Case: 09-20699 Document: 00511363633 Page: 1 Date Filed: 01/27/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 27, 2011
No. 09-20699 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellant
v.
MARK DAVID RADLEY; JAMES WARREN SUMMERS;
CODY DEAN CLABORN; CARRIE KIENENBERGER,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges.
EDITH H. JONES, Chief Judge:
The United States appeals from the district court’s order dismissing the
indictment of Appellees for wire fraud and violations of the Commodities
Exchange Act (CEA), 7 U.S.C. § 13(a)(2). Because Appellees’ conduct fell within
a statutory exemption for off-exchange commodities transactions, we affirm the
dismissal of the indictment’s price manipulation and cornering counts. Although
the CEA exemption does not necessarily inoculate Appellees from the wire fraud
statute, we affirm the district court’s dismissal of the wire fraud counts.
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I. Background
Appellees Mark David Radley, James Warren Summers, Cody Dean
Claborn, and Carrie Kienenberger worked as commodities traders for BP
Products North America Inc. Among other things, they traded futures in “TET
propane,” which is propane stored in a salt dome near Mont Belvieu, Texas, and
transported in a pipeline system belonging to the Texas Eastern Products
Pipeline Company, LLC. TET propane, along with the propane stored in two
other Mont Belvieu salt domes, is the primary supply of propane sold between
Gulf Coast producers and Midwestern and Northeastern consumers.
TET propane futures do not trade on an exchange. Rather, buyers and
sellers place bids on an electronic interface called Chalkboard, negotiate deals
directly, or use brokers to negotiate deals on their behalf. Bids and offers are
anonymous, though all market participants can see the price and quantity of
each transaction. Each day, the Oil Price Information Service (OPIS) compiles
data on the day’s trades and publishes an average price.
Beginning in early February 2004, the Appellees began purchasing a large
number of futures contracts for delivery at the end of that month—i.e., taking
a “long position” in February TET propane. They did so through the Chalkboard
system, placing multiple bids at different prices and quantities. They also
entered agreements to sell February TET propane at the OPIS average price.
Because of Appellees’ ambitious (and risky) buying campaign, the price of
futures skyrocketed from 61 cents per gallon on February 9, 2004 to a high of
94 cents on February 27, 2004, the last trading day before delivery on February
29. After the February contracts came due, the price of propane futures
plummeted. On March 1, the price of March TET propane fell almost 25 cents
per gallon to settle at 61.75 cents.
BP made money from Appellees’ activity in two ways. First, some of the
people who sold futures contracts (the “shorts”) did not actually have any
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propane to sell (“naked shorts”); in order to fulfill their obligation, they needed
to repurchase TET propane at the high price prevailing after Appellees’ buying
campaign was underway, often from Appellees themselves. Second, Appellees’
contracts to sell at future OPIS prices generated profits because the OPIS price
increased with Appellees’ voracious demand.
On October 25, 2007, following a two-year investigation, a grand jury in
the Northern District of Illinois returned a twenty-count indictment against
Appellees. The district court transferred that case to the Southern District of
Texas, where a second grand jury returned a twenty-six-count superseding
indictment on January 29, 2009. The superseding indictment charged price
manipulation, attempted price manipulation, cornering the market, attempted
cornering, wire fraud, and conspiracy to commit those crimes. According to the
government, Appellees attempted to drive up the price of February TET propane
by placing multiple bids on Chalkboard—“stacked bids”—in order to trick other
market participants into believing that demand for the commodity was strong
and came from more than one source. Moreover, Appellees placed bids at prices
higher than other bidders had posted, allegedly perpetrating their deception by
enticing other market participants to transact at higher prices. The indictment
finally alleged that Appellees withheld information about the extent of their
purchases and falsely denied attempting to corner the market.
Appellees moved to dismiss the indictment, and the district court granted
their motion. The district court cited several grounds for dismissal. First, the
court reasoned that the transactions in question fell within a statutory exception
to the CEA’s ban on price manipulation and cornering. United States v. Radley,
659 F. Supp. 2d 803, 809-10 (S.D. Tex. 2009). Second, the court held that even
if the statutory exclusion did not apply, dismissal was appropriate because the
CEA’s price manipulation provision was unconstitutionally vague. Id. at 816.
