Attention, American fraudsters! If you restrict your criminal activities to conduct outside of the United States, you’re safe from prosecution under U.S. laws.
That’s not exactly how a three-judge panel of the 2nd Circuit Court of Appeals worded its decision Friday in U.S. v. Alberto Vilar and Gary Tanaka, but it’s the effective result of the appellate court’s finding that criminal statutes – in particular, criminal securities fraud laws – don’t extend overseas. The opinion noted that the 2nd Circuit has long recognized a presumption against the extraterritorial application of U.S. criminal laws. But make no mistake, the Vilar ruling is a major interpretation of what the court acknowledged to be an open question after the U.S. Supreme Court’s 2010 admonition against overextending the scope of U.S. laws in Morrison v. National Australia Bank. Namely, does Morrison apply to criminal as well as civil laws? The 2nd Circuit panel – Judges Jon Newman, Jose Cabranes and Chester Straub – could not have answered the question more decisively. “The general rule,” wrote Cabranes, “is that the presumption against extraterritoriality applies to criminal statutes.”
That reasoning could result in the dismissal of some counts of the government’s indictment of onetime SAC Capital trader Mathew Martoma, whose lawyers at Goodwin Procter argued in a brief filed in June that Morrison precludes charges based on trading in the American Depository Receipts of Elan, a company whose stock trades on Irish and British exchanges. The intersection of Morrison and fraud prosecution is also at issue in a 2nd Circuit appeal by former Sky Capital executives Ross Mandell and Andrew Harrington, who were convicted of defrauding mostly British investors in London-traded securities.
Unfortunately for Vilar and Tanaka, who controlled U.S. and international investment advisory firms under the umbrella name Amerindo, the 2nd Circuit upheld their convictions for deceiving investors in two Amerindo vehicles. There was no question that the securities Vilar and Tanaka sold were not listed on any exchange in the United States, and that many foreign investors completed their purchases abroad. The appeals court found, however, that some of Amerindo’s alleged victims transacted in the United States to purchase the securities. Those purchases were domestic transactions under Morrison, the 2nd Circuit said, so they justified the 2010 jury verdicts against Vilar and Tanaka.
But that very limited affirmation has to be considered a blow to prosecutors from the Manhattan U.S. Attorney’s office, who had asked the 2nd Circuit for a much broader holding that would have insulated criminal cases from Morrison defenses. The government argued that the Supreme Court’s 1922 decision in United States v. Bowman holds that U.S. criminal laws apply to conduct outside our borders even if they do not specify extraterritoriality. (In Bowman, the court ruled that criminal charges could be brought against sailors who conspired while at sea to defraud a government-owned company.) Under the government’s reading, the 2010 Morrison decision applied only to civil statutes, not to criminal laws; even though Morrison specifically addressed a securities fraud class action, prosecutors said there’s a distinction between civil fraud suits and criminal prosecutions.