20-3594-cr
`United States v. Aiyer
`
`
`United States Court of Appeals
`for the Second Circuit
`_____________________________________
`
`August Term 2021
`
`(Argued: August 27, 2021 Decided: May 2, 2022)
`
`No. 20-3594-cr
`_____________________________________
`
`UNITED STATES OF AMERICA,
`
`Appellee,
`
`— v. —
`
`AKSHAY AIYER,
`
`Defendant-Appellant.
`_____________________________________
`
`Before:
`
`
`
`PARKER, BIANCO, and MENASHI, Circuit Judges.
`
`Defendant-Appellant Akshay Aiyer appeals from the October 2, 2020
`
`judgment entered in the United States District Court for the Southern District of
`New York (Koeltl, J.), following a jury trial, convicting him of conspiracy to
`restrain trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. More
`specifically, Aiyer was convicted for his participation in a conspiracy to fix prices
`and rig bids in connection with his trading activity in the foreign currency
`exchange market. His primary argument on appeal is that the district court erred
`by failing to consider his proffered evidence that the alleged illegal trading activity
`lacked anticompetitive effects and had procompetitive benefits and by refusing to
`
`
`
`

`

`conduct a pre-trial assessment as to whether the per se rule or the rule of reason
`applies in this case. Aiyer further contends that the district court abused its
`discretion in largely precluding his competitive effects evidence from admission
`at trial and in conducting only a limited post-trial inquiry into allegations of juror
`misconduct. We hold that the district court was not required to make a threshold
`pre-trial determination as to whether the per se rule or the rule of reason applies to
`the alleged misconduct in this criminal antitrust case. The grand jury indicted
`Aiyer for a per se antitrust violation and the government, which was proceeding
`only under that theory, was entitled to present its case to the jury. The district
`court properly assessed the sufficiency of the evidence of the alleged per se
`violation at the time of Aiyer’s Rule 29 motion after the government rested its case
`(which Aiyer renewed after trial), and the sufficiency decision upholding the
`verdict is not challenged on appeal. In addition, given that the case was being
`tried under the per se rule, the district court acted within its broad discretion in
`strictly limiting the admission of Aiyer’s competitive effects evidence at trial to the
`issue of intent. Finally, the district court did not abuse its discretion in ending its
`post-trial investigation into alleged juror misconduct and concluding there was no
`basis to vacate the jury’s verdict where such investigation included interviewing
`the accused juror and finding his denial of the allegations credible.
`
`
`
`
`Accordingly, we AFFIRM the judgment of the district court.
`
`MARY HELEN WIMBERLY (Stratton C.
`Strand, Kevin B. Hart, Eric Hoffman,
`Philip Andriole, on the brief), United
`States Department of Justice, Antitrust
`Division, for Richard A. Powers, Acting
`Assistant
`Attorney
`General,
`Washington, DC, for Appellee.
`
`MARTIN B. KLOTZ, Willkie Farr &
`Gallagher LLP, New York, NY (Joseph
`T. Baio, Jocelyn M. Sher, Willkie Farr &
`Gallagher LLP, New York, NY, Mark
`Stancil, Willkie Farr & Gallagher LLP,
`
`
`
`2
`
`

`

`Washington, DC, on the brief),
`Defendant-Appellant.
`
`for
`
`JOSEPH F. BIANCO, Circuit Judge:
`
`
`
`Defendant-Appellant Akshay Aiyer appeals from the October 2, 2020
`
`judgment entered in the United States District Court for the Southern District of
`
`New York (Koeltl, J.), following a jury trial, convicting him of conspiracy to
`
`restrain trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1.
`
`Specifically, Aiyer was convicted for his participation in a conspiracy to fix prices
`
`and rig bids in connection with his trading activity in the foreign currency
`
`exchange market. His primary argument on appeal is that the district court erred
`
`by failing to consider his proffered evidence that the alleged illegal trading activity
`
`lacked anticompetitive effects and had procompetitive benefits and by refusing to
`
`conduct a pre-trial assessment as to whether the per se rule or the rule of reason
`
`applies in this case. Aiyer further contends that the district court abused its
`
`discretion in largely precluding his competitive effects evidence from admission
`
`at trial and in conducting only a limited post-trial inquiry into allegations of juror
`
`misconduct. We hold that the district court was not required to make a threshold
`
`pre-trial determination as to whether the per se rule or the rule of reason applies to
`
`the alleged misconduct in this criminal antitrust case. The grand jury indicted
`
`
`
`3
`
`

