September 25, 2020

DealBook: Probation for Ex-SAC Analyst Who Cooperated in Insider Trading Inquiries

A former analyst at SAC Capital Advisors who has become a crucial informant in the government’s insider trading investigations avoided prison on Wednesday after a judge sentenced him to probation.

The former analyst, Wesley Wang, cooperated with the authorities and provided them with the names of about 20 people he said had engaged in criminal activity. He secretly recorded telephone conversations and wore a wire in meetings with former friends and colleagues. His role in the government’s inquiry, prosecutors said, has led to 10 convictions.

Judge Jed S. Rakoff, who presided over the sentencing in Federal District Court in Manhattan, said he spared Mr. Wang because of his exceptional assistance.

“I take it that Mr. Wang’s cooperation has been extraordinary,” Judge Rakoff said. “Not just substantial, but going beyond substantial.”

Mr. Wang, 39, is the latest government informant in the insider trading investigations to receive a noncustodial sentence. His lenient penalty highlights the benefits of cooperating.

Judge Rakoff noted the crucial role of cooperators — and the lenient punishments they receive — in the American legal system.

“Prosecutors,” he said, “could not achieve the major successes they’ve achieved in complex crimes like insider trading without asking judges to give a very substantial benefit to cooperators.”

The Justice Department has aggressively relied on cooperation agreements in its multiyear campaign to eliminate insider trading. And a number of those defendants have led the authorities to illegal conduct at Mr. Wang’s former employer, SAC Capital Advisors, the $14 billion hedge fund run by Steven A. Cohen, one of the country’s wealthiest men. Mr. Cohen has not been charged with any wrongdoing and has told his investors that he believes he at all times acted appropriately.

At least two former SAC employees continue to assist authorities in their investigation of SAC. Jon Horvath, a onetime SAC tech-stock analyst, pleaded guilty last fall and said in court that he traded on inside information along with his boss, Michael Steinberg, an SAC portfolio manager and top lieutenant to Mr. Cohen. Prosecutors have named Mr. Steinberg as a co-conspirator but have not filed criminal charges against him. His lawyer declined to comment.

Another former SAC employee-turned-informant, Noah Freeman, also admitted to insider trading while at the fund. Testifying in a case last year, Mr. Freeman said he gave the government the names of 12 individuals he believed engaged in criminal conduct.

Federal Bureau of Investigation agents have tried to gain the cooperation of Mathew Martoma, a former SAC portfolio manager indicted last month in a $276 million insider trading prosecution. The case, for the first time, ties Mr. Cohen to the questionable trades. Mr. Martoma has rebuffed the government’s overtures and pleaded not guilty.

Mr. Wang, in contrast, began cooperating almost immediately after being approached by F.B.I. agents in January 2009.

Over the course of a decade, Mr. Wang had an undistinguished career, bouncing around at low-level jobs at investment banks and hedge funds. Based in Berkeley, Calif., Mr. Wang was part of a clique of technology industry analysts who trafficked in secret information about publicly traded technology companies.

His cooperation “has yielded tremendous results,” said prosecutors in a letter to the judge before sentencing.

“Indeed, even today, the fruits of Wang’s cooperation are being realized.”

Among the people Mr. Wang named was his SAC boss, Dipak Patel. He said he passed confidential data about technology companies to Mr. Patel, according to a court filing. Mr. Patel, who has not been charged, left SAC in 2011 and could not be reached.

Mr. Wang’s lawyer, Michael D. Celio, told Judge Rakoff that his client’s legal predicament had taken its toll. “He has walked away from friends,” Mr. Celio said. “He finds himself isolated and broke.”

Standing before the judge, Mr. Wang said, “I’m disappointed in myself and I am trying, in all efforts, to make up for the mistakes I made in the past and leave my old life behind.”

Prosecutors effusively praised Mr. Wang’s assistance, highlighting his testimony during last summer’s trial of the hedge fund manager Douglas Whitman of Whitman Capital, who was convicted.

“On one instance, Wang flew from California to New York the weekend before his testimony to meet with prosecutors despite having a very sick dog who had just undergone surgery and was recovering,” the prosecutors wrote in the letter to Judge Rakoff. “At the time Wang was living alone and was very close with his dog, who was Wang’s primary companion.”