Third, again assuming the exclusion did not apply, the court concluded that the
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indictment failed to allege one of the two elements of cornering the market: a
dominant position in futures contracts plus control of the underlying asset. Id.
at 817-18. Finally, the court dismissed the wire fraud counts because the
indictment failed to allege a misrepresentation of material fact. Id. at 820. The
government, as Appellant, challenges each of these decisions.
II. Standard of Review
We review de novo both the district court’s construction of the CEA and its
determination that the indictment failed to allege all elements of wire fraud.
United States v. Jho, 534 F.3d 398, 402 (5th Cir. 2008); United States v. Kay,
359 F.3d 738, 742 (5th Cir. 2004). The allegations in the indictment are
presumed true for present purposes. The district court, no doubt intending to
cover all bases, discussed in some detail Appellees’ contention that the CEA’s
anti-manipulation provision, § 13(a)(2), is unconstitutionally vague. Radley,
659 F. Supp. 2d at 813-15. Because we conclude that the exemption in § 2(g)
shielded Appellees’ conduct, we reserve comment on the constitutional issue.
III. Discussion
A. § 2(g)
The CEA makes it a felony for “[a]ny person to manipulate or attempt to
manipulate the price of any commodity in interstate commerce . . . or to corner
or attempt to corner any such commodity . . . .” 7 U.S.C. § 13(a)(2). In 2000,
Congress updated the CEA by passing the Commodity Futures Modernization
Act (CMFA), Pub. L. No. 106-554, § 1(a)(5), 114 Stat. 2763. The CFMA aimed
to dispel uncertainty over the reach of the CEA and prevent the commodity
futures market from fleeing the United States. CFMA § 2(5)-(6),(8). As modified
by the CFMA, the CEA exempts from its regulations certain off-exchange
transactions in non-agricultural commodities: “No provision of this chapter . . .
shall apply to or govern any agreement, contract, or transaction in a commodity
other than an agricultural commodity,” provided three conditions are met.
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7 U.S.C. § 2(g).1 The conditions require that the contract was “(1) entered into
only between persons that are eligible contract participants at the time they
enter into the agreement, contract, or transaction; (2) subject to individual
negotiation by the parties; and (3) not executed or traded on a trading facility.”
Id. The district court carefully explained how the subject matter of this case
satisfies the statutory conditions of the exception. Radley, 659 F.Supp. 2d at
811-12. On appeal, the government does not challenge the conditions’
satisfaction. Instead, the parties dispute the reach of the exemption itself.
The dispute focuses on the meaning of “transaction” in Section 2(g). The
activities alleged in the indictment—placing “stacked bids,” withholding supply
from the market, falsely denying a scheme to corner the market, and falsely
stating that BP intended to consume its propane—are not contracts, but whether
they are part of a “transaction” or “agreement” is a more difficult question.
Neither this Circuit nor the Supreme Court has defined “transaction” for
purposes of the CEA. Other courts have struggled with the issue but failed to
produce a test to identify which conduct is sufficiently disconnected from a
purchase and sale to fall outside the definition of a transaction.
The government argues for a narrow meaning of “transaction,” rooted in
dicta from this Court’s unpublished decision in United States v. Futch, 278 Fed.
App’x 387 (5th Cir. 2008). Futch affirmed the conviction of a natural gas trader
who made false statements to an industry publication about the prices his
company was paying for natural gas. Id. at 389-90. “Inaccurate reports” are
unlawful under the CEA. See 7 U.S.C. § 13(a)(2). Although § 2(g) was enacted
after the conduct in Futch, the Fifth Circuit noted in dicta that the exemption
would not have helped the defendant because he “was not indicted for entering
into an ‘agreement, contract or transaction,’ but for distributing false market
1
The Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-
203, 124 Stat. 1376, repeals § 2(g), effective July 21, 2011.
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information under § 13(a)(2).” Futch, 278 Fed. App’x at 392. Other courts have
also concluded that false reporting is not part of a CEA-exempt agreement,
contract or transaction. The Southern District of Texas, for example, refused to
apply the exclusion in § 2(g) when a trader reported fictitious transactions to a
trade journal. CFTC v. Johnson, 408 F. Supp. 2d 259 (S.D. Tex. 2005); see also
CFTC v. Reed, 481 F. Supp. 2d 1190 (D. Colo. 2007), CFTC v. Bradley, 408 F.
