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Edward J. Kosinski v. United States

Paid petition · United States Court of Appeals for the Second Circuit, No. 18-3065 · judgment September 22, 2020

Certiorari denied · June 14, 2021
Pre-decision estimate: 12% cert probability (95% interval 8%–17%)

Before the decision, about 2.8× the 4.1% base rate. The model weighted this up for counsel with five or more prior petitions here, a Second Circuit decision below, and a circuit split argued in the petition.

Questions presented

  1. Whether a simple agreement to keep information confidential by itself can establish the fiduciary or similar relationship of “trust and confidence” required to establish criminal insidertrading fraud.

  2. Whether the Second Circuit’s open-ended, caseby-case approach to the duty element of insidertrading fraud is unconstitutionally vague because it fails to give fair warning of when a relationship between two parties involves the “trust and confidence” necessary to proscribe trading.

  3. Whether, if a jury was erroneously instructed on an element of a criminal offense, a reviewing court may affirm the conviction based upon a theory of guilt that the jury never considered or found proven beyond a reasonable doubt.

Counsel of record

For petitioner
Alexandra Anastasia Ekaterina Shapiro
Shapiro Arato Bach LLP

For respondent
Brian H. Fletcher
Acting Solicitor General

Case

Conference history
Distributed for 2 conferences

Amicus briefs
1 cert-stage

Proceedings

  1. Jun 14 2021
    Petition DENIED.
  2. May 25 2021
    DISTRIBUTED for Conference of 6/10/2021.
  3. May 20 2021
    Reply of petitioner Edward J. Kosinski filed.
  4. May 05 2021
    Brief of respondent United States of America, in opposition filed.
  5. Apr 05 2021
    Brief amicus curiae of Mark Cuban filed.
  6. Apr 01 2021
    Motion to extend the time to file a response is granted and the time is extended to and including May 5, 2021.
  7. Mar 31 2021
    Motion to extend the time to file a response from April 5, 2021 to May 5, 2021, submitted to The Clerk.
  8. Mar 04 2021
    Response Requested. (Due April 5, 2021)
  9. Mar 03 2021
    DISTRIBUTED for Conference of 3/19/2021.
  10. Feb 25 2021
    Waiver of right of respondent United States to respond filed.
  11. Feb 19 2021
    Petition for a writ of certiorari filed. (Response due March 25, 2021)