for ordering a new trial
that existed prior to the Rule. 331 U.S. 469, 472 (1947).
The Second Circuit’s new standard, however, strips any
discretion that a district court in the Second Circuit has
to grant a new trial based on the weight of the evidence,
even where it finds that the evidence, properly considered,
weighs so heavily in favor of factual innocence that
allowing a defendant’s conviction to stand represents a
manifest injustice.

3. This is an important and recurring issue, and

this case is an ideal vehicle to resolve it. There is no
dispute that Petitioner’s conviction rested purely on
circumstantial evidence. No witness, including the
government’s cooperators, implicated him directly, nor
was there any admission by the Petitioner, any evidence
that turned on witness credibility, any “smoking gun”
 4

document, or any other direct evidence of guilt at all.

Instead, the government’s case indisputably relied upon
inferences from the circumstantial evidence. And “when
viewing the entire body of evidence,” the district court
concluded that there was “a real concern that [Petitioner]
is innocent.” App. 114a. The district court meticulously
surveyed the trial evidence, concluding that the inferences
urged by the government were unsupported or weak,
and that there was substantial affirmative evidence of
innocence—including evidence that the nature of the
crime was actively concealed from him, and that unlike
every other alleged conspirator, he did not receive
fraudulent proceeds but in fact lost money as a result
of the scheme. The district court was left with a serious
concern that Petitioner “lacked the requisite intent and
is thus innocent of the crimes charged,” App. 55a, and
that letting Petitioner’s “guilty verdict stand would be a
manifest injustice,” App. 79a.

The Second Circuit recognized that “the district court

relied on [its] prior case law on” Rule 33, but held that this
case law required “clarifying.” App. 34a. Purporting to
provide “much needed guidance to district courts,” the
Second Circuit “stress[ed] that” under Rule 33, “a district
court must defer to the jury’s resolution of conflicting
evidence” and may not weigh the evidence, “absent a
situation in which the evidence was patently incredible
or defied physical realities, or where an evidentiary
or instructional error compromised the reliability of
the verdict.” App. 30a–31a. Because no procedural or
instructional error infected the verdict, and because the
evidence was not insufficient as a matter of law, the Second
Circuit held that “the jury was entitled to conclude” that
Petitioner was guilty and that the district court erred by
 5

attempting to weigh the evidence. App. 28a. After the case

was remanded for sentencing, Petitioner appealed the final
judgment and the Second Circuit affirmed, reiterating
the holding in its interlocutory opinion as law of the case.
App. 2a–4a.1

4. The Second Circuit’s decision is wrong. It is contrary

to the text of Rule 33, and it takes from district courts a
much-needed tool to avoid miscarriages of justice in the
most extreme cases. Although different courts of appeals
give district courts more or less discretion to reweigh the
trial evidence under Rule 33, Petitioner’s appeal would
have been decided differently—and correctly—by any
other court. Whether a district court has the authority
to correct a manifest injustice under Rule 33 when the
weight of the evidence cannot support conviction should
not depend on geography.

5. This Petition also presents a second important

question, regarding the discretion of courts to refuse
to consider an unwaived, plain, and conceded error. The
district court at sentencing miscalculated Petitioner’s
Guidelines offense level as a result of a simple mathematical
mistake, resulting in a higher sentencing range. The error
went unnoticed until argument on Petitioner’s appeal.
Although the government conceded the error, the Second

1. Petitioner sought certiorari from the Second Circuit’s

interlocutory decision. The government objected on the grounds
that the judgment was not final, Brief for the United States, No.
20-1644, 2021 WL 4441408, at *6–7 (Sept. 24, 2021), and this Court
denied the petition. No. 20-1644, 142 S. Ct. 425 (Mem) (Nov. 1,
2021). Now that the judgment is final, Petitioner can seek review
of all previous non-final appellate orders. See Quackenbush v.
Allstate Ins. Co., 517 U.S. 706, 712 (1996).
 6

Circuit held that it need not consider Petitioner’s claim

of plain error because it was “forfeited.” App. 14a n.2.
That approach is inconsistent with this Court’s holdings
that a court of appeals “should correct” a plain error
that “seriously affects the fairness, integrity or public
reputation of judicial proceedings,” even when those
claims of error were “forfeited.” United States v. Olano,
507 U.S. 725, 736 (1993), and is at odds with the rule in at
least one other Circuit. This case therefore presents the
Court with an opportunity to clarify the discretion courts
of appeals have to disregard plain errors under Rule 52(b)
of the Federal Rules of Criminal Procedure.

OPINIONS BELOW

The court of appeals’ orders affirming the judgment

(App. 1a-15a) and denying rehearing (App. 16a–17a) are
unpublished, and its interlocutory opinion reversing
the district court’s new trial order (App. 18a–53a) is
reported at 977 F.3d 181. The district court’s new trial
order (App. 54a–133a) is reported at 366 F. Supp. 3d 477.
The sentencing transcript (relevant excerpts at App.
134a–142a) is unpublished. The court of appeal’s order
requesting supplemental briefing on the Sentencing
Guidelines miscalculation (App. 143a–144a) is unpublished.

JURISDICTION

The court of appeals’ order and judgment affirming

Petitioner’s conviction and sentence was issued on June
7, 2023. That court denied a timely rehearing petition on
July 18, 2023, and its mandate issued on July 25. This
Court has jurisdiction under 28 U.S.C. § 1254(1).
 7

FEDERAL RULES PROVISIONS INVOLVED

Federal Rule of Criminal Procedure 33(a) provides

in relevant part:

Upon the defendant’s motion, the court may

vacate any judgment and grant a new trial if
the interest of justice so requires.

Federal Rule of Criminal Procedure 52(b) provides:

Plain Error. A plain error that affects substantial

rights may be considered even though it was not
brought to the court’s attention.

STATEMENT OF THE CASE

1. Following a six-week trial in an “indisputably

complex case,” Petitioner was convicted of securities fraud
and conspiracy. App. 80a. The thrust of the government’s
case was that Jason Galanis, “the admitted mastermind of
the conspiracy and a serial fraudster,” App. 55a, effectively
took control of a series of financial institutions and used
that control to issue bonds on behalf of a Native American
tribal corporation, which he caused clients of one of the
financial institutions to purchase without their knowledge
or consent. Galanis then misappropriated the proceeds of
the bonds for his own purposes, including to buy a luxury
home. App. 42a.

Galanis and several co-conspirators pleaded guilty,

while Petitioner and two other defendants went to
trial, where “the primary issue was intent.” App.
80a. Although the government called one cooperating
 8

witness and two immunized ones, it is undisputed that

no witness directly implicated Petitioner, nor was there
any direct documentary evidence of his guilt. Rather,
the government’s case hinged entirely on circumstantial
evidence. The jury nonetheless convicted all three
defendants on all counts.

2. Following trial, the district court held that while

Petitioner was not entitled to acquittal as a matter of law
under Federal Rule of Criminal Procedure 29, he was
entitled to a new trial under Rule 33. It denied the other
defendants’ Rule 29 and Rule 33 motions. App. 122a–123a.
In a lengthy and thorough decision, the court evaluated
the entire trial record and applied what all parties agreed
was the correct standard at the time: whether, after
“examin[ing] the entire case,” there is “a real concern
that an innocent person may have been convicted,” i.e.,
that “letting a guilty verdict stand would be a manifest
injustice.” App. 79a.

The district court’s Rule 33 analysis focused on the

intent element of the charged crimes. After meticulously
surveying the trial evidence, the court concluded that the
evidence as a whole demonstrated that “Galanis viewed
[Petitioner] as a pawn,” whom he sought to keep [] in the
dark” “such that [Petitioner] knew only that which was
essential” to his “narrowly defined role.” App. 80a–81a.
Viewed as a whole, the record left the court with an
“unwavering concern that [Petitioner] is innocent.” App.
83a.

In reaching this conclusion, the district court carefully

weighed the inferences pressed by the government and
found them seriously lacking. The government’s case
 9

relied on drawing strained inferences from common

business “terms such as ‘liquidity’ and ‘discretionary’
as if they are necessarily evidence of criminal intent.”
App. 87a. The government treated these as synonymous
with misappropriation, but the district court looked at
the evidence “cumulatively” and found that “when these
individuals used the word discretionary in this context
they were referencing the ability of an asset manager to
exercise discretion in selecting investments for a client,”
not as a synonym for embezzlement. App. 92a. Because
“[d]iscretionary liquidity is frequently referenced in the
course of discussing perfectly legitimate transactions and
entities, including the sorts at issue in the case at hand,”
the court concluded that this “language in the emails is
facially innocuous or, at best, most naturally subject to
innocent interpretations,” App. 87a. (No witness who was
involved in the relevant emails testified to their meaning.
App. 87a.)

Similarly, the government put “much weight” on a

line in an email from one of Petitioner’s co-defendants—
“$20mm bond approved. Proceeds are 15mm to us and
5mm to them.” App. 89a. The government argued that
“15mm to us” put Petitioner on notice of his co-defendants’
intent to misappropriate funds. App. 89a. The district
judge, however, read the email in the context of the whole
record, including a legal opinion letter attached to the
email itself that set out how certain proceeds would be
distributed to the tribal corporation “while the remaining
$15 million was to be invested on its behalf” through the
financial institutions in which Petitioner had invested.
App. 89a. Because the “to us” language simply reiterated
what was in the legal opinion, the court drew the “more
natural inference” that a reader of this email would “not
 10

understand [the author] to mean that they would steal the

money.” App. 89a.

Upon reviewing these and many other documents,

the court found that the government had advanced a
“misleading impression” of the evidence, which required
“simply too large an inferential leap.” App. 97a.

The district court likewise found the government’s

other circumstantial evidence to be wanting in light of
the full record. For example, the government emphasized
an instance in which Petitioner sent $250,000 of his
own money to one of the Galanis-controlled financial
institutions—one in a series of investments and loans
that Petitioner made to that company. App. 104a. The
court found that Galanis stole $240,000 of the $250,000
for himself, “further undercut[ting] the notion that
[Petitioner] was aware that the money he supplied was
being used for illicit purposes.” App. 105a–06a n.22.

The district court also analyzed the weakness of the

inculpatory inferences urged by the government against
the substantial countervailing evidence of Petitioner’s
innocence. This included extensive evidence that Galanis
actively concealed his scheme from Petitioner, App. 26a,
and that “unlike his co-defendants at trial, [Petitioner]
never received misappropriated proceeds directly,” and
instead lost the substantial amounts that he had invested.
App. 113a; see App. 26a. The court was “left wondering
why [Petitioner] would have engaged in this scheme,
especially in light of the illegal gains reaped by his alleged
co-conspirators but not by him.” App. 113a.
 11

At the end of the day, the district court had a

“substantial concern [] that [Petitioner] lacked the
requisite intent and is thus innocent of the crimes charged
in the indictment.” App. 55a. Because “when viewing
the entire body of evidence . . . the Court harbors a real
concern that [Petitioner] is innocent,” the court vacated
the conviction and ordered a new trial under Rule 33.
App. 114a.

3. After the government appealed, the Second Circuit

concluded that its prior precedents—which permitted
district courts to order new trials based solely on weight of
the evidence considerations—were in need of “clarifying.”
App. 34a. Under Archer I’s new reading of Rule 33, district
courts no longer had discretion to “reweigh the evidence”
and determine whether the evidence weighed so heavily
against the verdict as to require a new trial. App. 30a–31a.
Instead—and putting aside cases involving instructional
or evidentiary error—district courts were precluded from
weighing the evidence at all, except in that narrow class
of cases where key evidence was insufficient as a matter
of law:

We stress that, under this standard, a district

court may not reweigh the evidence and set
aside the verdict simply because it feels some
other result would be more reasonable. To
the contrary, absent a situation in which the
evidence was patently incredible or defied
physical realities, or where an evidentiary or
instructional error compromised the reliability
of the verdict, a district court must defer to the
jury’s resolution of conflicting evidence.
 12

App. 30a–31a. Under this standard, courts in the Second

Circuit are required to view the facts on a Rule 33 weight-
of-the-evidence challenge “in the light most favorable to
the [g]overnment,” deviating only when, as a matter of
law, the jury would not have been “entitled” to draw an
inculpatory inference. App. 19a n.1. Based on its newly-
“clarified” standard, the Second Circuit held that the
district court should not have attempted to weigh the
evidence in the first place, reversed, and remanded for
sentencing.

4. At sentencing, the district court calculated

Petitioner’s offense level under the Guidelines in light of
what it believed it “ha[d] to accept” following reinstatement
of the verdict, including holding Petitioner responsible
for the conspiracy’s full loss amount and number of
victims. App. 136a. The district court also held, and the
government did not object, that Petitioner was entitled to
a two-point minor role adjustment under Section 3B1.2(b)
of the Guidelines. App. 137a.

When it came time to compute Petitioner’s total

offense level, however, the district court simply forgot to
subtract two levels for the minor role adjustment. As the
government later conceded, the “district court misstated
the Guidelines Range” because it failed, as a mathematical
matter, to subtract two levels “based on [Petitioner’s]
minor role.” CA2 ECF No. 70, at 1. “That should have
resulted in an offense level of 29 and a Guidelines range of
87 to 108 months’ imprisonment. But Judge Abrams stated
that the offense level was 31 and the Guidelines range was
108 to 135 months’ imprisonment.” Id. The error went
unnoticed at the time, however, and after determining
that it was appropriate to vary from the (erroneously-
 13

calculated) range, the district court sentenced Petitioner

to a term of a year and a day. App. 141a.

5. Petitioner appealed his conviction and sentence,

and noticed the Guidelines calculation error for the
first time in preparation for argument before the court
of appeals. After Petitioner raised the miscalculation
at oral argument, the panel requested supplemental
briefing on “whether the district court miscalculated
the applicable Sentencing Guidelines range, and if so,
whether [Petitioner] has forfeited his claim of error.” App.
144a. The government conceded the miscalculation, but
argued that Petitioner had “waived,” i.e., intentionally
relinquished, the error rather than forfeited it. CA2 ECF
No. 70, at 1–2.

6. The Second Circuit affirmed. App. 2a. With respect

to the new trial decision, the court of appeals held that its
decision in Archer I was law of the case, and there was no
reason or authority to revisit it. App. 2a–4a. 2 With respect

2. In between its interlocutory and final decisions in this

case, the Second Circuit decided another case dealing with
Rule 33 review based on weight-of-the-evidence concerns. That
decision reiterated that district courts lack any discretion to
“reweigh the evidence” unless there was “an evidentiary or
instructional error” or evidence that was “patently incredible or
defied physical realities.” United States v. Landesman, 17 F.4th
298, 331 (2d Cir. 2021). Landesman also stated that those “were
merely examples, and not an exhaustive list,” of the kinds of
“extraordinary circumstances” (on top of weight-of-the-evidence
concerns) that must be present for a district court not to be
bound by the inferences drawn by the jury. Consistent with its
interlocutory opinion in Archer I and Landesman, the Second
Circuit’s decision affirming the judgment here held that a district
must defer to “a jury’s resolution of conflicting evidence” unless
 14

to the conceded sentencing error, the court of appeals did

not accept the government’s waiver argument, finding
the error “forfeited” instead, but nonetheless refused to
consider it. App. 14a n.2.

REASONS FOR GRANTING THE PETITON

The decisions below adopted a reading of Rule 33

that strips district courts of discretion to weigh the trial
evidence even when, as here, there is no direct evidence
of guilt and the jury’s verdict rests entirely on inferences
from circumstantial evidence. The Second Circuit’s
decision in Archer I requires district courts under Rule
33 to defer to the jury’s evaluation of the evidence, unless
some extraordinary circumstance, such as evidentiary
or instructional error, also undermines the verdict. App.
30a–31a. No other court of appeals takes so limited an
approach to Rule 33 review, which is also in conflict with
this Court’s pre-Rule 33 holdings, not to mention the text
of the Rule itself. This split of authority was recently
recognized by the Fourth Circuit, and this Court should
grant review before it deepens further.

The court of appeals also held that it was free to refuse

to consider an unwaived claim of plain error. By claiming
discretion to ignore otherwise meritorious claims of plain
error, the Second Circuit departed from this Court’s
precedents and split from at least the Tenth Circuit,
which requires plain error review of forfeited (rather than
waived) errors.

some extraordinary circumstance, in addition to concerns about

the weight of the evidence itself, called the verdict into question.
App. 4a.
 15

Both of these questions raise important and recurring

questions of criminal procedure, and this case presents
an ideal record for assessing them.

I. THE COURT SHOULD GRANT REVIEW TO

CLARIFY DISTRICT COURTS’ AUTHORITY TO
ORDER A NEW TRIAL BASED ON THE WEIGHT
OF THE EVIDENCE

The courts of appeals are divided on the discretion that

a district court has to grant a new trial based on the weight
of the evidence alone, with the Second Circuit staking out
the most extreme position—and one incompatible with this
Court’s pre-Rule 33 precedent. In every other Circuit,
district courts are not required to draw all inferences
in the government’s favor, and have broad discretion
to reweigh the evidence. In the D.C, Fourth, Fifth, and
Tenth Circuits, district courts act as a “thirteenth juror”
and have virtually unfettered discretion to reweigh the
evidence. The Third, Seventh, Eighth, Ninth, and Eleventh
Circuits also afford district courts with discretion to weigh
the evidence without deferring to the jury’s inferences.
In the First and Sixth Circuits, district courts are free to
draw their own inferences from circumstantial evidence,
but have to accept the jury’s credibility determinations
in most instances. But in the Second Circuit, district
courts are required to examine the trial evidence in the
light most favorable to the government and “must defer”
to the verdict in virtually all cases. App. 43a. The only
exception permitted in the Second Circuit is where some
extraordinary circumstance, in addition to concerns
about the weight of the evidence, casts the verdict into
doubt, such as an “evidentiary or instructional error” or
the evidence being “patently incredible,” and therefore
 16

inadmissible as a matter of law, App. 30a–31a—a standard

that has been expressly rejected by the Fourth, Seventh,
and Eighth Circuits.

Only this Court can resolve this disagreement and

restore district courts’ discretion to grant a new trial
where “the interest of justice so requires.” Fed. R. Crim.
P. 33(a).

A. The Second Circuit’s Decision Conflicts with

Those of Other Circuits, Which Permit Rule 33
New Trials Based Solely on the Weight of the
Evidence.

Rule 33 provides a critical safeguard in criminal

jury trials by permitting a district court to “vacate any
judgment and grant a new trial if the interest of justice
so requires.” Id. This Court has yet to interpret how
Rule 33 should be applied to motions based on the weight
of the evidence alone, and this case gives the Court the
opportunity to address a split among the circuit courts on
precisely that issue: whether a district court may grant a
new criminal trial under Rule 33 based solely on weight
of the evidence considerations.

Here, the government appealed the district court’s

grant of Petitioner’s Rule 33 new trial motion. The district
court, after reviewing the entire record, had concluded
that there was no direct evidence of guilt, and that the
circumstantial evidence weighed so heavily against the
verdict that letting Petitioner’s “guilty verdict stand
would be a manifest injustice.” App. 79a. The Second
Circuit reversed, holding that the district court lacked
discretion to weigh the evidence at all, and that a district
 17

court “must defer” to the verdict unless one of two types

of errors affected the proceedings: (1) the evidence of
guilt was patently incredible or physically impossible,
and therefore inadmissible as a matter of law, or (2) there
was evidentiary or instructional error. App. 30a–31a.
Following remand and final judgment, the Second Circuit
adhered to its interlocutory decision as law of the case,
while allowing the hypothetical possibility that there
might be other “examples” of the kind of “extraordinary
circumstances” (on top of concerns about the weight of
the evidence) that could permit a district court to weigh
the evidence. App. 3a. Still, the Second Circuit held
that absent such extraordinary circumstances, district
courts must “defer to the jury’s resolution of conflicting
evidence.” App. 3a. As one of the judges on the Archer I
panel summarized in a later decision, “The Court may
not reweigh the evidence.” United States v. Berry, No. 20
Cr. 84, 2022 WL 1515397, at *11 (S.D.N.Y. May 13, 2022)
(Nathan, then-D.J.).

1. The Second Circuit’s approach to Rule 33 is in

tension with every other court of appeals, and more akin to
review for sufficiency of the evidence. The Fourth Circuit
underscored this difference recently, when it rejected the
government’s argument that a district could not order a
new trial based “solely on the court’s disagreement with
the jury’s inferences.” Rafiekian, 68 F.4th at 189. The
court explained:

On the one hand, a judgment of acquittal is

appropriate when the evidence is so deficient
that acquittal is the only proper verdict. That is,
if the evidence is so insufficient that no rational
trier of fact could convict, the court should
 18

enter a judgment of acquittal. Accordingly, in

determining whether to grant a judgment of
acquittal [under Rule 29], the court views the
evidence and inferences therefrom in the light
most favorable to the government.

A new trial, on the other hand, may be granted

where the government has presented sufficient
evidence for a reasonable jury to convict, but
the court nevertheless disagrees with the
jurors’ weighing of the evidence in finding the
defendant guilty. So in determining whether
a new trial is warranted, the district court—
sitting as a “thirteenth juror”—conducts its
own assessment of the evidence, unconstrained
by any requirement to construe the evidence in
the government’s favor.

Id. at 186. While a district court should exercise its

discretion to disturb a jury’s verdict sparingly, the Fourth
Circuit held that a court may do so “when the evidence
weighs so heavily against the verdict that it would be
unjust to enter judgment.” Id.

The Rafiekian court also expressly noted the circuit

split over weight of the evidence review, rejecting the
government’s characterization of the law as “uniform
and unequivocal.” Id. at 188. Quoting, for example, the
Second Circuit’s “patently incredible” test, the Fourth
Circuit noted that “some of our sister circuits have
suggested—consistent with the government’s view here—
that a serious vulnerability in the evidence must exist to
warrant a new trial based on the weight of the evidence.”
Id. (quoting Archer I, 977 F.3d at 181, 188). But the Fourth
 19

Circuit rejected the notion that weight of the evidence,

standing alone, is insufficient to merit Rule 33 relief,
explaining that “prohibiting the court from granting a
new trial based solely on disagreement with the jury’s
inferences would make little sense,” particularly in cases
where, as here, the government relied on “circumstantial
evidence.” Id. at 189.

Thus, in contrast to the Second Circuit, the Fourth

Circuit holds that a district court need not clear any
threshold of “special deference” to the jury’s inferences
before it weighs the evidence on a Rule 33 motion:
“even though the jury itself had apparently drawn
inferences favorable to the government, the court was
free to draw different inferences in making its new-trial
determination.” Id. at 189–90 (emphasis added). The
only hurdle that the Fourth Circuit requires is that the
evidence weigh so heavily against the verdict that it would
be a manifest injustice to let the verdict stand, id. at 190,
which is precisely the finding the district court made here,
before the Second Circuit held that there was no basis for
weighing the evidence in the first place. App. 30a–31a.

2. Rafiekian is not the only court to reject the Second

Circuit’s approach to Rule 33. Prior to Archer I, the
Seventh Circuit explained, “The focus in a motion for a
new trial is not on whether the testimony is so incredible
that it should have been excluded.” United States v.
Washington, 184 F.3d 653, 657 (7th Cir. 1999). “Rather,
the court considers whether the verdict is against the
manifest weight of the evidence,” regardless of whether
the evidence was “contrary to the laws of nature or
otherwise incapable of belief.” Id.
 20

The Washington decision continued a line of reasoning

that began in United States v. Morales, where the Seventh
Circuit held that a verdict could be so against the weight
of the evidence as to warrant a new trial, even where that
evidence was “not impossible,” “inconsistent with physical
reality[,] or otherwise incredible.” 902 F.2d 604, 607–08
(7th Cir. 1990) (“Morales I”), amended, 910 F.2d 467 (7th
Cir. 1990) (“Morales II”). In Morales I, the district court
had denied a motion for a new trial despite severe concerns
about the defendant’s guilt, apparently believing itself
constrained by prior circuit precedent that prevented it
from excluding testimony that did not defy physical reality
and was not otherwise inherently incredible. Id. at 606,
608. The Seventh Circuit reversed and ordered a new trial,
finding that even though the testimony was admissible,
“it would be a manifest injustice to let the guilty verdict
stand” in light of the entire trial record. Id. at 609.

In a brief amendment, the Seventh Circuit confirmed

that courts have discretion to order a new trial when
the evidence weighs strongly against the verdict: “If the
complete record, testimonial and physical, leaves a strong
doubt as to the defendant’s guilt, even though not so strong
a doubt as to require a judgment of acquittal, the district
judge may be obliged to grant a new trial” under Rule 33.
Morales II, 910 F.2d at 468.

The Eighth Circuit likewise rejects the “patently

incredible” test. In United States v. Stacks, 821 F.3d
1038, 1046 (8th Cir. 2016), the government appealed from
the grant of a new trial and argued that a district court
may only grant relief under Rule 33 “if [the evidence] is
physically impossible.” Id. The Eighth Circuit disagreed,
explaining that the “physically impossible” test it had
 21

previously articulated applied to Rule 29 motions, not

Rule 33. Id.

On a Rule 33 motion, the Eighth Circuit continued,

“The district court need not view the evidence in the light
most favorable to the verdict; it may weigh the evidence
and in so doing evaluate for itself the credibility of the
witnesses.” Id. (quoting United States v. Lincoln, 630
F.2d 1313, 1319 (8th Cir. 1980)). Under this standard, the
district court “did not abuse its considerable discretion”
in ordering a new trial, even though the district court
had acknowledged that the record contained “evidence
from which a reasonable jury could convict Stacks.” Id. at
1045–46. “The district court acknowledged the evidence
supporting the verdicts. The district court weighed it
against the exculpatory evidence before concluding in a
thorough, reasoned manner that a miscarriage of justice
may occur if the verdicts were allowed to stand. It did not
abuse its considerable discretion in doing so.” Id. at 1046.

Here, the district court also considered “the most

damning evidence” against Petitioner; also weighed the
government’s evidence “against the exculpatory evidence”;
and also issued a “thorough, well-reasoned opinion.” Id.
at 1045–1046; see App. 98a (considering “most damaging
evidence against [Petitioner]”); App. 92a (weighing
“inculpatory” and “exculpatory” evidence against one
other). But because the Second Circuit subsequently
adopted the physical impossibility standard for Rule 33
that Stacks had rejected, App. 30a–31a, it held that the
district court had no discretion to order a new trial despite
its “real concern that [Petitioner] is innocent,” App. 114a.
 22

Thus, of the four courts of appeals to have expressly

considered the question, the Second Circuit stands alone
in holding that the evidence must be “patently incredible
or def[y] physical reality” before a district court may
reweigh the evidence under Rule 33.

3. More generally, the other courts of appeals all

permit district courts to reweigh the evidence under Rule
33 rather than requiring them todefer to the inferences
drawn by the jury. For example, the D.C, Fifth, Sixth,
and Tenth Circuits have joined the Fourth Circuit in
adopting some version of the “thirteenth juror” standard
for Rule 33. As this Court explained in Tibbs v. Florida,
the “thirteenth juror” standard permits a district
court to order a new trial when it “disagrees with the
jury’s resolution of the conflicting testimony.” 457 U.S.
31, 43 (1982). Five courts of appeals use this analogy,
whereby “on such a motion for new trial the court sits as
a thirteenth juror.” United States v. Robertson, 110 F.3d
at 1120 n.11 (5th Cir. 1997); accord Rafiekian, 68 F.4th at
186; United States v. Sears, 2023 WL 395024, at *4 (6th
Cir. Jan. 25, 2023) (“When evaluating a Rule 33 motion,
a district court may act as a thirteenth juror, weighing
the evidence and deciding if the witnesses are credible.”);
United States v. Lopez, 576 F.2d 840, 845 n.1 (10th Cir.
1978) (“[U]nder Federal Rule of Criminal Procedure 33
a trial judge considers the credibility of witnesses and
weighs the evidence as a thirteenth juror.”); United States
v. Brodie, 295 F.2d 157, 160 (D.C. Cir. 1961) (“[O]n a motion
for a new trial made . . . ‘the court sits as a thirteenth
juror,’ and the trial court has broader powers.” (quoting
Barron & Holtzoff, Federal Practice & Procedure § 2281
(Rules ed. 1958))).
 23

The First, Third, Ninth, and Eleventh Circuits have

likewise adopted Rule 33 standards that are incompatible
with the Second Circuit’s approach. Each of these courts
holds that a district court may generally reweigh the
evidence on a Rule 33 motion without being required to
defer to the jury’s inferences. See, e.g., United States v.
Rothrock, 806 F.2d 318, 321 (1st Cir. 1986) (“In considering
such a motion, the court has broad power to reweigh
evidence . . . .”); United States v. Johnson, 302 F.3d 139,
150 (3d Cir. 2002) (“[W]hen a district court evaluates a
Rule 33 motion it does not view the evidence favorably
to the Government”); United States v. Alston, 974 F.2d
1206, 1211 (9th Cir. 1992) (same) (citing Lincoln, 630 F.2d
at 1319); United States v. Martinez, 763 F.2d 1297, 1312
(11th Cir. 1985) (same) (citing Lincoln, 630 F.2d at 1319).

4. To be sure, the other courts of appeals are not

entirely in lockstep. For example, the Sixth Circuit limits
the ability of district courts to second-guess questions of
witness credibility. See United States v. Burks, 974 F.3d
622, 628 (6th Cir. 2020). The First Circuit likewise permits
district courts to reevaluate witness credibility only in
“exceptional circumstances,” but has confirmed that a
district court may otherwise make “its own evaluation
of the evidence.” Merlino, 592 F.3d at 32–33. And the
Eleventh Circuit restricts new trials based on weight of
the evidence to instances where that evidence is “marked
by uncertainties and discrepancies,” although it is clear
that district courts “may weigh the evidence and consider
the credibility of the witnesses,” on Rule 33 motions.
United States v. Witt, 43 F.4th 1188, 1194 (11th Cir. 2022).
See generally Rafiekian, 68 F.4th at 188 (discussing
different circuits’ approach to Rule 33 review).
 24

But the Second Circuit alone holds that the trial

record on a Rule 33 weight-of-the-evidence challenge
must be viewed “in the light most favorable to the [g]
overnment,” with the district court required to “defer to
the jury’s resolution of conflicting evidence.” App. 19a n.2,
31a. In the Second Circuit, the question under Rule 33 is
whether the jury was “entitled” to convict, i.e., whether
the evidence it relied on was patently incredible, defied
physical realities, App. 30a–31a, or was marred by some
other “extraordinary circumstance” beyond concerns
about the weight of the evidence alone. Landesman,
17 F.4th at 330 (quoting Archer I, 977 F.3d at 188). The
Second Circuit’s standard simply cannot be reconciled
with the approach taken in any of the other circuits, where
the starting point under Rule 33 is that a district court
may view the trial evidence with fresh eyes—albeit eyes
that have “experience[d] the tenor of the testimony at
trial” and engaged in “personal evaluation[] of witness
demeanor.” Rafiekian, 68 F.4th at 187(quoting United
States v. A. Lanoy Alston, D.M.D., P.C., 974 F.2d 1206,
1212 (9th Cir. 1992)).

