See United States v. Kapelioujnyj, 547 F.3d 149, 155 (2d Cir. 2008) (citing United States v. Geibel, 369 F.3d 682, 689 (2d Cir.2004)). Here, the substantive crime of securities fraud under 15 U.S.C. § 78j(b) requires proof of a “deceptive act” and the substantive crimes of securities fraud under 18 U.S.C. § 1348 and wire fraud under 18 U.S.C. § 1343 both require proof of a “scheme to defraud.” As discussed above, the facts as alleged in the Indictment with regard to these substantive offenses (under Counts Two, Three, and Four) were insufficient to establish the essential elements in each offense and, as a result, any agreement to commit such offenses.

Neither the statute itself nor relevant case law provided Mr. Coscia with fair warning that his behavior might subject him to criminal liability. There is not a single reported judicial decision applying 18 U.S.C. § 1348 in connection with commodity futures trading, and Mr. Coscia violated none of the established rules of conduct that typically provide the basis for a fraud charge.10 He made no misrepresentation or material omission, breached no duty to disclose, and engaged in no concealment. The “anti-spoofing” provision failed to supply the relevant standard of conduct for the simple reason that it failed to specify any standard at all.

Plaintiff also believed the Bank’s conduct was in violation of the mail fraud and wire fraud statutes, 18 USC §§ 1341 and 1343. Plaintiff also believed the Bank’s conduct was in violation of the bank fraud statute, 18 USC § 1344, and of the securities fraud statute found at 18 USC § 1348. Plaintiff further believed that the Bank’s conduct violated rules and regulations promulgated by the Securities and Exchange Commission including without limitation, those found in 17 CFR Parts 230 and 240.

The Government has introduced error at virtually every stage of the proceedings, and that error warrants outright acquittal or, at the least, a new trial. The Government charged Michael Coscia with two sets of offenses: commodities fraud under 18 U.S.C. § 1348(1) and “spoofing” under 7 U.S.C. §§ 6c(a)(5)(C) and 13(a)(2). Neither of those offenses had ever been construed by any court before this case.

The second sentence does not make sense in a case only involving a scheme to defraud, where no false statement needs to be proved. The government has previously informed the Court that it does not intend to proceed under subsection 2 of 18 U.S.C. § 1348, which requires a false statement, but rather on subsection one of Section 1348, which only requires a scheme to defraud and not a false statement. Doc.

18 U.S.C. § 1514A(a)(1); Sharkey II, 805 F. Supp. 2d at 55. Mail fraud (18 U.S.C. § 1341), wire fraud (18 U.S.C. § 1343), bank fraud (18 U.S.C. § 1344) and securities fraud (18 U.S.C. § 1348) all require a “scheme or artifice to defraud.” Securities fraud further requires fraud in connection with the purchase or sale of publicly traded securities.

Nos. 2007-SOX-39, 42, (ARB May 25, 2011) .............................. 2 United States v. Retirement Servs. Group, et al., 302 F.3d 425 (5th Cir. 2002) .............................................................................................. 8 Welch v. Chao, 536 F.3d 269 (4th Cir. 2008) .............................................................................................. 2 Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981) .............................................................................................. 4 STATUTES 18 U.S.C. § 1341 ............................................................................................................................. 2 18 U.S.C. § 1343 ............................................................................................................................. 2 18 U.S.C. § 1344 ............................................................................................................................. 2 18 U.S.C. § 1348 ............................................................................................................................. 2 Case 3:13-cv-01306-B Document 5 Filed 06/21/13 Page 3 of 16 PageID 16 -iii- 18 U.S.C. § 1514A ................................................................................................................. passim 29 C.F.R. § 1980.

121 Cal. App. 4th 623 (2004) 23 Sullivan v. Delta Airlines, Inc. 58 Cal. App. 4th 938 (1997) 23 FEDERAL STATUTES & RULES 17 C.F.R. § 240.13a-15 3, 16 17 C.F.R. § 240.13b2-1 4, 17 15 U.S.C. § 78m (Securities Exchange Act of 1934) 3, 4, 16-20 18 U.S.C. § 1341 17 18 U.S.C. § 1343 17 18 U.S.C. § 1344 17 18 U.S.C. § 1348 17 18 U.S.C. § 1514A 7 18 U.S.C. § 1514A(a)(1) 16, 19 Federal Rules of Civil Procedure Rule 12(b)(6) 5 Rule 9(b) 7 Sarbanes-Oxley Act ("SOX") 1-3, 7-11, 16, 19-24 Securities Act of 1933 § 11 6 STA I E STATUTES California Labor Code § 1102.5 5, 21, 24 § 1102.

For the reasons set forth herein, the Government’s Motion should be denied. FACTS Charges On July 5, 2012, an indictment was returned charging Roland Kaufmann and Jean-Pierre Neuhaus with six counts: conspiracy to commit securities fraud and to violate the travel act (18 U.S.C. § 371), securities fraud (18 U.S.C. § 1348), wire fraud (18 U.S.C. § 1343), travel act violation (18 U.S.C. § 1952(a)(3)(A)), money laundering conspiracy (18 U.S.C. § 1956(h)), and money laundering (18 U.S.C. § 1956(a)(2)(A)). These allegations stem from two stock transactions whereby Axius, Inc. (“Axius”) – a company where Mr. Kaufmann serves as its Chief Executive Officer – allegedly sold stock to investors through a network of stockbrokers Case 1:12-cr-00439-JG Document 47 Filed 08/02/12 Page 1 of 9 PageID #: 100 2 with the assistance of a New York investment banker, who in actuality was an undercover law enforcement agent with the Federal Bureau of Investigation (“UC”).

Moreover, although we have been unable to locate any Second Circuit cases holding that securities fraud is a continuing offense for venue purposes, the Second Circuit has held that other fraud crimes that extend over a period of time are continuing offenses. IS See, e.g., United States v. Magassouba, 619 F.3d 202, 207 (2d Cir. 2010 (banlc fraud)); United States v. Kim, 246 F.3d 15 One court, in the Eastern District of New York, held that securities fraud under 18 U.s.C. § 1348 is not a continuing offense for statute of limitations purposes. See United States v. Motz, 652 F. Supp. 2d 284,292-93 (E.D.N.Y. 2009).