23-2849 | Omnilex

Texte intégral

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 23-2840, 23-2846 & 23-2849
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
GREGG S MITH , M ICHAEL NOWAK, and C HRISTOPHER JORDAN ,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 1:19-CR-00669-1, 2, 4 — Edmond E. Chang, Judge.
____________________
A RGUED S EPTEMBER 5, 2024 — DECIDED A UGUST 20, 2025
____________________
Before EASTERBROOK, K IRSCH , and K OLAR , Circuit Judges.
K IRSCH , Circuit Judge. Gregg Smith, Michael Nowak, and
Christopher Jordan were precious metals futures traders who
manipulated the market through an unlawful practice called
ę, meaning they placed deceptive orders they in-
tended to cancel to push the market price a certain direction.
At trial, they were all convicted of various crimes in connec-
tion with this practice. They appeal their convictions on

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2 Nos. 23-2840, 23-2846 & 23-2849
multiple grounds. Finding none of their challenges persua-
ǰȱ ȱĜȱȱȱǯ
I
A
Gregg Smith, Michael Nowak, and Christopher Jordan
once traded precious metals futures contracts on commodities
¡ȱ ȱ ¢ȱ ȱ ȱ ȱ ¡ȱ
Group (CME). They each employed a fraudulent scheme,
ȱȱęǰ to game the system and manipulate the
prices of the precious metals futures they traded.
ęȱȱȱȱȱȱ of commodities
ȱǯȱȱȱȱȱȱ¢ȱȱȬ
ȱȱ¢ȱȱȱȱ¢ȱȱȱ-upon price on
an agreed-upon future date. Commodities futures traders use
ȱ ȱ ȱ ȱ ȱ ¡ȱ ȱ ȱ -
operated exchanges. These traders ȱȱȱ¢, ȱěȱ
to sell, ȱȱȱȱȱȱȱ ¡ȱȱȱ
ęȱȱȱǯȱȱȱ ¡ȱȱ¢ǰȱȱ
while some traders employ computer algorithms to place or-
ders, others enter their orders manually, as Smith, Nowak,
and Jordan did. ¡ȱȱȱȱȱȱȱȬ
ǰȱȱȱęȱȱȱȱǰȱ¢ȱȱȱȱȱ
executed.
The price of futures contracts is ȱ¢ȱ¢ȱȱ
demand: the price will increase if there is more demand than
supply for a product, and vice versa. But a fundamental as-
sumption on CME exchanges is that every order represents a
legitimate, ȱ ęȱ ȱ ȱ ȱ ȱ ȱ ȱ .
Each ȱȱȱ ¡ȱȱȱȱȱ¢ȱ
conveying an intent to participate in it at a particular price.

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Nos. 23-2840, 23-2846 & 23-2849 3
Today, ¡ȱ ȱ ¢ȱ ȱ ǰȱ ȱ ȱ
Smith, Nowak, and Jordan were traders, it displayed only the
ȱȱȱȱȱȱȱěȱȱny time. ȱȱ
ȱ¢ȱȱ ȱȱȱȱěȱȱȱȱ
smaller orders will, ¡ȱ s traders ȱȱȱȱ
ȱȱȱȱȱȱȱ¢ȱȱ-called ice-
ȱǯȱ ȱȱ ¢ǰȱȱȱȱȱȱȬ
ceal the true size of their order. Although these features were
designed to mitigate the impact that large orders would have
on the market price, they paved the way for fraudulent
schemes to manipulate the market—¢ȱę.
ȱęȱȱ large orders that he does not in-
tend to execute, driving the price in a ȱȱȬ
tion ¢ȱ ȱ ȱ ȱ ȱ ȱ ȱ
ȱȱȱ¢ȱȱǯȱThis typically
involves four steps. First, the trader places an order, often an
ȱǰȱȱhe genuinely intends to trade. Second, the
ȱȱȱȱȱȱȱȱȱȱȱȱȬ
ket. The trader never intends to trade this order; rather, it is
designed to push the ȱȱȱȱęȱȱȱȬ
mate order. For instance, if a trader wants ȱ¢ȱȱȱȱ
ȱȱǰȱȱ ȱȱȱȱȱȱȱȱ ȱȱ
(or a series of smaller sell orders at descending prices) to push
the market down. Third, the market reacts to the illusion of
ȱ ¢ȱ ȱ ¢ȱ ȱ ȱ ǰȱ ȱ ȱ
trader to execute the genuine order at his desired price.
ǰȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
ęǯ
CME rules ȱ ȱ ȱ ę. In particular,
ȱ ȱ ŚřŘȱ ȱ ȱ ȱ manipulating or at-
tempting to manipulate “prices of exchange futures or

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4 Nos. 23-2840, 23-2846 & 23-2849
ȱȄǲȱ¢ȱȱĴȱȱ¢ȱȃ¢ȱ
ȱǰȱȱȱęȱȱȄǲȱand pur-
ȱ ȱ ȱ ȱ ěȱ ȱ ȱ ȱ ȱ ȃ¡ȱ
futures or options contracts or any underlying commodities
ȱȱȱȱȱȱĴȱȱȱȱ
the market or creating a condition in which prices do not or
will not rĚȱȱȱǯȄȱ¢ǰȱȱȬ
ants’ employers have ȱȱęǰȱȱex-
pressly and implicitly as a form of market manipulation.
B
Nowak and Smith worked at JPMorgan from 2008 to 2016.
Nowak was a managing director who ran the precious metals
ȱǰȱĴȱȱȱ ȱ ȱȱȱȬ
don. Smith was an executive director and sat next to Nowak
ȱȱ ȱȱĜǯȱHe joined JPMorgan after it acquired
Bear Stearns in 2008. Jordan worked as a precious metals
ȱȱȱ ȱȱĜȱ ȱŘŖŖŜȱȱŘŖŖşǯȱAfter
JPMorgan terminated him in 2009, he moved to Credit Suisse,
where he worked from March to August 2010.
On multiple occasions, Smith, Nowak, and Jordan each
placed orders ȱȱȱĴȱȱę. That
conduct eventually led the government to indict them for var-
ȱ ę-related crimes. Smith and Nowak were each
ȱ ȱ Ĵȱ ȱ ǰȱ ŝȱ ǯǯǯȱ
§ 13(a)(2); wire fraud, 18 U.S.C. § 1343; commodities fraud, 18
U.S.C. § 1348(1); and violating the anti-ęȱȱȱ
the Dodd-Frank Actǰȱŝȱǯǯǯȱȗȗ 6c(a)(5)(C) & 13(a)(2). Jordan
was charged with wire fraud, 18 U.S.C. § 1343. All three were
charged with conspiracyǰȱȱȱ ȱ.