Supp. 2d 1214 (N.D. Okla. 2005).
Even accepting arguendo the consensus that § 2(g) does not protect
outright fabrications, the false reporting cases nevertheless prove too much.
Beyond the necessary finding that a defendant violates the CEA when he reports
transactions that never occurred, the courts hearing false reporting cases tend
to advance a narrow construction of “contract, agreement, or transaction.” The
Johnson court, for example, declared that “the exemptions are, by their terms,
limited to contracts, agreements or transactions—denoting mutual exchanges
between parties.” 408 F. Supp. 2d at 271. Bradley likewise confines “contract,
agreement, or transaction” to “a mutual understanding between parties creating
rights or obligations that are enforceable or are recognized at law.” 408 F. Supp.
2d at 1219. The government seizes upon these interpretations of § 2(g) that may
only exempt activities which create legally enforceable obligations. Tracing the
lineage of this definition through citations like that in Bradley, however, leads
to one source: the dictionary definition of “contract.” Bradley, 408 F. Supp. 2d
at 1219 (citing B LACK’S L AW D ICTIONARY 318 (7th Ed. 1999)), Johnson, 408 F.
Supp. 2d at 271-72 (citing Black’s Law Dictionary and language nearly identical
to Bradley, which corresponds to the dictionary’s definition of “contract”). None
of the false reporting cases on which the government relies distinguishes
between contracts and the other activities listed in § 2(g).
Yet, the citations in Bradley and Johnson embody the fundamental
interpretive error of extending the definition of one term in a three-term series
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to cover the entire trio. Their methodology violates the “cardinal principle of
statutory construction that a statute ought, upon the whole, to be so construed
that, if it can be prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S. Ct. 441
(2001) (internal citations omitted). The interpretation in Bradley and Johnson
renders the terms “transaction” and “agreement” superfluous. For this reason,
the government’s cases, which could at best constitute persuasive authority, fail
to persuade.
In the absence of reliable precedent, the scope of § 2(g) is a matter of first
impression. “As in any case involving statutory interpretation, we begin by
examining the text of the relevant statutes.” United States v. Rains, 615 F.3d
589, 596 (5th Cir. 2010). Contrary to the government’s expedient position, the
text of the CEA broadly defines a transaction. In a provision discussing the
CFTC’s jurisdiction, the statute refers to “agreements (including transactions . . .
commonly known to the trade as . . . [a] ‘bid’ [or] ‘offer’ . . . ).”
7 U.S.C. § 2(a)(1)(A). While not a precise definition, this provision sheds enough
light on the CEA’s argot to reject the government’s narrow interpretation.
Because both terms encompass bids and offers, the quoted language shows that
agreements and transactions cover more than enforceable contracts. The same
provision refers to “transactions involving contracts.” Id. (emphasis added).
This language confirms that contracts and transactions have separate meanings
and triggers this Court’s duty to give effect to both terms. United States v.
Molina-Gazca, 571 F.3d 470, 474 (5th Cir. 2009). The CEA’s own language
belies the argument that “transaction” refers only to a completed and enforceable
contract.
Beyond the law itself, dictionary definitions inform the plain meaning of
a statute. See United States v. Ferguson, 369 F.3d 847, 851 (5th Cir. 2004)
(employing a dictionary in order to “give the words of statutes their plain
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meaning.”). Black’s Law Dictionary defines a transaction as “[t]he act or an
instance of conducting business or other dealings; esp., the formation,
performance, or discharge of a contract.” B LACK’S L AW D ICTIONARY 1535 (8th ed.
2004). This definition is also consistent with the outcome in Futch and the other
false reporting cases; reporting nonexistent transactions is not part of
“conducting business” and therefore finds no sanctuary in § 2(g).
Applying the ordinary meaning of “transaction” to the conduct identified
in the indictment shows that Appellees’ activities fall within the scope of § 2(g).2
The indictment lists three behaviors that the government asserts are not
transactions. First, it alleges that Appellees placed bids on Chalkboard without
intending to enter into a transaction based on each bid, but rather for the
purpose of misleading other market participants about the demand for February
TET propane. Placing disingenuous bids, the argument goes, was a deception
rather than the first step in a transaction. Second, the indictment asserts that
Appellees misled the market by refusing to buy propane at a discounted price
unless the seller agreed to conceal the discount from other market participants.