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DealBook: Swiss Bank Pleads Guilty to Tax Law Violations

Preet S. Bharara, the United States attorney in Manhattan.Daniel Barry for The New York TimesPreet S. Bharara, the United States attorney in Manhattan.

Switzerland’s oldest private bank on Thursday admitted to helping Americans evade United States taxes, the first time a foreign financial institution has pleaded guilty to tax law violations.

Representatives for Wegelin Company, a Swiss bank founded in 1741, appeared in Federal District Court in Manhattan and acknowledged that for nearly a decade the firm helped dozens of wealthy American customers dodge taxes by hiding more than $1.2 billion in secret accounts.

As part of guilty plea, Wegelin agreed to pay $74 million in fines, restitution and forfeiture proceeds to the United States government. Several Wegelin executives appeared at the hearing before Judge Jed S. Rakoff, including one of its managing partners, Konrad Hummler, a well-known figure in the Swiss private banking industry.

“From about 2002 through 2010, Wegelin agreed with certain U.S. taxpayers to evade the tax obligations of these U.S. taxpayer clients, who filed false tax returns with the I.R.S.” Otto Bruderer, another Wegelin partner, said in court. “Wegelin was aware the conduct was wrong.”

Mr. Bruderer said that Wegelin assisted the American clients because it believed that it would not be prosecuted in the United States because it had no offices here, and had acted in accordance with Swiss law. He also noted that the conduct was common practice in the Swiss banking industry.

Although Wegelin ceases to exist as a business, the firm’s partners sold its non-American client accounts last January to the Raiffeisen Group, an Austrian bank, just before its indictment. That move was sharply criticized by Judge Rakoff in a court hearing last year as a “fraud upon fraud.”

Nevertheless, Wegelin’s admission of guilt represents a victory for the Obama administration in its sweeping crackdown on Americans using offshore banks to evade taxes. It also demonstrates the long arm of the Justice Department, extracting a guilty plea from a foreign company with no business operations in the United States.

The case strikes another blow at Swiss banking secrecy, a shadowy world that United States authorities have penetrated recently after decades of looking the other way. For years, secrecy has been a hallmark — and an attractive selling point — of Switzerland’s private banks, which, alongside chocolate and watchmaking, are one of the country’s best-known businesses.

In 2009, UBS avoided criminal charges by striking a so-called deferred prosecution agreement in which it paid a $780 million fine and turned over the names of about 4,500 clandestine accounts believed to hold the assets of American taxpayers. Around the same time, the Internal Revenue Service initiated an amnesty program that allowed Americans to avoid criminal liability by divulging offshore accounts. The program was a success, yielding more than $2.7 billion in taxes and penalties from about 30,000 taxpayers.

As part of the push to eliminate tax cheats, a federal grand jury in Manhattan indicted Wegelin last February. The firm’s elaborate scheme involved its Swiss bankers’ opening secret accounts for American clients using code names and setting up sham entities to avoid detection in far-flung locales, including Panama and Liechtenstein.

“There is no excuse for wealthy Americans flouting their responsibilities as citizens of this great country to pay their taxes, and there is no excuse for foreign financial institutions helping them to do so,” said Preet Bharara, the United States attorney in Manhattan. “Today’s guilty plea is a watershed moment in our efforts to hold to account both the individuals and the banks — wherever they may be in the world — who are engaging in unlawful conduct that deprives the U.S. Treasury of billions of dollars of tax revenue.”

Mr. Bharara’s office had also brought an indictment against three Wegelin executives last year, but they are expected to avoid facing the charges because a treaty between Switzerland and the United States does not provide for extradition of Swiss individuals for tax crimes.

The Justice Department said that Wegelin had lured clients away from larger Swiss financial institutions like UBS after those banks came under investigation. As of December 2010, Wegelin had about $25 billion in assets under management.

From its headquarters in St. Gallen, a quiet mountain town in northeast Switzerland, Wegelin pitched itself as a safe haven for American taxpayers because it had no operations in the United States. A Web site marketing Wegelin’s services said, “Neither the Swiss government nor any other government can obtain information about your bank account.”