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Nos. 23-2840, 23-2846 & 23-2849 5
1
Smith and Nowak were tried together. They did not mean-
ingfully contest that their trading activity ȱȱ-
ȱĴȱȱęǯȱǰȱ¢ȱȱȱȱȬ
ȱ ȱ¢ȱȱ ȱȱȱȱȱȱ
government could not prove the requisite intent. During a
three-week trial, tȱ ȱ ȱ ȱ Ȭ
dence to the contrary. Below, we summarize the evidence rel-
evant to this appeal.
Kumar Venkataraman, ȱ ęȱ ¡ǰ explained how
Smith’s and Nowak’s ȱĴȱȱȱęȱȱ
ȱ ȱȱ¢ȱęȱĴǯ In a set of 100 trad-
ing episodes ęǰȱȂȱȱȱȱȱęȱȱ
(meaning ȱ ȱ ȱ ȱ ęǼȱ ȱ ŖǯŗŞƖǰȱ Ȭ
ȱȱȱŝşǯŗŗƖȱęȱȱȱȱȱǯȱ Ȃȱęȱ
ȱ ȱǱȱŖǯŘŘƖȱȱȱȱȱȱşŖǯŗŗƖȱȱ
his genuine orders. ȱȂȱȱȱ ȱ
ȱĴ, as well. Deȱȱ¢ȱęȱȱȱthe spoof
orders, ȱ ęȱ ȱ Smith and Nowak used
this strategy “again and again.” He concluded that Smith and
Nowak’s trading strategy was “inconsistent with a design” to
ęȱthe genuine orders and was instead “designed” to “push
the price” of the market and execute the order on the other
side. There was no “economically rational” reason for their
Ĵȱ ȱ ¢ȱ ȱ ȱ ȱ ȱ ȱ , Venkata-
raman said. ȱȱȱȱȱȱȱȱ
genuine, they achieved the intended “shock to the market”
and successfully moved the price on the other side.
The government also presented the testimony of CME in-
vestigator Brian Wika and three of Nowak and Smith’s former
coworkers who Ĵȱ ȱ ęȱ ȱ ȱ ȱ

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6 Nos. 23-2840, 23-2846 & 23-2849
authorities. John Edmonds sat next to Smith and Nowak at
Ȃȱ ȱ ȱ Ĝǯȱ ȱ ęȱ ȱ ȱ ȱ
Smith and Nowak spoof regularly, at least several times per
day, and that they in fact taught him how to spoof. According
ȱǰȱȱȱȱȱȱ¢ȱȱȱ
“size moves the market” and would complain “[t]hey’re fuck-
ȱĴȱȄȱ ȱȱ he placed with the intent
to cancel were executed. After a meeting where JPMorgan
ȱĜȱ ȱȱȱȱęȱȱ
regulators were looking into it, Edmonds heard Smith say to
another coworkerǰȱȃȱȱȱǯȄȱEdmonds also
ȱȱȱȱěȱ¢ȱȱȱȱ
ęȱȱthey ȱȱ ȱęȱĴǯȱȱ
on his own experience at JPMorgan, he was unaware of any
legitimate non-ęȱ¡ȱȱȱǯ
ȱ£ȱ ȱȃȱ¢ȱȄȱ ȱǰȱ m
ȱȱȱȱǯȱ£ȱĴȱȱȱȱ
ȱęȱȱdeceive other market participants. ȱęȱ
that he witnessed Smith spoof “all the time” using the same
strategy. Trunz sent a chat to another JPMorgan salesperson
ȱȱ ȱȃȱȱȱȱȱ¢ȱȱȱȱ
ěǰȄȱ ȱ ȱ ȱ ȱ ȱ ȃ¢Ȅȱ ȱ ȃ ȱ ȱ
glasses against the screen” when his spoof order was exe-
cuted. ȱ ȱ ęȱ that Nowak spoofed while they
ȱ ȃȱ ȱ Ȅȱ ȱ ǯȱ And while coaching
Trunz ahead of a compliance review, Nowak once warned,
ȃǰȱ¢ȱȱ ȱǰȱ ȱȱȱǯȄ
Corey Flaum sat alongȱȱȱȱȱȱȱ
ȱȱ¢ȱ ȱȱŘŖŖŞǯ Flaum also confessed to
ę ȱęȱthat he saw Smith spoof at least several

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Nos. 23-2840, 23-2846 & 23-2849 ŝ
times per week. ȱęȱȱȂȱȱȱ
ȱȃȱȄȱȱȱ ȱęȱĴǯ
At various points, Edmonds, Trunz, and Flaum each de-
ęȱ ęȱ ȱ ȱ and ȱ ȱ ȱ
and impact on the market to explain why they spoofed. They
ȱ ȱ ȱ ȱ ȱ ęȱ ȱ
and opined that Smith and Nowak lacked an intent to trade
ȱȱȱęȱȱȱ. The district court
ěȱȱȱȱ¢ȱȱȱȱ ȱ ȱȱ
ȱȱȱȱǰȱȱȱěȱȱȱȱȱ
ȱ ȱ ȱ ȱ ȱ ȱ . Smith
and Nowak declined the instruction. The government also
Ĵȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
coworkers discussing the legitimate orders they sought to ex-
ecute, ȱ ¢ȱ ȱ showing that they simultane-
ously placed and quickly canceled large orders on the other
side of the market.
ȱȱȱ¡ȱ ȱęȱǰȱ ȱ
traders typically achieve it, how CME investigators identify
ǰȱȱ ¢ȱȱȱȱǯȱȱȱȱȱȬ
dentials, Wika stated that he had worked in CME’s investiga-
tions group for 14 yearȱȱȱȱȱȱȱȱȱ
ǯȱȱęȱȱȱȱȱȱȱ
after it received a complaint from a market participant. When
discussing the results of his investigation, Wika said that
Smith’s high cancellation rates were ȃȱ ȱ ęȱ
activity—indicative of lack of intent to trade those orders.” He
prepared an investigative report concluding that Smith had
ȱ ȱ ¢ȱ ęȱ ȱ ȱ ȱ Ȭ
ȱ¡ȱȱȂȱęȱǯȱOver the de-
Ȃȱ ǰȱ ȱ ȱ Ĵȱ ȱ ȱ ȱ

