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UNITED STATES v. ABRAHAMS

February 25, 1980;

UNITED STATES OF AMERICA, Plaintiff,
v.
ALAN HERBERT ABRAHAMS, a/k/a JAMES A. CARR, Defendant.



The opinion of the court was delivered by: CONNER

OPINION AND ORDER

Defendant Alan Herbert Abrahams ("Abrahams") is charged with one count of violating the conspiracy statute, 18 U.S.C. § 371, and forty-nine counts of violating the mail fraud and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343, respectively. *fn1" The charges arise out of his operation, between July 1, 1976 and January 15, 1978, of Lloyd, Carr & Company, which was in the business of offering to the public options to purchase or sell futures contracts *fn2" on commodities traded on markets in London, England. In Count One of the indictment, the Government charges that Abrahams knowingly engaged in a conspiracy to obtain money by means of a scheme to defraud investors by employing such techniques as selling "naked" options *fn3" to the public; representing to customers that Lloyd, Carr & Company would purchase options for them when in fact such options were never purchased; disseminating false and misleading recommendations respecting commodity options to the public; and employing unskilled salespersons who were encouraged to use high pressure techniques to sell options to the public. Sixty-seven overt acts are set out in Count One; most allege that defendant sold an option to an individual on a particular date utilizing these techniques. Counts Two through Fifty charge defendant with mail fraud or wire fraud: *fn4" the Government alleges that having devised the scheme to defraud the public set out in Count One, defendant then utilized the mails and the wires to send confirmations of purchases of options to customers and to place orders for the purchase of options for Lloyd, Carr & Company customers.

 Abrahams moves to dismiss the indictment on several grounds: (1) that he is being prosecuted under the wrong criminal statute; (2) that he is being selectively prosecuted; (3) that he has been prejudiced by pre-indictment publicity; (4) that prosecutorial misconduct occurred before the Grand Jury; and (5) that his right to a speedy trial has been violated.

 I. Exclusive Jurisdiction

 A. The Contentions of the Parties

 Abrahams contends that for federal prosecutions for mail and wire fraud involving commodity options, the exclusive vehicle is the Commodity Futures Trading Commission Act of 1974 ("the Act"), Pub.L.No. 93-463, 88 Stat. 1389 (1974), as amended by Pub.L.No. 95-405, 92 Stat. 865 (1978), codified at 7 U.S.C. § 1 et seq. (Supp.1978); that by its enactment Congress intended that commodity options would be regulated solely under the Act; and that Congress implicitly repealed those provisions of other, more general statutes, including the mail and wire fraud statutes, imposing penalties for conduct now proscribed as criminal under the Act. Defendant relies on the wording of Section 2 of the Act which provides in relevant part:

 
" * * * That the Commission shall have exclusive jurisdiction with respect to accounts, agreements, (including any transaction which is of the character of, or is commonly known to the trade as, an "option,' "privilege,' "indemnity,' "bid,' "offer,' "put,' "call,' "advance guaranty' or "decline guaranty') and transactions involving contracts of sale of a commodity for future delivery, traded or executed on a contract market designated pursuant to Section 7 of this title or any other board of trade, exchange, or market, and transactions subject to regulation by the Commission pursuant to Section 23 of this title; And provided further, That, except as hereinabove provided, nothing contained in this section shall (i) supersede or limit the jurisdiction at any time conferred on the Securities and Exchange Commission or other regulatory authorities under the laws of the United States or of any State, or (ii) restrict the Securities and Exchange Commission and such other authorities from carrying out their duties and responsibilities in accordance with such laws. Nothing in this section shall supersede or limit the jurisdiction conferred on courts of the United States or any State * * *."

 Abrahams further contends that Section 6o of the Act, which prohibits the use of the United States mails or any means of interstate commerce to perpetuate fraudulent schemes involving commodity options, was intended by Congress to be the sole means by which fraudulent conduct in the commodities field, including such conduct as is alleged in the instant indictment, should be prosecuted, *fn5" even if that conduct violates the mail fraud statute as well. Section 6o provides:

 
"(1) It shall be unlawful for any commodity trading advisor or commodity pool operator, *fn6" by use of the mails or any means or instrumentality of interstate commerce, directly or indirectly
 
"(A) to employ any device, scheme, or artifice to defraud any client or participant or prospective client or participant; or
 
"(B) to engage in any transaction, practice, or course of business which operates as a fraud or deceit upon any client or participant or prospective client or participant. *fn7" "
 
The Government argues that neither the express wording of the Act nor its legislative history offers any support for defendant's theory that the Government is prohibited from prosecuting fraudulent schemes involving commodity options under the general criminal antifraud statutes, such as the mail fraud statute. The Government's position is that the mail fraud statute serves as a useful supplement to the criminal antifraud sanctions provided by Congress in the Act and that the two statutes Section 6o of the Act and Section 1341 work in harmony in attempting to prevent fraud and misrepresentation in the commodities field. For the reasons that follow, this Court shares the Government's view.
 
