The DOJ recently garnered a win in its spoofing case against two precious metals traders who prosecutors alleged had engaged in widespread market manipulation and fraud through a practice known as “spoofing.” But the verdict is also in on the DOJ’s novel attempt utilize racketeering charges against traders accused of spoofing: the jury found the defendants not guilty of the alleged RICO violations. While the case highlights the DOJ’s continued crackdown on market manipulation schemes, it also illustrates the limits of the government’s reach.

Background

The DOJ’s case against the traders dates back to 2019, when prosecutors unveiled sweeping charges alleging that the traders had engaged in thousands of deceptive trading sequences for gold, silver, platinum, and palladium futures contracts between May 2008 and August 2016.  The DOJ alleged that by engaging in these practices, the traders violated the Commodity Exchange Act’s anti-spoofing provisions, which prohibit disruptive trading practices, including “bidding or offering with the intent to cancel the bid or offer before execution.” 

However, in addition to the usual spoofing and other financial crime-related offenses, the indictment charged the traders with a racketeering conspiracy.  When the indictment became public back in 2019, commentators predicted that the DOJ’s inclusion of RICO charges could make the government’s case simpler to prove.  Instead of convincing the jury through a complicated series of orders, cancellations, price movements, and trades (i.e., the typical evidence used to establish a pattern of spoofing), the path to conviction under the RICO Act was supposed to be more straightforward.  In this case, the indictment alleged that “the defendants and their co-conspirators were members of an enterprise—namely, the precious metals desk at [the bank]—and conducted the affairs of the desk through a pattern of racketeering activity, specifically, wire fraud affecting a financial institution and bank fraud.”

Continue Reading DOJ Secures Spoofing Conviction, but Loses on Novel RICO Charges

On July 19, 2021, CME Group Inc. (the CME), the parent company of derivatives exchanges including the Chicago Mercantile Exchange and New York Mercantile Exchange, issued a Market Regulation Advisory Notice amending prior guidance on prohibited disruptive trading practices. The CME’s amended Advisory Notice RA2107-5 (Advisory Notice), took effect on August 2, 2021, and impacts

Prosecutors have scored a win in their latest criminal spoofing trial, United States v. Vorley.  After three days of deliberation—during which time the jury repeatedly informed the court that it was deadlocked—the jury has convicted precious metals traders James Vorley and Cedric Chanu of committing wire fraud.  At the same time, the jury rejected the government’s allegations that the defendants had participated in a criminal conspiracy by allegedly coordinating spoofed trades with other market participants.

The inconsistent verdicts on wire fraud and conspiracy will almost certainly put the defendants on the path to an appeal before the Seventh Circuit Court of Appeals.  To convict Vorley and Chanu on the wire fraud counts, the government was required to prove beyond a reasonable doubt that they knowingly and intentionally participated in a scheme to defraud other market participants by making materially false representations. And at a high level, a conspiracy is an agreement between two or more persons to accomplish an unlawful purpose.  The jury’s split verdict suggests there could have been some confusion surrounding the intent requirements for the charges at issue.  This could further implicate the manner in which the government presented its evidence at trial and the instructions provided to jurors before they went into deliberations.
Continue Reading Jury Convicts on Wire Fraud Charges in Criminal Spoofing Case

The criminal spoofing trial in United States v. Vorley kicked off in the U.S. District Court for the Northern District of Illinois on September 14, 2020.  Less than 10 days later, on the first full day of deliberations, jurors sent a note to the court indicating they had reached an impasse, with two jurors holding out against a consensus on the verdict.  Following this development, the court denied the defendants’ request to declare a mistrial and instructed the jury to continue deliberations.

The jury’s difficulty in reaching a verdict on the complicated charges may foreshadow a similar outcome that occurred last year in the criminal trial of software developer Jitesh Thakkar.  In that case, Jitesh faced spoofing charges stemming from his company’s development of software that was later used by a London-based trader to spoof E-Mini S&P 500 futures contracts, which allegedly led to the “flash crash” of 2010.  The trial judge granted Thakkar’s mid-trial motion for a judgment of acquittal on a conspiracy charge based on the lack of evidence of any agreement between Thakkar and the London trader, but the judge allowed the spoofing counts to proceed to the jury.  The jury deadlocked 10-2 in favor of Thakkar on those charges and the government eventually dropped its case.
Continue Reading Latest Criminal Spoofing Trial Hampered by Obstacles

Can a software programmer be held criminally responsible for designing a program that a trader uses to “spoof” the commodity futures market?  This is the question posed to the jury in U.S. v. Thakkar, 18-cr-36 (N.D. Ill.), which trial began this week in federal court.  The case grew out of the manipulative trading activities of Navinder Sarao, a London-based commodities trader who “spoofed” (i.e., placed bids or offers with the intention of canceling them before execution) futures on the Chicago Mercantile Exchange (CME).  Sarao’s activity allegedly contributed to the May 6, 2010, “Flash Crash” in which the Dow Jones Industrial Average dropped nearly 1,000 points within minutes.  Sarao pleaded guilty to fraud and spoofing charges in November 2016.

Jittesh Thakkar, the software programmer currently on trial, was indicted in February 2018 on charges that he conspired with Sarao to commit spoofing and that he aided and abetted Sarao’s spoofing by developing a customized software program that Sarao used to execute manipulative trades.  The indictment against Thakkar marks the first time the U.S. Department of Justice (DOJ) has prosecuted an individual other than a trader with a spoofing-based crime.

Continue Reading Bellwether Spoofing Case Goes to Trial in Chicago