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8 Nos. 23-2840, 23-2846 & 23-2849
ȱȱȱȱȱȱȱȱȱȱ
803(6).
ȱȱȱȱ ǰȱȱ¢ȱȱȱȱ
was deadlocked. Although the defendants sought a mistrial,
the court granted the government’s request for the standard
supplemental jury instruction under United States v. Silvern,
ŚŞŚȱǯŘȱŞŝşȱǻŝȱǯȱŗşŝřǼȱǻȱǼǯȱȱ ȱȱȬ
ȱȱȱȱȱĴȱǰȱȱȱ
ȱȱȱȱȃȱ¢ȱȱěȱȱȱ
a verdict” and discuss their “ěȱ ȱȱȱǰȄȱ
ȱ ȱ ȱ ȱ ȱ ȃȱ ǽǾȱ ȱ ȱ
ȱȱ ȱȱěȱof evidence.” The next day, the jury
ȱȱȱ¡ȱȃȱȱȱȱ¢ȱȱ
juror” that suggested that the juror had “made early decisions
ȱȱȱȱȱȄȱȱȱȱȂȱ
opening statements and “saw everything through that lense
[sic].” The government asked the court to dismiss the juror.
Instead, the court reminded the jury “that the lawyers’ state-
ments and arguments are not evidence. If what a lawyer said
ȱ ěȱ ȱ ȱ ȱ ȱ ¢ȱ ȱ ǰȱ ȱ Ȭ
dence is what counts.” The next day, the jury found Smith and
ȱ¢ȱȱȱȱȱȱĴȱthem of
the conspiracy charges. ȱ ȱ ȱ Ĵȱ ȱ ȱ ȱ
ǰȱȱȱȱȱȱ.
2
The government tried Jordan separately and, following
Smith and Nowak’s trial, dropped the conspiracy counts
against him. ǰȱ ȱ ȱ ǰȱ ¢ȱ Ĵed that he
spoofed. Instead, his defense was that he spoofed without the
criminal intent necessary to support a conviction for wire
ȱěȱȱęȱǯ

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Nos. 23-2840, 23-2846 & 23-2849 9
FBI Aȱ ȱ ȱ ęȱ ȱ ȱ ǯȱ
Agent Luca had investigated Jordan and interviewed him in
ŘŖŗŞǯȱȱȱ ǰȱ ȱĴȱ as a trader
ȱȱȱȃȱȱȱȱȱȱȱȱȱ
and larger non-ȱȱȱȱȱȱȱȱȱ
in which he intended to cancel” and acknowledged that this
Ĵȱ ȱ ȱ ȱ ęǯ He explained that he
spoofed “to mislead the market, to outperform the algo-
rithms, and to make—and ȱ ȱ ȱ le ęs for his
ǯȄȱThe government characterized this interview as a con-
fession. However, Jordan also told Agent Luca that he “did
not think what he was doing was wrong.” Jordan sought to
admit this statement under a hearsay exception commonly
ȱȱȱȱȱǰȱǯȱǯȱǯȱŗŖŜǰȱȱȱ
court denied his motion.
To demonstrate Jordan’s state of mind, the government in-
troduced ȱȱȱȱȱŘŖŗŖȱȱȱ
the Commodity Futures Trading Commission. In stark con-
trast to his interview with Agent Luca, Jordan swore during
the deposition that he never placed an order that he didn’t
intend to execute, and “would only cancel something if [he]
changed [his] mind or if it was put in error.” He further stated
ȱȱȱȱȱȱȃȱȱȱȱĚȬ
ing the price” of the commodity exchange.
ȱȱȱȱȱȱȂȱȱȱȬ
¢ȱȱǰȱȱǰȱȱę. Middle-
ton said ȱȱȱȱ¢ȱȱȱȱȱę—
meaning they must ȃȱȱȱȱȱ¢ȱȱȱȱ
particular price or quantity”—to maintain the integrity of
their markets. She acknowledged, however, that the word
ęȱȱȱȱȱȱ¡ȱȱȱȱŚřŘ and that

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10 Nos. 23-2840, 23-2846 & 23-2849
such language would have ę that the rule ȱ
ę. Representatives from JPMorgan and Credit Suisse
¢ȱęȱȱęȱ ȱȱȱȱȬ
ȱȱȱ ȱ ȱ ȱȱȱǰȱȱȱ
¢ȱȱȱ¡¢ȱȱę either. Jordan sought
to challenge these statements with post-2010 compliance pol-
icies and CME documents that, unlike the policies in place
ȱȱ ȱȱ¢ǰȱ¡¢ȱęed ęȱȱȱ
ȱ ȱ ¢ǯ The district court excluded these
¡ȱȱȱȱȱȱŚŖřǰȱǰȱęȱ
that they posed a risk of confusing the jury and erroneously
injecting a mistake of law defense into the case.
The court also rejected Jordan’s request for a jury instruc-
ȱȱȱǯȱę¢ǰȱȱȱȱȱȱ
if he acted in good faith, “then he lacked the intent to defraud
ȱȱȱȱěȱȱ ȱǯȄȱȱȱȱ
ȱȱ¢ȱȱ ȱȱ ¢ȱȬ
gue that he lacked an intent to defraud and the instruction
posed a similar risk of misleading the jurors into thinking that
ȱȱ ȱ ȱȱȱǯȱ
The court did, however, instruct the jury on the mental
state necessary to show an intent to defraud. The jury was in-
structed that Jordan must have acted knowingly, which the
ȱęȱȱȱȱ “aware of the nature of his con-
ǯȄȱ ȱ ǰȱ ȱ ¢ȱ ȱ ęȱ
ȱȱęǰȱȱȱȱȱȱȃȱęȬ
tion of ‘knowingly’ … does not mean that the defendant must
ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
law.” The jury returned a guilty verdict, and the court denied
Jordan’s ȱȱĴȱȱȱ ȱ.