`

`Aiyer for a per se antitrust violation and the government, which was proceeding
`
`only under that theory, was entitled to present its case to the jury. The district
`
`court properly assessed the sufficiency of the evidence of the alleged per se
`
`violation at the time of Aiyer’s Rule 29 motion after the government rested its case
`
`(which Aiyer renewed after trial), and the sufficiency decision upholding the
`
`verdict is not challenged on appeal. In addition, given that the case was being
`
`tried under the per se rule, the district court acted within its broad discretion in
`
`strictly limiting the admission of Aiyer’s competitive effects evidence at trial to the
`
`issue of intent. Finally, the district court did not abuse its discretion in ending its
`
`post-trial investigation into alleged juror misconduct and concluding there was no
`
`basis to vacate the jury’s verdict where such investigation included interviewing
`
`the accused juror and finding his denial of the allegations credible.
`
` Accordingly, we AFFIRM the judgment of the district court.
`
`BACKGROUND
`
`I.
`
`The Relevant Market1
`
`This criminal antitrust case arises out of Aiyer’s alleged conduct in—and
`
`corresponding communications relating to—the foreign currency exchange (“FX”)
`
`
`1 Given that Aiyer appeals from a judgment of conviction entered after a jury trial, “our
`statement of the facts views the evidence in the light most favorable to the government,
`3
`
`
`
`

`

`market. Participants in the FX market buy or sell one national currency in
`
`exchange for another. In other words, FX trading takes place in currency pairs,
`
`where one individual or entity sells a certain amount of one country’s currency to
`
`another individual or entity that purchases that currency with a certain amount of
`
`another country’s currency. See Gov’t Supp. App’x at 3–4 (“[L]et’s take an example
`
`. . . you want to buy [U.S.] dollars in exchange for . . . Canadian dollars . . . . That
`
`exchange . . . between United States dollar and Canadian dollars, that’s called a
`
`currency pair. There are always two currencies because you have got to buy one
`
`and sell the other.”).2 The mechanism for pricing in the FX market is known as the
`
`“exchange rate,” “rate,” or “price,” which essentially represents the amount of one
`
`specific currency that a market participant can be paid in exchange for another
`
`specific currency. App’x at 33. As of 2013, trillions of dollars in various currencies
`
`were traded across this market each day.
`
`
`crediting any inferences that the jury might have drawn in its favor.” United States v.
`Percoco, 13 F.4th 158, 164 n.3 (2d Cir. 2021) (quoting United States v. Rosemond, 841 F.3d 95,
`99–100 (2d Cir. 2016)).
`
`2 There are numerous ways in which FX market participants can trade. However, the
`“basic trade” in the FX market is known as a “spot trade,” where one party simply agrees
`to buy one currency from a counterparty in exchange for a different currency, with
`settlement to follow in two business days. Gov’t Supp. App’x at 13.
`4
`
`
`
`

