some_text


     
 
 
 
 
Case: 12-1967 Document: 115 Page: 1 09/25/2012 729852 39
 
 
 
 
 
12-19670),
 
 
 
 
 
12-2090(con)
 
 
 
 
 
IN THE
 
 
 
 
 
United States Court of Appeals
FOR THE SECOND CIRCUIT ------------------->►-«-------------------
 
 
 
 
 
United States of America,
Appellee,
v.
Ross H. Mandell, Adam Harrington a/k/a "Adam Rukdeschel,"
Defendants-Appellants, and
Stephen Shea, Arn Wilson, Robert Grabowski and Michael Passaro,
______________                      Defendants.
On Appeal from the United States District Court for the Southern District of New York
BRIEF FOR AMICUS CURIAE THE ASSOCIATION
OF THE BAR OF THE CITY OF NEW YORK IN
SUPPORT OF DEFENDANTS-APPELLANTS
John F. Savarese Chair, White-Collar Crime
Committee of The Association of the Bar of the City of New York
Wachtell, Lipton, Rosen & Katz Of Counsel:                                    51 West 52nd Street
George T. Conway III             ?™YA0*' ^™ Y°rk 10°19
David B. Anders                      (212)403-1000
Kevin S. Schwartz                  Attorneys for Amicus Curiae
 
 
 
 
     
     
 
 
 
 
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TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES....................................iii
STATEMENT OF INTEREST OF
AMICUS CURIAE...............................................1
SUMMARY OF ARGUMENT..................................2
ARGUMENT............................................................6
POINT I
THE PRESUMPTION AGAINST
EXTRATERRITORIALITY FULLY
APPLIES TO CRIMINAL LAWS.......................6
A.     The Supreme Court has consistently recognized that the presumption against extraterritoriality applies to criminal statutes........................................6
B.     Bowman merely examined a statute's context to determine its territorial scope and is entirely consistent
with Morrison...........................................10
C.     In accordance with Morrison and Bowman, this Court has reversed criminal convictions because of the presumption against extraterrito­riality ........................................................14
 
 
 
 
     
     
 
 
 
 
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n
 
 
 
 
 
POINT II
MORRISON GOVERNS THE TERRITORIAL SCOPE OF SECTION 10(b) IN ALL CASES, CIVIL AND CRIMINAL........................................................17
A.     Morrison forecloses the Government's dual-meaning interpretation of
Section 10(b).............................................17
B.     The fact that private civil claims under Section 10(b) have additional elements that criminal violations do not have does not render Morrison inapplicable in criminal cases..................19
C.     Morrison rejected the Government's attempt in that case to preserve the extraterritorial applicability of Section 10(b) in criminal cases.............................21
D.     Section 929P(b) of the Dodd-Frank Act reflects an understanding that Morrison applies to criminal
cases..........................................................24
POINT III
STATUTES THAT PROVIDE FOR BOTH CIVIL REMEDIES AND CRIMINAL SANCTIONS CAN HAVE ONLY ONE AUTHORITATIVE MEANING THAT APPLIES IN ALL CASES................................26
CONCLUSION.......................................................30
 
 
 
 
     
     
 
 
 
 
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m
 
 
 
 
 
TABLE OF AUTHORITIES
PAGE(S)
Cases
Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60 (2d Cir. 2012)......................................................18
American Banana Co. v. United
Fruit Co., 213 U.S. 347(1909).............................9
Basic Inc. v. Levinson,
485 U.S. 224 (1988)..........................................21n
Blackmerv. United States,
284 U.S. 421 (1932)............................................10
Blazevska v. Raytheon Aircraft Co.,
522 F.3d 948 (9th Cir. 2008)................................9
BruesewitzM. Wyeth LLC,
131 S. Ct. 1068 (2011)........................................26
Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994)..................................21
Clark v. Martinez,
543 U.S. 371 (2005)......................................27, 29
Commrv. Acker,
361 U.S. 87 (1959)..............................................28
Crandonv. United States,
494 U.S. 152(1990)............................................28
Dura Pharm., Inc. v. Broudo,
544 U.S. 336 (2005)..........................................21n
 
 
 
 
     
     
 
 
 
 
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IV
EEOCv. Arabian Am. Oil Co.,
499 U.S. 244 (1991).....................................passim
Kollias v. D&GMarine Maint,
29 F.3d 67 (2d Cir. 1994).....................4, 5, 15, 17
Leocalv. Ashcroft,
543 U.S. 1 (2004)......................................6, 28, 29
Microsoft Corp. v. AT&T Corp.,
550 U.S. 437 (2007)..............................................8
Morrison v. Natl Austl. Bank
Ltd., 130 S. Ct. 2869 (2010)........................passim
Norex Petroleum Ltd. v. Access Indus., Inc., 631 F.3d 29 (2d Cir. 2010)......................................................4n
Pasquantino v. United States,
544 U.S. 349 (2005)..........................................lOn
Sale v. Haitian Ctrs. Council, Inc.,
509 U.S. 155(1993)........................................7, 15
Smallv. United States,
544 U.S. 385 (2005)..........................................7, 8
Smith v. United States,
507 U.S. 197 (1993)............................................15
Stoneridge In v. Partners LLC v. Scientific Atlanta, Inc., 552 U.S. 148 (2008)............................................20
United States v. Bass,
404 U.S. 336(1971)............................................27
United States v. Bowman,
260 U.S. 94 (1922).......................................passim
 
 
 
 
     
     
 
 
 
 
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v
United States v. Erdos,
474 F.2d 157 (4th Cir. 1973)..............................15
United States v. Flores,
289 U.S. 137 (1933)............................................10
United States v. Gatlin,
216 F.3d 207 (2d Cir. 2000)........................passim
United States'v. Laboy-Torres,
553 F.3d 715 (3d Cir. 2009)..............................8-9
United States v. Palmer,
16 U.S. (3 Wheat.) 610 (1818)..............................8
United States v. Thomson/Center Arms Co., 504 U.S. 505 (1992)...........................28
United States v. Weingarten,
632 F.3d 60 (2d Cir. 2011)...........................16, 17
Statutes and Rules
18U.S.C. § 7(3).................................................14, 15
Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111-203, 124 Stat. 1376 (2010):
§4, 124 Stat, at 1390 ........................................24
§ 929P(b), 124 Stat, at 1864-66...................24, 26
Securities Exchange Act of 1934, 15U.S.C.§ 78a et seq:.
15 U.S.C. § 78j(b) (§ 10(b))..........................passim
15 U.S.C. § 78aa (§ 27).......................................24
15 U.S.C. § 78ff(a) (§ 32(a))............................5, 19
17C.F.R. §240.10b-5 (SEC Rule 10b-5).....................................passim
 
 
 
 
     
     
 
