Closing arguments in the trial US v Thakkar took place Monday in a long morning for the jury, lasting about three hours. After the charge of conspiracy to spoof was dismissed by Judge Gettleman last week, Jitesh Thakkar still faces two charges of aiding and abetting the commission of a crime, for two separate occasions, February 25 and March 8, 2013.
Prosecution reiterated that its case depends crucially on several emails that Navinder Sarao exchanged with Thakkar. The first contact between them was a solicitation that Sarao cut and pasted in emails sent to three different vendors, including Thakkar. Sarao, who made around $13 million by spoofing electronic futures markets, is awaiting sentencing for two counts of spoofing to which he has admitted.
As the defense argued, that first email described what Sarao wanted built. None of the recipients indicated then or later that it seemed like the proposed software was intended for fraudulent use. Thakkar won the bid and his firm started to work on the software based on Sarao’s requirements document. There were a few more emails, the software was finished, and later Thakkar was asked to debug the program. The prosecution insisted – and this is the crux of their case against Thakkar – that Thakkar must have known that he was building a “spoofing machine” – new terminology introduced during the prosecution’s closing argument.
But Sarao told the court in his testimony for the prosecution that he did not believe Thakkar thought he was engaged in something sinister or nefarious. Thakkar was just a “computer guy from Naperville,” as defense counsel Renato Mariotti put it in his summation. Mariotti argued that the prosecution provided no direct evidence that Thakkar knew that what he was programming would be used for spoofing or any other crime. Mariotti told the jury the prosecution had identified a some “dots” in Sarao’s communications but that there is “no evidence that Thakkar connected the dots.”
During his animated closing argument, Mariotti impugned the veracity of the government in putting on its case, causing the prosecution to object, with some show of emotion, twice, claiming Mariotti was making personal remarks. This was a serious step on the prosecution’s part because, before the jury came into the courtroom Monday morning, the judge had advised counsel that he seriously frowned on objections during closing arguments. Gettleman overruled both of the prosecution’s objections, noting that Mariotti’s statements were in the nature of “arguments” and thus permissible.
After closing arguments, Gettleman directed that the jury must first determine that a crime was committed, in this case, by Navinder Sarao. Sarao’s having pleaded guilty to the crime of spoofing in his separate case and testifying that he had spoofed extensively would seem to be sufficient for the jury. Then the jury must find that Thakkar knew that what he worked on would be used to spoof the markets.
The jury began deliberations around 1 pm and there was no verdict by 4 pm when they were expected to leave for the day. They will resume deliberations today.
What seemed like a slam-dunk acquittal was rendered a bit more uncertain when at 2:50 p.m. the jury asked the judge a question on the law: Is knowledge of the law by the defendant needed for the act to constitute the crime of aiding and abetting? The jury also provided an example that was perhaps not quite on point. The judge said he was inclined to request the jurors to reread the relevant portion of the written instructions that he provided but also asked the attorneys for advice. The prosecution said Gettleman should tell the jurors, “Ignorance of the law is no defense.” Gettleman said he would have the jurors review his written instructions instead.
Last Thursday, after dismissing the conspiracy charge against Thakkar, Gettleman noted that the government’s case was “thin.” On Monday, with objections that were not sustained and rebuttal whining from the prosecution, it looked like the government’s skin was as thin as its case.