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Nos. 23-2840, 23-2846 & 23-2849 11
II
Smith, Nowak, and Jordan all appeal the denial of their
motions ȱĴȱ a new trial. They also challenge sev-
eral of the district judge’s rulings at trial. We take their argu-
ments in turn.
A
All three defendants argue that their fraud convictions
cannot ȱȱęȱȱ involve a misrepre-
ȱ an essential element ȱȱȱȱȱ
contracts. We review this threshold legal challenge de novo.
United States v. Riversǰȱ ŗŖŞȱ ǯŚȱ şŝřǰȱ şŝŞȱ ǻŝȱ ǯȱ ŘŖŘŚǼȱ ǻde
novo review applies to “legal questions wrapped up in chal-
ȱ ȱ ȱ Ĝ¢ȱ ȱ ȱ ȄǼǯ Their argument
fails for several reasons.
Both wire and commodities fraud require as an element “a
scheme ȱ ęȱ to defraud.” 18 U.S.C. §§ 1343 & 1348(1).
ȱȱȱȱȱȱȱȱȱ
only deceptive schemes where “money or property was an
” of the fraud. Ciminelli v. United States, 598 U.S. 306, 312
ǻŘŖŘřǼȱǻȱĴǼǯȱBuilding on this, some circuits pre-
viously drew ȃȱęȱȱ ȱȱȱȱȱȱ
than cause their victims to enter into transactions they would
otherwise avoid” and “schemes that depend for their comple-
ȱȱȱȱȱȱȱȱȱȱȬ
gain.” United States v. ShellefǰȱśŖŝȱǯřȱŞŘǰȱŗŖŞȱǻŘȱǯȱŘŖŖŝǼǯȱIn
ȱǰȱ¢ȱȱĴȱd a scheme to defraud
that violated the fraud statutes. Id.; United States v. Takhalov,
ŞŘŝȱǯřȱŗřŖŝǰȱŗř13–14 (11th Cir. 2016); United States v. Guer-
tinǰȱŜŝȱǯŚȱŚŚśǰȱŚśŗ–52 (D.C. Cir. 2023); United States v. Bruch-
hausenǰȱ şŝŝȱ ǯŘȱ ŚŜŚǰȱ ŚŜŝ–69 (9th Cir. 1992). A scheme to

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12 Nos. 23-2840, 23-2846 & 23-2849
defraud, they reasoned, requires ȱȱ the “nature of the
ȱǰȄȱȱ one concerning “price” or “character-
istics of the good,” TakhalovǰȱŞŘŝȱǯřȱȱŗřŗř–14, or some “ex-
ȱǽǾȄȱȱȱȱǰȱUnitȱȱǯȱ ĵ,
924 F.2d 410, 420 (2d Cir. 1991).
The defendants ask us to apply the essential element of the
ȱ ȱ here. ȱ ęȱ ȱ
market supply and demand, rather than the price or another
characteristic of the futures contract itself, they contend that
the other parties to the transaction “received exactly what
they paid for.” TakhalovǰȱŞŘŝȱǯřȱȱŗřŗŚ ǻȱĴǼ.
They liken ęȱȱȱȱȃȱ
positions” in arm’s length transactions, which are not fraud.
United States v. WeimertǰȱŞŗşȱǯřȱřśŗǰȱřśŝȱǻŝȱǯȱŘŖŗŜǼǯȱȬ
ȱȱ¢ǰȱęȱ¢ȱ not amount to a scheme
to defraud within the scope of the fraud statutes, even if the
parties would not have otherwise executed the transaction.
ȱȱȱȱ¢ȱ¢ȱȱȱȂȱȱȱ
Kousisis v. United States, 145 S. Ct. 1382 (2025), which came
down after oral argument in this case. There, the defendant
had secured contracts with the Pennsylvania Department of
Transportation to paint two projects in Philadelphia. Id. at
1388–89. He represented that he would acquire painting sup-
ȱ ȱ ȃȱ ęȱ ȱ ,” in
ȱȱȱęȱȱȱȱȱȱ
pass-through entity to funnel payments. Id. at 1389. The Court
Ĝȱthe defendant’s wire fraud convictions and directly
ȱȱȱȱȱȱthe defendants in this case in-
voke. Id. at 1390–92, 1398; see also United States v. Runner, 143
F.4th 146, 154–śśȱǻŘȱǯȱŘŖŘśǼȱǻ£ȱǼǯȱȱ
wire fraud statute, the Court explainedǰȱ ȃȱ ȱ ȱ

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Nos. 23-2840, 23-2846 & 23-2849 13
economic loss.” Kousisis, 145 S. Ct. at 1392. Rather, a fraud
conviction can stand if the defendant did no more than “use[]
a material misstatement to trick a victim into a contract that
requires handing over her money or property.” Id. at 1388,
1391.
Because Kousisis forecloses the defendants’ essential ele-
ȱȱȱȱǰ ȱ¢ȱȱȱȱ
well-ȱȱȱęȱȱȱȱ
to defraud within the meaning of the wire and commodities
fraud statutes. United States v. Pacilioǰȱ Şśȱ ǯŚȱ ŚśŖǰȱ ŚŜŖȱ ǻŝȱ
Cir. 2023); United States v. Chanu, 40 F.4th 528, 541 ǻŝȱ ǯȱ
2022); United States v. Coscia, 866 F.3d ŝŞŘǰ ŝşŝ ǻŝȱǯȱŘŖŗŝǼ.
ȱȱȱȱthe defendants’ argument would fail
even without Kousisis. Unlike the transactions in Kousisis or
Weimert, where the defendants directly lied to the purported
victimsǰȱȱȱȱęȱȱęȱȱȱ
parties and the market as a whole. ęȱȱȱȬ
ȱ ȱ ȱ ȱ ȱ ȱ —
ȃ¢ȱȱȱȱȱȱȱȱȱȱȱ
private intent to cancel.” Pacilio, 85 F.4th at 460. In this way,
ęȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ d and
fraud-on-the-market, ȱ ȱ ¢ȱ ȱ Ȭ
sentations that undermine the integrity of the marketplace.
See United States v. GilbertsonǰȱşŝŖȱǯřȱş39ǰȱşŚŝ (8th Cir. 2020)
(in the context of securities fraud, the “gravamen of manipu-
ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
ȱ¢ȱȱȱȱȱȱȱ¢ȱȱ
ȱ¢ȱȱ¢ȱȱǰȱȱȱ¢ȱȬ
nipulators”) (quȱĴǼ.
The defendants also claim the fraud statutes are unconsti-
tutionally vague as applied to their conduct. We have already

