In Gupta case, new filings crystallize prosecution’s challenge

By Alison Frankel
May 10, 2012

From the beginning of the criminal prosecution of Rajat Gupta, it was clear that the government didn’t have the sort of evidence usually at the heart of insider-trading cases. Gupta didn’t profit directly from the tips he allegedly passed to Raj Rajaratnam, who has since been convicted of insider trading. In fact, as his lawyer, Gary Naftalis of Kramer Levin Naftalis & Frankel has said repeatedly, Gupta lost millions in his investment with Galleon, Rajaratnam’s hedge fund. That evidentiary gap has left space for Naftalis to argue that the government unfairly targeted his client because of Gupta’s high profile as a former head of McKinsey and director at Goldman Sachs. It also puts pressure on prosecutors to link Gupta directly to Rajaratnam’s tainted trades, since nothing else shows he was part of the conspiracy.

As Gupta’s May 21 trial date fast approaches, the latest filings from both sides disclose exactly how the government intends to establish that link, using phone records and wiretap evidence to show that Rajaratnam traded specifically because of tips he received from Gupta. But the new briefs also spotlight the inferences prosecutors will have to ask jurors to draw. The government’s case leans heavily on wiretapped conversations in which Rajaratnam tells associates at Galleon what he found out in alleged phone conversations with Gupta that were not taped by the government. Prosecutors argued in a motion in limine last week that Rajaratnam’s taped calls with Galleon conspirators fall under an exception to the rule barring hearsay evidence. If U.S. Senior District Judge Jed Rakoff disagrees, the government will have a much tougher time convincing jurors that Rajaratnam’s inside information came from Gupta.

The prosecution’s latest bill of particulars against Gupta includes allegations that Gupta tipped off Rajaratnam about Procter & Gamble news (Gupta was also a director there). But the government’s strongest evidence appears to involve two alleged Goldman tips. The first alleged tip came on the day in September 2008 that Goldman Sachs directors learned of Warren Buffett’s $5 billion investment in the bank. Moments after Gupta disconnected from the board’s conference call, his assistant placed a call to Rajaratnam, according to phone records. After that very brief call, which concluded only minutes before the end of the trading day, Rajaratnam placed orders to buy as much Goldman Sachs stock as he could snap up. He ended up paying about $25 million for more than 200,000 shares. The next day, according to wiretap evidence, Rajaratnam told his personal Galleon trader, an unindicted co-conspirator named Ian Horowitz, that he rushed to order hundreds of thousands of Goldman shares because he “got a call at 3:58 … saying something good might happen to Goldman.”

Similarly, prosecutors assert, Gupta tipped off Rajaratnam after a Goldman board meeting the next month at which directors learned that the bank was projecting a quarterly loss of $2 per share rather than the $2.50 per share gain Wall Street anticipated. The Goldman board meeting took place after the market had closed, but as soon as trading opened the next day, Rajaratnam dumped all of the 150,000 Goldman shares he held. Later that day, in a wiretapped conversation with a colleague in Asia, David Lau, Rajaratnam said he “heard yesterday from somebody who’s on the board of Goldman Sachs,” that earnings would be way off.

As assistant U.S. attorneys Reed Brodsky and Richard Tarlowe conceded in their Apr. 30 brief asking Rakoff to let in evidence from Rajaratnam’s wiretapped conversations with Horowitz and Lau, they need that evidence to tie Gupta’s calls to Rajaratnam with Rajaratnam’s subsequent trades. Ordinarily, Rajaratnam informing other people of what he allegedly learned from Gupta would be considered inadmissible hearsay. But prosecutors said Rajaratnam’s statements fall under exceptions to the hearsay rule because (among other things) they were made to co-conspirators in the course of an ongoing insider-trading scheme. Gupta, they argued, should reasonably have expected that Rajaratnam would involve others at his hedge fund in the alleged conspiracy. The hearsay evidence, prosecutors asserted, is the only way for them to establish what was said in the unrecorded conversations between Gupta and Rajaratnam, since neither of them is talking.

The government does have a tape of one conversation between Gupta and Rajaratnam, but Kramer Levin argued – in a May 7 motion to bar prosecutors from playing it to the jury – that the tape doesn’t show Gupta giving Rajaratnam inside information. There’s also no evidence Rajaratnam made any trades based on the phone call, according to Gupta’s lawyers. On July 29, 2008, Gupta and Rajaratnam talked for about 25 minutes, including a brief discussion about Goldman Sachs’s rumored plan to acquire a commercial bank. Prosecutors played the tape for the jury at Rajaratnam’s criminal trial last year, arguing that it showed Gupta breaching his duty as a Goldman director by disclosing confidential information. But Kramer Levin said in its new brief that Gupta was only telling Rajaratnam what Goldman had already told analysts.