B. The Second Circuit’s Standard Departs from

this Court’s Precedents on Granting a New
Trial Based on the Weight of the Evidence.

The Second Circuit’s decisions here are also at odds

with this Court’s pre-Rule 33 decisions concerning district
courts’ discretion to weigh the evidence in criminal
proceedings.

1. Long before Rule 33 was adopted, this Court

recognized that “[i]f the verdict were manifestly against
the weight of evidence, defendant was at liberty to move for
 25

a new trial upon that ground,” and that “the granting or

refusing of such a motion is a matter of discretion” for the
trial court. Crumpton v. United States, 138 U.S. 361, 364
(1891). The Court contrasted this “weight of the evidence”
review with a motion for a “directed verdict” based on
whether the evidence was “sufficient.” Id. Crumpton’s
citations to civil cases also confirmed that district courts
possessed the same discretion to grant a new trial in
criminal cases as they did in civil ones. That discretion,
the Court had explained just four years prior, included
the ability to grant a new trial based on the weight of the
evidence even “where there is no insufficiency in point
of law; that is, there be some evidence to sustain every
element of the case, competent both in quantity and quality
in law to sustain it.” Metro. R.R. Co. v. Moore, 121 U.S.
558, 568–69 (1887).

These cases are still controlling because when Rule 33

was adopted, it did not overwrite the Court’s jurisprudence
on when a new trial may be granted based on weight of the
evidence; instead Rule 33 marked a “continuation of the
common law tradition.” United States v. Wolff, 892 F.2d 75
(4th Cir. 1989). The drafting history of the Rules confirms
that the Advisory Committee contemplated that motions
under Rule 33 would include the long-standing grounds
“[t]he verdict is contrary to the weight of the evidence,”
7 Drafting History of the Federal Rules of Criminal
Procedure 88, and that such motions would be “grantable
in the discretion of the court,” 1 Drafting History of the
Federal Rules of Criminal Procedure 130.

2. Just one year after Rule 33 went into effect, this

Court confirmed that the Rule, if anything, expanded
the discretion of district courts to grant new trials. In
 26

United States v. Smith, 331 U.S. 469, 472 (1947), the Court
reviewed a district court’s exceedingly terse grant of a
new trial—“It is our opinion upon this reconsideration
that in the interest of justice a new trial should be granted
the defendant”—issued with “no more particular ground
for the order.” Id. at 471. While the Court ultimately held
that the new trial order was granted out of time, it also
held that, on the merits, the order was unassailable. Id.
at 472–74.

The Court began by noting that Rule 33 “is declaratory

of the power to grant a new trial ‘in the interest of justice’”
generally and did not limit itself to any specific “reasons
catalogued as they might have been.” Id. at 472. Based
on this broad reading of Rule 33, the Court held: “The
generality of the reasons assigned by Judge Smith for
the order in question is all that is required.” Id. Thus, the
district court’s one-sentence explanation, which merely
recited the governing standard, was “all that is required”
to satisfy Rule 33. Id. at 471–72. By setting the bar for
compliance with Rule 33 so low, the Court showed that
Rule 33 had at least codified, if not expanded upon, district
courts’ historical discretion to order new trials.

3. That discretion continues today even after 18 U.S.C.

§ 3731 “gave the government the right to appeal new-trial
orders.” Rafiekian, 68 F.4th at 187. [N]othing about that
amendment suggests that it was intended to significantly
curb the district court’s historically unreviewable
discretion in ordering new trials.” Id. Thus, while courts of
appeals now have the literal authority to review grants of
new trials, their “review must be highly deferential in view
of the wide discretion accorded district courts by Rule 33,”
with a district court’s decision disturbed only “if it acted
 27

arbitrarily, if it failed to adequately take into account

judicially recognized factors constraining its exercise of
discretion, or if it rested its decision on erroneous factual
or legal premises.” Id. 3

The Second Circuit’s decisions ignore this long-

standing precedent. Instead of recognizing that district
courts may “weigh the evidence” in their “discretion,”
Crumpton, 138 U.S. at 364, the Second Circuit cabined
that discretion, requiring district courts to defer to a
verdict absent some identifiable fault at trial separate
from weight-of-the-evidence concerns itself. App. 30a–31a.
As the Rafiekian court pithily observed: “That can’t be
right. The government is entitled to rely on circumstantial
evidence, but it is not entitled to special deference when
it does so.” 68 F.4th at 190.

C. This Question is Important and Recurring.

The question presented concerns an “important

feature” of the law. Maryland v. King, 567 U.S. 1301,
1302 (2012) (Roberts, C.J., in chambers). By curtailing
district courts’ historic discretion to grant new trials,
the Petition raises a legal question that is fundamental
in criminal (and civil) procedure, and that arises with
frequency. Certain charges in particular—such as fraud
and conspiracy—turn largely on the defendant’s state of
mind and must be proved through circumstantial evidence.
See Rafiekian, 68 F.4th at 189. In such cases, the role of
3. See generally Brief of Procedure Scholars as Amici
Curiae, submitted in support of certiorari on Petitioner’s
interlocutory petition (No. 20-1644), which discusses in greater
detail the historical origins of new trial decisions and the deference
afforded to trial courts.
 28

the district court in preventing a miscarriage of justice is

particularly important. “The exercise of the trial court’s
power to set aside the jury’s verdict and grant a new trial
is not in derogation of the right of trial by jury but is one
of the historic safeguards of that right.” Gasperini v. Ctr.
for Humanities, Inc., 518 U.S. 415, 433 (1996) (quoting
with approval Aetna Cas. & Sur. Co. v. Yeatts, 122 F.2d
350, 353 (4th Cir. 1941)).

D. This Case Is an Ideal Vehicle to Resolve the

Question Presented.

This case presents a clean vehicle to reach the

question of whether a district court may order a new
trial based solely on the weight of the evidence, despite
its legal sufficiency. The evidence here was entirely
circumstantial and the district court, after reviewing the
record as a whole and considering all the government’s
evidence, concluded that letting the verdict stand would
be a manifest injustice. App. 79a. If the law of any other
circuit had applied to the district court’s new trial order
here, the decision would have been affirmed. While certain
courts of appeals limit district courts’ discretion to assess
witness credibility, the district court’s Rule 33 decision
here avoided making any such credibility determinations,
as no witnesses directly implicated Petitioner. Rather, the
court simply reweighed the evidence and determined that
the interests of justice demanded a new trial, as every
other circuit permits district courts to do. Thus, this
case perfectly illustrates the stark contrast between the
Second Circuit’s approach to Rule 33 and that followed in
the rest of the country.
 29

II. THE COURT SHOULD GRANT REVIEW TO

CLARIFY THE RULES FOR CORRECTING
PL A IN ERROR FROM SEN TENCING
GUIDELINES MISCALCULATIONS

The decision below also held that the court of appeals

had the discretion to ignore an unwaived claim of plain
error, if it went unnoticed by both the district court and
the parties until oral argument—even when the error was
conceded and seriously affected the fairness, integrity, and
public reputation of judicial proceedings. In so holding,
the Second Circuit split from the Tenth Circuit, which has
held that it will consider belatedly raised claims of plain
error where an appellant’s “failure to argue plain error
in his opening brief appears to be a product of mistake
(more akin to a forfeiture, not a waiver).” United States
v. Courtney, 816 F.3d 681, 684 (10th Cir. 2016); see also
United States v. Jackson, 327 F.3d 273, 304 (4th Cir. 2003)
(reviewing argument raised in “reply brief on appeal . . .
for plain error”). The Tenth Circuit’s practice is consistent
with this Court’s precedents, and the Court should take
this opportunity to clarify the scope of appellate discretion
under Rule 52(b).

The specific plain error here occurred when the

district court miscalculated the applicable Guidelines
range—the plainest kind of procedural sentencing error
there is. This error was initially overlooked by all involved,
until Petitioner’s counsel realized the error and raised it
before the Second Circuit at oral argument. The Second
Circuit ordered supplemental briefing, and in its brief, the
government conceded the error. Despite this concession,
despite the issue having been briefed, and despite all the
requirements for plain error being satisfied, the Second
Circuit refused to consider Petitioners’ claim. Instead,
 30

the court of appeals held that it was not required to do

so because the error had not been raised in Petitioner’s
initial briefs and therefore was “forfeited.” App. 14a n.2.

1. Federal Rule of Criminal Procedure 52(b) provides

that “[a] plain error that affects substantial rights may be
considered even though it was not brought to the court’s
attention.” This Court has explained that the word “may”
in Rule 52(b) does not afford courts unlimited discretion
to ignore plain errors that affect substantial rights:

Rather, the standard that should guide the

exercise of remedial discretion under Rule 52(b)
was articulated in United States v. Atkinson.
The Court of Appeals should correct a plain
forfeited error affecting substantial rights if the
error “seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.”

Olano, 507 U.S. at 736 (quoting United States v. Atkinson,

297 U.S. 157, 160 (1936)).

The Court has also explained what a court of appeals

should do when, as here, “an incorrect Guidelines range
goes unnoticed” by the court and the parties. Rosales-
Mireles v. United States, 138 S. Ct. 1897, 1904 (2018)
(quoting Molina-Martinez v. United States, 578 U.S. 189,
194 (2016)). The court of appeals must “[f]irst” determine
that the error was not waived; “[s]econd the error must
be plain”; and “[t]hird, the error must have affected the
defendant’s substantial rights.” Id. (last quotation quoting
Molina-Martinez, 578 U.S. at 194). “Once those three
conditions have been met, ‘the court of appeals should
exercise its discretion to correct the forfeited error if[,
fourth,] the error seriously affects the fairness, integrity
or public reputation of judicial proceedings.’” Id.
 31

Under this Court’s precedents, forfeiture alone is not a

reason to refuse to consider a plain error. “Mere forfeiture,
as opposed to waiver, does not extinguish an ‘error’ under
Rule 52(b).” Olano, 507 U.S. at 733. An appellate court may
not rely on forfeiture to avoid considering plain error, because
“[w]aiver is different from forfeiture. Whereas forfeiture is
the failure to make the timely assertion of a right, waiver is
the ‘intentional relinquishment or abandonment of a known
right.’” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)). The Second Circuit itself had previously acknowledged
that a defendant’s “[f]orfeiture does not preclude appellate
consideration of a claim in the presence of plain error.” United
States v. Yu-Leung, 51 F.3d 1116, 112–22 (2d Cir. 1995).

Despite these clear standards, the Second Circuit

determined that it could disregard an error that met all of
the factors set out in Rosales-Mireles, on the grounds that
it was not timely raised. Olano and Molina-Martinez afford
no such discretion. While a criminal defendant certainly puts
him- or herself in a disadvantaged position by failing to raise
a claim of plain error until reply or oral argument—thereby
limiting the number of opportunities to explain the error—
that untimeliness cannot disqualify an error from review
under Rule 52(b). To the contrary, the very purpose of Rule
52(b) is “to correct the forfeited error.” Rosales-Mireles,
138 S. Ct. at 1901. As Judges Tjoflat and Wilson observed
in United States v. Levy: “Rule 52(b) . . . was intended not
only to allow appellate courts to correct errors not objected
to at trial, but also to allow them to correct errors not raised
on appeal.” 391 F.3d 1327, 1341 n.8 (11th Cir. 2004) (Tjoflat
& Wilson, JJ., dissenting from denial of rehearing en banc).
That reading of Rule 52 was vindicated when this Court
granted certiorari in Levy, vacated, and remanded “for
further consideration in light of United States v. Booker.”
Levy v. United States, 545 U.S. 1101 (2005).
 32

2. This case presents a particularly good vehicle for

correcting this practice by the Second Circuit because
the Guidelines miscalculation here clearly satisfies each
of the elements of plain error. First, there was no waiver.
Petitioner pressed his claim of error at oral argument
and in supplemental briefing. And while the government
argued that the error had been waived, the Second Circuit
did not accept that position and instead deemed the
argument “forfeited,” i.e., untimely. App. 14a n.2. Second,
the “error is plain”: the district court made a two-level
Guidelines miscalculation and this plain arithmetic error
is conceded by the government. Rosales-Mireles, 138 S.
Ct. at 1904. The error also affected Petitioner’s substantial
rights because there is a “reasonable probability that [he]
would have been subject to a different sentence but for the
error.” Id. at 1908–09. As Molina-Martinez explained:

Where [] the record is silent as to what the

district court might have done had it considered
the correct Guidelines range, the court’s
reliance on an incorrect range in most instances
will suffice to show an effect on the defendant’s
substantial rights. Indeed, in the ordinary case
a defendant will satisfy his burden to show
prejudice by pointing to the application of an
incorrect, higher Guidelines range and the
sentence he received thereunder.

578 U.S. at 200–01; accord Rosales-Mireles, 138 S. Ct.

at 1907. Here, the district court made no statement
suggesting that it would have imposed the same sentence
if the Guidelines range were lower,4 and it repeatedly

4. Although the two-level mathematical Guidelines error

was not raised at sentencing, and thus the district court had no
 33

invoked the miscalculated Guidelines range as the anchor

point in its sentencing analysis, thus demonstrating that it
was relying on that miscalculated range when it sentenced
Petitioner. See, e.g., App. 139a. The error therefore
affected Petitioner’s substantial rights.

Lastly, the miscalculation “error seriously affects

the fairness, integrity or public reputation of judicial
proceedings.” Rosales-Mirales, 138 S. Ct. at 1905. A
“plain Guidelines error that affects substantial rights . . .
ordinarily will satisfy [this] fourth prong.” Id.

The risk of unnecessary deprivation of liberty

particularly undermines the fairness, integrity,
or public reputation of judicial proceedings
in the context of a plain Guidelines error
because of the role the district court plays in
calculating the range and the relative ease of
correcting the error . . . . Moreover, a remand
for resentencing, while not costless, does not
invoke the same difficulties as a remand for
retrial does. A resentencing is a brief event,
normally taking less than a day and requiring
the attendance of only the defendant, counsel,
and court personnel.

Id. at 1907.

occasion to comment on its specific effect on the ultimate sentence,

Petitioner did raise other objections to the Guidelines calculation
that would have resulted in a materially lower range. App. 135a.
Despite these objections, the district court never suggested
it would have imposed the same sentence had the applicable
sentencing range been lower.
 34

Petitioner’s claim of sentencing miscalculation

therefore meets each of the plain error factors set out in
Rosales-Mireles, and under this Court’s precedent, the
Second Circuit could not rely on Petitioner’s forfeiture to
avoid “exercis[ing] its discretion to correct the forfeited
error.” Id. at 1905. This Court should grant review to
clarify this important and recurring principle of criminal
procedure to ensure that clear, unwaived, and fundamental
errors do not go uncorrected.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,
Matthew L. Schwartz
Counsel of Record
Craig Wenner
David Barillari
K atherine Zhang
Boies Schiller Flexner
55 Hudson Yards, 20th Floor
New York, New York 10001
(212) 446-2300
mlschwartz@bsfllp.com

Counsel for Petitioner

October 16, 2023

APPENDIX
 i

TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT, FILED JUNE 7, 2023 . . . . . 1a

APPENDIX B — DENIAL OF REHEARING

OF T H E U N I T ED S TAT E S C OU RT
OF A PPE A LS FOR T H E SEC ON D
CIRCUIT, FILED JULY 18, 2023 . . . . . . . . . . . . . 16a

APPENDIX C — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT, DATED OCTOBER 7, 2020 . 18a

A P P E N DI X D — O P I N ION OF T H E
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
NEW YORK, FILED NOVEMBER 15, 2018 . . . . 54a

APPENDIX E — TRANSCRIPT EXCERPT

FROM THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK, FILED FEBRUARY 28, 2020 . . . 134a

APPENDIX F — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT, DATED MAY 10, 2023 . . . 143a
 1a

APPENDIX Appendix A
A — OPINION OF THE
UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT, FILED JUNE 7, 2023

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 7th day of June, two thousand twenty-
three.

PRESENT:
RICHARD J. SULLIVAN,
WILLIAM J. NARDINI,
MYRNA PÉREZ,
Circuit Judges.

No. 22-539
UNITED STATES OF AMERICA,
Appellee,
v.
DEVON ARCHER,
Defendant-Appellant.*

Appeal from a judgment of the United States District

Court for the Southern District of New York (Ronnie
Abrams, Judge).
* The Clerk of Court is respectfully directed to amend the
official case caption as set forth above.
 2a

Appendix A

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is AFFIRMED.

Devon Archer appeals from a judgment of conviction

following a jury trial in which he was found guilty of
conspiracy to commit securities fraud, in violation of
18 U.S.C. § 371, and securities fraud, in violation of 15
U.S.C. §§ 78j(b) and 78ff and 17 C.F.R. § 240.10b-5,
stemming from his involvement in a scheme to defraud
the Wakpamni Lake Community Corporation of the Oglala
Sioux Tribe (the “Wakpamni”) of the proceeds of a series
of bond offerings worth approximately $60 million. For his
role in the scheme, Archer was sentenced to one year and
one day in prison to be followed by one year of supervised
release. On appeal, Archer raises several challenges to his
conviction and sentence, each of which we address in turn.
We assume the parties’ familiarity with the underlying
facts, procedural history, and issues on appeal.

I. The Law-of-the-Case Doctrine

Archer argues that “the law of this Circuit has

changed so substantially” since we reversed the district
court’s grant of his motion for a new trial under Rule 33
of the Federal Rules of Criminal Procedure, see United
States v. Archer (Archer I), 977 F.3d 181 (2d Cir. 2020), that
we must reinstate the district court’s decision or remand
to the district court for reconsideration of the motion.
Archer Br. at 30. As a general principle, the law-of-the-
case doctrine requires us to “adhere to [our] own decision
at an earlier stage of the litigation.” United States v.
Plugh, 648 F.3d 118, 123 (2d Cir. 2011) (internal quotation
 3a

Appendix A

marks omitted). But we need not adhere to the law of the

case in the face of an intervening change in controlling
law, new evidence, or the need to prevent a clear error or
a manifest injustice. See Doe v. N.Y.C. Dep’t of Soc. Servs.,
709 F.2d 782, 789 (2d Cir. 1983). In asserting that the law
of the Circuit has changed since our prior opinion, Archer
relies on United States v. Landesman, 17 F.4th 298 (2d
Cir. 2021). That reliance is misplaced.

In Archer I, we clarified that a district court may

not grant a motion for a new trial “based on the weight
of the evidence alone unless the evidence preponderates
heavily against the verdict to such an extent that it
would be manifest injustice to let the verdict stand.”
Archer I, 977 F.3d at 187-88 (internal quotation marks
omitted). To illustrate when it would be appropriate to
grant a motion for a new trial under this standard, we
provided two examples of when a district court need not
“defer to the jury’s resolution of conflicting evidence” –
namely, (1) where the evidence was “patently incredible
or defied physical realities,” or (2) where an “evidentiary
or instructional error compromised the reliability of the
verdict.” Id. at 188-89 (internal quotation marks and
alterations omitted). Because Archer I is a published
opinion, it binds all future panels of this Court “unless
and until it is overruled by the Court en banc or by the
Supreme Court.” Deem v. DiMella-Deem, 941 F.3d 618,
623 (2d Cir. 2019). The Landesman panel thus had no
authority to overrule our holding in Archer I.

A rcher nevertheless arg ues that Landesman

“retreated” from Archer I’s supposed position that
there are only two situations where a district court may
 4a

Appendix A

disregard a jury’s resolution of conflicting evidence.

Archer Br. at 29. But this is wrong for two reasons. First,
Archer I never said that the two examples it provided
formed an exhaustive list. Second, Landesman never
purported to walk back the holding in Archer I. For these
reasons, Archer’s contention that Landesman sub silentio
reversed Archer I’s holding as applied to him defies logic
and the clear law of this Circuit. We therefore decline to
reinstate the district court’s decision or remand to the
district court for reconsideration of Archer’s motion for
a new trial.

II. Archer’s Motion to Suppress

Archer next challenges the sufficiency of two nearly

identically worded warrants used to seize records
associated with two of his email accounts. Specifically, he
contends that the warrants flunk the Fourth Amendment’s
particularity requirement because they included three
catch-all phrases – “among other statutes,” “evidence of
crime,” and “communications constituting crime” – that
allowed law enforcement officers to search for evidence of
any crime rather than evidence of the Wakpamni scheme
alone. Archer Br. at 34-35 (quoting App’x at 211, 218)
(emphasis omitted). We disagree.

“In an appeal from a district court’s ruling on a motion

to suppress, we review legal conclusions de novo and
findings of fact for clear error.” United States v. Freeman,
735 F.3d 92, 95 (2d Cir. 2013). The Fourth Amendment
provides that “no Warrants shall issue, but upon probable
cause, . . . and particularly describing the place to be
 5a

Appendix A

searched, and the persons or things to be seized.” U.S.

Const. amend. IV. To satisfy the particularity requirement,
a warrant must (1) “identify the specific offense for which
the police have established probable cause”; (2) “describe
the place to be searched”; and (3) “specify the items to
be seized by their relation to designated crimes.” United
States v. Ulbricht, 858 F.3d 71, 99 (2d Cir. 2017) (internal
quotation marks omitted). But the Fourth Amendment
does not demand “a perfect description of the data to be
searched and seized.” Id. at 100. Rather, “some ambiguity”
is permitted “so long as law enforcement agents have
done the best that could reasonably be expected under
the circumstances, have acquired all the descriptive facts
which a reasonable investigation could be expected to
cover, and have insured that all those facts were included
in the warrant.” Id. (internal quotation marks omitted).

Here, both warrants specified the offenses for which

the officers had established probable cause, see App’x at
211, 218 (listing 18 U.S.C. § 1348; 15 U.S.C. §§ 78j(b) and
78ff; 17 C.F.R. 240.10b-5; 18 U.S.C. § 371; and 15 U.S.C.
§§ 80b-6 and 80b-17), identified the email accounts to be
searched, see id. at 205, 216 (naming the accounts), and
specifically described the material to be seized from
those accounts, see id. at 205-13, 216-19 (authorizing the
collection of email content, address book content, and
transactional information, among other data).

Archer nevertheless contends that the warrants’

inclusion of the phrase “among other statutes,” id. at 211,
218, at the end of the list of specified crimes for which there
was probable cause authorized an unlawful general search,
 6a

Appendix A

untethered to the Wakpamni scheme. But read in context,

the warrants make clear that they were sufficiently
tailored to permit “the rational exercise of judgment by
the executing officers in selecting what items to seize.”
United States v. Shi Yan Liu, 239 F.3d 138, 140 (2d Cir.
2000) (internal quotation marks and alterations omitted).

Archer makes similar arguments with respect to

the warrants’ use of the phrases “evidence of crime”
and “communications constituting crime.” App’x at 212,
219. But once again, Archer’s interpretation rests on
his attempt to isolate those phrases from the rest of the
warrant to suggest that law enforcement officers were
authorized to collect evidence of any crime whatsoever
without limitation. Considered in context, the warrants do
no such thing; they authorized a search for evidence related
to only one conspiracy. See id. at 211, 218 (authorizing
the seizure of “evidence of the agreement to engage in
a fraudulent scheme involving the issuance of bonds on
behalf of the Wakpamni . . . and the misappropriation
of the proceeds of those bonds”); see also Andresen v.
Maryland, 427 U.S. 463, 479-82, 96 S. Ct. 2737, 49 L.
Ed. 2d 627 (1976) (concluding that the term “crime”
had to be read in the context of the warrant, and that
when so read, it clearly referred to the scheme at issue);
United States v. Riley, 906 F.2d 841, 844 (2d Cir. 1990)
(upholding “broadly worded categories of items” in light
of the warrant’s “illustrative list” of items that could be
seized). We therefore cannot say that the district court
erred in concluding that the warrants were sufficiently
particularized.
 7a

Appendix A

III. Archer’s Severance Motion

Archer also argues that his joint trial with John

Galanis subjected him to a substantial risk of “spillover
prejudice.” Archer Br. at 51. Again, we disagree. In
federal courts, there is a preference for defendants who
are indicted together to be tried together. See Zafiro v.
United States, 506 U.S. 534, 537, 113 S. Ct. 933, 122 L. Ed.
2d 317 (1993). Accordingly, severance is required “only if
there is a serious risk that a joint trial would compromise
a specific trial right” of a defendant or “prevent the jury
from making a reliable judgment about guilt or innocence.”
Id. at 539. We review a district court’s denial of a motion to
sever for abuse of discretion. See United States v. Amato,
15 F.3d 230, 237 (2d Cir. 1994).

Archer first contends that he was prejudiced because

the evidence at trial “overwhelmingly” established
Galanis’s guilt, while the evidence against Archer was
“entirely documentary and inferential.” Archer Br. at
56 (internal quotation marks omitted). Perhaps. But we
have “repeatedly recognized that joint trials involving
defendants who are only marginally involved alongside
those heavily involved are constitutionally permissible.”
See United States v. Locascio, 6 F.3d 924, 947 (2d Cir.
1993) (collecting cases). And so, while the quantum of
evidence presented against Archer and Galanis may not
have been equal, we see nothing in the record to suggest
that the jury was unable to compartmentalize the evidence
against each defendant.
 8a

Appendix A

Archer next asserts that the introduction of evidence

of Galanis’s prior conviction specifically subjected Archer
to spillover prejudice. But the mere “fact that evidence
may be admissible against one defendant but not another
does not necessarily require a severance.” United States v.
Spinelli, 352 F.3d 48, 56 (2d Cir. 2003) (internal quotation
marks omitted). Indeed, we have held that introducing
evidence of one defendant’s prior bad acts does not
necessarily prejudice other defendants at trial, see United
States v. Cacace, 796 F.3d 176, 192 (2d Cir. 2015), and we
see no reason to take a different approach here. Moreover,
the district court’s charge — which expressly instructed
the jury not to consider the evidence of Galanis’s prior
conviction against Archer — cured any risk of prejudice.
See Spinelli, 352 F.3d at 55 (reasoning that any risk
of prejudice in joint trial may be remedied where, as
here, “the district court explicitly instructed the jury to
consider the defendants individually”).

IV. The District Court’s Jury Instructions

Archer challenges the district court’s jury instructions

in two respects. First, he argues that the district court
erred by failing to instruct the jury regarding multiple
conspiracies. Second, he contends that the district court
erred by advising the jury that it could infer Archer’s
knowledge of the scheme based on a theory of conscious
avoidance. Archer is wrong on both counts.
 9a

Appendix A

A. Multiple-Conspiracies Charge

As a general matter, “a criminal defendant is entitled

to instructions relating to his theory of defense, for which
there is some foundation in the proof.” United States v.
Dove, 916 F.2d 41, 47 (2d Cir. 1990). Nevertheless, we
will vacate a conviction for failure to give a requested
instruction only when the defendant’s proposed instruction
“is legally correct, represents a theory of defense with
basis in the record that would lead to acquittal, and
the theory is not effectively presented elsewhere in the
charge.” United States v. Doyle, 130 F.3d 523, 540 (2d Cir.
1997) (internal quotation marks omitted). Here, Archer
requested an instruction that the Wakpamni scheme
consisted of two conspiracies – one to misappropriate
the proceeds of the Wakpamni bonds, and another one to
defraud the investors who purchased the bonds by failing
to disclose material conflicts of interest.

A defendant is “not entitled to a multiple conspiracy

charge” when “only one conspiracy has been alleged and
proved.” United States v. Maldonado-Rivera, 922 F.2d
934, 962 (2d Cir. 1990) (internal quotation marks omitted).
To prove a single conspiracy, the government must show
only that “each alleged member agreed to participate in
what he knew to be a collective venture directed toward
a common goal.” United States v. Geibel, 369 F.3d 682,
689 (2d Cir. 2004) (internal quotation marks omitted). A
cognizable single conspiracy thus does not transform into
multiple conspiracies “merely by virtue of the fact that it
may involve two or more phases or spheres of operation,
so long as there is sufficient proof of mutual dependence
 10a

Appendix A

and assistance” among the conspirators. United States

v. Berger, 224 F.3d 107, 114-15 (2d Cir. 2000) (internal
quotation marks omitted).

Here, the record demonstrates that there was only

one conspiracy — to defraud the Wakpamni into issuing
more than $60 million in debt and to misappropriate the
bond proceeds for personal use. To be sure, the conspiracy
involved two types of misrepresentations and two sets of
victims. With respect to the first victim – the Wakpamni –
one group of coconspirators lied to the tribe about how the
bond proceeds would be invested. As for the other victims
– the pension funds – a different set of coconspirators lied
to them about the nature of their investment in the bonds.
But the two purported conspiracies involved the same
goal (to divert bond proceeds for personal use) and were
hatched by the same individual (Jason Galanis). See id. at
115 (considering overriding goal, overlap of leadership, and
common participants as evidence that several schemes fell
within same conspiracy). We thus agree with the district
court’s conclusion that there was no factual basis for a
multiple-conspiracies charge.

B. Conscious-Avoidance Charge

Archer also challenges the district court’s conscious-

avoidance instruction. A conscious-avoidance instruction
is appropriate when (1) “a defendant asserts the lack of
some specific aspect of knowledge required for conviction,”
and (2) “the appropriate factual predicate for the charge
exists.” United States v. Aina-Marshall, 336 F.3d 167, 170
(2d Cir. 2003). Both requirements are met here.
 11a

Appendix A

As to the first prong, Archer clearly disputed his

knowledge of the object of the alleged conspiracy. While
Archer did not testify, his knowledge of the goals of the
conspiracy was plainly in dispute at trial, see, e.g., App’x
at 894 (“The money did move that way, it moved in a big
circle, but Devon didn’t know it.” (emphasis added)), and
in fact, remains disputed on appeal, see, e.g., Archer Br.
at 45 (arguing that Archer “had no idea” that the source
of the funds used to purchase the second bond issuance
came from the first bond issuance).