Included in the $74 million in penalties is about $16 million in forfeited proceeds that Wegelin held in a UBS bank account in Stamford, Conn. The account, prosecutors said, was used to launder money from Switzerland to American clients and conceal that money from United States tax authorities.

The balance of the penalties is more than $20 million in restitution for taxes evaded, about $16 million in fees on American taxpayer client accounts and a fine of about $22 million. Wegelin was represented by Richard M. Strassberg of the law firm Goodwin Procter.

Just two months after the case was brought against UBS, Wegelin raised the hackles of the Justice Department. In April 2009, Mr. Hummler, the Wegelin partner, wrote an eight-page note titled “Farewell America.” The memo by Mr. Hummler, who served as chairman of the Swiss Private Bankers Association, championed Swiss banking laws and said that Wegelin was in the process of recommending that its clients exit all direct investments in United States securities. Mainly, though, the note was a rambling jeremiad against the United States.

“The U.S.A. has fought by far the largest number of wars, sometimes with, but mostly without a U.N. mandate,” Mr. Hummler wrote. “It has broken the international laws of war, maintained secret prisons, and fought an absurd war against drugs.”

“A country,” he continued, “whose underclass enjoys neither the benefits of an adequate education, nor a halfway functional health care system; a country whose economic system is increasingly inclined to overconsumption, and in which saving and investing have increasingly become alien concepts, a situation that has undoubtedly been one of the driving forces behind the current recession, with all its catastrophic consequences for the whole world.”

After representatives of Wegelin failed to appear in federal court at the time of its indictment last February, federal prosecutors labeled the Swiss bank a “fugitive.”

The typically colorful Judge Rakoff was subdued during Thursday’s hearing. But in a court session last January, he blasted Wegelin for selling its non-United States business just before an indictment, suggesting that it was a blatant effort to shield its assets from the United States government.

If an American partnership had taken those actions, Judge Rakoff said, “the government would be here saying with perhaps considerable force that this was a fraud upon fraud compounding the prior alleged crime with patent evasions and consciousness of guilt.”

Daniel Levy, a federal prosecutor, did not disagree. “That would be one reasonable view of the facts,” he said.

This post has been revised to reflect the following correction:

Correction: January 3, 2013

An earlier version of this post gave an incorrect name for the managing partner at Wegelin Company who served as chairman of the Swiss Private Bankers Association. It is Konrad Hummler, not Karl.

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DealBook: Congress to Examine S.E.C. Settlement Policy

Representative Spencer Bachus, the chairman of the House Financial Services Committee.Andrew Harrer/Bloomberg NewsRepresentative Spencer Bachus, the chairman of the House Financial Services Committee.

8:27 p.m. | Updated

WASHINGTON — The Securities and Exchange Commission’s practice of settling cases while allowing corporations or other defendants to neither admit nor deny the charges will be the subject of a hearing early next year by the House Financial Services Committee.

The committee chairman, Representative Spencer Bachus, Republican of Alabama, said Friday that “the S.E.C.’s practice of using ‘no-contest settlements’ has raised concerns about accountability and transparency.” He said the hearings were supported by both Republican and Democratic lawmakers.

Settlements of enforcement actions using the “neither admit nor deny” construct have been the focus of increased scrutiny, including in the recent Citigroup case, where United States District Court Judge Jed S. Rakoff rejected a $285 million settlement between the financial company and the commission.

Judge Rakoff said that he could not determine whether the settlement was fair because there were no proven or accepted facts in the case on which to evaluate the settlement.

The S.E.C. accused Citigroup of fraud for selling a portfolio of mortgage-related securities to investors without disclosing that it had bet against many of the items in the portfolio.

But Citigroup would not admit that it did anything wrong, leading Judge Rakoff to say that there was no basis on which to make a judgment. He therefore rejected the agreement and ordered the two sides to prepare for a trial. The S.E.C. said this week it would appeal the ruling.

Representative Barney Frank of Massachusetts, the leading Democrat on the committee, praised Mr. Bachus for announcing a hearing. “The policy of signing agreements without forcing firms to admit or deny wrongdoing raises serious issues,” he said.

The S.E.C. has defended the agreements, saying that it allows the commission to bring enforcement actions against companies and extract penalties without having to bear the costs and the uncertain outcome of a trial.