 
 
 
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VI
 
 
 
 
 
Other Authorities
156 Cong. Rec. H5237
(daily ed. June 30, 2010)....................................26
Beyea, Genevieve, Morrison v. National Australia Bank and the Future of Extraterritorial Application of the U.S. Securities Laws, 72 Ohio St. L.J. 537(2011)........................................................25n
Clop ton, Zachary D., Bowman Lives: The Extraterritorial Application of U.S. Criminal Law A^er Morrison v. National Australia Bank, 67
N.Y.U. Ann. Surv. Am. L. 137 (2011)......12n, 13n
Doyle, Charles, Cong. Research Serv., 94-166, Extraterritorial Application of American Criminal Law (2012)........................................................13n
Elgadeh, Meny, Morrison v. National Australia Bank: Life After Dodd-Frank, 16 Fordham J. Corp. & Fin. 573 (2011)..........25n
Florey, Katherine, State Law, U.S. Power, Foreign Disputes: Understanding the Extraterritorial Effects of State Law in the Wake o/Morrison v. National Australia Bank, 92 B.U. L. Rev. 535 (2012)................................................................25n
Morgut, Milosz, Extraterritorial Application of U.S. Securities Law, 2012 Eur. Bus. L. REV. 547........................................................25n
 
 
 
 
     
     
 
 
 
 
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Vll
 
 
 
 
 
Painter, Richard W., The Dodd-Frank Extraterritorial Jurisdiction Provision: Was It Effective, Needed or Sufficient?, 1 Harv. Bus. L. Rev. 195 (2011)......................25n
Pritchard, A.C., Securities Law in the Roberts Court: Agenda or Indifference?, 37 J. Corp. L. 105 (2011)..................................25n
Ringe, Wolf-Georg, The International Dimension of Issuer LiabilityLiability and Choice of Law from a Transatlantic Perspective, 31 Oxford J. Leg. Stud. 23 (2011)................................................................25n
Rocks, Andrew, Whoops! The Imminent Reconciliation of U.S. Securities Laws with International Comity after Morrison v. National Australia Bank and the Drafting Error in the Dodd-Frank Act, 56 VlLL. L. Rev. 163 (2011)................................................................25n
Scalia, Antonin & Garner, Bryan A., Reading Law: The Interpretation of Legal Texts (2012)..................................7, 16, 28
Wasserman, Howard M., The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig. 313 (2012)..................25n
 
 
 
 
     
     
 
 
 
 
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IN THE
 
 
 
 
 
Wimitit jftate (ttmiri of Rppuxk
FOR THE SECOND CIRCUIT
 
 
 
 
 
Nos. 12-1967(L), 12-2090(con)
 
 
 
 
 
United States of America,
 
 
 
 
 
Appellee,
 
 
 
 
 
v.
Ross H. Mandell, Adam Harrington a/k/a
"Adam Rukdeschel,"
Be fen dan ts-Appellan ts, and Stephen Shea, Arn Wilson, Robert Grabowski and Michael Passaro,
Defendants.
 
 
 
 
 
On Appeal from the United States District Court for the Southern District of New York
 
 
 
 
 
BRIEF FOR AMICUS CURIAE THE ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK IN SUPPORT
OF DEFENDANTS-APPELLANTS
 
 
 
 
 
STATEMENT OF INTEREST OF AMICUS CURIAE^
The Association of the Bar of the City of New York is a voluntary association of lawyers and law
 
 
 
 
 
1 No counsel for a party authored this brief in whole or in part, nor did any person or entity, other than amicus curiae or its counsel, make any mone­tary contribution intended to fund the preparation or submission of this brief.
 
 
 
 
     
     
 
 
 
 
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students. Founded in 1870, the City Bar is one of the oldest bar associations in the United States. Its pur­poses include "cultivating the science of jurispru­dence, promoting reforms in the law, [and] facilitat­ing and improving the administration of justice."
Today the City Bar has more than 23,000 mem­bers. It also has 150 standing and special committees that focus on particular legal practice areas and is­sues, and through which the City Bar comments on legal issues and public policy. This brief was pre­pared by the City Bar's Special Committee on White-Collar Crime, which addresses issues concerning the administration, application, and interpretation of criminal laws addressing white-collar crime. The Committee in particular, and the City Bar as a whole, thus have a strong interest in the important issues in this case: the correct determination of the territorial scope of Section 10(b) of the Securities Ex­change Act of 1934 and other federal statutes in criminal cases.
Certain members of the Committee, including all members employed by the Federal Government and its agencies, have recused themselves from any par­ticipation in the decision to submit, and the prepara­tion of, this brief, and accordingly cannot be under­stood as joining in any position this brief may take.
This brief is submitted pursuant to Fed. R. App. P. 29(a), as all parties have consented to its filing.
SUMMARY OF ARGUMENT
In this case and in another case recently argued before this Court, the Government has taken an ex­traordinary position. As expressed in its opposition
 
 
 
 
     
     
 
 
 
 
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to bail on this appeal, the Government asserts that the Supreme Court's decision in Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010), "does not apply to the offenses charged in this case"—in particular, to criminal charges brought under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5, the very statute and regulation in­terpreted in Morrison.2
The Government thus claims that Section 10(b) now has two controlling constructions. In civil cases, as the Government does not dispute, Morrison gov­erns, and Section 10(b) only applies to domestic transactions. But according to the Government, "the Supreme Court did not intend its decision in Morri­son to limit the ability of the United States to bring criminal securities fraud prosecutions involving overseas transactions." Gov't Vilar Br. 97. In the Government's view, Section 10(b) may apply in crim­inal cases "even if the transactions at issue were exe­cuted overseas." Gov't Mandell BaH Opp. ]j 32.
The Government is wrong. To begin with, its posi­tion that Section 10(b) can simultaneously have two authoritative constructions—an extraterritorial
 
 
 
 
 
2 Affirmation of Katherine R. Goldstein, Esq., in Opposition to Motion for Bail Pending Appeal ]j 28 (filed July 5, 2012), ECF No. 49 ("Gov't MandellBaH Opp."); see also id. H 22, 29-32; Brief for the United States of America at 96-101, United States v. Vilar, No. 10-521(L) (2d Cir. filed Apr. 18, 2012) ("Gov't Vi­lar Br."); Sur-Reply Brief for the United States of America at 8-11, No. 10-521(L) (2d Cir. filed May 14, 2012) ("Gov't Vilar Sur-Reply Br."). This Court heard oral argument in Vilar on August 21, 2012.
 