With respect to the second prong, there was a sufficient

factual predicate for a conscious-avoidance instruction on
the facts before the jury. In Archer I, we catalogued many
of the red flags Archer received during the course of the
scheme, including the “Ponzi-like” funding of the second
bond purchase using the proceeds of the first and the
circuitous routing of $15 million to make that purchase.
977 F.3d at 192-93. On this record, we see no reason to
second-guess the district court’s conscious-avoidance
instruction. See United States v. Eltayib, 88 F.3d 157,
170 (2d Cir. 1996) (explaining that “if the defendant’s
participation in the conspiracy has been established,
conscious avoidance may support a finding with respect
to the defendant’s knowledge of the objectives or goals of
the conspiracy”).

Archer counters that the charge was improper

because the government affirmatively argued that Archer
had “‘devised a scheme, a scheme to use tribal bonds to
fuel’ his ‘business empire.’” Archer Br. at 44 (quoting
App’x at 248). But a conscious-avoidance instruction is
 12a

Appendix A

appropriate even where the government’s primary theory

is that the defendant had actual knowledge. See United
States v. Hopkins, 53 F.3d 533, 542 (2d Cir. 1995) (holding
that a conscious-avoidance instruction is proper even when
“the government has primarily attempted to prove that
the defendant had actual knowledge, while urging in the
alternative that if the defendant lacked such knowledge
it was only because he had studiously sought to avoid
knowing what was plain”).1

1. A rcher also argues that the government improperly

urged the jury to infer his “intent to participate in the alleged
conspiracy” based on a theory of conscious avoidance. Archer Br. at
46 (emphasis added). As this argument does not relate to the district
court’s jury instructions, Archer must show that the government’s
arguments “resulted in substantial prejudice by so infecting the
trial with unfairness as to make the resulting conviction a denial
of due process.” United States v. Aquart, 912 F.3d 1, 27 (2d Cir.
2018) (internal quotation marks omitted). Contrary to Archer’s
assertion, the government argued only that the jury could infer
Archer’s knowledge of the object of the conspiracy based on conscious
avoidance. See, e.g., App’x at 792 (arguing that “you can’t put your
head in the sand; you can’t see all these red flags, all these things
about these transactions that don’t make any sense and not want
to know,” as “[t]hat is the same thing as acting knowingly”); id. at
1096 (arguing that the deal “is filled with red flags from Archer[‘s]
. . . perspective” and that “you can’t say you didn’t know because
you stuck your head in the sand”). It never argued that Archer’s
participation in the conspiracy itself was a product of his willful
blindness. Compare United States v. Scotti, 47 F.3d 1237, 1243 (2d
Cir. 1995) (holding that a conscious-avoidance charge may not be
used on the issue of “membership in a conspiracy”), with United
States v. Tropeano, 252 F.3d 653, 660 (2d Cir. 2001) (holding that a
conscious-avoidance charge may “support a finding that a defendant
knew of the objects of the conspiracy”). We thus discern no error on
this score, plain or otherwise.
 13a

Appendix A

V. Sentencing Challenge

Archer also argues that the district court committed

reversible error by refusing to engage in the requisite
fact-finding at sentencing pursuant to the applicable
preponderance-of-the-evidence standard. Specifically, he
contends that this error infected the court’s calculation
of his offense level because the court added a twenty-
two level enhancement for loss amount and a two-level
enhancement for ten or more victims based on a “guess” as
to what “facts a jury might have found.” Archer Br. at 18.

While Archer may disagree with the district court’s

factual findings, there can be no doubt that the court
properly understood its role in assessing Archer’s
offense conduct under the Sentencing Guidelines. Before
calculating Archer’s offense level, the district court stated
that it would “evaluate the enhancements to Mr. Archer’s
sentence under the typical preponderance[-]of[-]the[-]
evidence standard.” App’x at 2130. The district court then
reviewed the evidence showing Archer’s knowledge of the
full scope of the Wakpamni scheme. The court observed,
for example, that Archer “personally purchased $15
million worth of bonds in the second issuance using money
given to him by Jason Galanis, made representations to
the [Wakpamni] that he was purchasing the bonds ‘for his
own account and for investment only,’ transferred them to
another entity controlled by his codefendants, [and] made
false statements about the source of the money to Morgan
Stanley and Deutsche Bank.” Id. at 2132. The district
court also highlighted evidence showing that Archer was
“informed about the progress of the [investment advisers’]
 14a

Appendix A

acquisitions” and that he was aware of the “possibility of

placing the Wakpamni bonds with them.” Id. Based on
this evidence, the court found “by a preponderance of the
evidence” that Archer was aware of the full loss amount
and number of victims. Id. at 2132-33.

Against this clear record, Archer cherry-picks a

handful of sentence fragments from the sentencing
hearing transcript to argue that the district court shirked
its fact-finding responsibilities and assumed “that it was
required to defer to factual findings that it believed were
‘implicit in the jury’s verdict,’ but which [actually] went
far beyond the elements of the charged crimes.” Archer
Br. at 12 (quoting App’x at 2154). But the full transcript
reveals that the district court did no such thing. See, e.g.,
App’x at 2114 (“I don’t think I need to accept every fact
argued by the government at summation.”); id. at 2116 (“I
don’t think I necessarily need to find that he was involved
in every aspect of the scheme.”). At bottom, the district
court correctly exercised its discretion and engaged in its
own independent fact-finding to support its calculation of
Archer’s offense level under the Sentencing Guidelines. 2

***

2. At oral argument, counsel for Archer argued for the first time
that the district court miscalculated Archer’s Sentencing Guidelines
range. While counsel initially represented that this issue was “less
developed in the briefing,” he ultimately conceded that it was, in fact,
not developed at all. Oral Argument at 5:22-7:40. Because Archer
failed to raise this argument in his opening brief or his reply brief,
he has forfeited it. See United States v. Cedeño, 644 F.3d 79, 83 n.3
(2d Cir. 2011).
 15a

Appendix A

We have considered Archer’s remaining arguments

and find them to be without merit. Accordingly, we
AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court
/s/ Catherine O’Hagan Wolfe
 16a

AppendixOF
APPENDIX B — DENIAL B REHEARING OF
THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT, FILED JULY 18, 2023

UNITED STATES COURT OF APPEALS

FOR THE
SECOND CIRCUIT

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 18th day of July, two thousand twenty-
three.

Docket No: 22-539

UNITED STATES OF AMERICA,

Appellee,
v.
DEVON ARCHER,
Defendant-Appellant.

ORDER

Appellant, Devon Archer, filed a petition for panel

rehearing, or, in the alternative, for rehearing en banc.
The panel that determined the appeal has considered the
request for panel rehearing, and the active members of the
Court have considered the request for rehearing en banc.
 17a

Appendix B

IT IS HEREBY ORDERED that the petition is

denied.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk
/s/ Catherine O’Hagan Wolfe
 18a

Appendix Cof the united

Appendix c — opinion
states court of appeals for the second
circuit, dated october 7, 2020

United States Court of Appeals

for the Second Circuit

Docket No. 18-3727

UNITED STATES OF AMERICA,

Appellant,
v.
DEVON ARCHER,
Defendant-Appellee,
JASON GALANIS, GARY HIRST, JOHN GALANIS,
AKA YANNI, HUGH DUNKERLEY, MICHELLE
MORTON, BEVAN COONEY,
Defendants.*

November 18, 2019, Argued;

October 7, 2020, Decided

Before: Walker, Sullivan, Circuit Judges,

Nathan, District Judge.†

* The Clerk of the Court is directed to amend the caption as

set forth above.
† Judge Alison Nathan, of the United States District Court for
the Southern District of New York, sitting by designation.
 19a

Appendix C

Richard J. Sullivan, Circuit Judge:

The government appeals from an order of the United

States District Court for the Southern District of New
York (Ronnie Abrams, J.) vacating Defendant-Appellee
Devon Archer’s conviction and granting his motion for a
new trial pursuant to Federal Rule of Criminal Procedure
33. The operative indictment, filed March 26, 2018,
charged Archer with conspiracy to commit securities
fraud, in violation of 18 U.S.C. § 371, and securities
fraud, in violation of 15 U.S.C §§ 78j(b) and 78ff, 17 C.F.R.
§ 240.10b-5, and 18 U.S.C. § 2. After a month-long trial,
the jury found Archer guilty on both counts. On appeal,
the government argues that the district court abused its
discretion in setting aside the jury’s verdict under Rule
33 as against the weight of the evidence. We agree.

I. Background

A. Facts1

This case concerns a scheme engineered by Jason

Galanis (“Galanis”) and others to defraud a tribal entity,

1. ”Because this is an appeal from a judgment of conviction

entered after a jury trial, the . . . facts are drawn from the trial
evidence and described in the light most favorable to the [g]
overnment.” United States v. Litwok, 678 F.3d 208, 210-11 (2d
Cir. 2012). Since a key component of Archer’s defense at trial and
his argument on appeal is his intent (or lack thereof), this section
provides only a broad overview of the scheme, focusing primarily
on the undisputed facts. We discuss the details of Archer’s role and
what the jury could infer from the evidence regarding his knowledge
and intent in the following section.
 20a

Appendix C

the Wakpamni Lake Community Corporation of the Oglala

Sioux Tribe (the “Wakpamni”), of the proceeds of a series
of bond offerings worth approximately $60 million. In
doing so, the conspirators harmed not only the Wakpamni
but also several investors upon whom they foisted the
Wakpamni bonds — which had no secondary market — in
order to generate cash for their own personal use.

In early 2014, Jason Galanis, Archer, Bevan Cooney,

and others were working together to acquire financial
services companies that they could “roll up” into a
large financial conglomerate with Archer at the helm.
They began by investing in Burnham Financial Group
(“Burnham”), a well-established financial services
company with a prominent name that they sought to
leverage in building their own conglomerate. But to
purchase additional so-called “roll-up” companies, they
needed capital.

So, in February 2014, Galanis informed Archer and

Cooney that he had been “brought a deal” for tax-free
bonds from the Oglala Sioux Tribe, to which the Wakpamni
belonged. App’x 848. The next month, John Galanis, Jason
Galanis’s father, met with a representative from the Sioux
Tribe and convinced the Wakpamni to issue a series of
bonds, promising that the proceeds from the sale of these
bonds would be placed into an annuity. The Wakpamni
understood that the annuity “would be like an insurance
wrapper that would protect the principal investment and
generate annual income to cover the interest on the bonds
as well as generate income for” the Wakpamni’s economic
development projects. Tr. 1836; see also Tr. 1850. The
 21a

Appendix C

scheme had an air of legitimacy: John Galanis represented

to the Wakpamni that Wealth Assurance-AG, a legitimate
insurance company that Archer, Cooney, Jason Galanis,
and others had acquired, would be the annuity provider.
The transaction documents, however, listed Wealth
Assurance Private Client Corp. (“WAPC”), a shell entity
that John Galanis falsely represented to be a subsidiary
of Wealth Assurance-AG, as the annuity provider. In
June 2014, one of Archer’s co-defendants opened a bank
account in the name of WAPC (the “WAPC account”)
and designated Hugh Dunkerley, another of Archer’s
eventual co-defendants, as a signatory of that account.
Finally, John Galanis represented to the Wakpamni that
Burnham Securities Inc., a legitimate registered broker-
dealer, would serve as the “placement agent” responsible
for “undertak[ing] due diligence on the bonds, do[ing] a lot
of legal [work] putting together . . . the contracts[,] and
then finally find[ing] investors for the bonds.” Tr. 1005.

Once John Galanis set up the Wakpamni scheme,

Jason Galanis, Archer, and others went about finding
buyers for the bonds. A company with which Archer was
affiliated financed the purchase of an investment adviser,
Hughes Asset Management (“Hughes”), and Galanis
installed another one of the co-defendants, Michelle
Morton, as Hughes’s CEO. In August 2014, based on John
Galanis’s promise that the proceeds would be invested in
an annuity, the Wakpamni issued their first set of bonds.
Morton purchased the entire issue, worth $28 million,
on behalf of Hughes’s unsuspecting clients — without
disclosing that the same individuals who induced the
Wakpamni to issue the bonds also controlled Hughes and
 22a

Appendix C

the purported placement agent. Placing the bonds in this

manner, without investor knowledge or permission, also
violated several of Hughes’s clients’ investor agreements.
Most importantly, the bond proceeds were then placed
into the WAPC account — not an annuity.

Unaware that the proceeds from the first bond offering

had been diverted to the WAPC account and not invested
in an annuity, the Wakpamni launched a second issuance
the following month. This time around, Archer and Cooney
collectively purchased $20 million worth of bonds from
the Wakpamni — with Archer doing so through his real
estate company, Rosemont Seneca Bohai LLC (“RSB”)
— using proceeds from the first offering that had been
diverted to the WAPC account. After buying the bonds,
Archer and Cooney used them to satisfy the net capital
requirements of two other Archer-controlled companies,
without disclosing that the bonds were purchased with
the proceeds of an earlier bond issuance. The Financial
Industry Regulatory Authority (“FINRA”) would later
condemn Archer’s use of the bonds in this way because
the Wakpamni bonds had “no active market.” Tr. 2097.

In April 2015, the Wakpamni issued their third and

final set of bonds for $16 million. As with the first bond
offering, Burnham Securities was selected as the supposed
placement agent for the bonds. At around that same time,
Archer and Cooney acquired a second investment adviser
company, Atlantic Asset Management (“Atlantic”), which
(like Hughes) was led by Morton. Ultimately, Morton
and Atlantic arranged for the purchase of the entire $16
million in bonds by a single client of Atlantic, the Omaha
 23a

Appendix C

School Employees Retirement System (“OSERS”). As

with the first bond offering, Morton did not seek or receive
approval from OSERS for the transaction, which did not
align with its investment goals, nor did she inform OSERS
of the inherent conflicts of interest that permeated the
transaction.

Once again, instead of being used to purchase an

annuity for the Wakpamni, as John Galanis had promised,
the proceeds from the third bond issuance were diverted
to the WAPC account, where they were used by various
conspirators for their own personal benefit and interests.
Some, like Jason Galanis and his father, used the bond
proceeds to purchase “jewelry and luxury cars,” Tr. 58,
and a new condo in New York City; others, like Archer
and Cooney, used the bonds and the proceeds “to further
their [own] schemes,” Tr. 59, which included building “a
big financial services company” that Archer was to control,
Tr. 59-60.

In the fall of 2015, the Wakpamni scheme began

to unravel when the first set of interest payments on
the Wakpamni bonds became due. In September 2015,
Archer transferred $250,000 from one of his companies
to the WAPC account, which was then used to help pay
the interest on the bonds from the first offering. Soon
thereafter, Galanis was arrested on unrelated charges.
In October 2015, some of the conspirators created a new
entity named Calvert Capital (“Calvert”) to cover up the
scheme. As part of this effort, they fabricated backdated
documents suggesting that WAPC invested in Calvert
and that Calvert lent Cooney and Archer the $20 million
to purchase the bonds from the second offering.
 24a

Appendix C

In the end, the Wakpamni were left with $60 million

in debt, and the fund investors lost over $40 million.

B. Procedural History

On March 26, 2018, the government filed the operative,

superseding indictment charging Archer and four others
with conspiracy to commit securities fraud, in violation
of 18 U.S.C. § 371 (“Count One”), and securities fraud,
in violation of 15 U.S.C. §§ 78j(b) and 78ff, 17 C.F.R.
§ 240.10b-5, and 18 U.S.C. § 2 (“Count Two”). Count One
alleged that the Defendants conspired to defraud the
Wakpamni by inducing them to issue bonds on the false
promise that the proceeds would be invested into an
annuity, which the Defendants instead misappropriated
for their own use. It also charged the Defendants with
conspiring to defraud Hughes’s and Atlantic’s clients
by “gaining ownership and control” of those investment
advisers “and causing client funds to be invested in the
[Wakpamni] bonds, without disclosing the material facts
to these clients, including that the bonds did not fit within
the investment parameters of certain clients’ investment
advisory contracts and that certain substantial conflicts
of interest existed.” App’x 136. Count Two accused the
Defendants of substantive securities fraud for making
false statements and omitting material facts while
“engag[ing] in a scheme to misappropriate the proceeds
of several bond issuances by the [Wakpamni]” and in
“caus[ing] investor funds” of Hughes’s and Atlantic’s
clients “to be used to purchase the bonds.” App’x 134-56;
see also Tr. 4146. Alternatively, Count Two alleged that
the Defendants aided and abetted the securities fraud.
 25a

Appendix C

Four Defendants charged in the case — Jason

Galanis, Gary Hirst, Hugh Dunkerley, and Michelle
Morton — pleaded guilty prior to trial, with Dunkerley
doing so pursuant to a cooperation agreement with the
government. 2 Archer proceeded to a jury trial along with
two of his co-defendants, John Galanis and Bevin Cooney.
A key issue at trial, which forms the basis of this appeal,
was whether Archer, a businessman with connections to
high-profile business and political leaders, was a knowing
participant in the scheme or was simply a victim of Jason
Galanis’s fraud.

Trial commenced on May 22, 2018 and ended on

June 28, 2018, at which time the jury convicted Archer,
John Galanis, and Cooney on both counts. After trial,
Archer and his trial co-defendants moved for acquittal
under Federal Rule of Criminal Procedure 29 or, in the
alternative, for a new trial under Rule 33. The district
court denied all motions except Archer’s motion for a new
trial. See Galanis, 366 F. Supp. 3d 477.

With respect to Archer’s Rule 29 motion, the district

court recognized that, “drawing every inference in the
government’s favor, as the [c]ourt is required to do under
Rule 29, [it] [could not] conclude that no reasonable jury
could have convicted [Archer], particularly because the
primary issue was intent and the government presented
a substantial amount of circumstantial evidence to that
effect.” Id. at 492. Nevertheless, in addressing Archer’s

2. Jason Galanis was charged in the original indictment but

pleaded guilty before the government filed the operative indictment.
 26a

Appendix C

motion for a new trial pursuant to Rule 33, the district

court concluded that while “[t]he government’s reliance on
circumstantial evidence is of course perfectly appropriate”
and “the government’s case against Archer is not without
appeal at first blush[,] . . . when each piece of evidence
in this indisputably complex case is examined with
scrutiny and in the context of all the facts presented,
the government’s case against Archer loses much of its
force.” Id.

Concerned that Galanis deceived many of those

around him, including those knowingly involved in his
schemes, the district court determined, as a factfinder
would do, “that Galanis viewed Archer as a pawn to be
used in furtherance of his various criminal schemes.”
Id. The district court was further troubled “by the
government’s inability throughout trial to articulate a
compelling motive for Archer to engage in this fraud,”
noting that “Archer never received money from the
purported annuity provider, nor did he profit directly from
the misappropriation of the bond proceeds.” Id. And while
the district court acknowledged that the government’s
theory regarding Archer’s motive — his “admitted
interest in the roll up being successful” - could not be
“dismiss[ed] . . . entirely,” it nevertheless concluded that
this motive was not “compelling” and was “mitigated” by
the fact that Archer ultimately lost a significant portion
of the funds that he himself had invested into the scheme.
Id. at 492-93.

The district court stated that, because the evidence

was subject to multiple interpretations, it “remain[ed]
 27a

Appendix C

unconvinced that Archer knew that Jason Galanis was

perpetrating a massive fraud.” Id. 493. It emphasized “the
unique considerations pertaining to [Archer’s] relationship
with Jason Galanis” - namely, what it saw as Galanis’s
efforts to keep Archer in the dark while simultaneously
touting Archer’s political and business connections — as
well as “potential juror confusion over a government
summary chart admitted as an exhibit.” Id. at 505. The
district court announced that, “when viewing the entire
body of evidence, particularly in light of the alternative
inferences that may legitimately be drawn from each
piece of circumstantial evidence, . . . [it] harbor[ed] a real
concern” that Archer did not have the requisite intent
and was instead “innocent of the crimes charged.” Id. at
507. The district court therefore granted Archer’s Rule
33 motion and ordered a new trial. Id. The government
timely appealed.

II. Standard of Review

“We review the decision of the district court to

grant a new trial for abuse of discretion.” United States
v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001). A district
court abuses its discretion “when (1) its decision rests on
an error of law (such as application of the wrong legal
principle) or a clearly erroneous factual finding, or (2) its
decision — though not necessarily the product of a legal
error or a clearly erroneous factual finding — cannot be
located within the range of permissible decisions.” United
States v. Forbes, 790 F.3d 403, 406 (2d Cir. 2015).
 28a

Appendix C

III. Discussion

On appeal, the government argues that the district

court abused its discretion in granting Archer’s Rule
33 motion because the evidence did not “preponderate
heavily against the verdict.” Gov. Br. at 33. It further
argues that in assessing the evidence, the district court
inappropriately disregarded the jury’s resolution of
conflicting evidence and failed to consider the weight of
the evidence in its entirety. We agree. 3

A. To Grant a Rule 33 Motion Based on the

Weight of the Evidence Alone, the Evidence Must
Preponderate Heavily Against the Verdict

Under Rule 33, “the court may grant a new trial to

[a] defendant if the interests of justice so require.” Fed.
R. Crim. P. 33. While we have held that a district court
may grant a new trial if the evidence does not support
the verdict, we have emphasized that such action must
be done “‘sparingly’ and in ‘the most extraordinary
circumstances.’“ Ferguson, 246 F.3d at 134 (quoting
United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir.
1992)). Nevertheless, we have not always been clear about
what constitutes an “extraordinary circumstance” that
can justify a district court’s decision to overturn a jury’s

3. The government also contends that the district court failed

to consider that Archer’s guilty knowledge could be proved by
conscious avoidance, as the jury was instructed. Because we hold
that the district court applied the incorrect standard and that the
jury was entitled to conclude that Archer knowingly participated in
the scheme, we need not reach this argument.
 29a

Appendix C

verdict. We now clarify that rule and hold that a district

court may not grant a Rule 33 motion based on the weight
of the evidence alone unless the evidence preponderates
heavily against the verdict to such an extent that it
would be “manifest injustice” to let the verdict stand. See
Sanchez, 969 F.2d at 1414.

The “preponderates heavily” standard finds support

in our decision in Sanchez, 969 F.2d 1409. There, we
considered the district court’s grant of a Rule 33 motion
based on what the district judge considered to be perjured
testimony. We first concluded that the district court
erred in finding that several police officers committed
perjury simply because their recollection of the events
at issue differed. Id. at 1415. Since the testimony shared
many consistent aspects, “the differences in testimony”
presented, at most, “a credibility question for the jury.”
Id. But even discounting that testimony, we emphasized
that “[i]t surely cannot be said . . . that the evidence
‘preponderate[d] heavily against the verdict, such that it
would be a miscarriage of justice to let the verdict stand.’“
Id. (quoting United States v. Martinez, 763 F.2d 1297, 1313
(11th Cir. 1985)).

The “preponderates heavily” standard is not limited

to cases like Sanchez in which a district court, after
discounting certain questionable evidence, must assess
the weight of the remaining evidence supporting the
conviction. It also applies with equal, if not stronger, force
to cases in which a district court examines the weight of
the evidence as a whole — all of which the jury reasonably
and appropriately relied on in reaching its verdict. Our
 30a

Appendix C

clarification that the “preponderates heavily” standard

applies in such cases is in accord with the standard used
by several of our sister circuits. See United States v.
LaVictor, 848 F.3d 428, 455-56 (6th Cir. 2017) (“A motion
for a new trial . . . is . . . granted only in the extraordinary
circumstances where the evidence preponderates heavily
against the verdict.” (internal quotation marks omitted));
United States v. Robertson, 110 F.3d 1113, 1118 (5th Cir.
1997) (“The evidence must preponderate heavily against
the verdict, such that it would be a miscarriage of justice
to let the verdict stand.”); United States v. Alston, 974 F.2d
1206, 1211-12 (9th Cir. 1992) (agreeing with the Eighth
Circuit’s conclusion that the district court, in granting a
new trial based on the sufficiency of the evidence, should
look to whether the evidence “preponderates sufficiently
heavily against the verdict” (quoting United States v.
Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)); United
States v. Reed, 875 F.2d 107, 114 (7th Cir. 1989) (“[T]his
is not one of those ‘exceptional cases’ where the evidence
preponderates so heavily against the defendant that it
would be a manifest injustice to let the guilty verdict
stand.”); Martinez, 763 F.2d at 1313 (“The evidence must
preponderate heavily against the verdict, such that it
would be a miscarriage of justice to let the verdict stand.”).

We stress that, under this standard, a district court

may not “reweigh the evidence and set aside the verdict
simply because it feels some other result would be more
reasonable.” Robertson, 110 F.3d at 1118; see also Van
Steenburgh v. Rival Co., 171 F.3d 1155, 1160 (8th Cir.
1999) (holding that a district court may not grant a new
trial “simply because it believes other inferences and
 31a

Appendix C

conclusions are more reasonable”). To the contrary,

absent a situation in which the evidence was “patently
incredible or defie[d] physical realities,” Ferguson, 246
F.3d at 134 (quoting Sanchez, 969 F.2d at 1414), or where
an evidentiary or instructional error compromised the
reliability of the verdict, see id. at 136-37, a district court
must “defer to the jury’s resolution of conflicting evidence,”
United States v. McCourty, 562 F.3d 458, 475-76 (2d Cir.
2009). And, as it must do under Rule 29, a district court
faced with a Rule 33 motion must be careful to consider
any reliable trial evidence as a whole, rather than on a
piecemeal basis. See, e.g., United States v. Middlemiss,
217 F.3d 112, 117 (2d Cir. 2000).

Importantly, we do not find this standard to conflict

with our holding in Ferguson. In Ferguson, the district
court not only explicitly applied the preponderates
heavily standard that we adopt today, see United States
v. Ferguson, 49 F. Supp. 2d 321, 323 (S.D.N.Y. 1999),
aff’d, 246 F.3d 129 (2d Cir. 2001), it did so following a trial
infected by several errors, none of which are present here.
In Ferguson, the defendant was convicted of committing
a violent crime in aid of racketeering, which requires
that one use or threaten violence for at least one of three
possible purposes: (1) pecuniary gain, (2) “gaining entry”
into an “enterprise,” which in that case was a gang, or
(3) “maintaining or increasing [one’s] position” in that
enterprise. 18 U.S.C. § 1959(a); see Ferguson, 246 F.3d
at 134. Although the district court instructed the jury as
to all three possible motives, Ferguson, 49 F. Supp. 2d
at 324, it recognized, in granting the defendant’s Rule
33 motion, that there was legally sufficient evidence
 32a

Appendix C

supporting only the pecuniary gain motive, id. at 327-30,

and it was therefore “error to have charged on all three
of the motivational alternatives,” id. at 324 n.5. The
district court further explained that the only evidence
supporting the pecuniary motive was the vague, suspect
testimony of an interested witness, which alone was simply
“too slender . . . to support a guilty verdict.” Id. at 328-
29. Moreover, the district court stated that its denial of
Ferguson’s motion to sever his trial from that of his co-
defendants was reversible error alone, as it exposed the
jury to “weeks of testimony regarding successful murders
and assaults, none of which involved” the defendant. Id.
at 330.

In short, Ferguson was an “exceptional” case

warranting a new trial. Ferguson, 246 F.3d at 134-
35. While we did not explicitly acknowledge that the
evidence preponderated heavily against the verdict, the
standard we laid out in Ferguson is not in tension with the
“preponderates heavily” standard that we explicitly adopt
today. Moreover, the factual circumstances underlying our
decision in Ferguson are simply not present here.

In sum, while we review a district court’s decision to

grant a new trial based on the weight of the evidence for
abuse of discretion — not a “more stringent standard of
review,” id. at 133 n.1 - the district court’s discretion in
such cases is not without limit. Instead, the “preponderates
heavily” standard circumscribes that discretion, and
provides much needed guidance to district courts.
 33a

Appendix C

B. The Evidence Here Did Not Preponderate

Heavily Against the Verdict

The evidence introduced at trial did not preponderate

heavily against the jury’s verdict. In ruling on Archer’s
Rule 33 motion, the district court found that it “was
clear that material misstatements and omissions were
made in connection with the sale of securities,” and
therefore focused on “[t]he only seriously disputed
element” - Archer’s intent. S. App’x 11. For Count Two,
the substantive securities fraud charge, this was whether
Archer acted “[w]illfully” and with the “[i]ntent to
defraud,” Tr. 4153, 4161-62, or, in the event the jury found
him guilty of aiding and abetting, whether he “willfully,
knowingly associated himself in some way with the
crime and that he willfully and knowingly would seek by
some act to help make the crime succeed,” Tr. 4159. And
with respect to Count One, the conspiracy charge, the
government was required to prove Archer “willfully and
knowingly became a member of the conspiracy, with intent
to further its illegal purposes — that is, with the intent
to commit the object of the charged conspiracy.” Tr. 4165.
Thus, the government was required to show that Archer
had “at least the degree of criminal intent necessary for
the substantive offense itself,” United States v. Feola, 420
U.S. 671, 686, 95 S. Ct. 1255, 43 L. Ed. 2d 541 (1975), but
was not required to show that he “knew all of the details
of the conspiracy, so long as he knew its general nature
and extent,” United States v. Torres, 604 F.3d 58, 65 (2d
Cir. 2010) (internal quotation marks omitted) (quoting
United States v. Huezo, 546 F.3d 174, 180 (2d Cir. 2008)).
 34a

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In concluding that the evidence did not support the

jury’s finding, the district court relied on this Circuit’s prior
case law on the proper standard, which we are clarifying
today. But when the facts of this case are assessed under
the preponderates heavily standard outlined above, we
are left with the unmistakable conclusion that the jury’s
verdict must be upheld.

1. The Promise of an Annuity

and Misappropriation of Funds

During trial, the jury reviewed a wealth of emails

in which Archer, Cooney, and Galanis discussed the
prog ression of the Wakpamni scheme, which the
government argued reflected Archer’s knowledge of the
scheme and intent to misappropriate the bond proceeds.

Throughout the first half of 2014, Galanis ensured that

Archer stayed up to date on the deal with the Wakpamni,
including by informing Archer that the proceeds from
the sale of the bonds were supposed to be placed into an
annuity. Yet Galanis also repeatedly emphasized that
the proceeds from the bonds would provide them with
“discretionary liquidity” to use to further their financial
empire. See, e.g., App’x 862, 866. As the government
argues, the idea that they could use bond proceeds however
they chose stood in sharp tension with the conservative
annuity investment that the Wakpamni were promised
and about which Archer was fully apprised.

