Whether a simple agreement to keep information confidential can establish criminal insider-trading-fraud

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.