-- 13 of 25 --

14 Nos. 23-2840, 23-2846 & 23-2849
rejected this argument, Pacilio, 85 F.4th at 460–61, and decline
ȱȱȱǯȱȱǰȱ ȱęȱȱȬ
ing violates the federal wire and commodities fraud statutes,
18 U.S.C. §§ 1343 & 1348(1).
B
ȱȱ ȱȱȱȱȱęȱȱȱ
wire and commodities fraud (it does), the evidence cannot
sustain their convictions ȱ¢ȱȱȱȱȱȱ
practice. They ȱȱęȱȱȱȱ
intent to cancel a ȱȱěȱȱ¡ǰȱ ȱȱ
ȱ ȱ ȱ ǰȱ ȱ ǰ a conditional intent to
cancel the orders ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ę.
Smith and Nowak concede, as they must, that each of their
convictions is predicated on the ȱ ęȱ ǰȱ
meaning the convictions all stand or fall with the govern-
Ȃȱ ¢ȱ ȱ ȱ ȱ ¢ȱ . ęȱ ȱ
¢ȱȱȱȱȱǰȱȱǰȱȱȱ
Dodd-Frank Act provides that any person who knowingly vi-
olates its anti-ęȱ ǰȱ ŝȱ ǯǯǯȱ ȗ 6c(a)(5)(C), is
¢ȱ ȱ Ĵȱ ȱ ȱ ȱ ŝȱ ǯǯǯȱ
§ 13(a)(2). According to Smith and Nowak, since the govern-
ment cannot prove that they placed trade orders with the req-
ȱȱȱȱęȱǰȱ¢ȱare entitled to a
ȱȱĴȱȱȱǯȱThough formally we
ȱ ȱ ȱ ¢ȱ Ĵȱ ȱ ǰȱ ȃ¢ȱ
Ȅȱ ȱ ȃȱ ȱ ȱ ȱ ȱ ȱ Ĝ¢ȱ ȱ
the evidence.” United States v. Peterson, 823 F.3d 1113, 1120
ǻŝȱǯȱŘŖŗŜǼ; see also RiversǰȱŗŖŞȱǯŚȱȱşŝŞȱǻȱȱ ȱ
for threshold legal questions).
ȱȱȱȱȱȱ¢ȱȱ
the standard for intent and, frankly, we struggle to

-- 14 of 25 --

Nos. 23-2840, 23-2846 & 23-2849 15
understand why. ȱȱ ȱ ȱȱĴȱȱȱȬ
ȱǯȱȱȱȱȱ¢ȱȱęȱȱ
an unconditional purpose to cancel the ȱȱȱě. The
jury thus considered—and rejected—Smith and Nowak’s ar-
gument that the evidence does not show such unconditional
intent. We measure intent at the moment the order was
placed. CosciaǰȱŞŜŜȱǯřȱȱŝşśȱǻȱȱȱęȱȬ
quires proving that ȱȱȃ ¢ȱȱds or
ěȱ ȱȱȱȱȱȱȱȱȱěȱȱȱ
execution”). If a party possesses a conditional intent to trade,
he necessarily lacks an intent to cancel at the time the order is
placed. The word unconditional is redundant and unneces-
sary.
The key question ȱęȱȱis whether an order is
placed on the opposite side of the commodities market with
ȱȱȱȱȱ¡ȱȱȱȱȱ
the market. Chanu, 40 F.4th at 540. Even if Smith and Nowak
waited to cancel the spoof orders until the legitimate trade
was executed, what counts is that the trades “were designed
ę¢ȱ ȱ ȱ ȱ ęǯȄȱ Cosciaǰȱ ŞŜŜȱ ǯřȱ ȱ ŝŞşǯȱ It
ȱȱȱȱęȱȱ ȱ to cancel until
his ȱ ȱ ȱ ę—that’s the whole point of
ęǯ Cf. id. (defendant’s software program canceled
ȱȱȃȱȱȱǱȱǻŗǼȱȱȱ
the passage of time ǳǲȱǻŘǼȱȱȱęȱȱȱȱǲȱ
or (3) ȱęȱȱȱȱ”) (emphasis added). The
“unconditional” semantics aside, the question is whether
Smith’s and Nowak’s “purpose was not to trade on those or-
ǰȱȱȱȱȱȱȱȱȱȱȱȱ ǯȄȱ
Id. ȱŝşśȱǭȱǯŚśǯ

-- 15 of 25 --

16 Nos. 23-2840, 23-2846 & 23-2849
More importantly, all that Ĵ is whether a rational
trier of fact could have come to that conclusion. Peterson, 823
F.3d at 1120 (“We consider the evidence in the light most fa-
ȱȱȱȱȱĜȱȱȱȱ¢ȱȬ
ȱȱȱȱȱęȱȱȱ¢ȱ¢ȱȱ
ȱǯȄǼǯ ȱȱȱȃ¢ȱ.”
United States v. Sorensenǰȱ ŗřŚȱ ǯŚȱ Śşřǰȱ ŚşŞȱ ǻŝȱ ǯȱ ŘŖŘśǼ
ǻȱĴǼ. In particular, Smith and Nowak’s focus
ȱȱȱȱȃȱ¢ȱ¢ǰȄȱȱȃȱȱ¢ȱȱ
ȱ ȱ ȱȱ ȱ ȱ ¢ȱ ȱ ȱ
ǰȱȱȱȱȱĜ¢ȱȱȱȱȱ
ȱȱ¡¢ȱĜȱȱ ǯȄȱPacilio, 85 F.4th at 463
(cleaned up).
ȱ ȱȱǰȱ ȱȱęȱȱȱ¢ȱ
could have found Smith and Nowak placed spoof orders with
the requisite intent to cancel. ȱȱȱȬ
stantial data evidence depicting the scheme, and the jury
heard extensive testimony from cooperating witnesses, ęȬ
cial experts, and investigators supporting an inference of
guilt. This evidence ȱȱ¢ȱȱȱ
messages showing that Smith and Nowak placed (and then
canceled) orders on the opposite side of the market from the
legitimate orders that they intended to execute. Smith and
Nowak argue that this evidence is all circumstantial, as the
ȱ ęȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
mind. Even so, “direct evidence of intent ȱȱĴǰȱ
ȱęȱȱȱȱ¢ȱȱȱ¢ȱȬ
ȱ ȱ ȱ ¢ȱ ȱ ȱ ȱ ¡ȱ
the scheme itself.” Id. ȱŚŜŚȱǻȱĴǼǯȱǰȱ
Smith and Nowak counter that the circumstantial evidence
cannot support ȱ ȱ ȱ ȱ ȱ ¢ȱ Ȭ
sistent with their innocence. But Smith and Nowak were free