Nonetheless, in setting aside the jury’s verdict, the

district court found that this evidence did not reflect
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Archer’s intent, contending that the language in the

emails was “facially innocuous or, at best, most naturally
subject to innocent interpretations.” Galanis, 366 F.
Supp. 3d at 495. But while much of the language in these
emails, such as the term “discretionary liquidity,” could be
subject to both legitimate and nefarious interpretations,
the jury did not “misinterpret[]” the emails in concluding
the latter. Id. at 496. One email, the import of which the
parties hotly disputed during oral argument, provides
a key example: On July 20, 2014, Galanis sent Archer
an email alerting him that “the indians signed . . . our
engagement” and sending him the contact information
of the lawyer advising the Wakpamni on the deal. App’x
786. Galanis instructed Archer that while there was “[n]
othing for [Archer] to do at this point,” it “may[ ]be good
for [the Wakpamni’s counsel] to know that you [(Archer)]
are associated with the insurance company at the right
moment,” which “might be nice icing on the cake.” Id. He
further added that “[t]he use of proceeds is to place the
bonds into a Wealth Assurance annuity,” which would then
be “invested by an appointed manager on a discretionary
basis.” Id. While the district court concluded that this
email was better read as “exculpatory because Galanis
is specifically representing that the bond proceeds would
be placed in an annuity,” Galanis, 366 F. Supp. 3d at 497,
it could also reasonably be read as Galanis providing
tacit instructions to Archer regarding their cover story.
Either way, it was not the province of the district court to
reweigh the evidence in that regard. See Van Steenburgh,
171 F.3d at 1160 (“On a motion for new trial, the district
court is entitled to interpret the evidence and judge the
credibility of witnesses, but it may not usurp the role of
 36a

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the jury by granting a new trial simply because it believes

other inferences and conclusions are more reasonable.”).

Moreover, the government did not present this email

to the jury in isolation. Instead, it introduced a string of
emails connecting the bond deal with Galanis’s apparent
intent to spend the funds as he saw fit — not only on
other financial services companies but also on a condo in
Manhattan’s Tribeca neighborhood. For instance, on July
11, 2014, Galanis and Archer emailed about the closing
date of the Wakpamni deal. In the course of this same
email chain, Galanis stated they were “[s]o close” and
that he was “[m]assively motivated” because his attorney,
Clifford Wolff, was “running the stall for [him] on [his]
nyc mansion,” and he did not want to live in a “1750 square
foot cage.” App’x 869. Once the deal closed, Galanis did in
fact purchase a new condo in Tribeca — in the name of
an LLC bearing Archer’s name and business address —
using approximately $1 million of funds from the WAPC
bank account.

While the district court discounted the email evidence

linking Galanis’s purchase of a Tribeca condo with the
closing of the bond deal because it was “not convinced” that
this showed Archer’s knowledge, Galanis, 366 F. Supp.
3d at 499, it was not for the district court to second guess
the jury’s clear choice of a different inference — namely,
that Archer knew Galanis diverted the money meant for
the purported annuity for his own personal use.

These emails can reasonably be read to demonstrate

both that Archer knew the proceeds were supposed to be
 37a

Appendix C

invested into an annuity and that Galanis demonstrated

no restraint in spending the funds for personal gain. Thus,
when taken as a whole, they provided strong support
for the jury to find that Archer knew that the bond
proceeds were being misappropriated. We are therefore
confident that the trial evidence, while circumstantial,
did not “preponderate[] sufficiently heavily against the
verdict that a serious miscarriage of justice may have
occurred.” Alston, 974 F.2d at 1211 (internal quotation
marks omitted).

2. Hughes and Atlantic

The evidence also strongly supported an inference

that Archer intended to help the conspirators defraud
Hughes’s and Atlantic’s clients by purchasing the bonds
without informing them of the conflicts of interest that
riddled the transactions — in violation of the terms of the
clients’ investment agreements.

As even the district court acknowledged, there was

ample evidence showing that Galanis, Archer, and Cooney
acquired control of Hughes and Atlantic specifically to
place the Wakpamni bonds with their clients so that they
could generate funds to acquire various roll-up companies.
See Galanis, 366 F. Supp. 3d at 498. For instance, Jason
Galanis emailed Archer and Cooney in May 2014, alerting
them to the possibility of acquiring Hughes, which he said
would be “possibly useful,” App’x 854, and he kept Archer
updated about the deal to acquire Hughes as it progressed,
repeatedly alluding to the Wakpamni bonds in doing so.
Galanis told Archer that he “believe[d] Hughes would take
 38a

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$28 million” of the Wakpamni bonds. App’x 871-72. And

that is precisely what transpired: The Hughes acquisition
closed on or about August 11, 2014, and on August 22,
2014, Hughes purchased the entire first Wakpamni bond
offering, worth $28 million, on behalf of its clients.

The email evidence told a similar story with respect

to the Atlantic acquisition. Before the deal had closed,
Morton sent Galanis an email — which Galanis forwarded
to Archer — stating that she was reviewing Atlantic’s
portfolio to determine where the Wakpamni bonds could
be placed. Atlantic then bought $16 million in Wakpamni
bonds on behalf of one of its clients, OSERS.

The district court stressed that there was “nothing

inherently illegal or illegitimate about these transactions;”
rather, the fraud was that “bonds were purchased for their
clients without disclosure of all of the potential conflicts
of interest and [that] the bonds fell outside certain clients’
investment parameters.” Galanis, 366 F. Supp. 3d at 498.
And it found that Archer had “no indication . . . that the
individuals in control of the investment advisers . . . would
fail to disclose the conflicts of interest or violate the terms
of the clients’ investor agreements.” Id. at 498-99.

But direct evidence was not required, as “[b]oth

the existence of a conspiracy and a given defendant’s
participation in it with the requisite knowledge and
criminal intent may be established through circumstantial
evidence.” United States v. Stewart, 485 F.3d 666,
671 (2d Cir. 2007). The jury was entitled to credit the
circumstantial evidence that Archer knew that his co-
 39a

Appendix C

defendants — with whom he had worked to acquire these

companies specifically to offload the Wakpamni bonds —
would then place the bonds into their investors’ accounts
without disclosing the conflicts of interest. The very nature
of the transactions was surely suspect, particularly in
light of Galanis’s questionable reputation and regulatory
troubles, of which Archer was well aware. Indeed, while
Galanis had not yet been charged criminally at the time of
the scheme, he had previously been barred from serving
as a director of a public company “due to accounting
irregularities” with another organization with which
Galanis was involved. Tr. 905. There was testimony at trial
that this fact was readily available on the internet, and
Archer specifically acknowledged how “challenging” it was
to “defend[]” Galanis in light of his questionable reputation.
App’x 905-08. And the record clearly demonstrates that
the companies were acquired specifically to offload the
bonds. For instance, the trial evidence included the email
— which Galanis forward to Archer — in which Morton
sought to place the bonds in the investor accounts before
the bond deals had even closed. Additionally, just days
before the OSERS purchase, Galanis noted the need to
“finesse” an Atlantic managing director who would have
to be “marginalized,” prompting Archer to inquire how
they could “get ahead of” the director. App’x 900.

At a minimum, the email exchange reflected Archer’s

awareness that Galanis and Morton were investing in
ways that would be objectionable to the directors —
which can reasonably support a finding of his nefarious
intent. When considered together and as a whole, there
was ample circumstantial evidence from which the jury
 40a

Appendix C

could conclude that Archer knew that Galanis and the

other conspirators were dumping Wakpamni bonds on
unsuspecting investors who were oblivious to the serious
conflicts of interest that infected the transactions. More
to the point, the evidence certainly did not preponderate
heavily against such a finding.

3. The Source of Funds for the Second

Bond Purchase

The jury was also entitled to find that Archer, in

Ponzi-like fashion, intended to promote the scheme by
knowingly purchasing the bonds from the second issuance
with proceeds from the first. Soon after the initial
offering, John Galanis advised the Wakpamni to issue a
second set of bonds worth $20 million, falsely assuring
them that additional investors wanted to invest “right
away.” Tr. 1853-54; see also Tr. 221. After again saying
that the proceeds would be used to purchase an annuity,
John Galanis represented that a “Burnham client who
was excited about what had occurred with the first bond
issue” wanted to purchase the additional bonds. Tr. 221.
In reality, there was no “Burnham client” interested in
purchasing the bonds; instead, Archer, through his real
estate company RSB, purchased $15 million in Wakpamni
bonds with funds that originated in the WAPC account
— the proceeds from the first bond offering, which were
supposed to be invested in an annuity.

To accomplish this, Archer represented to the

Wakpamni in a letter that he was a sophisticated investor
purchasing the bonds “for [his] own account and for
 41a

Appendix C

investment only,” App’x 618-19; Cooney signed a similar

letter. And while the parties vigorously disputed whether
this was a material misstatement in its own right, the
jury was certainly entitled to endorse the government’s
view “that these statements were themselves deceptive,
given that, in making them, Archer portrayed himself
(through RSB) as a legitimate investor . . . using its own
funds to invest.” (16-cr-371, Doc. No. 623 at 54 n.16.) The
jury’s conclusion was amply supported by the fact that
the funds used to purchase the bonds were not Archer’s
at all; instead, the $15 million came from Jason Galanis,
who transferred the bulk of the proceeds from the first
bond offering out of the WAPC account, through numerous
intermediaries, to an account controlled by Archer’s
company, RSB. Significantly, the last link in the chain
of intermediaries was Galanis’s attorney, Clifford Wolff,
whom Archer knew to be the lawyer involved in Galanis’s
Tribeca condo purchase.

Focusing on the circuitous route by which the funds

reached RSB’s account, the district court drew the
opposite inference to conclude that Archer was a victim of
Galanis’s deception, unaware that the funds were derived
from the misappropriated bond proceeds. Galanis, 366
F. Supp. 3d at 493-94. But while the complex transaction
and use of intermediaries strongly suggested that Galanis
intended to conceal the source of the funds, the jury was
not required to conclude that he intended to conceal the
source of the funds from Archer. At the very least, Archer
knew that the money he was using to purchase Wakpamni
bonds “for [his] own account and for investment only” came
from Galanis; he also had some insight into the complex
 42a

Appendix C

route the money would take, and knew that Galanis would
be transferring funds into one of his own accounts and
sending them through Wolff so that Wolff could transfer
them to Archer’s RSB account. From this constellation
of facts, the jury was certainly free to draw the inference
that Archer knew that the transactions were part of a
fraudulent scheme.

The district court also emphasized that Dunkerley,

despite being more involved in the fraud than Archer, did
not realize that the funds used for the RSB purchases
were from the misappropriated proceeds of the first bond
offering. Id. But Dunkerley’s knowledge had no bearing
on Archer’s, particularly since Galanis shared with
Archer — and not Dunkerley — concerns about his lack
of capital prior to transferring the $15 million to Archer.
The sudden appearance of $15 million — just weeks
after Galanis had repeatedly told Archer that he needed
“discretionary liquidity,” App’x 866, and money to buy his
“nyc mansion,” App’x 869 - supported a finding that the $15
million came from the first bond offering. There would, of
course, typically be a distinction between one’s personal
liquidity and the liquidity of the company that person
manages. But here the jury could justifiably conclude
that there was no such distinction for Galanis, and that,
instead of investing the proceeds, he was diverting the
funds for his own personal use, including the purchase of
a luxury New York condominium in the name of “Archer
Diversified TRG, LLC.” S. App’x 914; see also App’x 869
(discussing the closing of the deal and the condo purchase
in the same chain). The jury could also, then, conclude that
the $15 million that appeared in Archer’s account just one
 43a

Appendix C

month later, from the same attorney who was handling

Galanis’s condo purchase, was from the same source —
the proceeds from the first bond offering that had been
diverted to the WAPC account.

The jury was certainly entitled to rely on this evidence

to conclude that Archer knew the source of the $15 million
he received from Galanis to purchase the second set of
Wakpamni bonds. Absent exceptional circumstances, a
district court confronted with a Rule 33 motion may not act
as the factfinder, discounting substantial circumstantial
evidence or making contrary factual findings based on
inferences that the jury clearly rejected. See McCourty,
562 F.3d at 475-76 (“Because the courts generally must
defer to the jury’s resolution of conflicting evidence and
assessment of witness credibility, ‘[i]t is only where
exceptional circumstances can be demonstrated that
the trial judge may intrude upon the jury function of
credibility assessment.’“ (quoting Sanchez, 969 F.2d
at 1414)); see also Robertson, 110 F.3d at 1118. No such
exceptional circumstances were present here.

4. Archer’s Lies During the Conspiracy

Perhaps the strongest evidence of Archer’s guilty

knowledge were his lies to two banks and the board of
directors of the Burnham Investors Trust (the “BIT
Board”) concerning the source of the funds for the
second bond purchase and his relationship with Galanis.
See United States v. Anderson, 747 F.3d 51, 60 (2d Cir.
2014) (“[A]cts that exhibit a consciousness of guilt, such
as false exculpatory statements, may . . . tend to prove
 44a

Appendix C

knowledge and intent of a conspiracy’s purpose . . . .”

(internal quotation marks omitted)). In late September
and early October 2014, Archer made several false
representations regarding the source of the funds used
to purchase the bonds from the second bond offering.
Specifically, he told Deutsche Bank that his company had
“come to own these bonds” through a “Real Estate Sale.”
App’x 781. Similarly, he told Morgan Stanley, where he
ultimately deposited the bonds, that the $15 million used
to purchase the bonds was “generated through [the] sale
of real estate.” App’x 658-59. At trial, the government
introduced a “Client Representation Letter” completed
by a Morgan Stanley employee who communicated with
Archer in connection with the bonds; the business record
summarized Archer’s statement that the “funds used to
purchase the bonds were from real estate sales through
[his] business, Rosemont Seneca Bohai, LLC.” App’x 663.
That same employee testified at trial that she “would not
have written something [in that document] that a client
did not say.” Tr. 867. And Archer told that employee in an
email that he came to know of the purchase because he was
a “shareholder” of Burnham Financial, which “packaged
the issuance.” App’x 658-59. Later, after depositing his
bonds at a different bank “without a hitch,” Cooney told
Archer that Archer “[n]eed[ed] to get . . . out of Morgan
Stanley,” App’x 787, which could reasonably be read to
suggest that Archer should move the bonds to a bank that
would less closely scrutinize his transactions.

The distr ict cour t stated that it “remain[ed]

unconvinced” that these lies reflected Archer’s knowledge
that Galanis was stealing the bond proceeds, Galanis, 366
 45a

Appendix C

F. Supp. 3d at 493, speculating that Archer “may well have

repeated a lie told to him by Galanis,” id. at 501, or that
perhaps the Morgan Stanley employee who completed the
form indicating the source of the funds simply assumed
they came from Archer’s real estate transactions. But the
first explanation is not supported by the record, as there
was no evidence that Galanis ever told Archer that the
bonds were from real estate transactions. And the second
explanation is at odds with the employee’s testimony that
she would not have written such information down unless
it came from the client. The district court also speculated
that Archer may have been trying to hide that Galanis
sent him the bonds because of Galanis’s “well-documented
checkered past,” which made him a “highly controversial
figure.” Id. But the jury was the factfinder, and the district
court was not permitted to create a different narrative by
crediting inferences that the jury clearly rejected.

And Archer not only lied to the banks. Around this

same time, he also misled the BIT Board about Galanis’s
involvement with the Burnham companies. Again, Archer
and the others sought to acquire control of various
Burnham companies in order to leverage the prominent
Burnham name in building their own conglomerate. When
Archer requested the BIT Board’s approval to acquire
another Burnham subsidiary, the BIT Board sought
certain assurances. Then, during a BIT Board meeting on
October 1, 2014, Archer warranted that Galanis “w[ould]
not be involved with any of the Burnham entities[,] their
‘affiliated persons[,]’“ or “their successors or assigns.”
App’x 748. He further pledged that Galanis “w[ould] have
no interest of any kind, direct or indirect, in any of the
 46a

Appendix C

Burnham entities,” and that “the Burnham entities will

not invest with or in, directly or indirectly, any business
or enterprise in which Mr. Galanis has any association,
affiliation, or investment, pecuniary or otherwise, directly
or indirectly.” App’x 748.

While Archer did not make this warranty in the

context of the Wakpamni scheme directly, his response, at a
minimum, was misleading. Galanis, of course, spearheaded
the Wakpamni scheme, and Burnham entities, including
the placement agent, Burnham Securities Inc., were
intimately involved in that scheme. Galanis also supplied
money for Archer to buy the bonds from the second
offering, which Archer would use to support the net capital
of companies he controlled, including a Burnham entity.

T he d ist r ict cou r t never theless “ rema i ne[d]

unconvinced” that A rcher made these statements
“because he knew that Jason Galanis was stealing the
bond proceeds.” Galanis, 366 F. Supp. 3d at 501. But
a trial court “must defer to the jury’s resolution of
the weight of the evidence,” Sanchez, 969 F.2d at 1414
(internal quotation marks omitted), and may not weigh
the competing inferences and choose the one it finds
“[m]ore likely,” Galanis, 366 F. Supp. 3d at 501. And the
mere fact that competing inferences existed does not
compel a finding that the evidence preponderated heavily
against the verdict.
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Appendix C

5. The Cover-up

Finally, there was persuasive evidence that Archer

knowingly performed two key actions in furtherance of a
cover-up designed to delay discovery of the scheme. First,
on September 1, 2015, he transferred $250,000 to WAPC
— the purported annuity provider — when the first set of
interest payments were due. These funds were then used
to help pay the interest on the bonds, thereby delaying
disclosure of the fraud. Jason Galanis later repaid Archer
in part, which he did using money from entities that had
received proceeds from the third offering.

The district court found the “inference urged by

Archer” — that he was simply providing needed short-
term liquidity — “equally if not more compelling” than
the government’s contention that Archer intended to
prop up the scheme to forestall the revelation that would
come with defaulting on the payments. Id. at 503. But
even Archer does not dispute that he had no legitimate
affiliation with WAPC, which, despite the similar name,
was not connected to Wealth Assurance Holding, with
which Archer was affiliated and which had been falsely
represented to the Wakpamni as the annuity provider.
Thus, while it may have been true, as the district
court observed, that Archer often infused cash into his
companies for legitimate purposes, WAPC was not one of
Archer’s companies. Whether or not Dunkerly or Galanis
ever discussed the true nature of WAPC with Archer, the
jury was certainly entitled to infer that Archer’s transfer
of $250,000 to a company with which he was not affiliated,
completed shortly before the interest on the first bonds
 48a

Appendix C

was due, reflected his knowledge of the scheme and was

designed to prevent it from unraveling in the event of a
default.

Second, Archer made false statements concerning

Calvert, the fraudulent entity created to cover the
conspiracy’s tracks and delay discovery of the scheme.
While the government acknowledges that it did not
present any direct evidence showing that Archer created
any fake Calvert documents or gave any to regulators, as
Cooney had done, it did present clear evidence that Archer
explicitly used Calvert’s name in furtherance of the
scheme. Specifically, on November 25, 2015, Archer sent an
email to an employee at a roll-up company that had taken
possession of some of the bonds from the second offering,
stating that the bonds needed “to be replaced/returned
to Calvert” as “the lender and beneficial owner” of the
bonds. App’x 912. Obviously, Calvert was not the “lender
and beneficial owner” of the bonds, as Archer claimed,
since it had not even existed when Archer purchased the
bonds and never lent Archer money for the bond purchases
or anything else.

The district court downplayed this email, reasoning

that “a single reference to Calvert in an email does not
establish” Archer’s knowledge. Galanis, 366 F. Supp. 3d at
504. It further concluded that “the weight of the evidence
undercuts the notion that Archer was aware of the Calvert
cover-up” since “Jason Galanis and Hugh Dunkerley came
up with the idea for the entity,” “Dunkerley testified that
neither he nor anyone else discussed Calvert with Archer,”
and Archer was not involved in backdating the Calvert
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Appendix C

forms. Id. But Archer clearly knew that Calvert was not
the beneficial owner of the bonds, as he was involved in
the bond issuance. Perhaps “a single reference” to Calvert
would be insufficient if the record were otherwise devoid
of evidence, but it was not, and the jury was entitled to
draw inferences as to Archer’s knowledge and intent from
his explicit lie to a third party made during the course of
and in furtherance of the cover-up.

***

The review of the evidence above illuminates two

broader concerns we have with the district court’s ruling.
First, the preponderates heavily standard specifically
requires that the district court make a comprehensive
assessment of the evidence. While the district court
acknowledged that the “case must be assessed as a whole,
rather than taking each piece of evidence in isolation,” id.
at 507, its analysis veered into a piecemeal assessment of
the evidence that understated the weight of the proof in
its totality. Indeed, in rejecting Archer’s Rule 29 motion,
the district court recognized that there was “a substantial
amount of circumstantial evidence” showing Archer’s
intent, which was subject to competing inferences. Id.
at 492. This evidence, when viewed as a whole, strongly
supported that Archer knew at least the general nature
and extent of the scheme and intended to bring about its
success. At a minimum, that evidence did not preponderate
heavily against the verdict in this regard.

Second, the preponderates heavily standard does

not permit a district court to elevate its own theory of
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Appendix C

the evidence above the jury’s clear choice of a reasonable

competing theory. Specifically, the district court here
adopted the defense’s theory that Archer was duped
by Galanis, and in doing so improperly discredited the
competing arguments regarding Archer’s reasons for
participating in the fraud. The district court noted that
“Jason Galanis operated to keep people in the dark, even
those who were undoubtedly willful participants in his
various crimes.” Id. at 505. It noted that “his efforts as
to Archer were even more concerted,” citing Galanis’s
attempts to keep Archer away from Dunkerely and how
“the members of the conspiracy spoke of Archer when
he was not present, burnishing his credentials to others
and describing him, among other things, as ‘the biggest
show pony of all time’ whose involvement would ‘add layers
of legitimacy’ to the various deals.” Id. It noted that,
“[a]t the same time Archer was spoken of in this manner,
Galanis was simultaneously operating to ingratiate
himself with Archer,” which “further suggests that Archer
was not a party to this conspiracy but was instead being
manipulated by a skillful con artist.” Id. While this theory
was by no means outlandish and does find some support in
the record, the fact remains that defense counsel promoted
it at length during trial, and the jury rejected it. Moreover,
while there assuredly was evidence that Galanis paraded
Archer’s credentials to facilitate the fraud, there was also
evidence that Archer both knew this and willingly allowed
Galanis to do so.

The government, by contrast, presented a competing

theory regarding Archer’s motive to engage in the fraud
that the jury found “compelling” even if the district court
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Appendix C

did not. Id. at 492. In its opening statement, the government

argued that the Defendants “needed money . . . to fund
their business empire,” Tr. 54, and that they “planned to
use [the $60 million bond purchase] for themselves and for
their own businesses,” Tr. 56. Although the prosecution
contrasted John Galanis’s goals with those of Archer and
Cooney — that is, while John Galanis spent money on
“jewelry and luxury cars, . . . Archer and Cooney planned
to make that money work for them quietly,” Tr. 58 - the
distinction was hardly exculpatory. The government’s
theory that Archer and Cooney intended “to use the bonds
for themselves to further their schemes,” Tr. 59, which
included building “a big financial services company under
the Burnham name,” Tr. 59-60, was fully consistent with
the evidence in the case.

During summation, the government again emphasized

that “[t]he Wakpamni bonds were a massive fraud, a
scam, a scheme . . . to fund the luxurious lifestyles of
the few, [and] to fund personal business ventures” of
others. Tr. 3595. It repeated, yet again, that Archer and
Cooney benefited from using the $20 million worth of
bonds “for their own business purposes” and to support
their “financial empire.” Tr. 3650. Although Archer may
not have received an envelope of cash or a condo from
the scheme, the district court’s finding that there was
no “compelling” motive presented to the jury was simply
incorrect. While the district court placed considerable
emphasis on the extent to which Archer knew of Galanis’s
personal gain from the fraud, it is clear that the fraud
had multiple motivations, and it was not necessary that
Archer be fully versed in all of them. The jury had before
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Appendix C

it considerable evidence from which it could conclude that

a second motive, more personal to Archer, existed and was
furthered by the scheme.4

In sum, the preponderates heavily standard requires

that the district court determine whether all the evidence
at trial, taken as a whole, preponderated heavily against
the verdict. It does not, however, permit the district court
to elect its own theory of the case and view the evidence
through that lens. Having now clarified the standard to be
applied by a district court in assessing a Rule 33 motion,
we find that the evidence here did not preponderate
heavily against the verdict. Because we conclude that
there is only one result available upon proper application
of the preponderates heavily standard — reinstatement of
the jury verdict — there is no need to remand for further
consideration of this issue by the district court.

4. Although the district court further concluded that the

summary chart reflecting the chain of payments in the scheme was
so misleading that it supported overturning the jury’s verdict and
granting a new trial, we are unpersuaded. The summary chart
showed a payment that was accidentally made to Archer’s company,
RSB, and reversed twelve days later. Even if arguably somewhat
confusing, the chart was accurate, as it explicitly listed that this
payment was reversed. See United States v. Citron, 783 F.2d 307,
316 (2d Cir. 1986) (recognizing that a chart must “fairly represent
and summarize the evidence upon which [it was] based” to avoid
misleading the jury). And as the district court recognized, the
threat of prejudice was mitigated by the cross-examination, which
highlighted the payment reversal. Consequently, the error, if there
was one, was harmless, and not a basis to take the “exceptional” step
of granting a new trial.
 53a

Appendix C

Conclusion

For the reasons stated above, we reverse the district

court’s grant of the Rule 33 motion, reinstate the
conviction, and remand the case to the district court for
sentencing.
 54a

APPENDIX Appendix D
D — OPINION OF THE
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK,
FILED NOVEMBER 15, 2018
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

No. 16-CR-371 (RA)

UNITED STATES OF AMERICA,

v.
JOHN GALANIS, BEVAN COONEY,
AND DEVON ARCHER,
Defendants.

OPINION AND ORDER

RONNIE ABRAMS, United States District Judge:

INTRODUCTION

Following a six-week jury trial, defendants John

Galanis, Bevan Cooney, and Devon Archer were convicted
of securities fraud and conspiracy to commit securities
fraud. Now before the Court are the defendants’ motions
for judgment of acquittal and a new trial pursuant to Rules
29 and 33 of the Federal Rules of Criminal Procedure.1
After careful consideration and a thorough review of the

1. John Galanis initially moved only pursuant to Rule 29, but

later submitted a supplemental Rule 33 motion predicated on newly
discovered evidence.
 55a

Appendix D

record, the Court grants Archer’s Rule 33 motion, but

denies the others.

BACKGROUND

It is undisputed that a massive fraud was perpetrated

by Jason Galanis, the admitted mastermind of the
conspiracy and a serial fraudster. It is also not in dispute
that these defendants undertook actions that had the effect
of assisting Galanis in this endeavor. The primary question
for the jury was whether the defendants knowingly and
willfully participated in the charged scheme, or, as they
each have claimed, were themselves deceived by Jason
Galanis. As the Court will detail, there was ample evidence
demonstrating that John Galanis and Cooney were willful
participants. The Court harbors substantial concern,
however, that Archer lacked the requisite intent and is
thus innocent of the crimes charged in this indictment.

I. Overview of the Conspiracy

This single conspiracy had two components critical

to its overall success, with distinct groups of victims.
First, the Wakpamni Lake Community Corporation
(“WLCC”) was induced into selling approximately $60
million worth of bonds. Tr. 156:17-24. The bond proceeds
were to be invested in an annuity on behalf of the WLCC.
Tr. 147:3-13. This investment was intended to generate
sufficient returns to pay the interest and principal due
to bondholders, with additional revenue remaining
for the WLCC to fund certain economic development
projects. Tr. 147:3-13. Instead, all of the proceeds were
 56a

Appendix D

misappropriated at the direction of Jason Galanis, in part

for his personal benefit.

The second group of victims consisted of certain clients

of two SEC-registered investment advisers, Hughes
Capital (“Hughes”) and Atlantic Asset Management
(“Atlantic”). The conspirators gained control of Hughes
and Atlantic, which in turn purchased approximately
$40 million worth of bonds on behalf of certain of their
clients. This purchase violated the terms of certain
clients’ investor agreements and further failed to disclose
that some individuals were involved on both sides of the
transactions. See Tr. 1610:5-1614:13, 1617:3-13, 1680:9-
1687:10; GX 927, GX 2632, GX 4016. Because the bond
proceeds were not invested as intended (with the exception
of the initial interest payment on the first set of bonds)
these clients never received the interest to which they
were entitled and never recovered their principal. See
Tr. 752:20-753:4. Furthermore, as expected, there was
no secondary market for the bonds and the clients of
Hughes and Atlantic were thus unable to sell them. See
Tr. 751:15-25.

II. The Relevant Entities and Individuals

The WLCC scheme took place during the course of a

legitimate plan by Jason Galanis, Bevan Cooney, Devon
Archer, and Jason Sugarman, among others, to conduct
a “roll up” of various businesses with the goal of creating
a financial services conglomerate that could be sold for a
 57a

Appendix D

sum larger than the value of Its parts. See Tr. 906:9-15. 2
One of the entities they sought to acquire was Burnham
Financial Group, which was intended to increase the value
of the conglomerate by virtue of its reputation. See Tr.
1321:17-22; DX 4733 at 8. There is no indication that the
roll up plan itself was illegal or otherwise suspect. Indeed,
in pursuit of this plan the defendants and their business
partners acquired numerous legitimate companies, which
collectively managed assets in the billions of dollars. See
Tr. 1324:18-24. But the complexity of the evidence in
this case stems, in part, from the tangled web of related
transactions involving the legitimate companies and
those entities that were created at the direction of Jason
Galanis solely to further the bond scheme and which were
purposefully given names to make them appear related
to the legitimate entities.

