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 insider-trading fraud.

2. Whether the Second Circuit's open-ended, case-by-case approach to the duty element of insider-trading 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.

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