-- 16 of 25 --

Nos. 23-2840, 23-2846 & 23-2849 ŗŝ
to argue to the jury that there were legitimate explanations for
their trading Ĵȱand to cross-examine the witnesses on
ȱȱȱ¢—indeed, that was the heart
ȱȱȱȱȱǯȱȱ ȱȱȱǰȱȃȱ
ȱȱȱ¡ȱȱȱ¡ … that were
¢ȱȱ ȱȱȱȱȱȱ¢ȱȱȬ
lieve them.” United States v. Maxwell, 143 F.4th 844, 858 ǻŝȱ
ǯȱŘŖŘśǼȱǻȱĴǼǯȱ ȱęȱȱȱĜȱ
evidence to justify the jury’s conclusions.
Ě¢ǰȱȱȱ ȱalso challenge the anti-ęȱ
statuteǰȱŝȱǯǯǯȱȗ 6c(a)(5)(C), as void for vagueness. As with
fraud, our precedent squarely forecloses this argument.
Coscia, 866 F.3d at ŝşř–95. The ę statute is not uncon-
stitutionally vague, and ample evidence supported Smith’s
and Nowak’s convictions under it.
ȱ ǰȱ ȱ ȱ Ȃȱ Ĝ¢ȱ ȱ ȱ ȱ
challenge fails as to all convictions. There was more than suf-
ęȱȱȱȱȱ ȱȱȱęȱ
ȱ ȱ ȱ ŝȱ ǯǯǯȱ ȗ 6c(a)(5)(C). And ȱ ęȱ
constitutes a scheme to defraud under the wire and commod-
ities fraud statutes, 18 U.S.C. §§ 1343 & 1348(1), and amounts
to Ĵȱȱǰȱŝȱǯǯǯȱȗ 13(a)(2), there was
Ĝȱȱȱ¢ȱĴȱȱȱȱ .
Because the jury’s verdict is ȱ ¢ȱ ȱ Ȭ
dence on all charges, they are not entitled to a new trial on
these grounds either. Peterson, 823 F.3d at 1122; United States
v. ConleyǰȱŞŝśȱ.3d 391, 399–400 ǻŝȱǯȱŘŖŗŝǼȱǻwhen motions
ȱĴȱȱȱȱ ȱȱȱȱȱȱȱȱ
that the government failed to prove the elements of the of-
ȱ¢ȱȱȱǰȱ ȱ ȱĜȱȱȱȬ
ęȱȱȱȱ¢ȱǼǯ

-- 17 of 25 --

18 Nos. 23-2840, 23-2846 & 23-2849
C
Smith and Nowak next ȱȱĴȱȱȱȱ
court’s decision to admit much of the evidence discussed
. They claim the court’s rulings were erroneous and ask
ȱȱȱȱĴȱȱȱ ȱȱȱȱǯȱWe
ȱȱȱȂȱ¢ȱȱȱȱȱȱ
discretion. Pacilio, 85 F.4th at 464. We will only reverse if we
ȱȃȱ ȱȱęȱȱęȱȱȱȱȱ
ȱ ȱ ĴǯȄȱ Id. ǻȱ ĴǼǯȱ Smith and
Nowak assert that the ȱȱȱȱȱ¢ȱ
ĴǱȱǻŗǼȱ¢ȱȱ¢ȱȱȱȱȬ
ing witnesses, (2) Wika’s lay opinion testimony, and (3)
Wika’s investigative report.
ȱǰȱ ęȱȱ ȱ¢ȱȱȱȱ
Ĵȱ ȱ rulings. Although the report and some of Wika’s
¢ȱȱę¢ȱȱǰȱȱȱęȱ
ȱęȱȱȱȱȱ¢ǯȱ¢ȱ
in light of the joint conspiracy charge, even though this evi-
dence focused on Smith, the jury could consider it against
Nowak as relevant and in accordance with any limiting in-
structions. See United States v. LopezǰȱŜȱǯřȱŗŘŞŗǰȱŗŘŞŜȱǻŝȱǯȱ
1993) (in joint trials, juries will “sort through the evidence”
and “follow instructions from the court” separate con-
ȱ ȱ Ǽǯȱ ȱ ȱ ȇȱ ȱ ȱ
Wika's testimony and report and, importantly, did not receive
or request a limiting instruction that the jury could only con-
sider them against Smith.
Turning to the merits, none of these decisions was an
ȱȱǯȱȱȱȱȱŝŖŗȱȱ¢ȱ
witnesses to testify as to “their opinions and inferences, even
ȱȱȱȱȱǯȄȱUnited States v. Locke, 643

-- 18 of 25 --

Nos. 23-2840, 23-2846 & 23-2849 19
F.řȱŘřśǰȱŘřşȱǻŝȱǯȱŘŖŗŗǼǯȱ¢ȱ¢ȱȱ¢ȱȱȬ
other person’s mental state, so long as the testimony is helpful
to the jury ȱȱŝŖŗȱand appropriate under Rule 403’s
ȱ ǯȱ Id. at 239–40. Though lay witnesses may not
ěȱȱȱȱȱȱȱȱȱ¢ȱ
elements, United States v. Noelǰȱ śŞŗȱ ǯřȱ ŚşŖǰȱ ŚşŜȱ ǻŝȱ ǯȱ
2009), they can use words “in a colloquial sense” that “em-
¢ǽǾȱ ȱ ȱ ȱ ȱ ęȱ ǰȄȱ ȱ ȱ
those words mirror legal standards, Locke, 643 F.3d at 241–42
(approving of lay witnesses’ use of the words fraud and mis-
representation).
The lay testimony was proper under this standard. Smith
and Nowak take issue with the witnesses’ use of the word
ęȱȱȱȱȱ¢ǰ argue that they im-
¢ȱ£ȱęȱȱȱȱȱȬ
lation, and claim that the witnesses inappropriately opined on
Smith’s and Nowak’s intent ȱ ȱ ȱ .
But the witnesses’ ȱ ȱ ȱ ȱ ęȱ ȱ ȱ
with the colloquial vernacular of the trading industry, id. at
242ǰȱ ȱ ¢ȱ ¢ȱ ȱ ’s and Nowak’s mental
states was properly framed as an opinion drawn from the
trading data in light of the witnesses’ own experience, see
United States v. Winbush, 580 F.řȱśŖřǰȱśŗŘȱǻŝȱǯȱŘŖŖşǼǯȱȱ
for the claim that the testimony improperly equated ęȱ
with fraud and price manipulation, the witnesses were simply
explaining why they spoofed, what they had pled guilty to,
ȱ ǻȱ Ȃȱ Ǽȱ ¢ȱ ȱ ȱ ȱ ęǯȱ That
Smith and Nowak declined a jury instruction that the wit-
ȱ ȱȱȱȱȱȱ¢ȱęȱȱȬ
ȱȱȱȱȱȱǯ