 
 
 
     
     
 
 
 
 
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reading that applies in criminal cases, and a purely domestic one that applies in civil cases—is mistaken because its premise is mistaken. The Government's mistaken premise is its assertion that, under United States v. Bowman, 260 U.S. 94 (1922), "the presump­tion against extraterritoriality does not apply to criminal statutes." Gov't Vilar Sur-Reply Br. 8; ac­cord Gov't Mandell BaH Opp. If 27. Indeed, in recent­ly arguing to this Court that RICO similarly has two meanings, the Government has gone so far as to sug­gest that, under Bowman, criminal "statutes enjoy a presumption in favor o/extraterritoriality."3
That is not true, and has never been true. As Morrison holds, the presumption against extraterri­toriality must "apply ... in all cases." 130 S. Ct. 2881 (emphasis added). Well before Morrison, in fact, this Court recognized that
The Supreme Court's recent discussions of the presumption against extraterritoriality, none of which mentions Bowman, seem to require that all statutes, without exception, be construed to apply within the United States only, unless a contrary intent appears.
Kollias v. D&G Marine Maint, 29 F.3d 67, 71 (2d Cir. 1994) (emphasis in original).
Indeed, the Supreme Court recognized the pre­sumption's applicability in criminal cases as long ago as 1818, and even did so in Bowman itself. Bowman
 
 
 
 
 
3 Brief of the United States as Amicus Curiae in Support of Limited Rehearing En Banc at 3, Norex Petroleum Ltd. v. Access Indus., Inc., 631 F.3d 29 (2d Cir. 2010) (emphasis in original).
 
 
 
 
     
     
 
 
 
 
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merely establishes that the presumption can be over­come when extraterritoriality is strongly suggested by a statute's particular context (a principle that Morrison confirms), and holds that such context may be found in some statutes prohibiting fraud commit­ted against the Government when it carries out its global activities. That certainly does not describe Section 10(b), which, as Morrison holds, is concerned with protecting private persons who make domestic securities trades. This Court, moreover, has more than once recognized that Bowman must be "read narrowly" and "limited to its facts," Kollias, 29 F.3d at 71; accord United States v: Gatlin, 216 F.3d 207, 211 n.5 (2d Cir. 2000), and has in fact reversed crim­inal convictions because of the presumption against extraterritoriality. See Point I, below.
In any event, the Government's contention that Morrison does not apply here is irreconcilable with Morrison itself. The Supreme Court in Morrison em­phasized that it was deciding "what conduct § 10(b) reacheS' and "what conduct § 10(b) prohibits"—what conduct "Section 10(b) ... punishes." Id. at 2877, 2887 (emphasis added). It was thus defining when and "where a putative violation [of Section 10(b)] occurs." Id. at 2884 n.9 (emphasis added). Here, the defend­ants were convicted under Section 32(a) of the Ex­change Act, the statute's criminal liability provision, which punishes any "willful[] violation]" of any pro­vision or rule under the Act, including Section 10(b) and Rule 10b-5. If there is no violation of Section 10(b) and Rule 10b-5 under Morrison, then no crimi­nal liability may be imposed under Section 32(a). See Point II, below.
 
 
 
 
     
     
 
 
 
 
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6
 
 
 
 
 
Finally, and most fundamentally, the Govern­ment's contention that a single statutory provision can have two authoritative meanings is wrong. The Supreme Court has made clear that, when a statute has both civil and criminal applications, "we must interpret the statute consistently, whether we en­counter its application in a criminal or noncriminal context ...." Leocalv. Ashcroft, 543 U.S. 1, 11-12 n.8 (2004). This principle is illustrated by the rule of len­ity: although the rule of lenity governs only the in­terpretation of statutes imposing penal sanctions, it still applies to the interpretation of the same stat­utes in civil cases. The reason: a statute can have on­ly one meaning. And that is true of Section 10(b). See Point III, below.
ARGUMENT
POINT I
THE PRESUMPTION AGAINST
EXTRATERRITORIALITY FULLY
APPLIES TO CRIMINAL LAWS.
A. The Supreme Court has consistently recognized that the presumption against extraterritoriality applies to criminal statutes.
This case involves a canon of statutory construc­tion as old as the Nation itself: the "longstanding principle of American law 'that legislation of Con­gress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.'" Morrison v. Natl Austl. Bank Ltd., 130 S. Ct. 2869, 2877 (2010) (quoting EEOCv. Ara­bian Am. Oil Co., 499 U.S. 244, 248 (1991) ("Ar-amco")). This presumption against extraterritoriality
 
 
 
 
     
     
 
 
 
 
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is a powerful one: "'unless there is the affirmative intention of the Congress clearly expressed' to give a statute extraterritorial effect, 'we must presume that it is primarily concerned with domestic conditions.'" Morrison, 130 S. Ct. at 2877 (emphasis added; quot­ing Aramco, 499 U.S. at 248). And although "[a]ssuredly context may be consulted as well" as statutory text in determining whether the presump­tion has been overcome, courts must always look for "a clear indication of extraterritoriality." fd. at 2883. "When a statute gives no clear indication of an extra­territorial application, it has none"; "uncertain indi­cations do not suffice." fd. at 2878, 2883.
The presumption against extraterritoriality main­ly "rests on the perception that Congress ordinarily legislates with respect to domestic, not foreign mat­ters." fd. at 2877. As a result, courts "consequently assume a congressional intent that [statutory lan­guage] applies domestically, not extraterritorially." Small v. United States, 544 U.S. 385, 390-91 (2005). The presumption is thus an "expected-meaning can­on." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 247 (2012); see id. at 247, 268-69. It "helps [courts] de­termine Congress' intent where Congress likely did not consider the matter and where other indicia of intent are in approximate balance." Small, 544 U.S. at 390.
Other salutary purposes support the presumption as well—purposes relating to the Nation's conduct of foreign affairs as well as to the separation of powers. The presumption reflects the "desire to avoid conflict with the laws of other nations," Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 174 (1993), as it "serves
 
 
 
 
     
     
 
 
 
 
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8
 
 
 
 
 
to protect against unintended clashes between our laws and those of other nations which could result in international discord," Aramco, 499 U.S. at 248; ac­cord United States v. Gatlin, 216 F.3d at 211, 216 n.ll (2d Cir. 2000); see also Morrison, 130 S. Ct. at 2886. The presumption also embodies judicial defer­ence to Congress in the sensitive area of foreign af­fairs: it recognizes that Congress is "able to calibrate its provisions in a way that [courts] cannot," Aramco, 499 U.S. at 259, and "leaves to Congress' informed judgment any adjustment [of the law that] it deems necessary or proper," Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 442 (2007).
These important purposes require the presump­tion's application in all cases, civil and criminal. The Supreme Court recognized this as far back as 1818, when it faced a question of how to interpret anti-piracy provisions of the Crimes Act of 1790. Did those provisions reach conduct committed by foreign­ers aboard foreign vessels traversing the high seas? The Court held that they did not. The Court acknowledged that the words used in the statute, "'any person or persons,' are broad enough to com­prehend every human being." United States \. Palm­er, 16 U.S. (3 Wheat.) 610, 631 (1818) (Marshall, C.J.). But it nonetheless held that such "general words must ... be limited to cases within the jurisdic­tion of the state." Id. To this day Palmer, a criminal case, is recognized as one of the earliest expressions of the presumption against extraterritoriality by an American court. See, e.g., Small v. United States, 544 U.S. at 388-89 (citing Palmer as example of pre­sumption's application); accord id. at 400 (Thomas, J., dissenting; same); United States \. Laboy-Torres,
 