Before turning to the details of how the WLCC

scheme was executed, the Court will provide an overview
of the corporate entities and actors central to this case.
Two companies, in particular, are implicated in many of
the transactions: Burnham Financial Group (“Burnham”)
and Wealth Assurance Holdings. Burnham was the parent
company of two other entities: Burnham Securities,
Inc. (“BSI”), a registered broker-dealer, and Burnham
Asset Management (“BAM”), an investment adviser with
approximately $1,5 billion in assets during the relevant
period. Tr. 1071:24-1072:22. Wealth Assurance Holdings
was a special holding company created specifically to
acquire Wealth Assurance-AG (“WAAG”), a European
2. Although he was not charged in this case, Jason Sugarman
has been characterized by the government as an unindicted co-
conspirator.
 58a

Appendix D

insurance company. Tr. 911:13-16, 1327:17-20. During

the relevant period, Wealth Assurance Holdings also
acquired another insurance company, Valor life, and was
subsequently renamed Valor Group. Tr. 1314:14-20. For
the sake of clarity, the Court will, refer to the Wealth
Assurance Holdings/Valor Group entity only as Wealth
Assurance Holdings (“WAH”). There was another entity,
COR Fund Advisers (“CORFA”), created by Jason
Sugarman, the purpose of which was to raise money for
corporate acquisitions and which was intended to play a
role in the anticipated purchase of Burnham. Tr. 1333:15-
19,

As the Court will describe, many of these entities

touched, at least tangentially, the WLCC scheme. There
were also a number of entities created at the direction
of Jason Galanis for the sole purpose of furthering the
scheme and which were given names to make them
appear related to these companies, thus providing a
veneer of legitimacy. For instance, one entity involved
in the acquisitions of Hughes and Atlantic, BFG Socially
Responsible Investing (“BFG SRI”), was in no way related
to Burnham or its subsidiaries despite its name and was
instead formed and owned by WAAG. Tr. 1384:8-13,
1386:4-16. 3 Similarly, the provider of the so-called annuity
for the WLCC was a company called Wealth Assurance
Private Client Corporation (“WAPC”). Tr. 367:8-10. Again,
it bore no relationship to WAH or WAAG, but was named
to give a misleading impression. Tr. 1014:18-21. Galanis

3. The name given this entity was “BFG Socially Responsible

Investing”—not “Burnham Financial Group Socially Responsible
Investing” as Hugh Dunkerley initially testified before correcting
himself on cross-examination. Compare Tr. 936:5-6 with 1384:8-13.
 59a

Appendix D

even created a fake subscription agreement to perpetrate

the lie that WAPC was in fact affiliated with WAH. Tr.
1459:8-20. While Dunkerley knew that WAPC and WAH
did not enjoy a legal relationship, to his knowledge he was
the only board member of WAH, including Archer, who
was aware. Tr. 1460:11-1461:12. A third entity, Calvert
Capital (“Calvert”), was later created to leave a paper
trail of backdated, fraudulent documents in order to make
certain of the WLCC transactions appear legitimate. Tr.
1057:14-1058:2.

Turning to the individuals who lie at the center of

this case, Devon Archer was a principal of the Rosemont
Group, a $2.4 billion private equity firm. DX 4733 at 12.
During the relevant period, he was also the Chairman of
Burnham, sat on the investment committee of BSI, and
was on the board of WAH. Tr. 1033:24-1034:1, 1327:5-9,
1409:20-23. Jason Galanis, the admitted mastermind of
the criminal scheme who was the first of the defendants
to plead guilty in this case, did not have a formal role at
any of the Burnham entities but was nonetheless involved
in their affairs. Tr. 1071:2-5. He was also considered an
adviser to the boards of WAH and WAAG. Tr. 912:8-10.
Despite being involved in the roll up plan, including as
an investor, see Tr. 907:3-9, Cooney, a friend of Galanis’,
did not have a formal role at any of these entities, while
John Galanis, Jason’s father, apparently was not involved
in any capacity.

The other members of the alleged conspiracy were

Michelle Morton, Gary Hirst, and Hugh Dunkerley.
Morton, who pleaded guilty the week before trial, was
recruited to purchase and operate the two registered
 60a

Appendix D

investment advisers, Hughes and Atlantic. See Tr. 1032:20-

24. Hirst, who also entered a guilty plea shortly before
trial, was installed as the Chief Investment Officer of
Hughes following its acquisition, created WAPC, and
possessed signatory authority over that entity’s bank
account. Tr. 946:25-947:1, 1011:20-1013:12. Dunkerley, a
cooperating witness, occupied a variety of roles. He sat on
the Boards of WAH and WAAG, was a director of CORF
A, and was the sole managing member of both WAPC
and BFG SRI, the previously discussed entities created
solely to further the criminal scheme. Tr. 897:23-898:3,
937:21, 1327:10-16.4 He also became an employee of BSI,
the placement agent for the bonds. 897:23-898:3, Hirst
and Dunkerley were responsible for transferring the
bond proceeds out of the WAPC account. See Tr. 1020:1-
13,1022:5-7. The government’s case was also assisted
by Francisco Martin, who testified pursuant to a safe
passage letter. His role was to advise the WLCC on the
investments that would comprise the annuity by virtue of
his alleged employment at an entity called Private Equity
Management. Tr. 1015:13-21. He was also tasked with
creating Calvert. Tr. 2181:14-19.

III. The Genesis of the WLCC Bond Offerings

Jason Galanis and the defendants seem to have first

contemplated becoming involved in the sale of Native
American bonds in early 2014, with the intention, the
4. Dunkerley pleaded guilty to two counts of securities fraud
relating to the WLC scheme, as well as three counts for other crimes,
including his production of fraudulent documents to cover-up the
WLCC scheme and for his participation in a separate fraud relating
to an entity called Ballybunion. See Tr. 927:7-21.
 61a

Appendix D

government argues, of obtaining liquidity necessary to

execute the roll up. On February 12, 2014, Jason Galanis
emailed Archer and Cooney to inform them that he had
been “brought a deal” involving a tax-free bond issuance
by a Native American tribe that “need[ed] an underwriter
for ... municipal bonds.” GX 2003. The email attached
a letter from an employee of the U.S. Department of
Treasury to Raycen Raines, a member of the Oglala Sioux
Tribe, regarding its application to issue tribal economic
development bonds. Id. The WLCC is operated by the
Wakpamni Lake Community, a division of the Oglala
Sioux. Tr. 155:15-21.

In March 2014, John Galanis met Raycen Raines at a

Native American development conference in Las Vegas,
Nevada. Tr. 1834:9-1835:11. Raines had not previously met
John Galanis. Tr. 1834:22-23. 5 Beginning at that meeting
and continuing for several months, John Galanis proposed
that the WLCC issue bonds, the proceeds of which would
be placed in an annuity. See Tr. 1835:24-1835:17. Based
on certain representations made by John Galanis, Raines
believed that the annuity “would be like an insurance
wrapper that would protect the principal investment
and generate annual income to cover the interest on
the bond as well as generate income” for the WLCC’s
various development projects. Tr. 1836:9-14. John Galanis
initially informed Raines that WAAG, the subsidiary of
WAH, would serve as the annuity provider. Tr. 1840:7-
14. Instead, the annuity provider ended up being WAPC
(Wealth Assurance Private Client), which, contrary

5. Instead of using his legal name, John Galanis introduced

himself as “Yanni.” See Tr. 1834:9-13.
 62a

Appendix D

to John Galanis’ representations to Raines, was in no

way affiliated with WAH (Wealth Assurance Holdings)
or WAAG (Wealth Assurance AG) despite its apparent
affiliation based on its name. See Tr. 897:25-898:1, 1014:18-
21. John Galanis further represented (accurately) that
the placement agent for the bonds would be BSI, the
previously mentioned subsidiary of Burnham, and where
Archer sat on the investment committee. Tr. 1838:8-14.

On June 16, 2014, John Galanis emailed Tim Anderson,

a lawyer representing BSI, copying Jason Galanis. GX
1304. Attached to the email was a document setting forth
the details of the anticipated transaction that were very
similar to the final terms: the bonds were intended to
create a revenue stream for the WLCC to fund economic
development projects; BSI would be the placement agent
and a company called Private Equity Management the
portfolio manager; the initial offering was for $28 million,
with all but $500,000 of that amount going to purchase
an annuity from WAPC; the WLCC would receive annual
payments ranging from $250,000 to $350,000 for the
following twenty-five years; and the bondholders would
receive annual interest payments, with the principal being
recovered at the ten-year mark at which point the bonds
would be retired. GX 1304; Tr. 170; 13-177:9.

IV. The WLCC Issues Bonds and the Proceeds are

Misappropriated

The WLCC eventually conducted three separate

bond issuances, worth differing amounts but otherwise
structured similarly. The first and final issuances were
purchased in their entirety by clients of Hughes and
 63a

Appendix D

Atlantic, respectively. The second issuance was purchased

by Archer and Cooney using misappropriated proceeds
provided by Jason Galanis. A central issue at trial was
whether Archer and Cooney knew that the money they
used to purchase the second issuance was misappropriated
from the proceeds of the first set of bonds.

At the time that John Galanis began discussions with

Raines, the conspirators did not yet control either Hughes
or Atlantic. On May 9, 2014, Jason Galanis forwarded
Archer and Cooney an email concerning the potential
acquisition of Hughes, which he described as “possibly
useful.” GX 2018; accord Tr. 1582:18-1583:7. The primary
motivation underlying the acquisition was to secure
purchasers of the first bond issuance. Tr. 933:8-11. Jason
Galanis also attached the resumes of Michelle Morton
and Richard Deary. GX 2018. The acquisition, financed
by wiring $2,76 million to Hughes from WAAG, closed on
August 11, 2014. GX 2034; Tr. 1594:6-9. The funds went
from WAAG to BFG SRI, which as previously discussed
was not related to Burnham, then to an entity called
GMT Duncan, before finally being provided to Hughes.
Tr. 935:25-936:25. As a result of this transaction, Hughes
became wholly owned by GMT Duncan. See Tr. 1383:18-
20.6 Hirst was installed as Hughes’ Chief Investment
Officer. Tr. 946:20-947:1.

6. GMT Duncan was comprised of two classes of shareholders:

voting Class A and non-voting Class B. The Class A shareholders
were Morton and Deary while the sole Class B shareholder was BFG
SRI, see Tr. 1385:1-19, a wholly owned subsidiary of WAAG (Wealth
Assurance AG), Tr. 1386:14-20, which was itself a subsidiary of WAH
(Wealth Assurance Holdings). As noted earlier, Archer sat on the
board of WAH and Dunkerley on the boards of both WAH and WAAG.
 64a

Appendix D

On August 22, 2014, Hirst signed trade tickets

effecting the purchase of the entirety of the first WLCC
bond offering on behalf of clients of Hughes. See GX 813.
In the following days, approximately $24 million from
Hughes’ clients was deposited into the WAPC account
to fund the purchase of the annuity. GX 512 at 1; GX
4003 at 4.7 Hughes’ clients were not informed of the
purchase, which presented a conflict of interest in light
of the presence of the same parties on both sides of the
transaction and which violated the terms of certain clients’
investor agreements. See Tr. 1610:5-1614:13, 1617:3-13,
1680:9-1687:10; GX 927, GX 2632, GX 4016. Upon learning
of this transaction, Hughes’ clients responded negatively,
with many demanding that the transaction be rescinded.
Tr. 2049:21-2050:2.

Once the funds reached the WAPC account, they were

not in fact used to purchase an annuity. Instead, through
a series of transactions, the money was transferred to
various individuals and corporations, with approximately
$7 million being spent for the personal benefit of Jason
and John Galanis. See GX 4003 at 4. For example, $1
million was sent to the law firm representing the seller of
a Tribeca apartment that Jason Galanis was in the course
of purchasing. GX 512 at 2, GX 4013. An additional $2.35
million was sent to a bank account belonging to Sovereign
Nations Development Corporation (“Sovereign Nations”),
which was created at the direction of John Galanis days
before the first bond issuance. GX 4013. The money wired

7. An additional $4 million of the clients’ money was used to

pay fees associated with the transaction and to provide $2.25 million
immediately to the WLCC, which was earmarked for the construction
of a warehouse. GX 4003 at 4.
 65a

Appendix D

to that account, which John Galanis characterizes as

a legitimate commission he earned for his work on the
deal, was ultimately disbursed to him for the purchase of
luxury items, as well as to several of his family members.
Id. An additional $4 million was sent from WAPC to
Thorsdale Fiduciary and Guaranty (“Thorsdale”), an
entity controlled by Jason Galanis that was a vehicle
for investing his purported family money. GX 4003 at 4.
Among other things, Jason Galanis distributed this money
to members of his family and purchased luxury cars and
jewelry. Id.

The remaining proceeds were used to purchase the

second tranche of WLCC bonds by Archer and Cooney.
This money was transferred out of the WAPC account at
the direction of Jason Galanis, shuffled through various
intermediaries, and finally transferred to Archer and
Cooney. See GX 4006. On October 1, 2014, Archer
purchased $15 million of bonds through an entity of which
he was the sole managing member, Rosemont Seneca Bohai
(“RSB”). GX 4004 at 7. Cooney purchased the remaining
$5 million of the second issuance on October 9, 2014. GX
4005 at 6. The bonds purchased by Archer and Cooney
were eventually used by entities with which the two were
associated to satisfy net capital requirements set by the
Financial Industry Regulatory Industry (“FINRA”). See
GX 2075, GX 4004, GX 4005. 8

8. FINRA ultimately determined, however, that bonds of this

nature may not be used to satisfy net capital requirements. Tr.
2093:1-2094:24. There is no evidence, however, that anything was
amiss with this aspect of the transactions. The entities seemed to
have engaged with FINRA in good faith and ceased using the bonds
 66a

Appendix D

As with the first offering, the proceeds from the

second issuance were not invested on behalf of the WLCC.
In November 2014, $3.8 million was wired from WAPC
to Cooney, who allegedly intended to use it to purchase
Jason Galanis’ home in Bel Air. See GX 4007 at 4, GX
3224. Instead, the money was ultimately used by WAH
to purchase the aforementioned Valorlife, a subsidiary of
an entity called Vaudoise, in furtherance of the roll up.
See GX 4007 at 4. The remaining portion of the proceeds
were transferred to Thorsdale, Jason Galanis’ entity. See
GX 4006. Archer did not receive any transfers from the
WAPC account. See id.

Meanwhile, Jason Galanis was pursuing the acquisition

of another investment adviser, Atlantic. On August 28,
2014, Jason Galanis emailed Archer and Cooney, with
the subject line “we have a decent shot of adding this one
to the family.” GX 2303. Negotiations over this merger
continued through the fall and winter of 2014-2015. See GX
828 at 1. Again, the acquisition was motivated by a desire
to facilitate the purchase of WLCC bonds, this time for
the third and final offering. See GX 2062; Tr. 1037:20-25.

Atlantic was eventually purchased for approximately

$6.1 million in cash. See GX 828 at 4; Tr. 1033:15-1035:10.
The structure was similar to the previous acquisition of
Hughes—with the exception that the funds originated with
WAH instead of WAAG—and Atlantic was merged into
Hughes, with the resulting combined entity being known

to satisfy net capital requirements upon receipt of the agency’s final

decision. See Tr. 2117:16-2126:9
 67a

Appendix D

as Atlantic and remaining a subsidiary of GMT Duncan.

See Tr. 1032:18-1037:13, 1383:18-20. Furthermore, WAH
agreed to provide a guarantee for an additional $4,854,420
million of Atlantic’s debts. Tr. 1035:5-10; GX 828 at 4.
During this time, John Galanis approached Raines and
suggested yet another bond issuance. Tr. 1858:13-21. On
April 15, 2015, Morton purchased $16 million of the third
and final WLCC bond issuance on behalf of the Omaha
School Employees Retirement System (“OSERS”), which
was a client of Atlantic. See GX 962; GX 4009. As with
Hughes’ clients, OSERS was not provided advance notice
of the purchase, which violated certain aspects of its
agreement with Atlantic, and was unable to liquidate the
bonds due to the absence of a secondary market. See Tr.
656:3-25, 746:5-753:4.

The proceeds of the final issuance were similarly

misappropriated: Cooney received $75,000, GX 4009;
Jason Galanis used approximately $5.4 million to purchase
Fondinvest, a European fund of funds, with Dunkerley
being installed as the owner, see id., Tr. 1042:9-17;
$4.6 million was sent to VL Assurance, another WAH
subsidiary, GX 4009, Tr. 913:6-8; $305,000 went to Hughes,
GX 4009; and millions more went to Seymour Capital and
Thunder Valley, entities established at Hirst’s direction
and which were eventually used to purchase shares of
Code Rebel in that company’s IPO, see id., Tr. 2160:19-
2162:24. Again, Archer did not receive any proceeds from
WAPC. See GX 4009.
 68a

Appendix D

V. Procedural History

The operative indictment in this case charged each

of the three defendants with two counts: substantive
securities fraud and conspiracy to commit securities
fraud.9 Trial commenced on May 22, 2018. The government
rested on June 20, at which point the Court reserved
ruling on the defendants’ motions for acquittal, pursuant
to Rule 29(b). Tr. 3131:13-22. Defendants Archer and
Cooney then presented cases before resting on June
25. Following five weeks of testimony and nearly 800
documents being admitted into evidence, the jury began
deliberations on June 28. See Tr. 4192:3-4. In spite of the
undisputed complexity of this case, the jury did not ask a
single question or request that any testimony be read back
before finding all three defendants guilty of both counts.
See Tr. 4195:2-4196:11. In total, the jury deliberated for
less than three hours. See ECF No. 541-4.

DISCUSSION

As mentioned above, the defendants were convicted

of both securities fraud and conspiracy to commit
securities fraud. It was clear that material misstatements
and omissions were made in connection with the sale of

9. As noted previously, the initial indictment charged seven

individuals, four of whom pleaded guilty, including two, Michelle
Morton and Gary Hirst, who entered pleas the week before trial.
As a result of those two pleas, the third and fourth counts of the
indictment, which charged investment adviser fraud and conspiracy,
were rendered moot because none of the three remaining defendants
were charged in either of those counts.
 69a

Appendix D

securities. The only seriously disputed element was thus

the intent of each of the defendants.

With respect to the required mental state for the

substantive securities fraud offense, the Court charged
the jury as follows: “Knowingly means to act voluntarily
and deliberately rather than mistakenly or inadvertently.
Willfully means to act knowingly and purposefully, with
an intent to do something the law forbids; that is to say,
with bad purpose, either to disobey or to disregard the
law. Intent to defraud in the context of the securities
laws means to act knowingly and with intent to deceive.”
Tr. 4153:8-17.10 Regarding intent in the context of the
conspiracy charge, the Court further instructed: “An act
is done knowingly and willfully if it is done deliberately
and purposefully; that is, a defendant’s acts must have
been the product of that defendant’s conscious objective,
rather than the product of a mistake or accident, or mere
negligence, or some other innocent reason. . . . [T]he
government must prove beyond a reasonable doubt that
the defendant knew that he was a member of an operation
or conspiracy to accomplish that unlawful purpose [to
commit the charged substantive securities fraud], and
that his action of joining such an operation or conspiracy

10. The Court also instructed the jury on aiding and abetting
liability: “In order to aid or abet another to commit a crime, it is
necessary that you determine that he willfully, knowingly associated
himself in some way with the crime and that he willfully and
knowingly would seek by some act to help make the crime succeed.
Participation in a crime is willful if action is taken voluntarily or
intentionally, or in the case of a failure to act, with a specific intent
to fail to do something the law requires to be done; that is to say,
with a bad purpose, either to disobey or to disregard the law.” Tr.
4159:15-23.
 70a

Appendix D

was not due to carelessness, negligence, or mistake.” Tr.

4169:12-4170:4.

I. Rule 29

Each of the defendants challenges the sufficiency

of the evidence pursuant to Rule 29. These motions are
denied.

Rule 29 requires a court, “on the defendant’s motion,”

to “enter a judgment of acquittal of any offense for which
the evidence is insufficient to sustain a conviction.” Fed.
R. Crim. P. 29(a). When a court reserves its decision
until after the jury returns a verdict, “it must decide the
motion on the basis of the evidence at the time the ruling
was reserved.” Fed. R. Crim. P. 29(b). On such a motion,
a court “must view the evidence in a light that is most
favorable to the government, and with all reasonable
inferences resolved in favor of the government.” United
States v. Anderson, 747 F.3d 51, 60 (2d Cir. 2014) (citation
omitted). “The question is not whether this Court believes
that the evidence at trial established guilt beyond a
reasonable doubt, but rather, whether any rational trier
of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Mi
Sun Cho, 713 F.3d 716, 720 (2d Cir. 2013) (per curiam)
(citations omitted). In a close case, where “either of the
two results, a reasonable doubt or no reasonable doubt,
is fairly possible, the court must let the jury decide the
matter.” United States v. Autuori, 212 F.3d 105, 114 (2d
Cir. 2000) (citation omitted). It is not the trial court’s role
to “substitute its own determination of. . . the weight of
the evidence and the reasonable inferences to be drawn for
 71a

Appendix D

that of the jury.” United States v. Guadagna, 183 F.3d 122,

129 (2d Cir. 1999) (ellipsis in original) (citation omitted).

This strong “deference . . . to a jury verdict is

especially important when reviewing a conviction of
conspiracy” because conspiracies “by [their] very nature”
are “secretive” and thus are “rare[ly] . . . laid bare in
court.” Anderson, 747 F.3d at 72-73 (citations omitted).
“A conspiracy need not be shown by proof of an explicit
agreement but can be established by showing that the
parties have a tacit understanding to carry out the
prohibited conduct,” United States v. Samaria, 239 F.3d
228, 234 (2d Cir. 2001), abrogated on other grounds by
United States v. Huezo, 546 F.3d 174, 180 n. 2 (2d Cir.
2008), and can be shown based on circumstantial evidence
alone, United States v. Gordon, 987 F.2d 902, 906-07 (2d
Cir. 1993).

As noted earlier, at the time the government rested

the Court reserved judgment on the defendants’ motions
pursuant to Rule 29(b), with each of the defendants filing
written submissions after the verdict, in which at least
Archer also moves pursuant to Rule 29(c). The practical
difference is that Rule 29(c) permits the Court to consider
all of the evidence presented at trial as opposed to the
evidence in the record at the time the Court reserved
decision. See Fed. R. Crim. P. 29. The Court’s conclusion,
however, is the same under either approach, With one
exception pertaining to John Galanis, which the Court will
address in due course, the evidence introduced after the
government rested either has no bearing on the analysis
or was beneficial to the defense case.
 72a

Appendix D

A. John Galanis

There is no basis to disturb the jury’s verdict with

respect to John Galanis. In urging the Court to do
so, he ignores both the governing legal standards and
the evidence presented at trial, which overwhelmingly
established his guilt.

The primary thrust of John Galanis’ argument is that

he only made two representations to the WLCC, neither
of which was inaccurate in his view. As an initial matter,
this argument mistakenly assumes that a defendant
may only be liable if he personally made an actionable
misrepresentation. But even assuming, arguendo, that
John Galanis accurately states the law, his argument
is unavailing because he did in fact make material
misrepresentations to members of the WLCC. First,
John Galanis acknowledges discussing his son’s work
at Burnham with members of the WLCC. He claims,
however, that he merely said Jason “had a position at
Burnham wherein he had great influence on deciding what
investment opportunities Burnham would become involved
in.” Galanis Mot. at 2, ECF No. 564. It is of course true
that Jason Galanis, despite not holding a formal position at
Burnham or its subsidiaries, was actively involved in their
affairs. See Tr. 1071:2-5. But the evidence at trial showed
that John Galanis made a different and very specific
representation to the WLCC: that Jason was an employee
of Burnham. Tr. 1838:15-17; see also Tr. 154:3-8.11 This was

11. John Galanis does not appear to contest the materiality

of this misstatement. Even if he did, however, the jury could
have reasonably concluded that it was material by providing the
 73a

Appendix D

indisputably false.12

There were additional misrepresentations, moreover,

which John Galanis does not acknowledge in his moving
papers. Most notably, he told members of the WLCC that
the proceeds from the bond offerings would be placed in
an annuity on its behalf. Tr. 1839:10-1840:6. Indeed, this
was the entire motivation for the WLCC to participate in
the transaction in the first place, It is undisputed that no
such annuity was ever purchased. Instead, the proceeds
were placed in the account of a shell company created
specifically to facilitate the ensuing misappropriation.13

representations made by John and Jason Galanis to the WLCC some

veneer of legitimacy, particularly because it was John who was so
intimately involved in structuring the deal in its early stages and
he bore no formal relationship with Burnham. In any event, even
if this statement was not material, as the Court will explain there
were ample other bases on which the jury could have convicted John
Galanis.
12. The second representation identified by John Galanis is
that he told the WLCC that sovereign immunity would shield them
from any liability related to the bond offerings. It is unclear to the
Court where in the record John Galanis made this representation,
which, in any event, would not have been true in light of the clause in
the governing documents partially waiving the WLCC’s sovereign
immunity. See Tr. 207:3-208:1.
13. The government correctly notes that John Galanis initially
told members of the WLCC that WAAG would be the annuity
provider, presumably because it had a positive reputation. Tr. 1840:7-
14. It is also undisputed, however, that John Galanis eventually
informed members of the WLCC that instead WAPC would serve
as the annuity provider. Tr. 1852:15-23. Whatever probative value
this series of events may have with respect to John Galanis’ intent,
 74a

Appendix D

Based on this representation, therefore, the jury could

have easily concluded that John Galanis was guilty.

But equally as important, Galanis ignores the

requirements for liability. There was ample evidence
presented at trial of John Galanis’ central role in the
criminal enterprise, on which the jury could have
concluded that he willfully participated in the scheme.14

John Galanis asserts that the government’s case

turned on the mere fact that he was related to Jason.
Not so. The government even reminded the jury in its
summation of the obvious principle that being related to
a person who has committed a crime does not give rise

it cannot serve as the misrepresentation of material fact giving rise

to liability.
14. Unlike his co-defendants, John Galanis does not argue that
the indictment alleges two distinct conspiracies. He does, however,
make a related argument: that a prejudicial variance ensued
because the evidence at trial failed to establish the single conspiracy
alleged by the government. This argument lacks merit. It was well-
established at trial that the conspirators made these two sets of
misrepresentations—to the WLCC and the clients of Hughes and
Atlantic—in a concerted effort in pursuit of a single goal: to steal
the bond proceeds. See United States v. Payne, 591 F.3d 46, 61 (2d
Cir. 2010) (“[A] single conspiracy is not transformed into multiple
conspiracies merely by virtue of the fact that it may involve two or
more phases or spheres of operation, so long as there is sufficient
proof of mutual dependence and assistance.” (citation omitted)).
In any event, to the extent the evidence did in fact establish two
separate conspiracies, any such variance did not affect John Galanis’
substantial rights. See United States v. Gonzalez, 399 F. App’x 641,
645 (2d Cir. 2010).
 75a

Appendix D

to criminal liability. Tr. 3619:23-24. Rather, the evidence

established that they were a father and son working in
tandem in the context of this criminal scheme.

The jury could have reasonably inferred from the

record that John Galanis did not by happenstance meet
Raines in Las Vegas but specifically targeted him. Indeed,
weeks earlier Jason Galanis had emailed Archer and
Cooney about an opportunity to work with the WLCC,
mentioning Raines by name. GX 2003. Moreover, there
was at least one occasion on which Tim Anderson, an
attorney who helped structure the WLCC issuances,
contacted Jason Galanis seeking certain information
about WAPC, a request to which John Galanis responded.
Tr. 184:16-20. Finally, when Raines suggested that the
WLCC explore alternative annuity providers in order to
compare rates, John Galanis discouraged him from doing
so, Tr. 1854:23-1855:10. If another entity had served as
the annuity provider, it would not have been possible to
misappropriate the proceeds.15

15. The one piece of evidence introduced after the Court

reserved judgment on the Rule 29 motions that harmed any of the
defendants was that regarding John Galanis’ participation in a prior
securities fraud scheme orchestrated by his son. The Court had
precluded the government from introducing this Rule 404(b) evidence
unless counsel for John Galanis argued that his client had been duped
by Jason in the context of this conspiracy. In spite of the Court’s
explicit warnings, counsel did just that in his summation, at which
point the Court briefly re-opened the evidentiary record to permit
the government to introduce a stipulation that John Galanis had pled
guilty to that previous fraud. Tr. 3 829:2-l 6. The Court provided a
robust limiting instruction that neither Archer nor Cooney were imp
licated in that conduct and that the jury was permitted to consider
 76a

Appendix D

John Galanis also grossly mischaracterizes the record

concerning the money he received for his assistance in
executing the WLCC scheme. It is undisputed that he
received $2.35 million, which he describes as a commission.
Galanis is of course correct that commissions are not per
se illegal. He also rightly notes that BSI received $250,000
for its role as the placement agent for the bonds. GX 214
at 5. Raines even believed that Galanis might receive
a portion of the payment due to Burnham. Tr. 1947:17-
21. But the circumstances under which John Galanis
received this money belie the notion that it was payment
for anything but his participation in the criminal scheme.

First, unlike the payment to Burnham, the $2.35

million distributed to John Galanis was not provided for in
the schedule setting forth the payments of expenses owed
at closing. See GX 214 at 5. Indeed, unlike the payment to
BSI, which was made at closing, the funds given to John
Galanis came at a later time out of the WAPC account.
See GX 4013. At trial, he failed to identify any authority
for such a distribution to be made to him in the context of
these transactions. Second, the size of the payment further
undermines his argument. It stands to reason that if BSI
was receiving $250,000 for its role as placement agent,
John Galanis should not have received nearly ten times

the evidence only against John Galanis for the purpose of assessing
his intent in the present case. Tr. 3829:25-3831:11. Needless to say,
this evidence was highly probative of whether John Galanis was a
willing participant in the scheme at hand. But as the Court’s analysis
demonstrates, the jury had ample bases for convicting him based on
the evidence that had been introduced at the time the government
rested and the Court reserved judgment on his Rule 29 motion.
 77a

Appendix D

that sum for whatever services he allegedly provided. To

the extent John Galanis suggests that his payment was
a finder’s fee, that argument is contradicted by the trial
record, which, as previously discussed, established that
Jason Galanis and the other defendants at trial were
aware of this potential transaction prior to John Galanis
ever “meeting” Raycen Raines. See GX 2303. Finally,
the manner in which the funds were disbursed to John
Galanis is perhaps most probative of the fact that this
payment was not legitimate. John Galanis was not simply
wired the funds. Instead, mere days prior to the first
issuance, he directed an associate to create Sovereign
Nations. See Tr. 2820:1-2822:16; see also GX 623, GX 1112.
The incorporation and account opening documents for
this company are bereft of any mention of John Galanis,
even though he was the one effectively exercising control
over the bank account. See GX 623, GX 1112, Tr. 2826:3-
2828:1, 2831:5-2837:5. The $2.35 million was wired to
Sovereign Nations, at which point John Galanis directed
distributions, using a fake email account, to himself and
family members. See GX 3400, GX 4009, Tr. 2822:23-
2823:24.