-- 19 of 25 --

20 Nos. 23-2840, 23-2846 & 23-2849
Smith and Nowak also argue that Wika should have testi-
ęȱȱȱ¡ǰȱȱȱȱ¢ȱ ǯȱInvestigators such
as Wika can ¢ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
provide their impressions of the case without crossing into ex-
pert territory. United States v. Rollins, 544 F.3d 820, 832–řřȱǻŝȱ
ǯȱŘŖŖŞǼǯȱȱȱȱȱȱȱȂȱ“spe-
cialized knowledge informed his mental state.” United States
v. OriedoǰȱŚşŞȱǯřȱśşřǰȱŜŖŘȱǻŝȱǯȱŘŖŖŝǼǯȱȱȱ¢ȱ
ȱȱexperience, Wika’s testimony was limited to
his investigation and what it revealed to him. Even if it argu-
¢ “approaches the line dividing lay opinion testimony
from expert opinion testimony,” this testimony remained ad-
ǰȱȱȱȱȱȱȱȱȱȱȱ
allowing it. Rollins, 544 F.3d at 833. At the very worst, the gov-
ernment’s other evidence of Smith’s and Nowak’s guilt was
so extensive that even if Wika’s testimony “had crossed the
Ȅȱȱ ȱȱȱȱǯȱId. Nor was it erro-
neous to admit Wika’s investigative report: investigative re-
ports may come in as ȱ ȱ ȱ ȱ ȱ ȱ
Evidence 803(6) if ȱȱĜȱȱȱęȱ
at trial, as Wika did. United States v. KingǰȱŜŗřȱǯŘȱŜŝŖǰȱŜŝŘ–
ŝřȱǻŝȱǯȱŗşŞŖǼǲȱUnited States v. BlackburnǰȱşşŘȱǯŘȱŜŜŜǰȱŜŝŘȱ
ǻŝȱǯȱŗşşřǼȱǻȃȱȱȱȱȱȱȱȱȱȱ
for cross-examination, ǳȱ Ĵȱ ȱ ȱ ȱ
does not contravene Rule 803(8).”).
D
ȱȱęȱǰȱȱȱ ȱȱȱthe
district court’s supplemental instructions to the jury were er-
ȱ ȱ ¢ȱ ǯȱ ȱ ȱ ȱ ȱ
court’s decision to provide supplemental jury instructions, in-
cluding its decision to read (or reread) a Silvern instruction,

-- 20 of 25 --

Nos. 23-2840, 23-2846 & 23-2849 21
ȱȱȱǯȱUnited States v. Cardena, 842 F.3d 959,
şŝŚȱǻŝȱǯȱŘŖŗŜǼȱ(Silvern instruction); United States v. Sims,
řŘşȱ ǯřȱ şřŝǰȱ şŚŘȱ ǻŝȱ ǯȱ ŘŖŖřǼȱ ǻȱ ȱ
generally).
It was appropriate for the district court to reread the Sil-
vern instruction. Silvern instructions are “perfectly content-
ȱ ȱ ǽ¢Ǿȱ ȱ ȱ ȱ ȱ ȱ ȱ
jury.” United States v. BeverlyǰȱşŗřȱǯŘȱřřŝǰȱřśŘȱǻŝȱǯȱŗşşŖǼ
ǻȱ ĴǼ. Rather, the district court followed our
ǰȱȱȱȱȱȱȱinstruc-
tion to a deadlocked jury. United States v. Collins, 223 F.3d 502,
508–ŖşȱǻŝȱǯȱŘŖŖŖǼǯ
It was similarly within the court’s discretion to remind the
jury that lawyers’ statements are arguments, not evidence.
ȱȱȱȱȱȱȱĴȱȱǰȱ
despite Smith and Nowak’s arguments to the contrary,
crafted it carefully to avoid singling out the juror.
The court also refused to ask the jury whether it remained
deadlockedǰȱ¢ȱȱȱ¢ȱȱȱȱȬ
ations. Under the circumstances, the court proceeded
thoughtfully and exercised its discretion wisely. Nowak and
Smith may not like the verdict the jury reached after receiving
ȱǰȱȱȱ not mean they were issued in
error.
III
Recall that Jordan was convicted of only wire fraud under
18 U.S.C. § 1343. Jordan challenges various aspects of his sep-
ȱǯȱȱȱȱǰȱ ȱęȱȱ ȱȱ
ȱ Ĝ¢ȱ ȱ ȱ ȱ claim. Jordan joined Smith
ȱ Ȃȱȱȱęȱȱȱȱȱ

-- 21 of 25 --

22 Nos. 23-2840, 23-2846 & 23-2849
ȱȱȱȱȱȱȱȱȬ
ȱȱȱȱǯȱȱ ȱȱȱ
he spoofed, his argument hinges entirely on that theory. Since
we rejected that argument in Section II.Aǰȱ ȂȱĜ¢ȱ
of the evidence challenge is a nonstarter.
A
Jordan’s primary remaining argument concerns the dis-
trict court’s decision to exclude his statement to Agent Luca
that he “did not think what he was doing was wrong.” Jordan
sought to admit that statement under Federal Rule of Evi-
dence 106, often referred to as the rule of completeness. Rule
106 provides that “[i]f a party introduces all or part of a state-
ment, an adverse party may require the introduction, at that
time, of any other part—or any other statement—that in fair-
ȱȱȱȱȱȱȱȱǯȄȱ¢ȱȃ¢ȱȱ
sȱȱȱ¢ȱǯȄȱǯȱǯȱǯȱŗŖŜǯ
Rule 106 requires a complete statement “ȱ ȱ ȱ ȱ
ȱ ȱȱȱ¢ȱȱǻŗǼȱ¡ȱȱĴȱǰȱ
ǻŘǼȱȱȱĴȱȱȱ¡ǰȱǻřǼȱȱȱ
the trier of fact, or (4) insure a fair and impartial understand-
ing.” United States v. LewisǰȱŜŚŗȱǯřȱŝŝřǰȱŝŞśȱǻŝȱǯȱŘŖŗŗǼȱ
ǻȱĴǼǯȱIn United States v. Haddad, 10 F.3d 1252
ǻŝȱ ǯȱ ŗşşřǼǰȱ ȱ ǰȱ ȱ ȱ Ĵȱ ȱ Ȭ
Ȃȱǰȱȃǰȱ ȱe ȱȱȱȄȱȱ¡ȱ
the remainder that said, ȃȱ ȱȱȱ ȱȱȱǯȄȱ
Id. at 1259. The gun was located right next to the marijuana,
ȱȱĴȱȱȱȱȱȱ ȱ
ȱȱȱȱ ǯȱId. We concluded that Rule 106 required
the admission of the exculpatory statement, in part to avoid
any misleading inference. Id. “The completeness doctrine
does not, however, require introduction of portions of a