 
 
 
     
     
 
 
 
 
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9
 
 
 
 
 
553 F.3d 715, 719 (3d Cir. 2009) (O'Connor, Associate Justice (Retired), sitting by designation; same); Blazevska v. Raytheon Aircraft Co., 522 F.3d 948, 954 (9th Cir. 2008) (same).
American courts have applied the presumption against extraterritoriality to criminal statutes ever since. In particular, United States v. Bowman, 260 U.S. 94, 98 (1922), contains a rather explicit state­ment that the presumption applies to criminal stat­ues, and it cited what was then the leading case on the presumption as support:
Crimes against private individuals or their property, like ... frauds of all kinds, ... must of course be committed within the territorial ju­risdiction of the government where it may properly exercise it. If punishment of them is to be extended to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard. We have an example of this in the attempted application of the prohibitions of the Anti-Trust Law to acts done by citizens of the United States against other such citizens in a foreign country. American Banana Co. v. Unit­ed Fruit Co., 213 U.S. 347 [(1909)]. That was a civil case, but as the statute is criminal as well as civil, it presents an analogy.
(Emphasis added.)
A decade later, the Supreme Court invoked Bow­man as authority for applying the presumption against extraterritoriality to criminal laws. The Court explained that Bowman stood for the proposi­tion that
 
 
 
 
     
     
 
 
 
 
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10
 
 
 
 
 
It is true that the criminal jurisdiction of the United States is in general based on the territo­rial principle, and criminal statutes of the Unit­ed States are not by implication given an extra­territorial effect.
United States v. Flores, 289 U.S. 137, 155 (1933) (cit­ing Bowman, 260 U.S. at 98). Accordingly, under Bowman, a criminal case, "legislation of the Con­gress, unless the contrary intent appears, is con­strued to apply only within the territorial jurisdic­tion of the United States." Blackmer v. United States, 284 U.S. 421, 437 (1932) (citing Bowman).^
B. Bowman merely examined a statute's context to de­termine its territorial scope and is entirely consistent with Morrison.
Thus, contrary to the Government's contentions, nothing in Bowman establishes any exception to the presumption against extraterritoriality. In addition to acknowledging the presumption's applicability to criminal statutes, Bowman simply recognized what other cases on the presumption, including Morrison, teach: the presumption can be overcome by the text of a statute, but "[a]ssuredly context can be consulted as well." Morrison, 130 S. Ct. at 2883.
A careful review of Bowman makes this clear. Af­ter noting that the presumption is typically overcome
 
 
 
 
 
4 See also Pasquantinov. United States, 544 U.S. 349 (2005), where the Court did not dispute the dis­sent's view that the extraterritoriality canon applied to the wire-fraud statute, but held that the statute's application there was domestic. See id. at 371; id. at 379 (Ginsburg, J., dissenting).
 
 
 
 
     
     
 
 
 
 
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11
by an express statement—"it is natural for Congress to say so in the statute, and failure to do so will neg­ative the purpose of Congress in this regard," 260 U.S. at 98; see p. 9, above—the Bowman Court ex­plained that, with some statutes involving the Gov­ernment's worldwide diplomatic and military activi­ties, extraterritorial applicability need not be estab­lished by "specific provision," but may "be inferred from the nature of the offense," 260 U.S. at 98.
In particular, extraterritoriality may be inferred in statutes "enacted because of the right of the Gov­ernment to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers, or agents." Id. The Court gave examples: a law that "punishes whoever as consul knowingly certifies a false invoice"; one that prohib­its "[fjorging or altering ship's papers"; another that "punishes enticing desertions from the naval ser­vice"; a prohibition against "bribing a United States officer of the civil, military or naval service"; a stat­ute punishing fraud against the United States "relat­ing to ... property captured as prize"; and a law mak­ing it "a crime to steal ... property of the United States ... to be used for military or naval service." Id. at 99. Consuls, ships, naval service, prizes—all clear­ly connote the high seas or foreign lands. With laws like these, "the natural inference from the character of the offense" is that an extraterritorial location "would be a probable place for its commission." Id.
The Court examined whether "[w]hat is true of these sections in this regard is true of the statute at issue in Bowman. Id. at 100-02. That statute arose from Congress's creation in 1917, during World War I, of the Government-owned United States Shipping
 
 
 
 
     
     
 
 
 
 
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12
 
 
 
 
 
Board Emergency Fleet Corporation to acquire, maintain, and operate a fleet of merchant ships to ship war materiel. See id. at 95.5 The defendants were American seamen who conspired to defraud the Fleet Corporation by falsely billing it for fuel oil in Rio de Janeiro that was never delivered, and they were charged under a statute that prohibited the making of fraudulent claims on "'any corporation in which the United States of America was a stockhold­er.'" Id. at 95-96, 100 n.l (citation omitted).
The Court held that the unique context of this law clearly evinced an extraterritorial congressional intent. The dispositive passage of the opinion ex­plains:
The section was amended in 1918 to include a corporation in which the United States owns stock. This was evidently intended to protect the Emergency Fleet Corporation in which the United States was the sole stockholder, from fraud of this character. That Corporation was expected to engage in, and did engage in, a most extensive ocean transportation business and its ships were seen in every great port of the world open during the war. The same section of the statute protects the arms, ammunition, stores and property of the army and navy from fraudu­lent devices of a similar character. We can not suppose that when Congress enacted the stat­ute or amended it, it did not have in mind that
 
 
 
 
 
5 See also Zachary D. Clopton, Bowman Lives: The Extraterritorial Application of U.S. Criminal Law After Morrison v. National Australia Bank, 67
N.Y.U. Ann. Surv. Am. L. 137, 162 n.103 (2011).
 
