Martin Shkreli v. United States

In mail, wire and bank fraud prosecutions, which require a finding of a loss or an intended loss by the victim, a “no ultimate harm” instruction has been uniformly accepted by the various federal courts of appeals. On the other hand, the crime of securities fraud lacks the element of such loss or intended loss. The first question presented is whether a “no ultimate harm” instruction in a securities fraud prosecution causes prejudicial jury confusion by effectively holding the accused to a higher standard of conduct than the statute specifically requires, thereby unduly undermining a defense of good faith?

Pursuant to 18 U.S.C. § 981(a)(2)(B), should the proceeds from defrauded investors be offset by those gains they later realize, as amounting to direct costs which a defendant “incurred in providing the goods or services,” before any forfeitable profits by such defendant can be calculated?