`

`Turning to the market participants themselves, typical customers in the FX
`
`market
`
`include pension funds, hedge funds,
`
`insurance companies, and
`
`international corporations. These customers transact with FX traders at “dealer”
`
`banks, which are “mostly very large, well-capitalized banks” that “stand[] ready
`
`to buy or sell foreign exchange upon demand.” Gov’t Supp. App’x at 15. If a
`
`customer wants to make an FX trade, he or she can solicit prices from multiple
`
`dealer banks for a given currency pair and then “pick the best price.” Gov’t Supp.
`
`App’x at 36. In this context, potential customers are provided with a “two-way”
`
`price quote (or “spread”)—the “bid,” i.e., the price at which the dealer bank would
`
`be willing to buy a particular currency, and the “offer” or “ask,” i.e., the price at
`
`which the dealer bank would be willing to sell a particular currency. Gov’t Supp.
`
`App’x at 15, 29–30, 113; see also App’x at 34.
`
`In addition to facilitating transactions for customers, dealer banks trade
`
`currencies with one another, through employee-FX traders, in part of the FX
`
`market known as the “interbank” (or “interdealer”) market. Gov’t Supp. App’x at
`
`24; App’x at 36. Whether they are competing for transactions with customers or
`
`with each other in the interdealer market, dealer banks compete on the basis of
`
`price across the FX market.
`
`
`
`5
`
`

`

`Notably, unlike markets such as the New York Stock Exchange, the FX
`
`market is not centralized; instead, the FX market operates internationally and is
`
`almost always open. In the absence of a centralized exchange, trading is
`
`conducted in a variety of ways, including directly between dealer banks and
`
`customers (or between dealer banks), through brokers, or over an “electronic
`
`broking system,” such as the “Reuters matching system” (the “Reuters
`
`platform”).3 Gov’t Supp. App’x at 29–30.
`
`II.
`
`The Alleged Conspiracy to Restrain Trade
`
`Aiyer, along with Christopher Cummins, Jason Katz, and Nicolas Williams
`
`(together, the “co-conspirators”), worked as FX traders at different dealer banks
`
`where they traded, in varying degrees, Central and Eastern European, Middle
`
`Eastern, and African (“CEEMEA”) currencies, such as the Russian ruble (or
`
`“RUB”), South African rand (or “ZAR”), and Turkish lira (or “TRY”).4 The banks
`
`at which the co-conspirators worked all competed with each other to win FX
`
`customers’ trades.
`
`
`3 Using the Reuters platform, FX traders can input proposed bids and offers, execute
`trades, observe market trends, and view “the best bid and the best offer in the market.”
`Gov’t Supp. App’x at 147.
`
` 4
`
` In the FX market, other currencies, such as the U.S. dollar (or “USD”) and the euro (or
`“EUR”) are said to trade “against” these currencies. App’x at 33.
`6
`
`
`
`

`

`At various times spanning from as early as October 2010 to at least July 2013,
`
`the co-conspirators agreed not to compete with one another in terms of pricing
`
`and also to coordinate in order to affect pricing in the FX market. Katz, who pled
`
`guilty pursuant to a cooperation agreement with the government, testified at trial
`
`that “the point of not competing with each other, that was kind of an undercurrent
`
`that would just be there on a constant basis.” Gov’t Supp. App’x at 157.
`
`Communicating through Bloomberg’s instant messaging platform (“Bloomberg
`
`chat”), among other means, the co-conspirators dispensed with competing for
`
`trades—in both the interbank and more general customer contexts—and, instead,
`
`coordinated in relation to the timing and amounts of their bids and offers.
`
`As summarized by Cummins, who also pled guilty pursuant to a
`
`cooperation agreement with the government, the co-conspirators engaged in,
`
`among other things, the following activities in the FX market:
`
`There were times, for example, when a client would call
`up and ask a number of us in the chat room for the same
`thing all at the same time, so we would convey to the
`others what we were being asked, as far as what currency
`and what size, and then indicate what price we were
`showing to the client, and in that way we could kind of
`coordinate what we would show and whether or not we
`wanted to win the trade and kind of denote who might
`be the winner of the trade but still maintain the look of a
`competition in the eyes of the client.
`
`
`
`7
`
`