 
 
 
     
     
 
 
 
 
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13
 
 
 
 
 
a wide field for such frauds upon the Govern­ment was in private and public vessels of the United States on the high seas and in foreign ports and beyond the land jurisdiction of the United States, and therefore intend to include them in the section.
Id. at 101-02.
In short, Bowman "states that the nature and purpose of a statute may provide an indication of whether Congress intended a statute to apply beyond the confines of the United States."6 At most, Bowman holds "that a court can overcome the presumption and infer congressional intent to apply extraterrito-rially those statutes that protect government con­tracts from fraud and obstruction."7
Bowman thus cannot support the Government's position here. Section 10(b) protects "private individ­uals or their property," and does not vindicate "the right of the Government to defend itself against ob­struction, or fraud wherever perpetrated." 260 U.S. at 98. No argument can be made that Section 10(b)'s context provides a clear and affirmative indication of extraterritorial applicability, let alone anything ap­proaching that of the statute protecting "a most ex­tensive ocean transportation business" of the Gov­ernment-owned, global-war-materiel-shipping com­pany in Bowman. Id. at 102. To the contrary, as Mor-
 
 
 
 
 
6   Charles Doyle, Cong. Research Serv., 94-166, Extraterritorial Application of American Criminal Law 8 (2012), available at http://bit.ly/ UhKWrU.
7   Clopton, 67 N.Y.U. Ann. Surv. Am. L. at 167.
 
 
 
 
     
     
 
 
 
 
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14
rison explains at length, the text and context of Sec­tion 10(b) specifically, and of the Securities Exchange Act generally, show quite plainly that the law's "ex­clusive focus [is] on domestic purchases and sales," and that it is the private "parties to those transac­tions that the statute seeks to 'protec[t],'" Morrison, 130 S. Ct. at 2884 (emphasis in original; citation omitted).
C. In accordance with Morrison and Bowman, this Court has reversed criminal convictions because of the presumption against extraterritoriality.
Not surprisingly, and consistently with Morrison and a proper reading of Bowman, this Court has re­versed criminal convictions after applying the pre­sumption against extraterritoriality. This Court thus reversed the conviction and ordered the indictment dismissed in United States \. Gatlin, 216 F.3d 207 (2d Cir. 2000), solely because of the presumption. The defendant had committed his alleged offense on a U.S. Army base in Germany, and the validity of his conviction turned on whether the Criminal Code's relevant definition of "special maritime and territori­al jurisdiction of the United States," 18 U.S.C. § 7(3), "appl[ied] to lands outside the territorial boundaries of the United States, including, specifically, United States military installations," 216 F.3d at 212.
This Court explained that Section 7(3) could have extraterritorial scope only if "there appears 'the af­firmative intention of the Congress clearly ex­pressed'" to confer such scope, and that "absent 'clear evidence of congressional intent' to apply a statute beyond our borders, the statute will apply only to the territorial United States." Id. at 211-12 (quoting Ar-
 
 
 
 
     
     
 
 
 
 
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15
 
 
 
 
 
amco, 499 U.S. at 248, and Smith v. United States, 507 U.S. 197, 204 (1993)). Examining '"all available evidence' about the meaning of the statute, including its text, structure, and legislative history," the Court concluded that '"clear evidence of congressional in­tent' to apply [the] statute extraterritorially" did not exist. Id. at 212, 214-15 (quoting Sale, 509 U.S. at 177, and Smith, 507 U.S. at 204). This Court even criticized the Fourth Circuit for having "failed to ap­ply the proper canon of statutory construction," the "presumption against extraterritoriality," in constru­ing Section 7(3). Id. at 214 (criticizing United States v. Erdos, 474 F.2d 157 (4th Cir. 1973)).8
And this Court noted that "the Government un­derstandably ma[de] no argument" that Bowman supported the conviction. Id. at 211 n.5. Italicizing key language in Bowman, this Court emphasized that Bowman involved '"the right of the Government to defend itself against obstruction, or fraud wherev­er perpetrated, especially if committed by its own cit­izens, officers, or agents'" Id. (quoting Bowman, 260 U.S. at 98; emphasis by this Court). Bowman was in­apposite, this Court held, "since Gatlin committed a crime against a private individual," and because '"Bowman should be read narrowly.'" Id. (quoting Kollias, 29 F.3d at 71).
Accordingly, this Court concluded that Section 7(3) "does not apply extraterritorially" and did not provide authority "to try civilians like Gatlin who commit crimes on military installations abroad." Id.
 
 
 
 
 
8 See also id. at 212 n.6 (criticizing a district court decision for "declin[ing] to apply the presump­tion against extraterritoriality")).
 
 
 
 
     
     
 
 
 
 
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16
 
 
 
 
 
at 223. The Court reversed the conviction and or­dered the indictment dismissed—solely and squarely because of the presumption against extraterritoriali­ty Id.
Similarly, this Court last year partially reversed a criminal conviction in a case that has been aptly cited as a textbook example of proper use of the pre­sumption. In United States v. Weingarten, 632 F.3d 60 (2d Cir. 2011), "the Second Circuit applied the presumption that 'Congress does not intend a statute to apply to conduct outside the territorial jurisdiction of the United States unless it clearly expresses its intent to do so.'" SCALIA & GARNER, at 271 (quoting Weingarten, 632 F.3d at 64 (citation and internal quotation marks omitted)). This Court explained that it had to "look for a 'clear' and 'affirmative indication' that a statute applies to conduct occurring outside the territorial jurisdiction of the United States." 632 F.3d at 65 (quoting Morrison, 130 S. Ct. at 2883). This Court found just "[s]uch a clear and affirmative indication" in a law "criminalizing travel in foreign commerce undertaken with the intent to commit sexual acts with minors." Id.
At the same time, however, Weingarten held that the presumption required reversal on one count of the indictment. That count had charged the defend­ant with having engaged in purely foreign travel be­tween two foreign countries to commit his illicit acts. The Court held that "inferences properly drawn from the presumption against extraterritoriality" com­pelled the conclusion "that it would be anomalous to construe the [statutory] definition of 'foreign com­merce' ... as including all forms of commerce occur­ring outside the United States and without nexus
 
 
 
 
     
     
 
 
 
 
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17
 
 
 
 
 
whatsoever to this country." Id. at 70. This Court emphasized that "[t]he presumption requires careful analysis, on a statute-by-statute basis, of Congress's intent to regulate conduct occurring outside the United States." Id.
In short, under the law of this Circuit, the pre­sumption against extraterritoriality applies to crimi­nal statutes and to criminal cases. "fAJIl statutes, without exception, [must] be construed to apply with­in the United States only, unless a contrary intent appears." Kollias, 29 F.3d at 71 (emphasis in origi­nal).
POINT II
MORRISON GOVERNS THE TERRITORIAL
SCOPE OF SECTION 10(b) IN ALL CASES,
CIVIL AND CRIMINAL.
Even apart from the Government's misunder­standing of the extraterritoriality canon's applicabil­ity, its contention that Morrison does not control criminal cases must fail because it contradicts Morri­son itself.
A. Morrison forecloses the Government's dual-meaning interpretation of Section 10(b).
In Morrison, the Supreme Court applied the pre­sumption against extraterritoriality and concluded that Section 10(b) applies only to domestic securities transactions—that "it is in our view only transac­tions in securities listed on domestic exchanges, and domestic transactions in other securities, to which § 10(b) applies." 130 S. Ct. at 2884. After thoroughly examining the text and context of Section 10(b) spe­cifically and of the Exchange Act generally, the Court
 