Robert Khuzami, the S.E.C.’s director of enforcement, says that the commission usually achieves the same settlement by this method that it might expect at trial and he notes that other enforcement agencies also commonly employ the practice.

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S.E.C to Appeal Rejection of Citigroup Settlement

In a filing in Federal District Court in New York, the commission said it would ask the United States Court of Appeals for the Second Circuit to overturn a decision by Judge Jed S. Rakoff. In the decision, the judge rejected an agreement for Citigroup to pay $285 million and accept an injunction against future violations of the antifraud clauses of federal securities laws.

Judge Rakoff ruled in November that the proposed settlement was “neither fair, nor reasonable, nor adequate, nor in the public interest,” in part because Citigroup was allowed to neither admit nor deny the charges. Judge Rakoff said that without an admission or evidence that Citigroup had violated the law, he had no way to determine whether the settlement was adequate.

The appeal carries significant risk for the S.E.C. because if the ruling were upheld by the appeals court, it would set a precedent that would be likely to influence judges hearing similar cases.

The Second Circuit court, located in New York, hears many cases involving financial issues and securities laws. While its decisions are not binding on other circuits, they often influence judges around the country, securities law experts say.

Citigroup was charged by the S.E.C. with fraud for selling a $1 billion fund in 2006 and 2007 that invested in mortgage-related securities without telling investors that the bank was betting against many of the securities in the portfolio.

Judge Rakoff ordered the S.E.C. and Citigroup to prepare for a trial to begin in July.

At the time of Judge Rakoff’s decision, Robert Khuzami, the S.E.C.’s director of enforcement, said that the Citigroup settlement “reasonably reflects the scope of relief that would be obtained after a successful trial,” and that the judge’s decision “ignores decades of established practice throughout federal agencies and decisions of the federal courts.”

The S.E.C. has long contended that it must settle most cases rather than take them to trial because its limited resources cannot afford much litigation. In addition, the commission says it frequently achieves in its settlements much the same result that it could hope to obtain in court, without enduring the expense of a trial.

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DealBook: The Roller Coaster Ride Continues for Madoff Investors

Brad Barr for The New York TimesFred Wilpon, front, and Saul Katz at the New York Mets training camp in February.

Investors in the Ponzi scheme perpetrated by Bernard L. Madoff have endured more twists and turns than the Cyclone on Coney Island. Judge Jed S. Rakoff of Federal District Court in Manhattan delivered an abrupt change in course when he limited the claims that Irving S. Picard, the trustee appointed to oversee the investor claims, could pursue against Saul Katz and Fred Wilpon, the owners of the New York Mets, from their accounts with Mr. Madoff’s firm.

Judge Rakoff ruled that Mr. Picard could only seek to reclaim profits withdrawn for the two years before Mr. Madoff’s firm was forced into bankruptcy rather than the full six years otherwise provided by federal bankruptcy law. In addition, he concluded that the usual rule for voiding payments made within 90 days of a bankruptcy filing, called “preferences,” also cannot be applied, further lowering the amount Mr. Picard can recover.

The opinion deals a significant blow to the trustee’s efforts to recover money from investors who took out more than they invested in Mr. Madoff’s investment advisory firm, reducing the estimated potential recovery by a total of $6.2 billion for fictitious profits and preferences. For Mr. Katz and Mr. Wilpon, the decision means the total claims against them would be reduced to $386 million, from $1 billion, with the stronger claim to recover transfers over the two years before the scheme’s collapse limited to about $86 million rather than the $300 million that Mr. Picard initially sought.

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The claims against investors like Mr. Katz and Mr. Wilpon for profits from their Madoff accounts are based on federal bankruptcy law, which allows the recovery of payments to creditors made up to two years before a bankruptcy filing. That law also allows a trustee use a longer period under fraudulent conveyance law if the state in which the company operated permits it. Because Mr. Madoff operated in New York, it permits a trustee to reach back six years to recover payments.

Judge Rakoff’s decision rejecting the six-year period involves a so-called “safe harbor” provision in federal bankruptcy law, 11 U.S.C. § 546(e), that limits fraudulent conveyance claims to just two years when it involves a “settlement payment” that is “made by or to (or for the benefit of) a … stockbroker, in connection with a securities contract.” The judge concluded that the plain language of the provision clearly precludes Mr. Picard’s from going back six years because Mr. Madoff’s firm was a registered stockbroker and payments to customers fell within the “extremely broad” definition of settlement payment.