`

`. . .
`
`There were [also] times in the course of trading where . . .
`myself and the other guys in the chat room might have
`the same interest, meaning I might have an interest to
`buy dollars as well as someone else in the chat room had
`an interest to buy dollars against a certain currency or we
`might have the same interest to sell dollars. So one of us
`would be the one to place the interest in the market so
`that it didn’t give the market the appearance that there
`were a lot of buyers entering the market at one time,
`because that might push the market against us and we
`might buy it at higher prices, meaning it would be
`unfavorable to us.
`
`. . .
`
`[W]e would [also] spoof the market, meaning if someone
`in the chat needed to buy dollars against a certain
`currency, I might place offers in the market in order to
`try to drive the price lower into that person’s hands, . . .
`in order to help them out or vice versa. If my friend
`needed to sell dollars, I might go into the market and
`place buy orders in the hopes of driving the price higher.
`
`Gov’t Supp. App’x at 50–51.
`
`
`
`During the relevant time period, the co-conspirators communicated with
`
`each other almost every day, and, over time, various members of the conspiracy
`
`participated in numerous FX trading episodes in furtherance of their agreement
`
`not to compete. These trading episodes shed light upon several aspects of the
`
`conspiracy.
`
`
`
`8
`
`

`

`First, the co-conspirators’ FX trading activity, as charged in the indictment,
`
`revealed their coordinated efforts when competing for customers’ transactions.
`
`For instance, on November 4, 2010, Aiyer and Katz coordinated in connection with
`
`the prices they offered to a potential customer who was interested in selling
`
`Russian rubles. More specifically, when communicating over Bloomberg chat that
`
`day, Aiyer and Katz realized that the same customer was asking them for a “usd
`
`rub” quote, App’x at 1132,5 and they thereafter “agreed what bid we were going
`
`to show them between the two of us,” Gov’t Supp. App’x at 168–69. Because the
`
`customer wanted to sell currency, Aiyer and Katz knew that the customer was
`
`seeking the highest offered price. For example, on one occasion, Aiyer informed
`
`Katz that he offered the customer a price of “30.99,” so Katz responded that he
`
`would “show 30.98” and indicated that “you can have” the transaction. App’x at
`
`1132. Ultimately, the customer accepted Aiyer’s price. Immediately after this
`
`trading episode, Katz wrote to Aiyer via Bloomberg chat that “conspiracies are
`
`nice,” to which Aiyer replied, “hahaha . . . prolly shudnt puot this on perma chat.”
`
`App’x at 1133.
`
`
`5 Unless otherwise indicated, Bloomberg chat messages quoted herein appear as they do
`in the record.
`
`
`
`9
`
`

`

`
`
`Second, other episodes of trading activity demonstrated the co-conspirators’
`
`agreement to refrain from competing with each other on the Reuters platform. For
`
`example, on September 23, 2011, Aiyer and Cummins both wanted to buy U.S.
`
`dollars against Turkish lira. After noticing that Aiyer was “bidding [TRY] at [a
`
`price of] 15,” Cummins noted on Bloomberg chat that he was bidding “at [a price
`
`of] 10.” Gov’t Supp. App’x at 400. Cummins then wrote that he would “pull”—
`
`or cancel—his bids so that he and Aiyer would not “get in front of each other.”
`
`Gov’t Supp. App’x at 401.
`
`
`
`Third, the co-conspirators’ FX trading activity also demonstrated their
`
`attempts to affect prices in the market. For example, on January 18, 2012, Aiyer
`
`and Cummins both had identical U.S. dollar-South African rand stop-loss orders—
`
`specifically, orders to “sell $25 million if the market goes lower to [a price of]
`
`7.95.”6 Gov’t Supp. App’x at 79–80. After this fact was disclosed on a Bloomberg
`
`chat involving Aiyer, Cummins, and Katz, Katz wrote, “why dont we drive [the
`
`price] down there and keep some,” Gov’t Supp. App’x at 500, which Cummins
`
`
`6 A stop-loss order is an order a customer gives to a dealer bank to sell a specific currency
`if the market price reaches a certain low price. The idea behind such orders is “risk
`mitigation”—if the market price for the relevant currency continues to fall beyond the
`stated price in the stop-loss order, the customer is “locking in a loss.” Gov’t Supp. App’x
`at 127–28.
`
`
`
`10
`
`