 
 
 
     
     
 
 
 
 
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18
 
 
 
 
 
concluded that "there is no clear indication of extra­territoriality here." Id. at 2883; see id. at 2881-83. As a result, the Court concluded that Section 10(b)'s ref­erence to "the purchase or sale" of securities referred only to domestic purchases and domestic sales. See id. at 2884; Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 66-67 (2d Cir. 2012).
Nothing about this holding suggests that it was in any way limited to civil cases. In fact, Morrison makes the opposite quite clear. The Court empha­sized that judges must "apply the presumption in all cases, preserving a stable background against which Congress can legislate with predictable effects." Id. at 2881 (emphasis added). The Court's opinion in no way suggests that the ordinary assumption that Congress "is primarily concerned with domestic con­ditions," id. at 2877 (quoting Aramco, 499 U.S. at 248), is restricted to statutes providing for civil rem­edies. Nor did the Court suggest that the "interfer­ence with foreign securities regulation that applica­tion of § 10(b) abroad would produce" was limited to civil cases. Id. at 2886.
Instead, just as it held that the presumption against extraterritoriality applies to "all cases," the Morrison Court made clear that it was rendering a definitive construction of Section 10(b)'s text—of the words "purchase or sale"—for all purposes. The Court explained that it was deciding "what conduct § 10(b) reaches," "what conduct § 10(b) prohibits," what conduct "Section 10(b) ... punishes," and what were the "transactions ... to which § 10(b) applies." Id. at 2877, 2887, 2884 (emphasis added); accord Ab­solute Activist, 677 F.3d at 66 (Morrison decided "whether § 10(b) applies to particular conduct").
 
 
 
 
     
     
 
 
 
 
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19
 
 
 
 
 
Morrison flatly "reject[ed] the notion that the Ex­change Act reaches conduct in this country affecting exchanges or transactions abroad." 130 S. Ct. at 2885. With singular clarity, the Supreme Court de­cided exactly what Section 10(b) did not reach, did not prohibit, did not apply to, and thus did not pun­ish: conduct in connection with "transactions con­ducted upon foreign exchanges and markets." Id. at 2882 (emphasis in original).
In holding that "Section 10(b) does not punish de­ceptive conduct, but only deceptive conduct 'in con­nection with ...' ... transactions in securities listed on domestic exchanges, and domestic transactions in other securities," the Supreme Court thus addressed when and "where a putative violation occurs." Id. at 2884 & n.9 (emphasis added). Morrison accordingly limits the scope of the statute criminally here as well. For under Section 32(a) of the Exchange Act, the defendants here were charged with having "will­fully violate[d] [a] provision" of the Act, namely Sec­tion 10(b), and a "rule ... thereunder the violation of which is made unlawful or the observance of which is required under the terms of the Act, namely Rule 10b-5. 15 U.S.C. § 78ff(a); see A88, 89, 99, 102. If there has been no underlying violation of Section 10(b) and Rule 10b-5 under Morrison, then no crimi­nal liability may be imposed under Section 32(a).
B. The fact that private civil claims under Section 10(b) have additional elements that criminal violations do not have does not render Morrison inapplicable in criminal cases.
The fact that a violation of Section 10(b) is the same in a criminal case as it is in a civil case is not contradicted by the fact that the implied Rule 10b-5
 
 
 
 
     
     
 
 
 
 
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20
 
 
 
 
 
private right of action has additional elements that are unique to it. At oral argument before this Court in United States v. Vilar, the Government invoked those elements in an attempt to justify its one-statute, two-meanings interpretation. The Govern­ment argued that
insofar as there's a difference interpreting the same statutory language in the criminal context as opposed to [the] civil context, we already do that. We do that with respect to reliance, for example .... There's no such requirement in a criminal prosecution .... Same thing with loss causation ....9
This argument may be swiftly dispatched. Not on­ly is it foreclosed by Morrison, but it also miscon­ceives the relationship between the implied Rule 10b-5 right of action and the text of Section 10(b). "The § 10(b) private cause of action is a judicial con­struct that Congress did not enact in the text of the relevant statutes." Stoneridge Inv. Partners LLC v. Scientmc-Atlanta, Inc., 552 U.S. 148, 164 (2008). As a result, "because the implied private cause of action under § 10(b) and Rule 10b-5 is a thing of our own creation, we have also defined its contours." Morri­son, 130 S. Ct. at 2881 n.5. "It is only with respect to the additional 'elements of the 10b-5 private liability scheme'"—elements not established by the text of Section 10(b), which provided for no such scheme— that "we 'have had to infer how the 1934 Congress would have addressed the issue[s] had the 10b-5 ac-
 
 
 
 
 
9 Oral Argument at 1:21:00, United States v■. Vi­lar, No. 10-521(L) (2d Cir. Aug. 21, 2012) (" Vilar Oral Arg.") (emphasis added).
 
 
 
 
     
     
 
 
 
 
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21
 
 
 
 
 
tion been included as an express provision in the 1934 Act.'" Id. (quoting Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 173 (1994) (citation and internal quotation marks omitted)).10
But as Morrison explained, the question of Sec­tion 10(b)'s territorial scope did not involve these "additional 'elements of the 10b-5 private liability scheme.'" Id. For the question of extraterritoriality "ask[s] what conduct § 10(b) reaches" and "what con­duct § 10(b) prohibits." Id. at 2877. As for those ques­tions—"when it comes to 'the scope of [the] conduct prohibited by [Rule 10b-5 and] § 10(b)'"—the Court in Morrison made clear that "'the text of the statute controls our decision.'" Id. at 2881 n.5 (quoting Cen­tral Bank, 511 U.S. at 173). That controlling text is the same whether a violation of the statute is plead­ed in a civil complaint by a private plaintiff or charged in an indictment by a grand jury. And the authoritative interpretation of the geographic reach of that text was set forth by the Supreme Court—in Morrison.
C. Morrison rejected the Government's attempt in that case to preserve the extraterritorial applicability of Section 10(b) in criminal cases.
One additional aspect of Morrison forecloses the Government's argument here. Before the Supreme Court in Morrison, the Government unsuccessfully advocated the same result it urges here: that Section
 
 
 
 
 
10 See, e.g., Basic Inc. v. Levinson, 485 U.S. 224, 243 (1988) (reliance); Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 342-46 (2005) (loss causation).
 