According to the government, a refusal to buy at a lower price is a non-
transaction subject to § 13(a)(2) because refusing to enter into a transaction
cannot be a transaction. Third, the government argues that § 2(g) does not
protect Appellees’ statements denying their plan to drive up the price of propane.
The alleged denials include Mr. Claborn’s statement that BP would consume its
propane at some point and his comment that a fellow trader was “badly
mistaken” in suggesting that BP was attempting to corner the market. We
evaluate each of these purported non-transactions under the definition
established above.
2
We emphasize that conduct falling within the CEA’s broad definition of “transaction”
must still meet the qualifying conditions of § 2(g) to be exempt. There is no argument here
that the alleged conduct does not meet those qualifying conditions.
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Appellees’ bidding activities fall within the ordinary meaning of
“transaction,” as well as the CEA’s internal definition. As quoted above, the
CEA includes conduct “commonly known to the trade as . . . [a] ‘bid’ [or] ‘offer’”
within the scope of a transaction. 7 U.S.C. § 2(a)(1)(A). Under the dictionary
definition of a transaction as “conducting business,” Appellees’ bids are likewise
covered. In fact, under the Chalkboard system, traders cannot conduct their
business without placing bids and offers.
To focus, as the government does, on the possibility that the bids could
convey information about the number of buyers for TET propane is to overlook
the bids’ legitimacy. Unlike the false reports in Futch, the bids in this case were
real; a counter-party could have accepted them and formed an enforceable
contract at any time. Indeed, that event occurred routinely, proving that the
bids were genuine. The indictment misses this point and instead recasts both
successful and unsuccessful bids as proof of malfeasance. It characterizes bids
that failed to attract a seller (despite being the highest price when placed) as
ploys to “prevent other market participants from engaging in transactions at
prices lower than the conspirators’ bids.” Where Appellees’ bids found a seller,
however, the indictment complains of “purchases of February 2004 TET propane
for the purpose of preventing a drop in the price and acquiring control of the
supply . . . .” ¶60. While weaving its damned-if-you-do-damned-if-you-don’t web,
the indictment demonstrates that Appellees’ bids were bona fide and that other
market participants freely chose which bids to accept and which to reject.
Unless they were somehow illusory, which was not the case, Appellees’ bids were
part of their transactions in February TET propane futures. As such, § 2(g)
excludes them from the reach of the CEA.
The same conclusion obtains in the case of statements designed to conceal
Appellees’ long position and their refusal to buy propane at a discount. Both of
these alleged actions differ from the bidding activity in that they could not
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culminate in the formation of a contract. Nevertheless, the process of
“conducting business” encompasses negotiation and communication that fails to
produce an agreement. Negotiations are as integral to a transaction as the
consummating signature. See, e.g., Thomas v. Duralite Co., Inc., 524 F.2d 577,
587 (3d Cir. 1975) (holding in the context of securities fraud that early
negotiations “may fairly be considered part of the original transactions”),
Progress Tailoring Co. v. FTC, 153 F.2d 103, 105 (7th Cir. 1946) (“preliminary
negotiations were all an essential part of the entire transaction.”).
In the case of refusals to sell, excluding them from the exemption in § 2(g)
opens the door for prosecution based on early-stage negotiations, even if an early
refusal (perhaps even in the face of a discount) leads to a better price and
subsequent agreement. For that matter, the fact of a subsequent agreement
cannot be decisive in whether early refusals are exempt; otherwise, criminality
attaches only when the allegedly manipulative deal does not occur. Because a
transaction encompasses more than the execution of a contract, negotiations
cannot be removed from the protection of § 2(g).
