nprog

You can always request a bench trial (which must be approved by the prosecutor), and you probably should for any sufficiently complex matter, where bench trials have a 55% acquittal rate vs 80-something % for jury trials (if someone wants a source, I'll try to find it; these figures came from a study). Jury trials work when there are emotional and subjective aspects, especially around intent. The jury in Shkreli returned to the judge for a formal definition of fraudulent intent, and then he was not convicted on wire fraud, meaning that they didn't find for specific intent. If the jury was not properly instructed on the elements of the crime and the issue was raised, it may be a reversible error and I'm anxious to see how the appeal is argued.

Wire fraud (1343) is both inchoate and a specific intent crime. To be convicted, it doesn't matter if there was an actual loss, but must be shown that the defendant intended to defraud, that is that "[T]he purpose of the scheme 'must be to injure'" (US v Regent). This is also the 2nd Circuit, which has the most substantive case law on wire fraud in the US (Regent, Starr, McNally, D'Amato, Skilling, etc). I should add that Shkreli was not convicted on his wire fraud counts, which are among the most blunt overused weapons a prosecutor has. Almost no one survives a wire fraud charge, yet Shkreli was. He was convicted of securities fraud and conspiracy (for the same), which are also specific intent, however, 'recklessness' specifically is insufficient in a wirefraud case (helpful but insufficient), whereas in securities fraud, scienter is often shown prima facie by reckless indifference for the truth. I believe most salespersons would fail this test in this context. And, virtually every startup I've ever reviewed has unwittingly committed securities fraud, and in the hands of a prosecutor, it's usually only a question of whether they are motivated to target you (for some crime, if only they can "find it") for general behavior they disapprove of, and less so motivated to target a clear crime.

https://www.justice.gov/usam/criminal-resource-manual-949-pr...