`

`testified meant “if you push it through now, it is likely that the market would
`
`bounce back and . . . you could make a profit selling higher if the market bounces
`
`higher.” Gov’t Supp. App’x at 81. Aiyer, Cummins, and Katz then “[w]ork[ed]
`
`together on the stop-loss,” Gov’t Supp. App’x at 122, and were able to lower the
`
`market price, with Aiyer writing on Bloomberg chat, “wow tht went,” Gov’t Supp.
`
`App’x at 465. Around two hours later, Aiyer wrote to Cummins and Katz, “salute
`
`to first coordinated . . . zar effort,” and Katz responded, “yep . . . many more to
`
`come.” Gov’t Supp. App’x at 450.
`
`III. Procedural History
`
`A.
`
`The Indictment
`
`On May 10, 2018, a grand jury returned an indictment charging Aiyer with
`
`one count of conspiring to restrain trade in violation of Section 1 of the Sherman
`
`Act, 15 U.S.C. § 1. The indictment alleged that, “[f]rom at least as early as October
`
`2010 and continuing until at least July 2013,” Aiyer, along with Cummins, Katz,
`
`and Williams,7 “knowingly entered into and participated in a combination and
`
`conspiracy to suppress and eliminate competition by fixing prices of, and rigging
`
`bids and offers for, CEEMEA currencies traded in the United States and
`
`
`7 Williams is identified in the indictment as CW1.
`11
`
`
`
`

`

`elsewhere.” App’x at 38–39. The indictment further alleged, inter alia, that the co-
`
`conspirators “engag[ed] in near-daily conversations through private electronic
`
`chat rooms . . . and other means of communication, to reveal their currency
`
`positions, trading strategies, bids and offers on Reuters, customer identities,
`
`customer limit order price levels, upcoming customer orders, and planned pricing
`
`for customer orders, among other information”; “agree[d] to suppress and
`
`eliminate competition among themselves for the purchase and sale of CEEMEA
`
`currencies by coordinating their bidding, offering and trading”; and “agree[d] on
`
`pricing to quote to customers.” App’x at 39–40.
`
`Aiyer moved to dismiss the indictment in part on March 22, 2019, arguing
`
`that certain of the alleged offense conduct, such as the co-conspirators’
`
`coordinated activities in the interdealer market: (1) was not subject to the per se
`
`rule under Section 1 of the Sherman Act; (2) was, instead, subject to rule-of-reason
`
`analysis;8 and therefore (3) could not support a criminal indictment, given that the
`
`
`8 As discussed in more detail below, under the Sherman Act, most alleged misconduct is
`assessed under the rule of reason, where “the factfinder [must] decide whether under all
`the circumstances of the case the restrictive practice imposes an unreasonable restraint
`on competition,” but certain misconduct, such as price fixing, is considered illegal per se.
`Arizona v. Maricopa Cnty. Med. Soc’y, 457 U.S. 332, 343, 346–47 (1982).
`
`
`
`12
`
`