On this record, the jury’s conclusion, supported by

ample evidence, was eminently reasonable.

B. Devon Archer and Bevan Cooney

The Rule 29 motions submitted by Archer and Cooney

are similarly denied. With respect to Archer, as will
become clear in the course of the forthcoming Rule 33
analysis, when drawing all inferences in the government’s
 78a

Appendix D

favor, there is not a valid basis to grant his Rule 29 motion.

As the Court will further explain, Cooney’s insufficiency
of the evidence argument fails even under the more lenient
Rule 33 standard.

II. Rule 33

As mentioned above, Archer and Cooney both attack

the sufficiency of the evidence in advancing motions for
a new trial under Rule 33.16 The defendants also make
various other Rule 33 arguments. For reasons the Court
will detail, Archer’s motion based on the sufficiency of the
evidence is granted, while all others are denied.

Rule 33 permits courts to “vacate any judgment and

grant a new trial if the interest of justice so requires.”
Fed. R. Crim. P. 33(a). Courts have “broad discretion
... to set aside a jury verdict and order a new trial to
avert a perceived miscarriage of justice.” United States
v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (ellipsis in
original) (citation omitted). Motions for a new trial pursuant
to Rule 33 “are disfavored in this Circuit” and “should be
granted only in the most extraordinary circumstances .”
United States v. Figueroa, 421 F. App’x 23, 24 (2d Cir.2011)
(emphasis in original) (citations omitted).

16. As previously noted, John Galanis does not attack the

sufficiency of the evidence under Rule 33. Cooney has made several
arguments for a new trial without explicitly attacking the sufficiency
of the evidence, as he does under Rule 29. Nonetheless, particularly
to the extent Cooney joins in Archer’s motions, the Court construes
Cooney’s papers as also arguing that the evidence is insufficient
under Rule 33.
 79a

Appendix D

A. Sufficiency of the Evidence

“In deciding whether to grant a Rule 33 motion

[predicated on sufficiency of the evidence], a judge may
weigh the evidence and determine the credibility of
witnesses” and “is not required to view the evidence in the
light most favorable to the Government.” United States v.
Tarantino, No. 08-CR-655 (JS), 2012 U.S. Dist. LEXIS
159850, 2012 WL 5430865, at *2 (E.D.N.Y. Nov. 7, 2012)
(citations omitted), aff’d, 617 F. App’x 62 (2d Cir. July 10,
2015). “The trial court must be satisfied that competent,
satisfactory and sufficient evidence in the record supports
the jury verdict. The district court must examine the
entire case, take into account all facts and circumstances,
and make an objective evaluation.” Ferguson, 246 F.3d at
134 (citations omitted). The Court, however, must “strike
a balance between weighing the evidence and credibility
of witnesses and not wholly usurping the role of the jury.”
Id. at 133 (citation omitted). “The ultimate test [on a Rule
33 motion] is whether letting a guilty verdict stand would
be a manifest injustice. To grant the motion, there must
be a real concern that an innocent person may have been
convicted.” United States v. Aguiar, 737 F.3d 251, 264 (2d
Cir. 2013) (citations omitted).

1. Devon Archer

The Court has been mindful of the deference

appropriately accorded juries and does not grant Archer’s
motion for a new trial lightly or absent careful consideration.
As noted above, when drawing every inference in the
government’s favor, as the Court is required to do under
Rule 29, the Court cannot conclude that no reasonable
 80a

Appendix D

jury could have convicted him, particularly because the

primary issue was intent and the government presented
a substantial amount of circumstantial evidence to that
effect.

The government’s reliance on circumstantial

evidence is of course perfectly appropriate. And the
government’s case against Archer is not without appeal
at first blush. He did, after all, purchase WLCC bonds
using misappropriated proceeds that he received from
Jason Galanis. But when each piece of evidence in this
indisputably complex case is examined with scrutiny and
in the context of all the facts presented, the government’s
case against Archer loses much of its force,

First, the government’s overwhelming reliance on

circumstantial evidence is coupled with Jason Galanis’
deception, including of those who intentionally aided his
crimes. His modus operandi was to compartmentalize
his schemes, such that each participant knew only that
which was essential to his or her narrowly defined role.
Indeed, the trial record is replete with acknowledgements
by accomplices of Jason Galanis that he was intentionally
deceptive, rendering them unaware of various aspects of
his illegal conduct—including those central to the WLCC
scheme—and that sometimes they did not learn the truth
until they reviewed the indictment in this case or were
otherwise informed by the government. See Tr. 932:7-
14, 933:17-20, 1028:4-10, 1120:17-1121:10, 1126:5-1128:17,
1142:12-21, 1311:24-1312:6, 1339:10-24, 1425:1-15, 1557:2-
6, 2142:6-13, 2144:1-22, 2159:8-21, 2296:9-18, 2326:8-15,
2329:16-23, 2332:21-2333:17, 2335:2-4, 2336:5-7, 2345:15-
2346:2.
 81a

Appendix D

This ignorance extended so far as to specific

transactions in which they were involved. For example, the
government’s cooperating witnesses only learned that the
WLCC deal was fraudulent by virtue of their independent
observations. Dunkerley, despite his close relationship
with Galanis and after already having performed discrete
acts in furtherance of the conspiracy, arrived at this
realization only when he noticed that the bond proceeds in
the WAPC account, to which he had access, were not being
used to purchase an annuity. See Tr. 1310:13-21. There
were no such clues for Archer. Moreover, the evidence
demonstrated that Galanis viewed Archer as a pawn to
be used in furtherance of his various criminal schemes.
See, e.g., DX 4078. The role of Jason Galanis as it pertains
to the defendants’ intent is all the more vexing in light of
the legitimate roll up plan, which involved many of the
same entities and actors. It is through this prism that the
evidence in this case must be assessed.

The Court’s concerns are further exacerbated by

the government’s inability throughout trial to articulate
a compelling motive for Archer to engage in this fraud.
Although the government is of course not required to
prove motive, it is notable that Archer never received
money from the purported annuity provider, nor did he
profit directly from the misappropriation of the bond
proceeds.17 The theory on which the government now relies

17. At trial, the government advanced a theory that Archer

profited by way of $700,513 in misappropriated proceeds he received
from Thorsdale, the entity controlled by Jason Galanis. See GX 4012.
Cross-examination established, however, that this was not the case.
The evidence on which the relevant government chart was based
 82a

Appendix D

is that Archer’s admitted interest in the roll up being

successful—due, principally, to his ownership interest
in Burnham and the shares of WAH stock he received
for serving on the board—created a motive for him to
participate in the WLCC fraud, which, the government
contends, provided funds critical to the roll up’s success.
The Court cannot dismiss this possibility entirely, though
it is mitigated by the fact that Archer’s commitment to
the roll up also resulted in him spending substantial
amounts of his own money, with one calculation offered
by Archer estimating that he lost approximately $800,000
during the relevant period. See Tr. 3567:21-23; DX 9003.
Nonetheless, the fact that Archer did not profit by virtue
of retaining bond proceeds that he received, either directly
or indirectly, from the purported annuity provider is a
significant distinction between him and his co-defendants.
See GX 4013 (entity controlled by John Galanis received
$2.35 million directly from WAPC); GX 4009 (Cooney
received $75,000 directly from WAPC); cf. GX 4012
(documenting the many millions of misappropriated funds
Jason Galanis spent on himself); Tr. 1005:14-18, 1096:1-
5 (Dunlcerley received $125,000 at close of first bond
issuance for being the placement agent even though he did
not actually have to locate purchasers of the bonds); Tr.

consisted of two wires from Thorsdale to RSB: one for $100,000 and a
second for $600,513. The transfer for $100,000 appears to have been
repayment of a loan made to Thorsdale by RSB one month earlier
while the second wire was soon thereafter returned to Thorsdale.
See Tr. 3002:25-3028:16. Indeed, the government seems to have
abandoned its argument that these transfers are evidence of motive,
instead describing the money as being “funneled” through RSB’s
account in the course of the conspiracy. See Govt Opp. at 51.
 83a

Appendix D

2143:20-25, 2147:6-18, 2149:3-8 (Martin received $150,000

for serving as the investment manager for the annuity
even though one was never purchased).

While some of Archer’s conduct is troubling—

particularly his repeated failure to disclose his involvement
with Jason Galanis—the Court remains unconvinced
that Archer knew that Jason Galanis was perpetrating
a massive fraud. In short, when permitted to weigh the
evidence on its own, as Rule 33 allows, the Court is left
with an unwavering concern that Archer is innocent of
the crimes charged.

The government’s case as to Archer’s intent was

comprised primarily of the following evidence: (1) his
purchase of $15 million of WLCC bonds; (2) emails
involving him, Cooney, and Jason Galanis; (3) purported
lies he told Morgan Stanley and Deutsche Bank in the
course of custodying the WLCC bonds and to the Board of
Trustees of the Burnham Investors Trust (“BIT Board”);
and (4) various alleged efforts to cover up the WLCC
scheme. The Court will address each in turn.

i. Archer’s Purchase of the Second

Tranche

The primary aspect of the government’s case

against A rcher was his purchase of WLCC bonds
using proceeds from the first issuance. This $15 million
represented approximately one-fourth of the total amount
misappropriated during the course of the conspiracy. It is
undisputed that Archer knew Jason Galanis supplied the
 84a

Appendix D

money. See GX 2228, What is disputed, however, is whether

he knew the funds Galanis gave him were misappropriated
bond proceeds.

It is imperative to understand the nuances of these

transactions, which were structured intricately by Jason
Galanis, presumably, to aid his deception. It is clear from
the record that Archer knew Jason Galanis was providing
the money for him to purchase his portion of the second
tranche. But critically, the funds were not transferred
to Archer from WAPC, as when John Galanis received
misappropriated proceeds. See GX 4013. Instead, the
money took a circuitous route. Hugh Dunkerley, operating
at the direction of Jason Galanis, transferred $15 million
to Thorsdale, the entity controlled by Galanis, at which
point it was wired to Clifford Wolff, an attorney who
represented Galanis in various transactions. See GX 4006.
It was only then that Wolff sent the funds to an account
belonging to RSB, an entity that, as previously discussed,
was controlled by Archer. See id. RSB in turn purchased
$15 million of WLCC bonds. See id.

Despite his involvement, the government presented

no evidence that Archer knew that these funds came from
WAPC, which presumably would have operated as a red
flag. Moreover, the first transaction in this series was
effected in a manner intended to prevent anyone from
realizing that the funds were coming from the purported
annuity provider. Instead of merely wiring the money,
pursuant to an explicit instruction by Jason Galanis,
Dunkerley went to a bank and withdrew $15 million
from the WAPC account and then separately deposited
 85a

Appendix D

it into Thorsdale’s account. Tr. 1514:1-12, 1516:10-1517:15,

As opposed to when a transfer is effected by wire, it
is only possible to connect these two transactions by
simultaneously examining the records for the two accounts
and because a bank employee wrote on the withdrawal
slip that the money was being deposited into Thorsdale’s
account. See GX 565; Tr. 1525:12-24. This was the only
occasion on which Dunkerley effected a transfer from
the WAPC account in this manner, Tr. 1517:13-17. The
transfer from Thorsdale to the Wolff Law Firm was also
accompanied by an email from Francisco Martin, ghost-
written by Jason Galanis, in which Martin “[t]hank[ed]”
Wolff for his “assistance in helping to settle this investment
for your client.” DX 4795; accord Tr. 2339:24-2340:22.

Perhaps most critically, even Dunkerley, who the

evidence showed was privy to more aspects of Jason
Galanis’ various criminal acts than virtually anyone
else—including frauds in which Archer is not alleged to
have played any role—did not realize either (1) that the
$15 million from the WAPC account was ultimately being
sent to Archer or (2) that Archer ultimately purchased
bonds with misappropriated proceeds. See Tr. 1028:5-10,
1312:8-13. Instead, Jason Galanis told Dunkerley, who was
an active participant in this series of transactions, that
Archer had a contract from China to make investments in
the United States, which required him to use the money
by a certain date. See Tr. 1025:2-7. Archer, according to
Galanis, was going to buy the bonds in order to “effectively
park the money so that he could use it for future
investments as they came up.” Tr. 1025:8-10. The fact that
Dunkerley knew only the details of the one transaction
 86a

Appendix D

of this series in which he was directly involved—sending

the money from WAPC to Thorsdale—counsels strongly
against concluding that Archer had insight into the entire
sequence, which would be necessary for him, as the
recipient of the final transfer, to know where the money
originated from, namely the WAPC account.

In sum, there was no evidence presented that Archer

was aware that the money being provided by Jason
Galanis constituted proceeds from the first issuance.
As the Court has described, moreover, other aspects of
the record suggest that he did not know. Indeed, Jason
Galanis’ measures to hide that he was sending Archer
money from the WAPC account stands in stark contrast to
other occasions on which Jason Galanis misappropriated
proceeds, such as when money was sent directly to the
account of an entity effectively controlled by his father
and other funds were wired directly to Thorsdale. See
GX 4003 at 4. And as previously noted, Dunkerley, who
was instrumental in transferring the funds in question
to Archer, only realized that bond proceeds were being
misappropriated at all due to his access to the WAPC
account, which obviously revealed that the funds were
not being used to purchase an annuity. See Tr. 1310:13-21.
The evidence indicates that Archer had no such access.
See Tr. 1339:25-1340:3.18

18. Related to this transaction, the government asserts in a

footnote in its opposition papers that the letter submitted by Archer
to the WLCC indicating that he was a sophisticated investor could
itself be an actionable misstatement. See Govt Opp. at 54 n.16 (citing
GX 281). Assuming that the letter in fact contained a material
misstatement, the government would still need to demonstrate that it
 87a

Appendix D

ii. Emails Involving Jason Galanis,

Archer, and Cooney

The government next argues that emails between

Archer, Cooney, and Jason Galanis, particularly those sent
by Galanis, demonstrate an intention to steal the bond
proceeds and defraud the clients of Hughes and Atlantic.
These emails were read into evidence by law enforcement
agents without any accompanying testimony. Indeed, the
government’s two witnesses who were participants in the
scheme—Hugh Dunkerley and Francisco Martin—were
not parties to these messages and could not interpret or
explain the statements made therein. The government is,
of course, not required to offer testimony accompanying
such evidence. As the Court will explain, however, the
language in the emails is facially innocuous or, at best,
most naturally subject to innocent interpretations. Thus,
although the government urged the jury to construe these
emails as evidence of the defendants’ intent to perpetrate
fraud, the Court views them as more probative of Archer’s
innocence.

Broadly speaking, the emails concern two topics:

(1) the genesis of the WLCC bond offerings, including
planning the first issuance, and (2) the acquisitions of
Hughes and Atlantic. The Court will address each in turn.

As for the emails regarding the structuring of the

WLCC bond deal, the government points to terms such as

was made with the requisite intent and the Court’s Rule 33 analysis
thus remains applicable.
 88a

Appendix D

“liquidity” and “discretionary” as if they are necessarily

evidence of criminal intent. But the government interprets
these communications with the benefit of hindsight,
knowing that Jason Galanis in fact misappropriated the
proceeds. Instead, the critical question is what these
emails say about Archer’s intent at the time they were
made. As the government rightly notes, evidence must
be interpreted in context, which also requires the Court
to consider that these communications were sent among
three individuals attempting to complete the previously
discussed roll up plan, a primary goal of which was to
increase assets under management. See DX 4733 at 13.
That the defendants, by virtue of the WLCC bond deal,
may have increased, or wanted to increase, the assets
over which they had discretion to invest is not evidence of
criminal intent. Furthermore, the annuity was intended
to include private equity investments. See GX 209 at 10,
GX 210 at 11 (agreements providing for the annuity to
include private equity investments); Tr. 370:17-19, 372:9-
15, 500:22-504:6 (Anderson, the attorney who represented
BSI, the placement agent for the bonds, understood that
the bond proceeds would be invested in private equity,
agreeing that such investments “typically involve taking
a substantial stake or even control of a company”).
Therefore, that certain communications may indicate a
hope or belief that the defendants would benefit from
the WLCC bond deal by virtue of it helping to advance
the roll up does not mean that such benefit was mutually
understood to result from stealing the bond money. In fact,
consistent with these agreements, Dunkerley and Galanis
even planned to cover up the theft of the proceeds by
telling the WLCC that the bond money had been invested
 89a

Appendix D

in various companies acquired in the course of the roll up

and that the returns on their ownership stake in these
entities were sufficient for the annuity to generate the
expected returns. See Tr. 1057:5-10.

For instance, one of the first emails connecting Archer

to the WLCC scheme, and on which the government places
much weight, is an April 2014 message from Jason Galanis
regarding a transaction that never came to fruition, in
which he wrote “$20mm bond approved. Proceeds are
15mm to us and 5mm to them for a winery investment
they want to make.” GX 2011. In the government’s view,
Galanis was communicating that he and the defendants
were free do as they wished with the $15 million. But
a more reasonable interpretation of this message is
that Galanis was conveying that $5 million of the bond
proceeds would be immediately distributed to the WLCC
while the remaining $15 million was to be invested on its
behalf, thereby increasing assets under management.
Indeed, this was similar to the structure of the deal that
was eventually consummated, where $2.25 million was
distributed immediately to the WLCC and roughly $24
million was earmarked for investment. See GX 4003. This
interpretation also comports with the opinion letter from a
law firm attached to the message. See GX 2011. Moreover,
Cooney replied, asking, “[w]hat do we get to do with the
15mm.” GX 2120. While the government argues that this
is further probative of criminal intent, a more natural
inference is that Cooney did not understand Galanis to
mean that they would steal the money but instead that
there would be limitations of some sort on how the funds
could be used, presumably pursuant to the agreements
that would govern the contemplated transaction.
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The Court is similarly concerned about a possible

misinterpretation of Galanis’ response that the funds were
“discretionary.” Id. Archer could easily have understood
Galanis to be referring to the fact that the group would
be able to invest the money for the WLCC as they saw fit,
so long as they complied with any restrictions put in place
by the client. This is not a novel concept. Discretionary
liquidity is frequently referenced in the course of
discussing perfectly legitimate transactions and entities,
including the sorts at issue in the case at hand. See GX
2029 (noting that Hughes “manages $900 million on a
discretionary basis for 29 institutional clients (pensions
and endowments)” (emphasis added)); GX 2303 (noting that
Atlantic “managed on a discretionary basis approximately
US $1.8869 billion of client assets and provides advisory
services on a non-discretionary basis with respect to US
$7.1457 billion of client assets” (emphasis added)); DX 4733
at 13 (Burnham pitch deck emphasizing its discretionary
assets under management); Tr. 650:19-651:8; 855:2-14;
1397:18-1398:4; 1605:20-1606:2; 1635:22-163.6:4; 1660:8-
12; 1673:13-20.

The foregoing analysis similarly applies to other

emails in which Galanis emphasized the need for
discretionary liquidity. See GX 1221 (June 2014 email
correspondence in which Galanis informed Archer that he
was working with “dan and Hugh on capital vehicles that
result in us controlling discretionary funds” which would
provide them with “money to invest,” to which Archer
responded that “[w]e need discretionary funds at our
command soonest,” and to which Galanis replied that he
was focused on “discretionary”); GX 2025 (Galanis writing
“with some dry powder in our control soon, we will be
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scary effective”); GX 2026 (Galanis providing an update

on the progress towards closing the transaction, adding
“shooting for the end of month, lots to accomplish to finesse
this over the line, im not counting the money yet . . . my
primary objective is to get us a source of discretionary
liquidity, sick of begging.”); GX 2031 (on eve of closing of
first issuance Galanis writes “[i]f I get this $28mm, I have
12-15mm to put into WAH [Wealth Assurance Holdings]”);
GX 2065 (November 20, 2014 email from Galanis in which
he lays out the details of a potential future bond deal,
including that proceeds would be placed in a WAH annuity,
with returns being “generated by a diversified private
equity portfolio in order to grow Tribal assets”); GX 2216
(“Dan and Hugh have locked [Fondinvest] up and came to
me for the money, which I have agreed to arrange/provide
(probably Indians).”).19

19. The government rightly notes in its opposition papers that

Jason Galanis in fact later used $5.4 million in proceeds from the
final bond issuance to purchase Fondinvest. See GX 4009. Archer
contends that he plausibly understood this to mean that proceeds
would have been used in the acquisition of Fondinvest, with the
WLCC enjoying a stake in the company, i.e., as a private equity
investment. The government’s counter to this argument appears to
be the conclusory statement that Archer knew he and his alleged
co-conspirators were instead using the bond proceeds for themselves.
See Govt Opp. at 33 n.13 (“There was no annuity, and Archer knew
that he and others were using the proceeds of the bond issuances
for themselves and not, as promised to the WLCC, to an annuity.”).
But as the Court has noted, it was specifically contemplated that
investments on behalf of the WLCC would include private equity.
See GX 209 at 10, GX 210 at 11; Tr. 370:17-19, 372:9-15, 500:22-504:6
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The Court’s concern is further exacerbated when, as

it must, the evidence is construed cumulatively and not in
isolation. On June 20, 2014, Jason Galanis emailed Archer
and Cooney, writing “Arch[,] the Indians signed two hours
ago our engagement. . . Nothing for you to do at this point,
but giving you a heads up. The use of the proceeds is to
place the bond proceeds into a Wealth Assurance annuity
. . . . btw, annuity proceeds get invested by an appointed
manager on a discretionary basis on a 20 year contract.
Hercules has been appointed.” GX 1235. Far from being
inculpatory, this email appears exculpatory because
Galanis is specifically representing that the bond proceeds
would be placed in an annuity. It further seems clear that
when these individuals used the word discretionary in
this context they were referencing the ability of an asset
manager to exercise discretion in selecting investments
for a client, in this case the WLCC. Galanis’ response
supports Archer’s argument that this is probative of his
belief that the proceeds could be legitimately invested
on behalf of the WLCC while simultaneously advancing
the roll up. Although Jason Galanis likely intended to
steal the bond proceeds by this point, the Court remains
unconvinced that he communicated such intent in these
messages, or, more critically, that Archer understood him
so. As noted earlier, during this period even Dunkerley
and Martin believed the WLCC deal was legitimate. See
Tr. 1139:24-1140:5, 2296:9-18.

Other emails regarding the first bond issuance are

simply status updates, which appear facially innocuous.
See GX 1220 (Galanis forwarding email correspondence
with Tim Anderson and writing that he was “moving the
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$20MM sovereign nation debt issued”); GX 1267 (“closing

soon” in reference to the first issuance); GX 2026 (“we
got US Bank to act as trustee for the bond issue,” “GT is
issuer counsel,” and “Tribe counsel met and approved the
issue”); GX 2027 (Galanis writing that they were “close”
and “target close is July 31”); GX 2031 (Galanis stating he
was “in closing docs on $28mm with GT. Close. Could fall
apart but close.”); GX 2217 (“Wilma Standing Bear and
Geneva Lone Hill have fully executed the agreements”).

Finally, the government cites to various messages

from Archer and Cooney in which they express enthusiasm
in response to the information provided by Jason Galanis.
See GX 2024 (Cooney responding with a picture of a
Jack playing card and writing “The Greek! [which was
a nickname for Galanis]”); GX 2026 (Archer responding
“Unreal! This is just a testament to taking a portfolio
approach to pursuing opportunity (aka the ping pong
method). Unreal as you never know where the nuggets
pop up.”); GX 2026 (Archer responding “Appreciate that
Jack! And completely correct!”); GX 2028 (Archer writing
“[f]rom your lips to Gods ears! July 31 is right around the
corner.”); GX 2031 (Archer stating “I’m not sure I can take
anymore of the precious. It’s incredibly capital intensive
greenfield work. But let’s discuss because there’s also a lot
of blue sky!”). In the Court’s view, these emails simply do
not give rise to the inference urged by the government.

The same is true of the emails related to the

acquisitions of Hughes and Atlantic. There was nothing
inherently illegal or illegitimate about these transactions,
even though they were motivated by a desire to locate
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purchasers of the WLCC bonds. 20 Rather, the fraud as

it pertains to the investment advisers is that bonds were
purchased for their clients without disclosure of all of the
potential conflicts of interest and the bonds fell outside
certain clients’ investment parameters. 21

The emails relied on by the government make it clear

that Archer was aware of the acquisitions of Hughes
and Atlantic, as well as the goal that these transactions
would facilitate the sale of WLCC bonds. See GX 1229 (in
reference to acquisition of Atlantic closing, Galanis noting
that it “will be nice to have dry powder to fire”); GX 2018
(Galanis emailing Archer, Cooney, and Andrew Godfrey
regarding Hughes, noting that firm has “$1.0 billion AUM
[assets under management], all fixed income. 52 clients,
all institutional.”); GX 2029 (Galanis forwarding executed
term sheet for acquisition of Hughes and noting that it
“manages $900 million on a discretionary basis for 28
institutional clients (pensions and endowments)”); GX 2034
(“WAAG wired $2.78 million today to close Hughes.”); GX
2242 (discussing how acquisition of Atlantic would provide

20. The one caveat is that the acquisition of Hughes was

financed through the so-called Ballybunion fraud, see DX 4060 at
2 (conditioning $2.76 million for acquisition of Hughes on release
of Ballybunion proceeds), a separate crime committed by Jason
Galanis and Hugh Dunkerley in which none of these defendants are
implicated, see Tr. 1151:4-8 (Dunkerley was told by Jason Galanis
not to tell anyone else about the Ballybunion fraud).
21. The Court notes that certain of the conflicts were apparently
disclosed. See Tr. 508:15-509:8 (Dunkerley’s involvement in both
WAAG and BSI was disclosed in private placement memorandum);
GX1334.
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“more liquidity and sources for the various projects” and

that it could be used to purchase WLCC bonds, months
before its acquisition); GX 2303 (email from Galanis
indicating that “we have a decent shot of adding [Atlantic]
to the family”); see also GX 1224, GX 1228, GX 1282, GX
2037, GX 2063, GX 2076, GX 2078. There is no indication,
however, that the individuals in control of the investment
advisers, Morton and Hirst, would fail to disclose the
conflicts of interest or violate the terms of the clients’
investor agreements. Indeed, certain emails to which
the government points support the opposite inference,
namely that there existed a hope that clients of Hughes
and Atlantic would purchase WLCC bonds, but no intent
to unilaterally foist the bonds upon them. See GX 2029
(Galanis writing that “[w]e have agreed to give” Hughes
“an opportunity to participate in Native American new
bond issues” and asserting his belief that it would take
“$28 million of the Wakpamni/Ogala [sic] Sioux issue”
(emphasis added)).

The government, finally, places much emphasis

on two emails related to Jason Galanis’ purchase of a
condominium in New York City, which was made in part
with bond proceeds. On July 9, 2014, Clifford Wolff emailed
Archer and his assistant, Sebastian Momtazi, that Galanis
was going to “purchase a condo using the above name
[Archer Diversified TRG, LLC] and Devon’s cache [sic].
The company is using your office address.” GX 2122. Later
that month, Galanis, in an email thread in which he had
previously specified that the closing date for the WLCC
deal was July 31, commented “so close. Cliff is running the
stall for me on nyc mansion[.] I want to be here and won’t
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live in a 1750 square foot cage[.] Massively motivated.”

GX 2028. The inference urged by the government is that
Archer knew Galanis was going to later use bond proceeds
to purchase the condominium.

The Court is not convinced that this correspondence

leads to the inference urged by the government. It is true
that these emails suggest that Archer permitted Galanis,
with whom he was working at the time, to effectively trade
on his name in attempting to purchase a condominium.
But that misleading impression is not probative of whether
Archer knew Galanis was going to steal the bond proceeds.
Moreover, that Galanis expressed the desire to make this
real estate purchase in an email in which he also addressed
the WLCC bond deal does not lead to the inference that
he would ultimately finance this purchase, in part, with
misappropriated bond proceeds. As Archer notes, it can
also be read as merely affirming that Galanis was going
to purchase the property if the deal went through (e.g.,
in part using money he might legitimately earn from
the bond deal or fees later generated as a result of the
anticipated investment on behalf of the WLCC). Burnham,
a subsidiary of which was set to be the placement agent
for the bonds, also maintained its offices in Manhattan,
making the discussion of Galanis’ anticipated move to New
York City in the context of discussing the closing of the
WLCC deal not illogical.

But the more critical point is this: because this

email was admitted with no accompanying testimony or
other evidence probative of its meaning, the Court (as
the jury was) is left to speculate as to whether Galanis
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was implicitly conveying criminal intent to Archer. The

Court is hesitant to conclude from this correspondence
that Galanis was effectively stating that he intended to
steal the bond proceeds, which is simply too large an
inferential leap. The inference urged by the government
is further undercut by the fact that Galanis financed the
rest of this purchase by diverting money from Valorife,
under the pretense that it was purchasing WLCC bonds.
See GX 4015, DX 4127, DX 4824, Tr. 3539:4-3541:1. There
is no indication that Archer was involved in that conduct.

One final point bears mentioning: the government

attempts to read nefarious intent into certain of these
messages by suggesting that the defendants knew that
Jason Galanis intended to steal the bond proceeds
because he was short on money but nonetheless discussed
extravagant expenditures, such as a condominium in New
York. This suggestion is unpersuasive, however, in light of
the extensive evidence presented at trial demonstrating
that Jason Galanis successfully misled virtually every
person he met into thinking he was immensely wealthy
and successful. See, e.g., Tr. 2306:1-2303:17.

In sum, the Court does not view this body of evidence

as tending to show that Archer was in fact aware of Galanis’
theft. Indeed, certain emails, most notably Government
Exhibit 1235, tend to show the opposite, namely that
Archer had good reason to believe the WLCC bond deal
was legitimate. At a bare minimum, the inferences urged
by Archer are more closely tethered to the actual language
used in these communications.
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Appendix D

iii. Purported Lies to Morgan Stanley,

Deutsche Bank, and the BIT Board

The most damaging evidence against Archer, in

the Court’s view, were the purported lies he told three
entities: Morgan Stanley, Deutsche Bank, and the BIT
Board. While certain of these statements were clearly
misleading, as the Court will explain the primary manner
in which they were deceptive—hiding the involvement of
Jason Galanis—does not lead to the ultimate conclusion
necessary for Archer’s guilt: that he was misleading
because he knew Galanis was stealing the bond proceeds.