The 18-page opinion provides only a terse — even cursory — analysis of the safe harbor provision. Judge Rakoff largely ignored other opinions interpreting it because “the language of the statute is plain and controlling on its face,” so there was no need for further discussion.

Judge Rakoff does reference a recent opinion of the United States Court of Appeals for the Second Circuit in Enron Creditors Recovery Corp. v. Alfa, SAB de CV, which found that the safe harbor for stock transactions was intended to prevent severe displacements in the securities markets if otherwise legitimate trades could be unwound years after settlement.

The Enron decision involved the company’s redemption in November 2001 of its commercial paper, which happened just weeks before it filed for bankruptcy. The United States Court of Appeals for the Second Circuit held that the transaction involved a payment of money in exchange for securities and therefore constituted a “settlement payment” that came within the safe-harbor provision, preventing claims against the banks the received money from the company.

The transactions made by Mr. Madoff’s firm were different from commercial paper transactions at Enron because he did not actually purchase (or sell) any securities on behalf of customers. And the “profits” paid out to investors was money drawn from other customers and not the result of any legitimate securities transactions on their behalf. So it may be that the Second Circuit’s analysis of the safe harbor in Enron is not directly applicable.

In addition, treating the transactions involving Mr. Madoff’s firm as similar to those of a legitimate brokerage firm may conflict with the Second Circuit’s decision in August that upheld Mr. Picard’s determination of which investors could make a claim for recovery. The court found that it was permissible to allow only the “net losers” who invested more than they withdrew to pursue a claim for recovery, while the “net winners” who took out more than they invested did not have a similar claim.

The Second Circuit rejected the argument that the last statements sent out by Mr. Madoff should be the basis for calculating claims. The Second Circuit held that Mr. Picard “properly declined to calculate ‘net equity’ by reference to impossible transactions. Indeed, if the Trustee had done otherwise, the whim of the defrauder would have controlled the process that is supposed to unwind the fraud.” The absence of any legitimate transactions by Mr. Madoff could mean that the safe harbor is inapplicable to Ponzi schemes that use a brokerage firm as the vehicle for defrauding customers.

Judge Rakoff’s decision also conflicts with the interpretation of the safe harbor provision by bankruptcy judge Burton R. Lifland in Mr. Picard’s clawback suit against J. Erza Merkin, one of feeders for Mr. Madoff.

Judge Lifland found the protection afforded securities transactions inapplicable because insulating fraudulent payments would undermine investor confidence rather than protect it. So there are conflicting decisions in the same bankruptcy case, an unusual situation.

Although the safe-harbor protection may not be as clear as Judge Rakoff asserts, a key question is whether he will permit Mr. Picard to pursue an interlocutory appeal of the decision before a trial on the two remaining claims against Mr. Katz and Mr. Wilpon that he refused to dismiss. Those claims involve Mr. Picard’s assertion that they were willfully blind to Mr. Madoff’s fraud, and that transfers within the two years before the Ponzi scheme’s collapsed are subject to recovery as fraudulent conveyances.

A federal statute, 28 U.S.C. § 1292(b), permits an appeal before a final decision in a civil case when the judge is “of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Trial courts have been admonished to allow such appeals only in “rare cases” and to “exercise great care” in certifying a case for review, so it would not be a surprise if Judge Rakoff declined a request by Mr. Picard to allow an immediate appeal of the safe-harbor ruling.

The fallout from the decision is already being felt beyond the claims against Mr. Katz and Mr. Wilpon. Bloomberg News reported that defendants in clawback suits have filed motions to limit the trustee’s claims to only two years of withdrawals. Others who would appear to benefit from the two-year limitation on claims include David M. Becker, the former general counsel at the Securities and Exchange Commission, who was sued for an account held by his late mother that was closed in 2004, and members of Mr. Madoff’s family for any withdrawals prior to Dec. 11, 2006, two years before Mr. Madoff was arrested.