`

`government only prosecutes conduct that is subject to the per se rule.9 In support
`
`of his motion, Aiyer submitted two expert affidavits, in which the experts opined
`
`that the co-conspirators’ activities in the FX market did not yield anticompetitive
`
`effects and, in fact, had procompetitive benefits.
`
`On June 4, 2019, the district court entered an order denying Aiyer’s motion
`
`to dismiss. As explained in its oral ruling at a conference the prior day, the district
`
`court denied the motion on the grounds that “[t]he indictment properly alleges a
`
`single overarching conspiracy” to fix prices and rig bids in the FX market and that
`
`“[e]ach act committed by a coconspirator in furtherance of the conspiracy need not
`
`be criminal in and of itself.” App’x at 191; see also App’x at 192 (“It is irrelevant
`
`that certain activity set forth in the indictment may not alone constitute a per se
`
`crime. What is relevant is that those acts enable the defendant and his
`
`coconspirators to carry out an unlawful conspiracy.”). In addition, the district
`
`court concluded that Aiyer’s expert evidence was “improper at this stage of the
`
`case and cannot be considered.” App’x at 191.
`
`
`9 See U.S. Dep’t of Just., Just. Manual § 7-1.100 (2020)) (“When it comes to enforcement,
`the Division’s policy, in general, is to proceed by criminal investigation and prosecution
`in cases involving horizontal, ‘per se’ unlawful agreements such as price fixing, bid
`rigging, and market allocation.”).
`
`
`
`13
`
`

`

`B.
`
`The Motions in Limine
`
`Before trial, both Aiyer and the government filed motions in limine raising
`
`numerous evidentiary issues. As is relevant on appeal, the government moved to
`
`exclude evidence purporting both to demonstrate procompetitive justifications for
`
`Aiyer’s trading activity in the FX market and to show that that conduct did not
`
`have anticompetitive effects. In opposition, Aiyer argued, inter alia, that such
`
`evidence was “critical to the Court’s determination of what behavior at issue, if
`
`any, is per se illegal,” App’x at 291, as opposed to merely being subject to the rule
`
`of reason.
`
`At a conference held on September 24, 2019,10 the district court granted the
`
`government’s motion to exclude evidence of competitive effects, reasoning that
`
`“evidence of the lack of anticompetitive effects would be irrelevant [in the context
`
`of this case] because price fixing and bid rigging are per se illegal,” and that, under
`
`the law, Aiyer “should not be able to argue that the pro-competitive effects of
`
`horizontal bid rigging or price fixing make such practices legal.” App’x at 311–15.
`
`However, the court expressly left open the possibility that the parties could seek
`
`
`10 The corresponding order regarding the parties’ motions in limine was entered on
`September 25, 2019.
`
`
`
`
`14
`
`

`

`to introduce evidence of procompetitive effects at trial, for example on the issue of
`
`intent. Thus, the district court made clear that its decision on the government’s
`
`motion to exclude was “without prejudice to the ability of the parties to raise the
`
`issue with respect to specific evidence at trial.”11 App’x at 315.
`
`C.
`
`The Trial
`
`The district court held a jury trial from October 30 to November 20, 2019. At
`
`trial, the jury heard testimony from numerous fact and expert witnesses, including
`
`the government’s background expert, Dr. David DeRosa; cooperating witnesses
`
`Cummins and Katz;12 three asset managers who had been the co-conspirators’
`
`customers in the FX market; the government’s FX-trading expert, Ross Waller; and
`
`Aiyer’s expert, Professor Richard Lyons.
`
`After the government rested, Aiyer moved for a judgment of acquittal
`
`pursuant to Federal Rule of Criminal Procedure 29. Among other things, he again
`
`asserted that “none of the conduct at issue constitutes a per se violation of the
`
`
`11 For his part, Aiyer moved to exclude evidence concerning interdealer trading and his
`trading activity with Katz related to the Russian ruble because, in his view, that evidence
`was irrelevant as it did not show that Aiyer participated in illegal price fixing or bid
`rigging. The district court denied Aiyer’s motion, stating that Aiyer “acknowledges that
`there is no basis at this time to exclude” such evidence. App’x at 330.
`
`12 The government did not call Williams to testify.
`15
`
`
`
`