Archer’s statements to Morgan Stanley and Deutsche

Bank occurred in the course of identifying an institution
to custody the WLCC bonds he purchased in the second
tranche, which simply entails storing them. See Tr. 833:3-
11. The government argues that Archer lied about the
source of the $15 million he used to purchase the bonds
when he told both entities that the money was generated
via real estate sales. See GX 344, GX 1226. Archer
contends that these statements were accurate in his view
at the time because he was merely repeating lies Jason
Galanis had told him about the source of the funds. There
were also two pieces of evidence, however, that indicate
the funds were generated by real estate sales specifically
completed by RSB, as opposed to a third party, which
would constitute statements that Archer clearly knew to
be false. See GX 345, GX 352 at 4. Archer asserts that
he did not actually provide this information because the
statements in question were made by a Morgan Stanley
employee, who must have assumed that any transactions
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Appendix D

generating the funds had been completed by the entity

on whose behalf the bonds would be custodied, RSB. The
appropriate inference, in the government’s view, is that
Archer lied about the source of the money because he
knew that it constituted bond proceeds recycled from the
first issuance.

The communications with the BIT Board, on the other

hand, were not related to the WLCC bond deal. Instead,
these statements arose in the course of Archer’s pursuit of
the roll up plan. The Burnham Investors Trust, managed
by the BIT Board, was the largest client of BAM, which,
as previously discussed, was a subsidiary of Burnham.
Tr. 2666:13-2667:9. Archer wished to retain the Trust
as a client. The BIT Board and Archer engaged in a
prolonged negotiation, each advised by legal counsel, in
the course of which Archer made certain representations
about the involvement of Jason Galanis, or rather, his lack
of involvement in various entities related to Burnham.
See GX 762 at 1-2, GX 763 at 3, Tr. 2765:1-2778:20. The
government argues that Archer lied, which, it contends, is
probative of his intent with respect to the WLCC scheme.
Archer counters that the very technical statements with
which he agreed to comply, with the advice of counsel, were
in fact true, despite the involvement of Jason Galanis in
certain capacities.

There are fair arguments by both the government and

Archer about the statements he made to these entities and
whether they were literally true, false, or technically true
but nonetheless misleading. At the very least, it is a fair
inference that even if Archer’s various statements were
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Appendix D

technically true, he misled these entities and violated

the spirit of his representations. Indeed, when crediting
Archer’s arguments as to the statements he made to
the banks, his failure to acknowledge that a third party
(Jason Galanis) provided the money is what led to Morgan
Stanley’s allegedly faulty assumption that the transactions
generating the funds had been completed by RSB. The
Court remains unconvinced, however, that this evidence,
even considered with the rest of the government’s case,
establishes the only issue that matters for purposes
of establishing Archer’s guilt: that he was misleading
because he knew that Jason Galanis was stealing the
bond proceeds.

With respect to Morgan Stanley and Deutsche Bank,

there are two possible inferences to be drawn from
Archer’s statements that the money used to purchase
the bonds came from real estate sales: (1) he hid the fact
that the funds constituted recycled bond proceeds and (2)
he hid the involvement of Galanis. The probative value of
the evidence with regard to the first inference, however,
hinges on the assumption of the very fact for which it
is offered. It is undisputed that the funds constituted
misappropriated proceeds, rendering the statement
false. It is only probative of Archer’s intent, however,
if he knew the statement was false. For all the reasons
the Court has and will articulate, it does not find that
particular inference persuasive. The inference is further
weakened by the fact that Galanis specifically held himself
out as having made money from real estate, bolstering
the notion that Archer may well have repeated a lie told
to him by Galanis. See Tr. 480:6-15; 924:3-14; 1417:18-20;
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Appendix D

1418:1-18; 2305:19-22. More likely, in the Court’s view,

is that Archer was hiding the involvement of Galanis,
whose role in supplying the money was indisputably a fact
of which Archer was aware. There were other reasons,
however, Archer may not have wanted to disclose Galanis’
involvement that, while deceptive, are not probative of his
intent with respect to the charged conspiracy.

Galanis, even during the relevant period, had a well-

documented checkered past. Although he had never been
charged criminally, he had been barred by the SEC
from serving on the board, or as an officer, of a public
company, though it had expired by the time of these
events. Tr. 1332:3-8. In spite of this, the evidence at trial
demonstrated that Galanis had many admirers in addition
to his critics. See Tr. 904:10-16 (Dunkerley testifying that
he had been told by Jason Sugarman that Galanis “had a
mixed reputation, that fifty percent of the people who knew
him didn’t like him and fifty percent of the people who
knew him did like him”). It is thus reasonable to believe
that Archer misled the banks not because he knew Galanis
was stealing the bond proceeds, but instead because he
simultaneously viewed Galanis as a business asset while
realizing that he was a highly controversial figure. Indeed,
in an email from Archer to Matt Nordgren on December
19, 2014, Archer specifically noted, in regard to Galanis’
involvement in Burnham, that there were “regulatory
issues with [Galanis] so [he couldn’t] mention his name.”
GX 2066. Bolstering the strength of this inference, the
communications at issue occurred in October 2014 on the
heels of the aforementioned negotiations with the BIT
Board, in which one of the primary concerns expressed
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by the Board was the involvement of Jason Galanis. See

GX 762 (Archer’s representation letter dated September
26, 2014).

The ultimate inference advocated by the government—

that Archer knew about Galanis stealing the bond proceeds
is further undercut when Archer’s statements are viewed
in light of Dunkerley’s testimony, the witness who
provided the greatest insight into Jason Galanis’ methods.
Dunkerley definitively established that even Galanis’ co-
conspirators were ignorant about the details and import of
transactions with which they were intimately involved. As
noted earlier, Dunkerley had no idea that proceeds were
being recycled to buy more bonds or that proceeds were
being sent to Archer. See Tr. 1028:5-10,1312:8-13. What
is clear from his testimony is that his knowledge of the
illegal nature of the WLCC scheme derived from what he
personally observed—not what Galanis communicated
to him. It was Dunkerley’s access to the WAPC account
that informed him of the bond misappropriation. See Tr.
1310:13-21. Archer was not privy to such information.
See Tr. 1339:25-1340:3. The inference advanced by the
government, therefore, depends largely on the assumption
that Galanis had a conversation or correspondence with
Archer that he never had with Dunkerley (or Martin, the
other cooperating witness) proactively informing him
that the WLCC deal was a fraudulent scheme. In light of
the substantial evidence in the form of the government’s
own witnesses undercutting that notion, as well as the
absence of any evidence that Galanis ever admitted as
much to Archer—not to mention the other reasons Archer
had for being deceptive, which are not probative of his
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intent in the context of the charged crimes—the Court

remains concerned that Archer did not mislead Morgan
Stanley and Deutsche Bank because he knew Galanis was
misappropriating bond proceeds.

The inference urged by the government is even less

persuasive with respect to the BIT Board evidence, which,
as the Court noted, did not concern the WLCC bond
deal. Assuming the factual predicate of the government’s
argument, Archer did not fully disclose the involvement
of Jason Galanis in various entities related to the Board,
primarily his role as an adviser to the boards of WAH
and WAAG and his actively working with Archer on the
WLCC deal. The probative value of this evidence is that
Archer was misleading about Galanis’ involvement. And
yet again the conclusion necessary to deem Archer guilty
requires one more inferential leap: that Archer misled the
BIT Board because he knew Galanis was stealing the bond
money. As discussed above, there is substantial evidence
cutting against this inference.

Relatedly, the government further alleges that Archer

lied to the BIT Board when he denied being involved in the
events described in a complaint filed by the SEC against
Atlantic and being one of the anonymous defendants
described therein. See GX 784 at 1-2. As an initial matter,
the government conceded at trial that Archer is not in
fact one of the defendants described in the complaint. Tr.
3239:12-13. While the government alleges that Archer
was a member of the conspiracy here, which included
defrauding the clients of Atlantic, it has never alleged that
he personally failed to disclose the material conflicts of
interest or violated the clients’ investor agreements. Those
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duties were instead within the province of other members

of the alleged conspiracy, namely Morton and Hirst.

The Court recognizes that Archer made statements

intended to mislead these various entities, which is of
course troubling. In light of the contexts in which Archer
was deceptive, however, this evidence is not directly
probative of his guilt with respect to the crimes charged
in this indictment. Particularly bearing in mind the very
plausible reasons for Archer to otherwise hide Galanis’
involvement and the unique features of this case stemming
from Galanis’ deception, the Court thus continues to
harbor a concern that Archer is innocent.

iv. Archer’s Alleged Involvement in the

Cover-Up

The government, finally, presented several pieces of

evidence that, it claims, show Archer tried to cover up the
scheme: (1) he made a $250,000 payment to the WAPC
account shortly before the initial interest payment was due
on the first set of bonds; (2) he sent an email referencing a
fake entity, Calvert Capital, that was created to cover-up
the bond scheme; and (3) he sent an email to Cooney and
others discussing the next steps forward in light of Jason
Galanis’ arrest on unrelated charges in September 2015.
This evidence does not alter the Court’s doubt that Archer
was unaware of Jason Galanis’ fraud.

Archer does not dispute that he transferred $250,000

to the WAPC account, which, again, belonged to the
purported annuity provider and was the account
from which proceeds were wired in the course of the
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misappropriation. See GX 4010. The import of this evidence,

in the government’s view, is that Archer provided this
money so that it could be used to make the initial interest
payment to the bondholders who acquired bonds in the
first issuance, thus delaying discovery of the fraud. But
when construed in light of the roll up plan, the inference
urged by Archer is equally if not more compelling.

Indeed, there are a variety of reasons, other than that

the bond proceeds were being misappropriated, that could
explain why Archer would make such a transfer. First, the
evidence showed that it was relatively common for Archer
to supply liquidity to entities with which he was affiliated.
See DX 9003 at 5; Tr. 3562:12-3568:1. Critically, even
Dunkerley testified that although he knew WAPC was not
actually affiliated with WAH, to the best of his knowledge
he was the only member of the WAH Board, which included
Archer, to realize this because Jason Galanis had created
a fake subscription agreement between the two companies.
Tr. 1459:8-1461:12. And the governing documents of the
bond transaction were unambiguous that the anticipated
investment on behalf of the WLCC entailed risk, as all
investments do. As noted earlier, this one possessed an
even greater risk profile than a typical annuity by virtue
of including private equity investments. See GX 209 at 10,
GX 210 at 11; Tr. 515:9-516:15. It is thus just as consistent
with Archer’s transfer of money that he was intending to
assist what he believed to be a legitimate transaction by
providing liquidity needed in the short-term. 22

22. Of the amount that Archer and others transferred into

the account in early September 2015, $240,000 was transferred to
Thorsdale, presumably for Jason Galanis’ personal affairs. See GX
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Appendix D

Next, the government places great emphasis on an

email in which Archer references Calvert, a sham entity
that was created by Hugh Dunkerley, Francisco Martin,
and Jason Galanis to assist in the cover-up of the WLCC
scheme. In writing to Mark Waddington, who is not alleged
to have been a member of the conspiracy, Archer noted
that the bonds he purchased in the second tranche, then
held by VL Assurance, were “to be replaced/returned to
Calvert,” adding in a subsequent message in the exchange
that “the consensus is we would like to return these bonds
to the lender and beneficial owner in the quickest orderly
manner possible.” GX 2119. The inference urged by the
government is that Archer knew about the Calvert cover
up, which would obviously be probative of his intent with
respect to the WLCC scheme.

On this record, however, a single reference to Calvert

in an email does not establish Archer’s knowledge that
it was a sham entity and that he was thus a willful
participant in the conspiracy. Indeed, the weight of the
evidence undercuts the notion that Archer was aware of
the Calvert cover-up. Jason Galanis and Hugh Dunkerley
came up with the idea for the entity, Tr. 1450:2-1453:3,
which Francisco Martin created, Tr. 2181:14-19. Dunkerley
testified that neither he nor anyone else discussed Calvert
with Archer, Tr. 1464:1-13, 1509:6-8, whom Martin never
even met, Tr. 2381:15-18. While Galanis, Dunkerley, and

4010, GX 512 at 66. These events serve to further illustrate that Jason
Galanis and Archer were not as closely aligned as the government
claims and also further undercuts the notion that Archer was aware
that the money he supplied was being used for illegitimate purposes
because Galanis was simultaneously stealing from Archer.
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Cooney all participated in backdating Calvert forms

related to certain of the bond transactions, see Tr.
1464:17-1465:16, 2181:14-17, GX 1577, GX 2298, Archer
did not participate in this backdating even though the
conspirators created a fraudulent document describing
a purported loan Calvert made to RSB, see GX 1577.
Tellingly, this document was signed only by Dunkerley, see
GX 1577, in contrast to other fraudulent forms relating to
Calvert, see GX 2298 (document signed by both Dunkerley
and the purported recipient of the “loan,” Cooney). Finally,
it bears mentioning that even Martin was unaware that
Calvert was a fake entity intended to deceive even though
he was the one who created it. Tr. 2295:10-25; 2348:2-7.
This further highlights the extent to which Galanis did not
disclose the true import of discrete acts he directed others
to take, even those who were clearly willing participants
in his criminal schemes.

The government’s final strand of evidence relates to

Archer’s conduct after Jason Galanis’ arrest on unrelated
charges. It cites an email Archer sent Cooney, Jason
Sugarman, and Andrew Godfrey. GX 2102. This email
included a list of “immediate issues” to address in light of
Galanis’ arrest. Id. But there is nothing nefarious about
the included items. See id. The import of this evidence,
in the government’s view, appears to be that Archer was
aware of certain aspects of the bond transactions. But
he has never argued otherwise. 23 The issue, rather, is

23. In a footnote, the government also reminds the Court that

Archer received an email from Galanis after his arrest from the
“clean” email account set up for him by Dunkerley. See GX 1453,
Tr. 2180:21-2181:13. The Court does not deem this evidence to be
 108a

Appendix D

whether he knew that Jason Galanis was stealing the

bond proceeds. 24

v. Final Considerations

Exacerbating the Court’s concern about Archer are

two additional considerations that further weigh in favor
of granting a new trial: (1) the unique considerations
pertaining to his relationship with Jason Galanis and (2)
potential juror confusion over a government summary
chart admitted as an exhibit.

As the Court has previously described, Jason Galanis

operated to keep people in the dark, even those who were
undoubtedly willful participants in his various crimes.
But his efforts as to Archer were even more concerted.
Galanis, for instance, explicitly instructed Dunkerley not
to attend WATT board meetings where Archer would also
be present, a demand with which Dunkerley complied. Tr.
1328:19-23. This acknowledgement by Dunkerley is all the
more striking because it was he—not Jason Galanis—who
was on the board with Archer, and Dunkerley further

especially probative. The email did not concern anything inherently

illegal—merely appointment of directors to Atlantic’s board—and
was also sent to Andrew Godfrey, who is not alleged to have been
a member of the conspiracy. See GX 1453. Moreover, there is no
evidence that Archer ever responded.
24. The government also urges an inference against Cooney on
the basis that he responded to Archer’s message, indicating that it
was a “[g]ood prelim checklist.” GX 2102. For the same reasons as
those discussed with respect to Archer, the Court does not rely on
this evidence in denying Cooney’s Rule 33 motion.
 109a

Appendix D

testified that he specifically wanted to meet Archer due to

his various business connections. See Tr. 1328:19-1330:13.
Even more telling is the manner in which those who
were members of the conspiracy spoke of Archer when
he was not present, burnishing his credentials to others
and describing him, among other things, as “the biggest
show pony of all time” whose involvement would “add
layers of legitimacy” to the various deals. See, e.g., DXs
4908-09 (Cooney bragging, while being surreptitiously
recorded, that Archer is “the biggest whale of anyone,”
the “biggest show pony of all time,” and “a total fucking
whale,” explaining that “[y]ou don’t get any more
politically connected [than Archer is] and make people
more comfortable than that,” and Archer’s involvement
would thus provide “layers of legitimacy with all the deals
we’re doing now”); Tr. 1864:8-24 (Raycen Raines had
heard from others “more than once or twice” that Archer
was business partners with Hunter Biden); Tr. 1867:12-
15 (Raines acknowledging that Galanis “did in fact boast
about Mr. Archer and Mr. Biden’s involvement”); DX 4078
(Galanis writing to Cooney that “the alternative is to pimp
devon and see how quickly he stops responding . . . it will
happen”); DX 4836 (Galanis instructing Dunkerley that
it may be worthwhile to clarify in Archer’s bio that two of
his business partners “are Chris Heinz and Hunter Biden,
the step son of the Secretary of State John Kerry and the
son of the Vice President Joe Biden, respectively”); Tr.
2159:22-2160:3 (Martin testifying that Galanis had told
him that Archer “was a business partner and a very well
connected individual politically and also in the business
world”).
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Appendix D

At the same time Archer was spoken of in this manner,

Galanis was simultaneously operating to ingratiate himself
with Archer. There was anecdotal evidence, for instance,
of an elaborate dinner held in New York by Galanis and
his then-wife where he presented a toast to Archer, his
“new” friend. See Tr, 3291:25-3293:7, 3299:6-12. This
evidence further suggests that Archer was not a party
to this conspiracy but was instead being manipulated by
a skillful con artist. 25

Second, the Court harbors some concern that the

jury was confused by the testimony of the government’s
final witness, FBI Special Agent Kendall, who prepared
and testified about a number of summary charts. The
evidentiary portion of this trial was protracted and
tedious. The summary charts gave the jury a relatively
straightforward view of the numerous related transactions.
There was one chart in particular that troubled the
Court: Government Exhibit 4011. This exhibit detailed

25. The notion that Archer lacked the requisite knowledge

and intent is all the more plausible in light of Archer’s numerous
commitments during the relevant time period. As the Court
discussed in the background section, Archer’s involvement in the
WLCC deal came in the context of his substantial role in the overall
roll-up, which involved numerous entities that collectively managed
assets worth billions of dollars. There was also evidence about his
other business—and personal—commitments during this time.
See, e.g., DX 4733 at 12; Tr. 3287:18-3288:19. Archer’s relative lack
of involvement in the WLCC deal is perhaps best demonstrated
by the fact that none of the witnesses who took part in the deal
had substantial interactions with Archer. While this consideration
ultimately does not weigh heavily in the Court’s mind, it is relevant
in light of the nature of this case and Archer’s defense.
 111a

Appendix D

the interest payment on the second tranche of bonds,

those purchased by Archer and Cooney. As previously
discussed, RSB, the entity controlled by Archer, and
Cooney transferred the bonds to other entities, meaning
they were no longer in possession of them at the time
the interest payment became due. The money to make
this payment was transferred from VL Assurance to
Burnham, which then sent it to the WLCC. Due to an
internal error at Morgan Stanley, however, $903,000 was
then accidentally wired to RSB. See Tr. 3063:22-3064:8;
DX 4523 at 6. Realizing the mistake, Morgan Stanley
corrected the error twelve days later, reversed the wire,
and then sent the money to the intended recipients, BSI
and VL Assurance. See GX 301 at 190; DX 4523 at 1.
Agent Kendall agreed with the government that the chart
depicted the conspirators “basically pa[ying] themselves
the interest on the bonds[.]” Tr. 2970:20-21.

The issue arises because, although the chart had

text indicating that the wire to RSB, Archer’s entity,
was reversed, there was no explanation as to what that
meant and the arrows indicating the flow of money from
entity to entity showed that the funds went directly
from RSB to BSI and VL Assurance. See GX 4011.
This gave the impression that RSB was involved in the
transaction by which the conspirators were allegedly
paying themselves the interest due on the second set of
bonds. Indeed, immediately after Agent Kendall testified
that $903,000 went to RSB, she further explained that
at this point in time it no longer owned any of the bonds,
further suggesting impropriety on the part of RSB and
by extension Archer. See Tr. 2969:25-2970:4.
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Appendix D

Any prejudice was certainly mitigated by the manner

in which counsel for Archer elicited on cross-examination
that the “wire reversal” really meant that RSB had
received the money in error, accompanied by Morgan
Stanley emails showing that it was an internal mistake
later rectified by the bank. See Tr. 3063:1-3080:16. Given
the persuasive power of summary charts, however,
particularly in a highly complex, tedious case such as
this one, and the manner in which the flow of money was
visually depicted in the government exhibit, there is a
real concern that the jury was confused by this aspect of
Agent Kendall’s testimony. This concern is exacerbated
by the relatively limited nature of Archer’s involvement
in the universe of relevant transactions. 26 While this
consideration is by no means a sufficient basis on which
to grant Archer’s motion, the Court of Appeals has
recognized the power that such summary charts have
on juries, even when, as here, they are not emphasized
by the government on summation. See United States v.
Groysman, 766 F.3d 147, 163 (2d Cir. 2014).

vi. Conclusion

As is readily apparent, the government presented

a good deal of circumstantial evidence concerning

26. Indeed, the acquisition of bonds in the second tranche

aside, the primary other connection Archer had to the conspiracy,
as displayed in the government summary charts, was the purported
profit of $700,513 that he received from Thorsdale. As discussed
earlier, however, while there were transfers of funds, Archer did
not actually enjoy any profit, as part of that money was repayment
of a loan and the rest was returned to Thorsdale. See supra n. 17.
 113a

Appendix D

Archer’s intent. This is, as the Court previously stated,

a perfectly appropriate way to prove a defendant’s guilt.
The government is also right to note that its case must
be assessed as a whole, rather than taking each piece of
evidence in isolation. It is primarily for this reason that
the Court, when drawing every inference in favor of the
government, denies Archer’s Rule 29 motion.

After scrutinizing the evidence and giving the various

issues their due attention, however, the Court harbors
substantial doubt about Archer’s guilt. Neither of the
government’s cooperating witnesses ever communicated
with Archer about the WLCC scheme. Most of the
government’s witnesses never communicated with Archer
at all. Unlike his co-defendants at trial, he never received
misappropriated proceeds directly from the purported
annuity provider for the WLCC. Indeed, although the
government need not prove motive, the Court is left
wondering why Archer would have engaged in this scheme,
especially in light of the illegal gains reaped by his alleged
co-conspirators but not by him.

In hindsight, it now appears obvious that it was Jason

Galanis’ intent to misappropriate the bond proceeds from
the inception of his plan to sell Native American bonds.
And, as the evidence relating to the statements made
to Morgan Stanley and the BIT Board demonstrates,
Archer’s behavior was troubling in some respects. But
being misleading in contexts unrelated to the sale of
securities does not render Archer guilty of the securities
fraud offenses alleged in this indictment, unless such
behavior establishes that he knew of the object to steal
 114a

Appendix D

the bond money and/or defraud the clients of Hughes and

Atlantic.

In sum, when viewing the entire body of evidence,

particularly in light of the alternative inferences that may
legitimately be drawn from each piece of circumstantial
evidence, the degree to which Jason Galanis manipulated
even those who were members of the conspiracy together
with his desire to benefit from Archer—the person who
“add[ed] layers of legitimacy”—and the intertwined web
of legitimate and illegitimate transactions, the Court
harbors a real concern that Archer is innocent of the
crimes charged and accordingly orders a new trial.

2. Bevan Cooney

In many respects, Cooney is similarly situated

to Archer. Indeed, there is substantial overlap in the
government’s evidence against them, namely their
purchase of the second tranche of bonds and the email
communications involving them and Jason Galanis. The
Court’s analysis above with respect to those pieces of
evidence is similarly applicable to Cooney. It may well be
that Cooney—like Archer, Dunkerley, and Martin—was
unaware of the criminal object of the WLCC deal at the
time he participated in the vast majority of the email
communications with Archer and Galanis. See supra
Discussion, II.A.1.ii. But other evidence demonstrates
that—also like Dunkerley and Martin—he at some point
became a member of the conspiracy. Indeed, the compelling
consideration that requires the denial of Cooney’s Rule
33 motion is the other circumstantial evidence unique to
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Appendix D

him, primarily regarding his receipt of money from the

WAPC account, his participation in the Calvert cover-up,
and purported lies he told various entities about subjects
that were indisputably within his realm of knowledge.

Specifically with respect to Cooney, the government

introduced the following additional evidence; (1) his receipt
of money directly from the WAPC account, consisting of
$75,000 from the final issuance and $4 million purportedly
to purchase Jason Galanis’ home in Bel Air; (2) his
participation in backdating forms related to the previously
referenced fake entity, Calvert; and (3) his purported lies
to City National Bank (“CNB”) regarding his purchase
of the second tranche of bonds. 27 The Court addresses
each in turn.

i. Cooney’s Receipt of Funds from the

WAPC

The flaw most fatal to Cooney’s motion, and which

is the most substantial distinction between the evidence
against him and Archer, is that Cooney received money
directly from the purported annuity provider for the
WLCC. After the final bond issuance, Cooney was wired
$75,000 directly from the WAPC account, consisting of
money provided by OSERS, Atlantic’s client. See GX

27. Cooney at times suggests that none of this evidence may

support a conviction because these acts did not constitute material
misstatements or omission in connection with the sale of a security.
This is of course true. However, the government does not rely on
this evidence for that purpose, but rather because it is probative of
effectively the only question at issue in this case: whether Cooney
acted with the requisite intent.
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Appendix D

4009. While defendants have argued that they believed

WAPC to be a subsidiary of Wealth Assurance, which it
was not, there has never been any suggestion that they
were unaware that WAPC was to provide the annuity on
behalf of the WLCC. Indeed, the only context in which
WAPC, legitimate or not, was referenced at trial was in
the context of it being the purported annuity provider.

It is unclear how Cooney could have received money

from WAPC for legitimate reasons. It is true that the
mere receipt of money from WAPC does not necessarily
mean that such a transfer was part and parcel of the bond
misappropriation. For instance, Tim Anderson received
$50,000 from the WAPC account when, following the
closing of the deal, his law firm performed additional work
that had not been contemplated. Tr. 490:13-491:23. But
there is no such apparent basis for Cooney to have received
a payment for services rendered, nor has he suggested
otherwise. He even argues throughout his moving papers
that he was only a passive investor in relation to the bond
offerings. Assuming that Cooney was the beneficial owner
of the bonds he purchased, it is of course true that as an
investor he would have been entitled, as all bondholders
were, to periodic interest payments. But this $75,000
transfer occurred before any interest payments on the
second tranche of bonds were due, which he did not even
own at the time that particular payment was made. See
GX 4005 at 6, GX 4011. Indeed, it occurred even prior to
the first interest payment on the initial tranche. Compare
GX 4010 with GX 4011. 28

28. Moreover, while Cooney purchased the second tranche of

bonds, any suggestion that he would have been entitled to an interest
 117a

Appendix D

Further probative of the illegitimate nature of this

transfer are Cooney’s statements to his accountant
concerning how to classify the payment. On April 28, 2015,
Cooney’s business manager at Fulton & Meyer emailed
him, asking if the $75,000 wire from WAPC was a loan.
GX 3250. 29 Cooney confirmed that it in fact was a loan and
asked his manager to add up all of the loans from Wealth
Assurance and Thorsdale from the previous couple of
years. GX 3250. Not only did Cooney lie, it belies reason to
suggest that WAPC could have provided legitimate loans
to Jason Galanis’ friends and business partners.

And this was not the only payment Cooney received

directly from WAPC. On November 12, 2014, he also
received a wire for $3.895 million. GX 4007 at 1. This
money was allegedly earmarked for the purchase of
Jason Galanis’ home in Bel Air before ultimately being
used to acquire Valorlife by WAH. See id. at 4, GX
3224. At trial and again in his moving papers, Cooney
asserts that contrary to the government’s contention, he

payment would be dubious as he was not the beneficial owner of

the bonds. As discussed above, it is undisputed that Cooney knew
the money to purchase the bonds came from Jason Galanis. And as
the Court will discuss below, he later acknowledged that he did not
actually own the bonds he acquired.
29. Consistent with Jason Galanis’ lie that WAPC was a
subsidiary of Wealth Assurance, Cooney’s business manager refers
to the loan as coming from “Wealth Assurance.” GX 3205. Cooney,
however, was aware that the money came from WAPC, which as
discussed above, was the annuity provider for the WLCC regardless
of whether Cooney honestly believed it to be a subsidiary of the
legitimate Wealth Assurance entity.
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Appendix D

genuinely intended to use the money to purchase Jason

Galanis’ home. The government rightly notes evidence
that undermines this argument, namely that the day
after the funds were deposited into the escrow account
associated with the purchase of Galanis’ home, Cooney
requested that they be transferred out. See GX 4007 at
2; DX 3056(a). At the very least, it is not unreasonable to
credit the government’s evidence on this point.

But even assuming, arguendo, that Cooney is correct

about his intended use of the funds, his argument remains
unavailing. In fact, Cooney’s contention that he intended to
use the money to purchase Jason Galanis’ home in certain
respects is more damaging to his defense than the purpose
for which the money was ultimately used, i.e., to acquire a
subsidiary for WAH. 30 Regardless, Cooney’s intent as to
the use of the money is of no moment. The critical point
is that Cooney personally received nearly $4 million in
funds directly from the annuity provider for the WLCC.
Moreover, Cooney later falsely informed his accountant
that this money was a loan from Thorsdale, the entity
controlled by Jason Galanis. See GX 3272; Tr. 2028:21-
2029:2. On this record, as with the $75,000 transfer, the
natural inference to draw is that Cooney knew this money
constituted misappropriated bond proceeds.