 
 
 
     
     
 
 
 
 
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22
 
 
 
 
 
10(b) should extend extraterritorially in cases brought by the Government, but not in cases brought by private parties.
Much as the Government does here and in United States v. Vilar, the Solicitor General in Morrison ar­gued that Section 10(b) applied to "a transnational securities fraud," including "securities transactions that occur abroad" and "injure[] overseas inves­tors."11 The Solicitor General concluded that the Morrison complaint had "stated a violation of Section 10(b)," one that the Government or the SEC could have charged. Gov't Morrison Br. at 30-31. She none­theless urged the Court to employ, in effect, a stricter territoriality standard applicable only to civil cases: she argued that the plaintiffs could not recover be­cause the domestic "component of the alleged fraud ... was not a direct cause of [their] alleged injury." Id. at 31.
In urging a more lenient standard for the Gov­ernment, just as the Government has done in Vilar, the Solicitor General urged that it would be good public policy to allow the Government to prosecute frauds involving overseas transactions. See Gov't Morrison Br. at 16-17; Vilar Oral Arg. at 1:20:00.
 
 
 
 
 
11 Brief for the United States as Amicus Curiae Supporting Respondents at 14, 16, 17, Morrison (No. 08-1191), 2010 WL 719337 ("Gov't Morrison Br."); accord Gov't Mandell Bail Opp. ]j 32 (10(b) applies "even if the transactions at issue were executed over­seas"); Gov't Vilar Br. 100 ("even if the transactions ... were executed overseas, that fact would not alter the illegality of the scheme under the U.S. securities laws").
 
 
 
 
     
     
 
 
 
 
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23
 
 
 
 
 
And just as in Vilar, the Solicitor General argued that "enforcement actions," in contrast to private civ­il actions "are unlikely to produce conflict with for­eign nations." Gov't Morrison Br. at 26; see Vilar OralArg. at 1:20:45.
The Supreme Court roundly rejected the Solicitor General's position. The Solicitor General failed to "provide any textual support for [her] test." Morri­son, 130 S. Ct. at 2886. The Solicitor General "relied on cases we disapprove, which ignored or discarded the presumption against extraterritorality." Id. at 2887-88. As for the policy justifications, the Solicitor General provided "no textual support" for those as well, and ignored the fact that it is the courts' "func­tion to give the statute the effect its language sug­gests, however modest that may be; not to extend it to admirable purposes it might be used to achieve." Id. at 2886.
The Court did not directly address the Solicitor General's argument that enforcement actions are less likely to foment international conflict. But in "re­jecting] the notion that the Exchange Act reaches conduct in this country affecting exchanges or trans­actions abroad," the Court cited the "obvious" "prob­ability of incompatibility with the applicable laws of other countries." Id. at 2885. "[T]he regulation of other countries often differs from ours as to what constitutes fraud, what disclosures must be made, ... and many other matters." Id. The Court clearly un­derstood that, regardless of the means of enforce­ment, "application of § 10(b) abroad would produce" "interference with foreign securities regulation," and noted that "[t]he transactional test we have adopted" "will avoid that consequence." Id. at 2886.
 
 
 
 
     
     
 
 
 
 
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24
 
 
 
 
 
D. Section 929P(b) of the Dodd-Frank Act reflects an understanding that Morrison applies to criminal cas­es.
Beyond this, in the proceedings below in this case, the Government attempted to draw support from Congress's post- Morrison enactment of Section 929P(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111-203, §929P(b), 124 Stat. 1376, 1864-66 (2010). Section 929P(b) amended the jurisdictional provision of the 1934 Act, Section 27, to provide that "[t]he district courts of the United States ... shall have jurisdiction of an action or proceeding brought or instituted by the [SEC] or the United States alleging a violation of the antifraud provisions" involving significant con­duct or effects in the United States. Id. § 929P(b)(2); see 15 U.S.C. § 78aa(b). The Government argued be­low that the legislative history of that provision re­flects a "pre-existing intent to permit the Exchange Act to apply to criminal offenses involving significant conduct in the United States."12
This argument is meritless. To begin with, as the Government does not dispute, the Dodd-Frank Act by its terms does not apply retroactively. Pub. L. 111-203, § 4, 124 Stat, at 1390. And as many com­mentators have observed, there is grave doubt whether Section 929P(b) even has any practical pro­spective effect, because it amended only jurisdiction­al provisions of the securities laws, and not any sub­stantive provisions, and thus addressed only the dis-
 
 
 
 
 
12 Gov't's Mem. of Law in Response to Def ts' Pre­trial Motions at 15, United States v. Mandell, No. 09-662 (S.D.N.Y. filed Feb. 4, 2011) (emphasis added).
 
 
 
 
     
     
 
 
 
 
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25
 
 
 
 
 
trict courts' "power to hear a case" and not "what conduct [the law] prohibits." Morrison, 130 S. Ct. at 2877 (citation and internal quotation marks omit­ted).13 More importantly, legislative history in 2010 can shed no light on what Congress meant in 1934
 
 
 
 
 
13 See, e.g., Richard W. Painter, The Dodd-Frank Extraterritorial Jurisdiction Provision: Was It Effec­tive, Needed or Sufficient?, 1 Harv. Bus. L. Rev. 195, 207-08 (2011); A.C. Pritchard, Securities Law in the Roberts Court: Agenda or Indifference?, 37 J. Corp. L. 105, 142 (2011); Genevieve Beyea, Morrison v. Na­tional Australia Bank and the Future of Extraterri­torial Application of the U.S. Securities Laws, 72 OHIO St. L.J. 537, 571 (2011); Howard M. Wasser-man, The Roberts Court and the Civil Procedure Re­vival, 31 REV. Litig. 313, 346-47 (2012); Milosz Morgut, Extraterritorial Application of U.S. Securi­ties Law, 2012 Eur. Bus. L. Rev. 547, 552-53; Wolf-Georg Ringe, The International Dimension of Issuer LiabilityLiability and Choice of Law from a Trans­atlantic Perspective, 31 Oxford J. Leg. Stud. 23, 41 (2011); Katherine Florey, State Law, U.S. Power, Foreign Disputes: Understanding the Extraterritori­al Effects of State Law in the Wake o/Morrison v. National Australia Bank, 92 B.U. L. Rev. 535, 546 & n.74 (2012); Andrew Rocks, Whoops! The Imminent Reconciliation of U.S. Securities Laws with Interna­tional Comity after Morrison v. National Australia Bank and the Drafting Error in the Dodd-Frank Act, 56 VlLL. L. REV. 163, 188-95 (2011); Meny Elgadeh, Morrison v. National Australia Bank: Life After Dodd-Frank, 16 Fordham J. Corp. & Fin. 573, 593-96(2011).
 