`

`antitrust laws.” App’x at 964. The district court denied the motion without
`
`prejudice to renewal, concluding that, based upon the evidence presented, a
`
`reasonable jury could find that the government had proven the charge in the
`
`indictment—that Aiyer entered into a conspiracy to fix prices and rig bids in the
`
`FX market.
`
`During its charge to the jury, the district court gave the following
`
`instruction:
`
`The goal of every price fixing conspiracy is the elimination of one
`form of competition—competition over price. Therefore, if you find
`that the charged price fixing conspiracy existed, it does not matter
`whether the prices agreed upon were high, low, reasonable, or
`unreasonable. What matters is that the prices were fixed. . . . Every
`conspiracy to fix prices unlawfully restrains trade regardless of the
`motives of the conspirators or any economic justification they may
`offer.
`
`App’x at 1095–96; see also App’x at 1098–99 (same with respect to bid rigging).
`
`Although Aiyer took issue with various aspects of the lengthy jury instructions,
`
`he never objected to the substance of this particular instruction.
`
`On November 20, 2019, the jury found Aiyer guilty of the charged
`
`conspiracy to restrain trade.
`
`
`
`16
`
`

`

`D.
`
`The Allegations of Jury Misconduct
`
`On the day the jury reached its verdict, Juror No. 6 wrote a letter to the
`
`district court in which he raised a number of allegations of juror misconduct and
`
`expressed regret as to his participation in reaching the guilty verdict.
`
`In relevant part, Juror No. 6 alleged that he overheard Juror No. 3 state, “The
`
`judge said we cannot talk about or look up information about the case, he never
`
`said that my girlfriend can’t,” and “even my boss looked up the case.” Redacted
`
`App’x at 3. Juror No. 6 also asserted that Juror No. 3 said he “had looked up
`
`information on members of the counsel” and commented on one attorney’s
`
`appearance.13 Redacted App’x at 3.
`
`Following Juror No. 6’s revelation of potential jury misconduct, defense
`
`counsel “searched through various public online social media platforms to assess
`
`whether any additional improper communications by or among jurors occurred
`
`during the trial.” Redacted App’x at 4. Counsel reported to the district court that,
`
`
`13 Although Aiyer does not raise Juror No. 6’s other allegations on appeal, we note that
`he further alleged that he agreed to the verdict “based solely on the intimidation of five
`members of the jury”; that Juror No. 3 also stated that, at one point, “he saw the facial
`expression on the defendant and the defendant[’s] brother” and later said “they smile
`now, but they [won’t] be smiling at the end of this”; and that, when certain jurors “were
`puzzled with [the district court’s] instructions regarding the statute of limitation,
`conspiracy, and agreement,” the jurors “piggybacked off” of Juror No. 10’s opinion that
`“conspiracy equals agreement.” Redacted App’x at 3.
`17
`
`
`
`