Finally, the indictment alleges violations of the CEA based on Appellees’
efforts to conceal their long position in February TET propane. These include
Appellee Claborn’s denial that he was running a corner, his statement to another
trader that BP intended to consume its propane purchases, and Appellees’ efforts
to conceal their long position from supervisors at BP. The government
maintains that these actions are analogous to the false reporting in Futch. As
the district court explained, however, Futch involved false reports of sales that
did not actually occur. Radley, 659 F. Supp. 2d at 810. By contrast, the
statements here concerned genuine transactions—and transactions protected by
§ 2(g), no less. We reject the government’s proffered construction of § 2(g) that
shields every aspect of a transaction while requiring the people involved to
disclose their strategy to even the most informal of inquiries from other parties.
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See Dunn v. CFTC, 519 U.S. 473, 476-77, 119 S. Ct. 913, 919 (1997), (rejecting
CFTC’s narrow construction of an exemption for “transactions in foreign
currency” and noting CFTC’s agreement that “futures contracts are a subset” of
those transactions (emphasis added)). The correct tools for prosecuting false or
misleading statements in connection with exempt transactions are, if anything,
the fraud statutes, to which we now turn.
B. Wire Fraud
Counts 20 through 26 of the indictment allege wire fraud in violation of
18 U.S.C. § 1343. That statute punishes wire, radio and television
communications in furtherance of “any scheme or artifice to defraud.” 18 U.S.C.
§ 1343. To prove wire fraud, “the government must prove: (1) a scheme to
defraud and (2) the use of, or causing the use of, wire communications in
furtherance of the scheme.” United States v. Ingles, 445 F.3d 830, 838 (5th Cir.
2006) (internal quotations omitted). Although the language of § 1343 does not
require a material misrepresentation, the Supreme Court has interpreted the
statute to call for one. Neder v. United States, 527 U.S. 1, 20-25, 119 S. Ct. 1827
(1999). The test for materiality is whether a misrepresentation “has a natural
tendency to influence, or is capable of influencing, the decision-making body to
which it was addressed.” United States v. Valencia, 600 F.3d 389, 426 (5th Cir.
2010). Valencia is the most recent case involving false reporting in the
commodities context. Unlike Futch, however, the appeal in Valencia focused on
wire fraud alone. Finally, “[v]iolation of the wire-fraud statute requires the
specific intent to defraud . . . .” United States v. Brown, 459 F.3d 509, 519 (5th
Cir. 2006).
In the present case, neither party contests that Appellees communicated
by wire in furtherance of their strategy to profit from increasing prices of
February 2004 TET propane. Whether that strategy constitutes a “scheme or
artifice to defraud” is before this court. Without an antecedent scheme to
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defraud, the wire fraud charges cannot survive. Matter of Lewisville Properties,
Inc., 849 F.2d 946, 951 (5th Cir. 1988). The indictment here re-alleges as the
“scheme to defraud” the same conduct and transactions that we have already
found exempt from regulation under § 2(g). Appellees rely on the principle that
when a grand jury charges one specific theory of a scheme to defraud, the
defendant may not be convicted based on another theory. United States v.
Hoover, 467 F.3d 496, 498, 500-02 (5th Cir. 2006). Thus, when the government’s
allegations charge market manipulation and cornering as the “scheme to
defraud,” and our preceding discussion explains why this is not criminal conduct
when falling within the § 2(g) exemption for OTC propane trades, the same
scheme cannot alone be re-characterized and rendered illegal as wire fraud.
We agree with Appellees’ argument supporting dismissal on this basis,
although with the caveat that § 2(g) cannot wholly exempt participants in
unregulated commodities transactions from conventional wire fraud charges. As
the government notes, fraud can occur any time defendants make material
misrepresentations in an attempt to obtain money or property. Where § 2(g)
does not apply, this court has considered allegations of common-law fraud in the
commodities trading context. Rio Grande Royalty Co. v. Energy Transfer
Partners, L.P., 620 F.3d 465 (5th Cir. 2010) (applying Texas law). In this case,
however, the only grounds the government alleged for a scheme to defraud are
precisely those actions that are exempt.
IV. Conclusion
We decline to review the district court’s conclusion that the CEA’s price
manipulation provision is unconstitutionally overbroad. Reaching this issue is
unnecessary given the applicability of § 2(g). As we conclude that the statutory
exemption covers all aspects of a transaction, Appellees’ risky campaign of
buying propane futures in the hope that other traders would not detect their
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efforts was lawful. Nor did Appellees’ statements or omissions amount to
actionable wire fraud.
AFFIRMED.
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