30. Indeed, it is probative of the relationship enjoyed by

Cooney and Jason Galanis that it was Cooney whom Galanis asked
to participate in this transaction related to his residence. Dunkerley
also testified that they were the “best of friends” who had known
each other since childhood. See Tr. 909:4-6, 2171:13-21.
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Appendix D

ii. Cooney’s Participation in the Calvert

Cover-Up

Further probative of Cooney’s intent is his use of

fraudulent documents related to Calvert Capital, which,
as discussed, was created in order to cover up the WLCC
scheme. On February 28, 2016, Cooney emailed his business
managers at Fulton & Meyer a secured loan agreement
purportedly showing that Calvert Capital had loaned the
Bevan Cooney Trust $5 million days before he purchased
the second tranche. See GX 2298; Tr. 2028:21-2030:3. This
occurred just two days after Cooney similarly provided
a letter from Thorsdale purporting to show that Calvert
had loaned him the roughly $4 million he received directly
from WAPC and which was ultimately used to purchase
Valorlife. See GX 3272; Tr. 2028:21-2030:3, Cooney does
not dispute that Calvert was a fraudulent entity created
to cover up the scheme, nor could he credibly do so.
Indeed, Calvert did not even exist on October 2, 2014 and
November 12, 2014, when it allegedly provided Cooney
with these two “loans.” Compare GX 2298 and GX 3272
with Tr. 2182:3-4, The backdated form regarding the $5
million used to purchase a portion of the second tranche
of bonds was signed by both Jason Galanis, the alleged
managing partner of Calvert, and Cooney. See GX 2298.
Although Cooney did not sign the document regarding the
loan for the $4 million used to acquire Valorlife, he gave
it to his accountant while clearly aware that its substance
was false because he received that money from WAPC—
not Thorsdale, the purported agent, or Calvert. Compare
GX 4007 with GX 3272. Therefore, the fact that Cooney,
unlike Archer, signed one of these fraudulent forms and
 120a

Appendix D

later distributed both of them is highly probative of his

intent.

iii. Cooney’s Purported Lies to CNB

The final category of evidence against Cooney concerns

various statements he made to CNB, specifically as they
pertain to his ownership of the bonds he purchased. As the
government rightly notes, upon his receipt of $5 million
from Thorsdale he recognized the amount as a loan. See
GX 3216. In January 2015 he then applied for a loan from
CNB, in conjunction with which he personally completed a
financial statement. See GX 405. He acknowledged owning
the $5 million worth of bonds while omitting any reference
to a loan. See id. In May of that year, Cooney transferred
the bonds to an entity called Bonwick. Tr. 1741:15-19. The
next month, in pursuit of a separate loan from CNB for
$1.2 million, he signed an affirmation that the previously
submitted financial statement remained accurate. See GX
414 at 2. It was not until Cooney was unable to repay the
$1.2 million loan that CNB learned he no longer possessed
the bonds and that he had financed their purchase with a
loan. Tr. 1749:12-17; 1813:3-13; 1819:2-9.

On the basis of this evidence, the government urges

the following inferences: (1) Cooney lied about the source
of the funds used to purchase the bonds in order to hide the
fact that the transaction was effected with recycled bond
proceeds; (2) Cooney’s inconsistent statements regarding
his ownership of the bonds reveal that he was a strawman
for the purchase; and (3) Cooney financially benefited
from his participation in the scheme. Although the first
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Appendix D

two inferences have some probative value, it is true that

Cooney could just have easily told these lies in order to
mislead CNB into providing him a loan. More critically, in
the Court’s view, is the final inference. Although proof of
motive is not legally required, and Cooney obviously had
no burden at trial, this evidence undermines one of the
primary defenses advanced by Cooney, namely that he did
not profit from this criminal scheme. It is clear from the
trial record that Cooney’s “ownership” of the bonds was
one factor considered by CNB in electing to provide him
with the $1.2 million loan, most of which he never repaid.
See Tr. 1742:4-16.

Cooney asserts several arguments in an attempt to

undermine this evidence: (1) he did not personally complete
the various forms submitted to CNB; (2) a representative
of CNB completed a medallion guarantee31 effecting the
transfer of the WLCC bonds to Bonwick; and (3) he made
good faith efforts to repay the $1.2 million loan after he
defaulted. 32 None of these arguments is persuasive.

31. A medallion guarantee “is a signature guarantee on a

marketable security, a stock or a bond. So, similar to what a notary
would do on real estate documents or other kinds of documents where
you are guaranteeing somebody’s signature, you use a medallion
guarantee to guarantee somebody’s signature on a stock or bond-
related matter.” Tr. 1740:3-8.
32. Cooney also re-iterates, in conclusory fashion, his arguments
regarding the admissibility of the CNB evidence, namely that unfair
prejudice and potential for juror confusion substantially outweigh
any probative value. The Court rejected this argument in permitting
the government to introduce this evidence, and Cooney offers no
new arguments. The Court remains of the opinion that inaccurate
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Appendix D

First, while Fulton & Meyer may have submitted

these forms to CNB, the forms were personally signed by
Cooney and whatever information contained therein would
have been provided by him. The inaccuracies contained in
the forms are not administrative in nature but instead go
to the very heart of Cooney’s finances. Second, the issue
relating to the medallion guarantee is a red herring. The
import of this argument, in Cooney’s view, is that prior
to issuing the $1.2 million loan a representative of CNB
guaranteed the document by which the WLCC bonds
were transferred to Bonwick. Therefore, according to
Cooney, CNB was well aware that he no longer possessed
the bonds. But Steven Shapiro, the CNB representative
who signed the medallion, testified at trial that (1) he was
unaware that it was the WLCC bonds being transferred
and (2) he similarly was not required to verify whether
the bonds were being sold or, as was the case here
because Cooney apparently never actually owned them,
transferred absent consideration. See Tr. 1742:17-22,
1808:9-25. Finally, Cooney’s contention that he made good
faith efforts to repay the $1.2 million loan is irrelevant. The
fact remains that he repaid only approximately $80,000
and it thus serves as powerful evidence of one way in which
he profited from the scheme. See Tr. 1750:14-17.

Viewing the government’s entire case, therefore,

the Court is not persuaded that a manifest injustice

statements Cooney made regarding his ownership of the bonds he

purchased from the second tranche are probative of his intent, which
is the critical issue in this case, and were not substantially outweighed
by the danger of unfair prejudice, potential for juror confusion, or
any other factor enumerated in Rule 403.
 123a

Appendix D

results from permitting this guilty verdict to stand and

accordingly denies Cooney’s motion. 33

B. Remaining Rule 33 Arguments

The defendants also make various other arguments

under Rule 33. None have merit.

1. The Introduction of John Galanis’ Guilty

Plea in Gerova

First, Archer and Cooney each contend that the

introduction, following summations of the government
and John Galanis, of evidence of John Galanis’ prior
participation in a securities fraud scheme with his son
prejudiced them. They rightly note that the duty to sever
a trial continues throughout its duration. But neither has
made the requisite showing that a severance was required
in light of the introduction of this evidence or that the
manner in which it was introduced otherwise ran afoul
of Rule 33.

33. The government also introduced testimony by Francisco

Martin that upon Jason Galanis’ arrest for unrelated conduct in
September 2015, Cooney called Martin to inform him that Jason
Galanis had been arrested but that it did not concern the WLCC
bonds. See Tr. 2176:17-2177:22. The obvious inference, according to
the government, is that Cooney’s statement evinced his knowledge
that the WLCC bond scheme was illegal because he was apparently
concerned that Galanis may have been arrested for conduct relating
to the bonds. The Court, however, did not view this as an especially
compelling inference and does not rely on this evidence in denying
Cooney’s Rule 33 motion.
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Appendix D

Following proper joinder, which is not contested,

severance is required only where the prejudice “is
sufficiently severe to outweigh the judicial economy that
would be realized by avoiding multiple lengthy trials.”
United States v. Page, 657 F.3d 126, 129 (2d Cir. 2011)
(citation omitted). The Supreme Court has instructed
that severance should be granted only where “there is a
serious risk that a joint trial would compromise a specific
trial right of one of the defendants or prevent the jury
from making a reliable judgment about guilt or innocence.”
United States v. Zafiro, 506 U.S. 534, 539, 113 S. Ct. 933,
122 L. Ed. 2d 317 (1993). Indeed, a defendant is not entitled
to a severance merely because he may have a better chance
of acquittal at a separate trial. See id. at 540. Notably, the
introduction against one defendant of Rule 404(b) evidence
by no means requires severance:

Cour ts have disting uished bet ween the

adverse inference a jury may draw against a
co-defendant because of his association with a
prior criminal conviction, which can typically be
cured by a limiting instruction and the potential
for unfair prejudice in instances in which the
submission of prior-act evidence against one
defendant tends to prove directly or implicate
another defendant’s involvement in the prior act.

United States v. Catapano, No. 05-CR-229 (SJ) (SMG),

2008 U.S. Dist. LEXIS 121693, 2008 WL 2222013, at *19
(E.D.N.Y. May 22, 2008) (citation omitted), adopted by
2008 U.S. Dist. LEXIS 70460, 2008 WL 3992303 (E.D.N.Y.
Aug. 28, 2008).
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Appendix D

In the matter at hand, the Court had barred the

government from introducing evidence of John Galanis’
prior guilty plea for securities fraud due to his participation
in a scheme orchestrated by his son because, although
probative of his intent in this matter, it ran afoul of Rule
403. See Tr. 7:25-8:1, May 16, 2018. The parties agreed,
however, that counsel for John Galanis could open the door
to such evidence if he argued that his client was duped
by his son in the context of the WLCC scheme. See Tr.
8:8-9:10, May 16, 2018. On June 14, 2018, the government
moved to introduce this evidence, arguing that the door
had been opened. The Court denied this request, but
warned counsel for John Galanis that he could still open
the door during his summation. See Tr. 2457:9-2458:4.
That is precisely what transpired.

Consistent with the procedure followed in United

States v. Alcantara, 674 F. App’x 27 (2d Cir. Dec. 22, 2016),
the Court permitted the government to briefly re-open
the evidentiary record. See Tr. 3829:2-5. The evidence of
John Galanis’ plea was introduced by way of stipulation:

It is hereby stipulated and agreed between the

parties that on July 20, 2016, John Galanis pled
guilty to conspiring with Jason Galanis and
others to commit securities fraud in or about
2009 through in or about 2011, in that John
Galanis and others openly managed brokerage
accounts of an individual and effected the sale
of Gerova stock, and received and concealed
proceeds derived therefrom, knowing that
this activity was designed to conceal from the
 126a

Appendix D

investing public the true ownership and control

of that Gerova stock.

Tr. 3829:8-16.

The Court immediately gave the following limiting

instruction as the evidence pertained to Archer and
Cooney:

It is also important for you to know that John

Galanis’ guilty plea was to charges stemming
from the investigation that resulted in Jason
Galanis’ arrest in September 2015 [,] which you
have already heard about. I reiterate to you
now that the conduct for which Jason Galanis
was arrested and John Galanis pled guilty was
entirely unrelated to this case.

I further instruct you that Mr. Archer and Mr.

Cooney were not subjects of that investigation,
and there is no evidence that either of them
knew about Jason or John Galanis’ fraudulent
conduct in that matter or the investigation of
it until after Jason Galanis was arrested in
September of 2015. You are not to consider this
evidence in any way against either Mr. Archer
or Mr. Cooney.

Tr. 3830:23--3831:11. The Court also permitted the

government and counsel for John Galanis to offer brief
supplemental summations, prior to proceeding with the
remaining summations of counsel for Archer and Cooney,
 127a

Appendix D

as well as the government’s rebuttal. See Tr. 3831:12-

3837:20.

Based on this record, the Court is not persuaded that

either Archer or Cooney were prejudiced, and certainly
not to the extent requiring severance or otherwise giving
rise to a manifest injustice. While Archer accurately notes
that the Court had previously found the introduction
of this evidence to run afoul of Rule 403, that was with
respect to John Galanis. See Tr. 7:25-8:1, May 16, 2018; cf.
Tr. 330:2-332:3. It is well-established that the introduction
of Rule 404(b) evidence against a co-defendant does not
require severance. See Catapano, 2008 U.S. Dist. LEXIS
121693, 2008 WL 2222013, at *19. That is especially true
given the circumstances of the case at hand. Although
there had been evidence about Cooney’s friendship with
Jason Galanis, there was no evidence indicating that
either Archer or Cooney enjoyed a relationship with John
Galanis. The Court also gave a robust limiting instruction,
specifying that Archer and Cooney were not involved in
the previous conduct and that there was no evidence they
were even aware of it until Jason Galanis was arrested in
September 2015. Therefore, the fact that John Galanis was
also implicated in one of Jason Galanis’ prior crimes, which
the jury was already aware of, did not operate to prejudice
either Archer or Cooney. The Court remains of the view
that this acted as a legitimate basis on which Archer and
Cooney could distinguish themselves from John Galanis
in summations, aided by the Court specifically instructing
the jury that they were not involved in that prior conduct.
There is simply no basis to conclude that a severance was
required.
 128a

Appendix D

To the extent Archer and Cooney were prejudiced

by the specific manner of introduction of this evidence,
it was by virtue of the fact that, they claim, their trial
strategy would have been different. Most notably, they
argue that would have sought to introduce evidence that
Jason Galanis, John Galanis, and Hirst had previously
committed securities fraud together, thus highlighting
who the “real” conspirators were in the context of the
WLCC scheme. The Court is dubious of this argument,
as the mere fact that certain participants had histories
of engaging in fraudulent activity with Jason Galanis
did not foreclose the possibility that either Archer or
Cooney were guilty in the case at hand. The issue before
the jury was whether they had the requisite intent with
respect to the WLCC scheme, and this other evidence
they may have presented, assuming its admissibility,
would likely have been of limited probative value, if any.
They also contend that the introduction of this evidence
exacerbated the prejudicial effect of earlier evidence of
Jason Galanis’ September 2015 arrest and undercut the
Court’s instruction that his arrest in that instance was for
conduct unrelated to the case at hand. Such arguments,
however, fly in the face of the Court’s robust limiting
instruction.

Accordingly, on this record no manifest injustice

occurred.

2. Challenges to Jury Instructions

Archer and Cooney fare no better with their various

arguments as to the jury instructions. The Court
considered and rejected each of these arguments prior
 129a

Appendix D

to giving the charge. The defendants have not raised any

new considerations. Moreover, they have not provided any
authority for the proposition that alleged instructional
errors of this sort are a valid basis on which to order a
new trial under Rule 33. Indeed, in the current posture
the question is not whether the rulings were in error but
whether any errors resulted in a manifest injustice. See
United States v. Soto, No. 12-CR-556 (RPP), 2014 U.S.
Dist. LEXIS 60191, 2014 WL 1694880, at *5 (S.D.N.Y. Apr.
28, 2014), aff’d sub nom., United States v. Ramos, 622 F.
App’x 29 (2d Cir. 2015).

First, contrary to Archer’s argument, there was an

adequate factual predicate to give a conscious avoidance
charge. The entire thrust of Archer’s argument is that
there is no evidence that he “saw a red flag and took
specific action to avoid learning it.” Archer Mot. at 94,
ECF No. 567 (emphasis in original). The Court of Appeals
has instructed, however, that such charges are appropriate
where involvement in an offense was “so overwhelmingly
suspicious that the defendant’s failure to question the
suspicious circumstances establishes the defendant’s
purposeful contrivance to avoid guilty knowledge.” United
States v. Svoboda, 347 F.3d 471, 480 (2d Cir. 2003); accord
United States v. Goffer, 721 F.3d 113, 127-28, 531 Fed.
Appx. 8 (2d Cir. 2013). Given the extensive involvement
of Archer and Cooney in transactions that were central
to the execution of the criminal conspiracy and in light
of the various misleading statements they made, it was
appropriate to provide such a charge to the jury.

It similarly was not a manifest injustice for the Court

to decline to give the requested multiple conspiracies
 130a

Appendix D

charge. Throughout this case, Archer and Cooney have

contended that the government has alleged the existence
of two conspiracies instead of one. Under their theory,
there was one conspiracy to defraud the WLCC and
another directed at the clients of Hughes and Atlantic. As
the Court previously reasoned in rejecting this argument,
however, the operative indictment was unambiguous in
setting forth an overarching conspiracy with a single
goal: to misappropriate the WLCC bond proceeds. That
this single conspiracy may have had multiple components
or spheres does not mean that the government instead
alleged the existence of two conspiracies. See Payne, 591
F.3d at 61 (“[A] single conspiracy is not transformed into
multiple conspiracies merely by virtue of the fact that it
may involve two or more phases or spheres of operation,
so long as there is sufficient proof of mutual dependence
and assistance.” (citation omitted)).

The final argument relating to the charge is the

Court’s decision not to provide Archer’s requested
unanimity instruction or, in the alternative, a more
detailed verdict form. This argument is also without
merit. Tellingly, the defendants have not provided any
authority for the proposition that either of these steps were
required. Instead, general unanimity instructions are
considered sufficient unless there exists “a genuine danger
of jury confusion.” United States v. Ferguson, 676 F.3d
260, 279 (2d Cir. 20.11) (citation omitted). On this record,
the Court cannot conclude that a specific instruction was
required, particularly in light of the repeated warnings to
the jury that they were required to be unanimous in order
to convict any of the defendants on either count, See Tr.
4123:23-25, 4183:7-10, 4185:6-9, 4185:15-17. Moreover, that
 131a

Appendix D

certain aspects of the record in this case were complex

did not require the Court to give such an instruction. See
Ferguson, 676 F.3d at 280.

3. Newly Discovered Evidence

Finally, each of the defendants in their reply briefs

argues for a new trial on the basis of newly discovered
evidence that was produced to them after they filed their
initial motions. Archer also argues, in the alternative,
for an evidentiary hearing. The Court rejects these
arguments.

When the import of newly discovered evidence is that

a witness committed perjury, “the threshold inquiry is
whether the evidence demonstrates that the witness in
fact committed perjury.” United States v. White, 972 F.2d
16, 20 (2d Cir. 1992). If the answer is yes, the standard
for assessing materiality differs based on when the
government learned of the material contradicting the
witness’s testimony. “[I]f the prosecution was not aware
of the perjury [at the time of trial], a defendant can obtain
a new trial only where the false testimony leads to a firm
belief that but for the perjured testimony, the defendant
would most likely not have been convicted.” United States
v. Stewart, 433 F.3d 273, 296--97 (2d Cir. 2006). “If instead
the prosecution knew or should have known about the
perjury, then the conviction will be set aside if there is
any reasonable likelihood that the false testimony could
have affected the judgment of the jury.” United States v.
Torres, 128 F.3d 38, 49 (2d Cir. 1997) (citation omitted).
Where the newly discovered evidence is impeachment
 132a

Appendix D

material, however, a new trial “may be granted only upon

a showing that . . . the evidence is not merely cumulative
or impeaching; and . . . the evidence would likely result
in an acquittal.” United States v. Forbes, 790 F.3d 403,
406-07 (2d Cir. 2015).

The purportedly newly discovered evidence consists

of [TEXT REDACTED BY THE COURT], 34 there is not
a sufficient basis to grant a new trial for the following
reasons: (1) with respect to the substance of the alleged
perjury, the defendants cannot make the requisite showing,
even under the more forgiving standard applicable when
the government knew or should have known of the perjury
and (2) as impeachment material it was cumulative and
would not have affected the jury’s verdict.

When considered as substantive testimony, the

defendants cannot carry their burden. [TEXT REDACTED
BY THE COURT]

Bearing these considerations in mind, there is no

basis to conclude that this additional material, if known
to the defendants at trial, would have had any possibility
to affect the jury’s verdict.

[TEXT REDACTED BY THE COURT]

34. In light of an ongoing investigation, at the government’s

request, portions of this opinion are redacted. An unredacted copy
of the opinion will be provided to the parties and filed under seal.
 133a

Appendix D

Accordingly, the Court declines to grant a new trial on

the basis of newly discovered evidence. For substantially
the same reasons, the Court also denies the requests for
an evidentiary hearing.

CONCLUSION

For the foregoing reasons, Archer’s motion for a new

trial is granted, while all others are denied. The Clerk of
Court is respectfully directed to terminate the motions
pending at docket entries 563, 564, 565, and 566.

Archer and the government are directed to confer and

propose next steps within forty-five days of this opinion.

SO ORDERED.

Dated: November 15, 2018

New York, New York

/s/ Ronnie Abrams

Ronnie Abrams
United States District Judge
 134a

Appendix E EXCERPT FROM

APPENDIX E — TRANSCRIPT
THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK,
FILED FEBRUARY 28, 2020
[1]UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

16 CR 371 (RA)

UNITED STATES OF AMERICA,

v.
DEVON ARCHER,
Defendant.
New York, N.Y.
February 28, 2022
12:00 p.m.

Before:
HON. RONNIE ABRAMS,
District Judge

***

[23]THE COURT: I just want to note that the 2X1.1

only applies when one has been convicted of a conspiracy
and his or her specific offense is not covered by another
guideline section. So, in this case, Mr. Archer was both
convicted of conspiracy and the specific substance offense
of securities fraud, for which the applicable guidelines is
2B1.1.
 135a

Appendix E

Does the government disagree with that?

MS. MERMELSTEIN: No. I think it’s academic here.

THE COURT: Okay.

I’m going to, therefore, evaluate the enhancements to

Mr. Archer’s sentence under the typical preponderance
of the evidence standard.

As to loss amount, there’s no dispute that the actual

losses to the victims exceeded $25 million.

Under the guidelines, Mr. Archer is responsible for

pecuniary harm that he knew or, under the circumstances,
reasonably should have known was a potential result of
the offense.

In addition to his own conduct, he’s also responsible

for all acts and omissions of others that were (1) within
the scope of the jointly undertaken criminal activity; (2)
in furtherance of that criminal activity; and (3) reasonably
foreseeable in connection with that criminal activity.

Mr. Archer argues that no loss amount was reasonably

foreseeable to him. He further contends that the Court
could [24]conclude for sentencing purposes that the
evidence was sufficient to show that he participated in a
scheme to defraud, but insufficient to show that he could
reasonably foresee any loss to any victims.

I disagree. As I said earlier, the jury convicted

Mr. Archer not just of any scheme to defraud, but the
 136a

Appendix E

particular scheme to defraud alleged here; in other words,

given that the jury found him guilty of these charged
crimes, as alleged in the indictment, I have to accept that
he had the requisite intent to commit those crimes, and
in doing so, I believe I must also accept that he knew that
the investment advisor clients were being defrauded and
that the tribal bond proceeds were being misappropriated.
And I do so by a preponderance of the evidence, which
leads me to believe that the entire $43 million in losses
was reasonably foreseeable to him.

I’m going to quote a little bit from the circuit’s opinion,

but I agree — and I think we all agree — that I’m not
bound by the facts as the circuit characterized them,
but they referred to “a wealth of emails in which Archer,
Cooney, and Galanis discussed the progression of the
Wakpamni scheme,” and what I’ll say — I’m no longer
quoting — is that those emails go back to early 2014 in
the communications, and I’m quoting again now from the
circuit, “Galanis ensured that Archer stayed up to date
on the deal with the Wakpamni, including by informing
[25]Archer that the proceeds from the sale of the bonds
were supposed to be placed into an annuity.”

Other emails sent to Archer did keep him informed

about the progress of the Hughes and Atlantic acquisitions
and specifically referenced the possibility of placing the
Wakpamni bonds with them. For example, in one email,
Galanis told Archer that he believed Hughes would take
28 million of the bonds, which is what transpired after the
first bond issuance.
 137a

Appendix E

There was also evidence introduced at trial to the

effect that Mr. Archer personally purchased $15 million
worth of bonds in the second issuance using money given
to him by Jason Galanis, made representations to the
WLCC that he was purchasing the bonds “for his own
account and for investment only,” transferred them to
another entity controlled by his codefendants, made false
statements about the source of the money to Morgan
Stanley and Deutsche Bank, and stated that Calvert was
the “lender and beneficial owner” of the bonds from the
second offering. Later on, he also misled the BIT Board
as to Galanis’s involvement with the Burnham companies.

Thus, accepting the factual findings I believe were

implicit in the jury’s verdict, there is sufficient evidence
to establish by a preponderance of the evidence that Mr.
Archer got involved with the WLCC scheme from the start
and either did foresee, or reasonably should have foreseen,
the entire amount of the losses from the scheme, thus, I
find that a 22-level [26]enhancement is appropriate.

I also find that the ten or more victims enhancement

is appropriate. Mr. Archer urges me to find that he was
unaware that the clients of Atlantic and Hughes would be
defrauded, but, again, I must assume his knowledge of the
objects of the conspiracy in order to be faithful to the jury
verdict. Given the involvement of ten pension funds and
the WLCC, a two-level increase is appropriate.

The parties agree that a two-level minor-role reduction

is warranted, and I do as well. Even assuming that Mr.
Archer played an important role in the fraudulent scheme,
 138a

Appendix E

as made clear by Amendment 794 to the sentencing

guidelines, “relatively culpability” is now to be assessed
“only by reference to one’s co-participants in the case
at hand” and not as the Second Circuit had previously
held, “as compared to the average participant in such a
crime.” Here, I believe that Mr. Archer is substantially
less culpable than the average participant in the criminal
activity at issue, and there’s no doubt that the loss amount
greatly exceeded his personal gain.

As I said at Bevan Cooney’s sentencing, it’s undisputed

that Jason Galanis was the mastermind behind and
orchestrator of the fraud. As for John Galanis, he induced
the Wakpamni tribe to issue its bonds in the first place,
something which was undoubtedly at the heart of the
fraudulent scheme. Hugh Dunkerley served as the
placement agent for the tribal [27]bond issuances and
as the sole managing member of the WAPC, roles which
were pivotal in misappropriating the bond proceeds. And
Michelle Morton and Gary Hirst, as investment advisors,
caused client funds to be invested in the WLCC bonds
without disclosing conflicts of interest.

I thus find that a two-level minor-role reduction is

warranted here. Again, the government doesn’t disagree.

I don’t agree with Mr. Archer that a four-level minimal

role reduction is applicable. A minimal role participant
is defined as a defendant whose lack of knowledge or
understanding of the scope and structure of the enterprise
and of the activities of others is indicative of a role as a
minor participant, but this enhancement is inapplicable,
 139a

Appendix E

in my view, for the reasons I already stated regarding the

proof of Mr. Archer’s knowledge.

Accordingly, I find that his offense level is 31, his

criminal history category is I, and his recommended
guideline sentence is 108 to 135 months in prison.

As I said earlier, that range is only advisory. Courts

may impose a sentence outside of that range based on one
of two legal concepts — a departure or a variance.

A departure allows for a sentence outside the

advisory range based on some provision of the guidelines
themselves. I understand that Mr. Archer is making
motions for departures based on aberrant behavior and the
offense level overstating [28]the seriousness of the offense.

Is that right, Mr. Schwartz?

MR. SCHWARTZ: That’s correct.

THE COURT: Okay.

I’m going to deny those motions, although I’m going to

consider the substance of the arguments when evaluating
the 3553(a) factors.

With respect to aberrant behavior, a court may depart

downward for aberrant behavior only if a defendant
committed a single criminal occurrence or a single
criminal transaction that (1) was committed without
significant planning; (2) was of limited duration; and (3)
 140a

Appendix E

represents a marked deviation by the defendant from an

otherwise law-abiding life.

Application Note 2 to 5K2.20 notes that a departure

for aberrant behavior in a fraud case is generally not
available because such a scheme usually involves repetitive
acts rather than a single occurrence or a single criminal
transaction and significant planning. In the Barber case,
132 F. App’x at 895, the Second Circuit held that an
aberrant behavior departure was unwarranted where
the defendants’ fraud offenses “required sophisticated
financial forethought, were not of limited duration and
involved significant planning.” I find here, similarly, that
a departure from aberrant behavior is not warranted.
This was a complex scheme that was carried out over at
least two years, and Mr. Archer’s actions, [29]accepting
the facts implicit in the jury’s verdict, required significant
financial forethought and planning.

I also find that a downward departure is not warranted

on the basis that the offense level substantially overstates
the seriousness of the offense per Application Note 21(C)
to 2B1.1. This is not the kind of exceptional securities
fraud case contemplated by the guidelines in which a fraud
produces an aggregate loss amount that is substantial but
diffuse, with relatively small loss amounts suffered by a
relatively large number of victims. As I said, I will, though,
consider this argument in assessing the 3553(a) factors.

In short, I’ve considered whether there is an

appropriate basis for departure from the advisory range
within the guideline system and conclude that no grounds
 141a

Appendix E

exist, but I also, of course, can impose a nonguideline

sentence based on what we call a variance, which is what
I’ve been talking about pursuant to 18, United States
Code, Section 3553(a).

Would the government like to be heard with respect

to sentencing?

MS. MERMELSTEIN: Yes, your Honor.

There’s really no question here that this was a serious

and large-scale offense. And I think that in thinking about
what the right sentence is for this defendant, the two most
serious considerations are really just punishment and
respect for the law.

***

[43]Mr. Archer did.

So, Mr. Archer, please rise for the imposition of

sentence.

It’s the judgment of this Court that you be committed

to the custody of the Bureau of Prisons for a term of one
year and one day, to be followed by a term of supervised
release of one year on all counts to run concurrently.

I believe that this sentence is sufficient, but not

greater than necessary, to comply with the purposes of
sentencing set forth in the law.
 142a

Appendix E

You may be seated.

I’ll also note that this is consistent with sentences

imposed by other judges from this district in financial
fraud cases with either similar guidelines range, roles,
and/or loss amount, including U.S. v. Casper, 19 CR 337;
U.S. v. Cervino, 15 CR 171, and U.S. v. Antoine, 16 CR 763.

Now I’m going to impose financial penalties and

inform you of the conditions of your supervised release.

With respect to supervised release, it’s going to be

for one year instead of three because you have been on
release for six years already.

All the standard conditions of supervised release

shall apply.

Mr. Schwartz, do you waive the public reading of the

standard mandatory conditions, or would you like me to
read

****
 143a

APPENDIX F —Appendix F THE UNITED

ORDER OF
STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT, DATED MAY 10, 2023

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 22-539

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 10th day of May, two thousand twenty-
three.

UNITED STATES OF AMERICA,

Appellee,

v.

JASON GALANIS, GARY HIRST, JOHN GALANIS,

AKA YANNI, HUGH DUNKERLEY, MICHELLE
MORTON, BEVAN COONEY,

Defendants,

DEVON ARCHER,

Defendant-Appellant.

IT IS HEREBY ORDERED, on the Court’s own

motion, that the government and Defendant-Appellant
 144a

Appendix F

Devon Archer shall file supplemental letter briefs, not to

exceed two double-spaced pages in length, addressing
whether the district court miscalculated the applicable
Sentencing Guidelines range, and if so, whether
Defendant-Appellant has forfeited his claim of error by
raising the issue for the first time at oral argument. See
United States v. Pascarella, 84 F.3d 61, 73 (2d Cir. 1996)
(declining to consider a point first made at oral argument).
The parties shall file their briefs by Friday, May 12, 2023.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

/s/ Catherine O’Hagan Wolfe