 
 
 
     
     
 
 
 
 
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26
 
 
 
 
 
when the operative language of Section 10(b) was passed. "Post-enactment legislative history (a con­tradiction in terms) is not a legitimate tool of statu­tory interpretation." Bruesewitzv. Wyeth LLC, 131 S. Ct. 1068, 1081(2011).
And to the extent Section 929P(b)'s legislative history is relevant here, it undermines the Govern­ment's argument. In the Congressional Record pas­sage cited by the Government below, a Member of Congress noted how, "applying a presumption against extraterritoriality," "the Supreme Court [in Morrison] held that section 10(b) of the Exchange Act applies only to transactions in securities listed on United States exchanges and transactions in other securities that occur in the United States." 156 CONG. Rec. H5237 (daily ed. June 30, 2010) (state­ment of Rep. Kanjorski). That this legislator then ar­gued that 929P(b) was "intended to rebut that pre­sumption by clearly indicating that Congress intends extraterritorial application in cases brought by the SEC or the Justice Department," id., shows that he recognized—correctly—that Morrison applies to criminal cases.
POINT III
STATUTES THAT PROVIDE FOR BOTH
CIVIL REMEDIES AND CRIMINAL
SANCTIONS CAN HAVE ONLY ONE
AUTHORITATP7E MEANING THAT
APPLIES IN ALL CASES.
Finally, and most fundamentally, the Govern­ment's assertion that Morrison does not apply to criminal charges brought under Section 10(b) con­tradicts a simple and commonsensical principle of
 
 
 
 
     
     
 
 
 
 
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27
 
 
 
 
 
statutory interpretation: the text of a statute can have only one authoritative meaning. That principle controls even if, as the Government wrongly claims about the presumption against extraterritoriality, a particular canon of construction governs only some applications of a statute but not others. As the Su­preme Court has explained: "It is not at all unusual to give a statute's ambiguous language a limiting construction called for by one of the statute's applica­tions, even though other of the statute's applications, standing alone, would not support the same limita­tion. The lowest common denominator, as it were, must govern? Clark v. Martinez, 543 U.S. 371, 380 (2005) (emphasis added).
This "lowest common denominator" principle— that a statute can only have one meaning—is nicely illustrated by cases applying the rule of lenity. Un­like the presumption against extraterritoriality, the age-old rule of lenity is a canon of construction that actually does distinguish between criminal statutes and civil ones. The rule holds, of course, that "'ambi­guity concerning the ambit of criminal statutes should be resolved in favor of lenity,'" and "that 'when choice has to be made between two readings of what conduct Congress has made a crime, it is ap­propriate, before we choose the harsher alternative, to require that Congress should have spoken in lan­guage that is clear and definite.'" United States v. Bass, 404 U.S. 336, 347 (1971) (citation omitted).
But even though the rule of lenity applies only to criminal statutes, its application is not confined to criminal cases. The Supreme Court has consistently applied the rule of lenity in civil cases involving the application of ambiguous statutes that have both
 
 
 
 
     
     
 
 
 
 
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28
 
 
 
 
 
criminal and civil applications. See, e.g., Leocal v. Ashcroft, 543 U.S. 1, 11-12 n.8 (2004); United States v. Thomson/Center Arms Co., 504 U.S. 505, 518 & n.10 (1992) (plurality opinion of Souter, J.); accord id. at 519, 523 (Scalia, J., concurring in judgment); Crandon v. United States, 494 U.S. 152, 158, 168 (1990); Commrv. Acker, 361 U.S. 87, 91 (1959).
Why? "Because we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context ..." Leocal, 543 U.S. at 11-12 n.8 (emphasis added). "The rule of leni­ty ... is a rule of statutory construction whose pur­pose is to help give authoritative meaning to statuto­ry language. It is not a rule of administration calling for courts to refrain in criminal cases from applying statutory language that would have been held to ap­ply if challenged in civil litigation." Thomson/Center Arms, 504 U.S. at 518-19 n.10 (plurality opinion of Souter, J.). When a statute provides for both civil remedies and criminal penalties, it is thus "incon­ceivable" for "the language defining [a] violation to be given one meaning (a narrow one) for the penal sanction and a different meaning (a more expansive one) for the private compensatory action." SCALIA & Garner, at 297.
It would be equally inconceivable here (if not more so, given the rule of lenity) to give the language defining a Section 10(b) violation a narrow meaning for a private compensatory action and a more expan­sive meaning for a penal sanction. Because presump­tions are employed "to help give authoritative mean­ing to statutory language," Thomson/Center Arms, 504 U.S. at 518-19 n.10 (plurality opinion), and "[b]ecause we must interpret the statute consistent-
 
 
 
 
     
     
 
 
 
 
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29
 
 
 
 
 
ly, whether we encounter its application in a crimi­nal or noncriminal context ...," Leocal, 543 U.S. at 11-12 n.8, the presumption against extraterritoriali­ty must be applied here. Even in criminal Section 10(b) cases, "[t]he lowest common denominator, as it were, must govern," Clark, 543 U.S. at 380, and as far as the territorial scope of Section 10(b) is con­cerned, that lowest common denominator is Morri­son. The Government's attempt here to turn the pre­sumption against extraterritoriality into a reverse rule of lenity must fail.
 
 
 
 
     
     
 
 
 
 
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30
 
 
 
 
 
CONCLUSION
This Court should reaffirm its prior holdings that the presumption against extraterritoriality applies to criminal statutes, and it should hold that Morrison applies to criminal Section 10(b) cases. To the extent the judgments of conviction in this case involve the application of Section 10(b) to extraterritorial trans­actions, those judgments should be reversed.
Respectfully submitted,
John F. Savarese Chair, White-Collar Crime Committee of The Associa­tion of the Bar of the City of New York Wachtell, Lipton, Rosen &
Katz 51 West 52nd Street Of Counsel:                     New York, New York 10019
George T. Conway III (212) 403-1000 David B. Anders Kevin S. Schwartz          Attorneys for Amicus Curiae
September 25, 2012
 
 
 
 
     
     
 
 
 
 
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CERTIFICATE OF COMPLIANCE
1.   This brief complies with the type-volume limi­tation of Fed. R. App. P. 32(a)(7)(B) because it con­tains 6,999 words, excluding the parts of the brief exempted by Fed R. App. P. 32(a)(7)(B)(iii).
2.   This brief complies with the typeface require­ments of Fed. R. App. P. 32(a)(5) as modified for printed briefs in pamphlet format by Local Rule 32.1(a)(2), and complies with the type style require­ments of Fed. R. Civ. P. 32(a)(6), because it has been prepared in a proportionally spaced typeface using Microsoft Word for Mac 2011, Version 14.2.3, in 12-point Century Schoolbook font.
George T. Conway III Attorney for Amicus Curiae
September 25, 2012