B. The Applicable Law
 
Defendant contends that by enacting the 1974 Act a comprehensive statutory scheme to regulate trading in futures Congress intended to repeal, by implication, the more general mail fraud statute insofar as it relates to schemes to defraud involving futures.
 
Whether the passage of a specific law precludes prosecution under a more general law covering the same offense is a question of legislative intent. *fn8" The law is well settled, however, that repeal by implication is not favored and that it follows only where the later act is clearly intended to be in substitution for the earlier act. "The implication must be clear, necessary, and irresistible," Blumenthal v. United States, 88 F.2d 522, 526 (8th Cir. 1937); the legislative intent to repeal must be manifest in the positive repugnancy between the provisions. United States v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979). See also United States v. Burroughs, 289 U.S. 159, 164, 53 S. Ct. 574, 576, 77 L. Ed. 1096 (1933); United States v. Green, 494 F.2d 820, 827 (5th Cir.), cert. denied, 419 U.S. 1004, 95 S. Ct. 325, 42 L. Ed. 2d 280 (1974); United States v. Rollnick, 91 F.2d 911, 918 (2d Cir. 1937).
 
In order to determine whether the Act's specific antifraud provision should be deemed to have repealed the mail fraud statute, this Court must first examine the legislative history of the Act to determine whether Congress expressed an intent partially to repeal the mail fraud statute and, second, must examine the two statutes to determine whether there is a repugnancy in the subject matter of the two statutes which would justify an implication of repeal.
 
C. Legislative History
 
A review of the legislative history of the Act establishes that Congress intended to vest the Commodity Futures Trading Commission ("the Commission") with exclusive jurisdiction over the regulation of commodity futures; however, the legislative history does not support defendant's view that Congress, by the "exclusive jurisdiction" language, intended that prosecutions for fraudulent schemes involving commodity options would lie solely under the Act.
 
Prior to the enactment of the 1974 Act, a number of state and federal agencies regulated trading in commodity futures: options in agricultural products were regulated by the Department of Agriculture via the predecessor of the 1974 Act, the Commodity Exchange Act ("the CEA"), c. 369, § 1, 42 Stat. 998 (1922), codified at 7 U.S.C. § 1 et seq. (1964); options in securities were regulated by the Securities & Exchange Commission ("the SEC"); and various state agencies, such as the "blue sky" commissions, were also actively involved in policing the options markets. But a regulatory gap still existed and some forms of futures went unregulated. In 1973 and 1974, hearings were held by committees in both Houses of Congress on the state of the futures markets. *fn9" As a result of those hearings, it was decided that a major revision of the existing regulatory structure was required. In lieu of the existing system of overlapping regulation by numerous state and federal agencies, Congress created a single federal agency equipped with broad authority to regulate futures trading and exchange activities. Where the Commission's jurisdiction was made "exclusive," the jurisdiction of other federal agencies such as the SEC, the Department of Agriculture and the Department of Treasury, and of the state agencies, was preempted so that "(t)he potential for a hodgepodge of regulatory requirements, acting in countervailing or conflicting fashion to one another . . .", Johnson, The Commodity Futures Trading Commission Act: Preemption as Public Policy, 29 Vanderbilt L.Rev. 1, 5 (1976), would be avoided.
 
In addition to broad rule-making authority, the Commission was equipped with significant enforcement powers, including the authority to conduct investigations; to issue cease and desist orders; to obtain court-ordered injunctions; and to punish specified fraudulent conduct with fines of up to $ 100,000 (later increased to $ 500,000) or imprisonment for not more than five years, or both, see generally Section 13 of the Act.
 
The legislative history makes clear that Congress intended the Commission to exercise sole jurisdiction over the regulation of futures contracts. See, e.g., H.Rep.No. 93-1383, 93rd Cong. 2d Sess. (1974) at 35, U.S.Code Cong. & Admin. News 1974, pp. 5843, 5897 ("Under the exclusive grant of jurisdiction to the Commission, the authority in the (CEA) . . . would preempt the field insofar as futures regulation is concerned."); S.Rep.No. 95-8580, 95th Cong., 2d Sess. (1978) at 13, U.S.Code Cong. & Admin. News 1978, pp. 2087, 2101 ("The (Commission) was created in order to assure that a single expert agency would have the responsibility for developing a coherent regulatory program encompassing futures trading and related activities. Therefore, Congress has vested in the Commission exclusive jurisdiction to build upon the foundation provided by the (CEA) in erecting a sound and strong Federal regulatory policy governing futures trading"). *fn10"
 
Although Congress equipped the Commission with the power to prosecute violations of the Act by including civil and criminal sanctions in the Act, there is no indication in the legislative history of a Congressional intent to make the criminal sanction provisions of the Act the sole vehicle for prosecuting fraud in the sale of futures. The various House, Senate, and Conference Reports make no reference to the general federal ...

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