`

`on his weekly, publicly available podcast, Juror No. 4 made various comments
`
`about his jury service while the trial was ongoing, including that he was “angry”
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`about being a juror, did not care about the case, and that he “started to not pay
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`attention at all in the court room,” but that he did not “identify[] the case by its
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`name and did not discuss any specific facts at issue.” Redacted App’x at 5.
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`Less than a month after Juror No. 6 wrote his letter, the district court issued
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`an order directing Juror No. 3 to appear in court to be interviewed in the presence
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`of counsel for the government and Aiyer. At that interview, when the district court
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`asked whether he had conducted any outside “research about the case or any of
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`the parties or the lawyers” before the jury reached its verdict, Juror No. 3
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`unequivocally said that he had not. Redacted App’x at 18. In addition, Juror No.
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`3 informed the court that: when his girlfriend asked about the case, he told her he
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`was not permitted to discuss it; his father had become aware of the case’s name;
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`he had learned, post-trial, that his office manager had researched the case; and the
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`jurors had nicknames for some of the lawyers.
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`On January 15, 2020, the district court issued an opinion and order
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`concerning all of the allegations of juror misconduct. See United States v. Aiyer, 433
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`F. Supp. 3d 468 (S.D.N.Y. 2020) (“Aiyer I”). The district court held that no
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`additional inquiry into Juror No. 3’s alleged misconduct was warranted because
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`his responses to the court were credible and there was “no reason to suggest that
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`there was any prejudicial information improperly brought to the attention of the
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`jury in this case.” Id. at 476. With respect to Juror No. 4’s comments on his podcast,
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`the district court concluded that those comments “[did] not raise any concerns that
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`necessitate a post-verdict inquiry” because the podcast “did not contain any
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`evidence of prejudice or evidence that the Juror did not deliberate fairly and
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`impartially.” Id. at 474. In sum, when considering all of the allegations of juror
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`misconduct, the district court determined that there was “no basis to vacate the
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`jury’s verdict.” Id. at 477.
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`E.
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`The Post-Trial Proceedings
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`After the jury returned its verdict, Aiyer renewed his motion for a judgment
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`of acquittal pursuant to Rule 29 and moved, in the alternative, for a new trial under
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`Rule 33, again arguing that the district court erroneously failed to determine
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`whether the charged offense conduct was subject to the per se rule or the rule of
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`reason. The district court denied these motions. See United States v. Aiyer, 470 F.
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`Supp. 3d 383, 391 (S.D.N.Y. 2020) (“Aiyer II”). In particular, in relation to Aiyer’s
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`contention that the district court was required to make a threshold determination
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`as to whether the per se rule or the rule of reason applied to the conduct alleged in
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`the indictment, the district court stated:
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`That question may be decided by the court in a civil case on a motion
`for summary judgment as a matter of law if there is no material
`dispute of fact that needs to be submitted to the jury. However, there
`are no motions for summary judgment in a criminal antitrust case,
`and it is a question for a properly instructed jury to determine
`whether the Government has proved beyond a reasonable doubt that
`the defendant knowingly participated in a conspiracy to fix prices and
`rig bids.
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`The question on this Rule 29 motion is whether the evidence adduced
`at trial was sufficient for the jury to find, beyond a reasonable doubt,
`that the conspiracy to fix prices and rig bids alleged in the indictment
`actually existed and that the defendant knowingly joined that
`conspiracy.
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`Id. at 401–02 (footnotes omitted). The district court, after thoroughly analyzing the
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`trial evidence with respect to each of the elements of the offense, concluded that
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`“there was sufficient evidence from which a reasonable jury could conclude
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`beyond a reasonable doubt that the defendant knowingly joined a conspiracy to
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`fix prices and rig bids that affected interstate commerce and that existed within
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`the statute of limitations period,” and denied the Rule 29 motion. Id. at 409.
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`
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`In also denying the Rule 33 motion for a new trial, the district court
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`separately addressed the six arguments raised by Aiyer in support of that motion.
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`In particular, as relevant to this appeal, the district court rejected the argument
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`that “procompetitive justifications for conduct at issue and evidence of the lack of
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`anticompetitive effects of conduct at issue was improperly excluded at trial.” Id.
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`at 413. In doing so, the district court reiterated the basis for its prior rulings on
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`this issue:
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`As the Court previously ruled prior to and during the trial, in per se
`Sherman Act cases in which the question for the jury is whether the
`conduct at issue amounted to a conspiracy to fix prices and rig bids,
`evidence of the lack of anticompetitive effects or the presence of
`procompetitive justifications is inadmissible for the purpose of
`proving that the price fixing or bid rigging conspiracy was reasonable
`or beneficial. The Court’s prior rulings were properly decided.
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`Id. at 413–14 (internal citation omitted). The district court further emphasized that,
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`notwithstanding that ruling, it did allow the defendant the opportunity to
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`introduce such evidence “for the limited and permissible purpose of showing that
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`the defendant or one of his alleged coconspirators lacked the specific intent to
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`engage in the conduct that comprised the object of the conspiracy, namely fixing
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`prices and rigging bids.” Id. at 414. Thus, the district court concluded that Aiyer
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`had failed to explain how that ruling, which was