Nevertheless, Gupta’s lawyers argued, prosecutors should not be permitted to play the tape because it’s impermissible “propensity” evidence that the government will twist to suggest Gupta’s guilt by association with Rajaratnam. Similarly, Gupta’s lawyers argued in a separate motion filed Monday that Rakoff should bar wiretap evidence of conversations between Rajaratnam and other conspirators that have no bearing on the accusations against Gupta.

“It appears that the government seeks to reprise the Rajaratnam trial in order to shore up its weak circumstantial case against Mr. Gupta, resorting to evidence about other companies and other alleged conspiracies,” the brief said. “The court should exclude these conversations because they lack even remote relevance to the conspiracy charged in the indictment and because they are extremely prejudicial, likely to focus the jury’s attention on matters outside the indictment, and likely to create the risk of a finding of guilt based on evidence of separate (and distinct) conspiracies.”

There are other clues to Gupta’s likely defenses in the government’s briefs, both the Apr. 30 hearsay filing and a May 7 brief asking Rakoff for additional pretrial rulings. Prosecutors expect Gupta to argue that someone else must have told Rajaratnam about Buffett’s $5 billion investment in Goldman, raising doubts about whether Gupta and Rajaratnam even spoke after the Goldman board’s conference call that day. Prosecutors also said Gupta’s lawyers may argue that Galleon’s last-minute Goldman purchases on the day the board learned of the Buffett announcement were part of a broader market move in Goldman Sachs, suggesting that someone other than Gupta was spreading word of Buffett’s investment.

Prosecutors are also expecting Gupta to argue that, far from wanting to help Rajaratnam, he actually bore a big grudge against the Galleon chief. According to the government’s May 7 brief, which asks Rakoff to compel the disclosure of privileged communications between Gupta and some of his civil lawyers, Gupta contemplated suing Rajaratnam for unilaterally redeeming money from an investment they held jointly. The government argued that Gupta’s anger at Rajaratnam in 2009 has no bearing on the 2008 conspiracy it alleges. It also asked Rakoff to bar defense arguments that Gupta is being unfairly singled out for prosecution.

Gupta’s lawyers haven’t yet filed what will likely be their most consequential brief asking Rakoff to bar that all-important wiretap evidence from Rajaratnam’s conversations with Horowitz and Lau (neither of whom, incidentally, has been accused of wrongdoing by prosecutors). Rakoff has previously ruled that wiretap evidence is broadly admissible, but he has not addressed specific tapes the government wants to play.

By prosecutors’ own admission, the whole case may depend on what Rakoff decides.

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In case you’ve followed my comments before, you know that I’m a lawyer, MBA and former hedge fund and venture capital person. Because I’ve always followed the rules, I don’t have the kinda money that many of my “colleagues” have. Regardless, I have insight that brings you “behind the curtain” — here’s how these hedge fund guys operate and make ALL their big money: Insider Information is RAMPANT and secreted and used to trade ALL the time — I estimate that more than 95% of the big bets and where the big money is made is based mainly on illegally obtained insider information (yes, the 1% keep gettin’ more 1%-er if you know what I mean). Importantly, it’s not always an easy to follow “tit for tat” compensation trail — there are lots of “covertly related” compensation schemes similar to HAWALA-based lending (look this up bcuz it’s fascinating). In the case of Gupta, secret information might be transferred to Raj seconds after Gupta gets the secret information and Raj would trade on that info immediately, but Raj might not compensate Gupta until years later through “career advice” or the like where a Raj-controlled company would give Gupta (or his family) a $100 million dollar signing bonus through a shell company in London (tons of scams like this happen in London banks and shell companies) or Singapore (Singapore is getting VERY popular nowadays for these kinda transactions). What I see everyday is these kinda guys setting up anonymous email addresses and “throwaway phones” (yes, just like drug dealers) to trade in insider information. Most is cloaked in “hints” or jokes, but it be the real deal, folks. All these guys do is spend money and have maybe 10 minute conversations per day (yep, 10 minute workdays — but they all say they work 100 hour weeks) trading in the insider info to make their $10 million to $100 million (or more and yes this is US Dollars). Modern evidentiary law is feeble weaponry (think Indiana Jones shooting the compared to the electronic info tranfers and judges aren’t as aggressive as Rakoff is in this case and for that I SALUTE you, Judge Rakoff and FBI. Oh: solution to all of this — have hedge funds bring transparency to their trades. Plain and simple. And oh, don’t vote Romney because he was one of the architects of this whole insider trading mechanics.

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