United States District Court, E.D. Pennsylvania
For USA, Plaintiff: FRANK R. COSTELLO, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE, PHILADELPHIA, PA.
Following the jury's verdict finding him guilty of securities fraud  and perjury,  defendant Timothy McGee moved for judgment of acquittal or, in the alternative, a new trial. We denied his motion and now explain why.
The trial evidence, viewed in favor of the government, was that McGee obtained information from an insider that Philadelphia Consolidated Holding Company (" PHLY" ) was about to be purchased by another company for a price three
times book value. McGee used the non-public information to trade in the company's stock, which resulted in a substantial profit.  He contests both that the information was obtained from a source to whom he owed a duty of trust and confidence and that it was disclosed during a conversation subject to such a duty. Essentially, he reasserts his argument, which we rejected in ruling on his motion to dismiss the indictment, that there was no confidential relationship essential to an insider trading offense based upon the misappropriation theory of liability enunciated in United States v. O'Hagan, 521 U.S. 642, 117 S.Ct. 2199, 138 L.Ed.2d 724 (1997). 
Motion for Judgment of Acquittal
Securities Fraud Count
In ruling on McGee's motion to dismiss the indictment, we held that a duty could arise from a relationship of trust and confidence, an agreement, or a history and pattern of sharing confidences. United States v. McGee, 892 F.Supp.2d 726, 730 (E.D. Pa. 2012). We shall not revisit that holding. Now, we must determine whether the evidence adduced at trial was sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002).
In analyzing the evidence, we view it in the light most favorable to the government. United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006). We are not free to substitute our own determination of the facts and judgment for the jury's. See United States. v. Mercado, 610 F.3d 841, 845 (3d Cir. 2010) (citation omitted); United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005).
McGee argues that the government failed to prove an essential element of insider securities fraud under the misappropriation theory - that he owed a duty of trust and confidence to the insider who provided the information to him. He contends that his relationship with the insider was confined to interacting in the context of their membership and participation in Alcoholics Anonymous (" AA" ). McGee characterizes whatever confidentiality there was as unilaterally imposed by the insider and not one that he recognized as existing. He stresses the absence of a ...