The Recorder quotes Professor Robert Weisberg in a story about the Brocade stock-option backdating case:

It's likely the judge has decided not to take a dramatic swing at the case until a jury has had a chance to weigh in, said Stanford Law School professor Robert Weisberg.

If a jury acquits Reyes, then Breyer doesn't need to decide the Rule 29 issue, and if the jury finds Reyes guilty, Breyer can still acquit him under Rule 29, Weisberg said. In that case, the prosecution would have the opportunity to appeal.

"It's certainly the more conservative approach," he said. "[Breyer]'s not precluding the appeals court from looking at this, or subjecting himself to the accusation that he interfered with the jury process."