-- 22 of 25 --

Nos. 23-2840, 23-2846 & 23-2849 23
statement that are neither explanatory of nor relevant to the
Ĵȱ ǯȄȱ Lewisǰȱ ŜŚŗȱ ǯřȱ ȱ ŝŞśȱ ǻquoting United
States v. MarinǰȱŜŜşȱǯŘȱŝřǰȱŞŚȱǻŘȱǯȱŗşŞŘǼ).
The district court was correct that Rule 106 did not compel
it to admit Jordan’s statement. Jordan’s claim that he did not
think he was doing anything wrong does not change the fac-
ȱȱȱȱȱȱȱȱȱ ȱȱȱ
to cancel for the purpose of misleading the market. Nor does
ȱȱȱ¢ȱ¢ȱȱȱȱȱȬ
Ĵȱ Ǳȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
ǰȱȱȱȱȱ ȱ ȱ ȱȱęȱ
was illegal or, as he put it, wrong. United States v. Blagojevich,
ŝşŚȱ ǯřȱ ŝŘşǰȱ ŝřşȱ ǻŝȱ ǯȱ ŘŖŗśǼǯȱ Rather, the court rightly
noted that Jordan was free to take the stand and testify that he
did not think he was doing anything wrong. United States v.
FarukiǰȱŞŖřȱǯřȱŞŚŝǰȱŞśŝȱǻŝȱǯȱŘŖŗśǼȱǻȱ ȱȱȬ
trict court that “the appropriate vehicle for the introduction of
ȱȱ ȱȱȱȱǽȱǾȱȱȱ
have taken the stand,” rather than Rule 106). Defendants often
try to justify their actions when speaking with FBI agents and
ȱ ȱȱĜȱ¢ȱȱȱ.
Such an exculpatory statement has nothing to do with Rule
106.
B
Next, Jordan claims ȱȱȱȱȱȱȬ
ȱ¢ȱexcluding ȱ¡ȱhe sought to use for im-
peachment. The trial concerned Jordan’s trading when he
worked at JPMorgan and then Credit Suisse until August
2010. Although the policies in place at the time did not explic-
¢ȱȱęǰȱȱ ȱęȱȱthe
practice ȱ ȱ ȱ ¢ȱ ȱ ǯ To

-- 23 of 25 --

24 Nos. 23-2840, 23-2846 & 23-2849
controvert this testimony, Jordan moved to admit post-2010
ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ Ȭ
ȱȱ¡¢ȱȱęǯȱHowever, the district court
excluded this evidence under Rule 403. The policies were re-
ȱ ȱ Ěȱ ȱ -Frank Wall Street and Consumer
ȱǰȱ. L. No. 111-ŘŖřǰȱŗŘŚȱǯȱŗřŝŜǰȱ ȱȬ
ȱȱȱ ¢ȱŘŖŗŖǯȱȱęȱ¢ȱȱ
the general wire fraud statutes, the Dodd-Frank Act amended
ȱ¢ȱ¡ȱȱȱ¡¢ȱ£ȱęȱ
as an unlawful disruptive practice amounting to price manip-
ǯȱŝȱǯǯǯȱȗȗ 6c(a)(5)(CǼȱǻęȱęȱȱȱ
ȃ¢ȱ ȱȱȱȄȱȱȃȱȱěȱ ȱ
ȱ ȱ ȱ ȱ ȱ ȱ ȱ ěȱ ȱ ¡ȄǼȱ ǭȱ
ŗřǻǼǻŘǼǯȱ ȱȱǰȱȱȱȱȱȱ
ěȱȱȱȱȱȱg the jury and erro-
neously injecting a mistake of law defense into the case and
excluded it.
ȱ ȱ ȱ ȱ ¡ȱ ȱ ¢ȱ ȱ
and directly responsive to the witnesses’ testimony, making
the district court’s decision to exclude them under Rule 403
ȱȱȱǯȱWe disagree. Jordan conducted exten-
sive cross-examination of the witnesses, which elicited clear
testimony that the pre-2010 documents did not mention
ęȱȱȱ¢ȱȱǻȱ¢ȱǼȱǯȱ
The actual documents themselves were thus of limited addi-
ȱ ȱ ǯȱAnd as the district court noted, evi-
dence of the after-the-fact, post-Dodd-Frank policies could
have led the jury to think that the wire fraud statutes were not
Ĝȱȱ£ȱęǯ ȱȱ ȱęȱȱ
this concern—defendants in other cases have made this same
ǻȱǼ argument. See Chanu, 40 F.4th at 534.

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Nos. 23-2840, 23-2846 & 23-2849 25
ȱȃǽǾȱȱȱȱȱȱȱ
is a highly discretionary assessment,” we give “great defer-
ence” to a district court’s decision to exclude evidence under
Rule 403 and “¢ȱǽǾȱȱȱȱȱȱȱ
agree with the ruling.” Pacilio, 85 F.4th at 465 (quotation omit-
ted). ȱȱȱȱȱȱȱȱȱ
valid concerns of jury confusion, Jordan does not overcome
this extremely deferential standard.
C
Last, Jordan says the district court erred in declining to ad-
minister a so-called good faith instructionǯȱę¢ǰȱ ȱ
sought an instruction that if he acted in good faith “then he
ȱȱȱȱȱȱȱȱȱěȱȱ
wire fraud.” Though we review challenges to jury instruc-
tions de novo, ȃȱȱȱȱěȱȱȬ
cretion with respect to the precise wording of instructions so
long ȱȱęȱǰȱȱȱȱ ǰȱ¢ȱȱȬ
rectly states the law.” Chanu, 40 F.4th at 542 (cleaned up).
We already addressed and rejected this same argument in
Chanu. As the district court noted, a good faith instruction is
¢ȱȱ ȱȱȱȱȱȱȱȱȱ
is a part of the charge. Id. ȱśŚřǯȱȱȱǰȱȱȱȱ
free to provide one if they wish. But “the rule is clear” that
defendants such as Jordan cannot demonstrate that “the fail-
ure to include the good faith instruction denied [them] a fair
trial.” Id. (cleaned up). ȱĴȱȱǰȱȱȱ¢ȱ
convicted him of wire fraud after a fair, properly conducted
trial.
A FFIRMED

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United States of America v. GREGG SMITH , MICHAEL NOWAK, and CHRISTOPHER JORDAN

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