In addition, Mr. Picard postponed a distribution to investors with approved claims that had been scheduled to take place on Sept. 30 because of the uncertainty created by the decision. When he will be able to disburse funds to investors whose claims have been approved remains to be seen.

Judge Rakoff’s decision does not affect the amounts paid to the trustee to settle claims brought by the trustee. Mr. Picard has recovered more than $10 billion so far, and that money is safe because as a general rule parties to a settlement cannot undo the agreement because of later developments that call into question the validity or scope of a claim against them.

Investors in Mr. Madoff’s Ponzi scheme have been whipped back and forth as the courts try to apply the law to a case that is unprecedented in many ways. Judge Rakoff’s decision is unlikely to be the last word, but he has sent the case in a new, and rather unexpected, direction.

Peter J. Henning, who writes White Collar Watch for DealBook, is a professor at Wayne State University Law School.

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DealBook: 5th Guilty Plea in Insider Trading Inquiry

Donald Longueuil, a former portfolio manager, pleaded guilty to insider trading.Louis Lanzano/Bloomberg News Donald Longueuil, a former portfolio manager at SAC Capital Advisors, pleaded guilty to insider trading.

8:07 p.m. | Updated

As the jury continued to deliberate in the trial of Raj Rajaratnam, the government notched another guilty plea in its investigation of insider trading at hedge funds.

Donald Longueuil, a former portfolio manager at SAC Capital Advisors, pleaded guilty to conspiracy and securities fraud before Judge Jed S. Rakoff in Federal District Court in Manhattan.

He is the fifth individual to plead guilty in the government’s investigation of so-called expert network firms. These firms serve as matchmakers, connecting traders to the employees of publicly traded companies who are paid to provide insights into their businesses.

Mr. Longueuil, 35, said he purchased stock in the Marvell Technology Group after receiving secret information about the company’s earnings before they were publicly announced. He also admitted to destroying his hard drive, which contained incriminating evidence.

Under an agreement with prosecutors, Mr. Longueuil faces a prison sentence of 46 months to 57 months. Judge Rakoff could depart from those guidelines. Mr. Longueuil also agreed to forfeit $1.25 million at his sentencing, which is scheduled for July 29.

“I am sorry for my actions, and the pain that I have caused my family and loved ones,” said Mr. Longueuil, choking back tears. “I have learned a lot from my experience, and I look forward to applying these lessons as I move forward with my life.”

Federal prosecutors arrested Mr. Longueuil, 35, in February along with Noah Freeman, another SAC Capital portfolio manager; Samir Barai, the head of Barai Capital Management; and Jason Pflaum, an employee of Mr. Barai’s. Mr. Freeman and Mr. Pflaum are cooperating with the government; Mr. Barai has not yet entered a plea.

Neither SAC nor its billionaire founder, Steven A. Cohen, has been accused of any wrongdoing. At the time of their arrest, SAC said it was “outraged” by the conduct of Mr. Longueuil and Mr. Freeman.

Mr. Longueuil said he received illegal stock tips from 2006 to last year and pleaded guilty to purchasing Marvell stock in May 2008 based on inside information from Mr. Barai. According to court filings, the source of that original tip was Winifred Jiau, a former employee of Primary Global Research, an expert network firm. Ms. Jiau has pleaded not guilty to conspiracy charges.

Judge Rakoff scheduled Mr. Longueuil’s sentencing for July 29. Mr. Longueuil, whose travel had been restricted to New York and Connecticut, was granted a special request to travel next week to Sarasota, Fla., for his future mother-in-law’s 60th birthday party.

Mr. Longueuil’s midday court appearance provided a ready distraction for the lawyers and reporters awaiting a verdict in the trial of Mr. Rajaratnam, the co-founder of the Galleon Group hedge fund.

As the fourth day of deliberations wore on, the tense atmosphere surrounding the trial surprisingly began to ease.

Reed Brodsky, a prosecutor, chatted up the media as he entered the courtroom. Andrew Michaelson, another prosecutor, stood in the hallway also shooting the breeze. John M. Dowd, a lawyer for Mr. Rajaratnam who has shown a cantankerous side during the trial, also proved more affable on Thursday, regaling reporters with stories about his past trials and discussing plans for his coming vacation on Cape Cod.

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