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Podgor [GSU]: Pasquantino - For the Government - 5-4

Ellen Podgor [Georgia State University College of Law]:

"In a 5-4 decision, the United States Supreme Court issued an extremely narrow decision favorable to the government in the case of Pasquantino v. United States. Justice Thomas, delivering the opinion of the Court, held that there was no violation of the common law revenue rule when the government prosecutes a wire fraud (18 U.S.C. s1343) and the scheme to defraud involves the deprivation of tax revenue to another country. In this case petitioners were "convicted for federal wire fraud for carrying out a scheme to smuggle large quantities of liquor into Canada from the United States." The circuits were split on whether wire fraud could be used when the loss involved foreign tax revenue. The Court permits this prosecution and additionally finds that the tax revenue is "property" for purposes of the wire fraud statute.

What is more interesting about this case, is what is not decided:

1. In footnote one of the decision, the Court specifically states that it is expressing "no view on the related question whether a foreign government, based on wire and mail fraud predicates, may bring a civil action under" the RICO statute for defrauding of taxes.

2. The Court does not rule on the issue of extraterritoriality as it does not see this case as allowing the wire fraud statute to have "extraterritorial effect." (the Court in a footnote says this issue was not raised until the Reply brief).

The dissent, authored by Ginsburg, and joined by  Breyer, Scalia, and Souter, focused on the extraterritorial application.  The dissent states:

"Construing s1343 to encompass violations of foreign revenue laws, the Court ignores the absence of anything signaling Congress' intent to give the statute such an extraordinary extraterritorial effect."

The dissent also supports its position through use of the Rule of Lenity.

The bottom line is that this case does not resolve the extraterritorial application of white collar laws, although it does permit wire fraud to be premised on a tax loss othat occurs outside the United States. The question of extraterritoriality is made more interesting by the Court's accompanying decision in Small v. United States, where it held that "convicted in any court" as used in section 922(g)(1) is limited to domestic as opposed to foreign convictions." [April 26, 2005; White Collar Crime Prof Blog has the post]

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