Opposition Brief — Matthew Clark, Petitioner v. United States

No. 25-8

In the Supreme Court of the United States

MATTHEW CLARK, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

D. JOHN SAUER

Solicitor General

Counsel of Record

MATTHEW R. GALEOTTI

Acting Assistant

Attorney General

ANN O’CONNELL ADAMS

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the phrase “intangible right of honest

services” in 18 U.S.C. 1346 is unconstitutionally vague.

2. Whether the phrases “fictitious sale” and “not a

true bona fide price” in 7 U.S.C. 6c(a) are unconstitutionally vague.

3. Whether petitioner had fair notice that his conduct could be prosecuted under 7 U.S.C. 9(1) and 17

C.F.R. 180.1.

4. Whether petitioner’s conviction for insider trading under 7 U.S.C. 9(1) and 17 C.F.R. 180.1 violates the

separation of powers or nondelegation doctrine.

(I)

TABLE OF CONTENTS

Page

Opinion below ................................................................................ 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 6

Conclusion ................................................................................... 14

TABLE OF AUTHORITIES

Cases:

Absa Bank, Ltd., In re, CFTC No. 14-30,

2014 WL 1575579 (July 15, 2004) ........................................ 9

CFTC v. TFS-ICAP, LLC, 432 F. Supp. 3d 320

(S.D.N.Y. 2020) ..................................................................... 9

Daniel J. Collins, In re, CFTC No. 93-13,

2004 WL 1575579 (July 15, 2004) ........................................ 9

Dubin v. United States, 599 U.S. 110 (2023) ........................ 8

Dzurka Bros., LLC v. Luckey Farmers, Inc.,

712 F. Supp. 3d 979 (E.D. Mich. 2024)................................ 9

Gundy v. United States, 588 U.S. 128 (2019)...................... 13

Harold Collins, In re, CFTC No. 77-15,

1986 WL 66165 (Apr. 4, 1986) .............................................. 9

J.W. Hampton, Jr. & Co v. United States,

276 U.S. 394 (1924)........................................................ 13, 14

Loving v. United States, 517 U.S. 748 (1996) ................. 5, 13

McNally v. United States, 483 U.S. 350 (1987) .................... 7

Merrill Lynch Futures, Inc. v. Kelly,

585 F. Supp. 1245 (S.D.N.Y. 1984) ...................................... 9

Reddy v. CFTC, 191 F.3d 109 (2d Cir. 1999)......................... 9

Salman v. United States, 580 U.S. 39 (2016) ........................ 5

Skilling v. United States, 561 U.S. 358 (2010) ............... 4, 6-8

Thompson v. United States, 604 U.S. 408 (2025) ............... 11

United States v. Davis, 588 U.S. 445 (2019) ..................... 7, 8

(III)

IV

Cases—Continued:

Page

United States v. Grimaud, 220 U.S. 506 (1911) ................. 13

United States v. LaMantia, 2 Comm. Fut. L. Rep.

20,667, 1978 U.S. Dist. LEXIS 20413

(N.D. Ill. 1978) ....................................................................... 9

United States v. Lanier, 520 U.S. 259 (1997) ............... 10, 12

United States v. O’Hagan, 521 U.S. 642 (1997) .............. 5, 14

Statutes and regulations:

Securities Exchange Act of 1934, 15 U.S.C. 78a

et seq.:

15 U.S.C. 78j(b) (§ 10(b)) ............................................ 4, 13

7 U.S.C. 6c ................................................................... 3, 4, 9-11

7 U.S.C. 6c(a)................................................................... 6, 8-10

7 U.S.C. 6c(a)(1) ....................................................................... 4

7 U.S.C. 6c(a)(2) ............................................................... 1, 3, 8

7 U.S.C. 6c(a)(2)(A)(ii) ............................................................. 4

7 U.S.C. 6c(a)(2)(B).................................................................. 4

7 U.S.C. 9(1) ............................................................... 2-6, 11-13

7 U.S.C. 13(a) ........................................................................... 3

7 U.S.C. 13(a)(2) ........................................................... 1, 3, 4, 8

7 U.S.C. 13(a)(5) ......................................................... 2, 3, 5, 12

18 U.S.C. 371 ............................................................................ 3

18 U.S.C. 1014 ........................................................................ 11

18 U.S.C. 1343 .................................................................. 1, 3, 6

18 U.S.C. 1346 .............................................................. 1, 3, 6, 7

18 U.S.C. 1349 ...................................................................... 1, 3

17 C.F.R.:

Section 180.1 .................................................. 2, 3, 6, 11, 13

Section 180.1(a) ................................................................ 13

V

Miscellaneous:

Page

76 Fed. Reg. 41,398 (July 14, 2011) ...................................... 13

In the Supreme Court of the United States

No. 25-8

MATTHEW CLARK, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-9a)

is unreported but is available at 2025 WL 801358.

JURISDICTION

The judgment of the court of appeals was entered on

March 13, 2025. A petition for rehearing was denied on

April 8, 2025 (Pet. App. 14a). The petition for a writ of

certiorari was filed on June 30, 2025. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District

Court for the Southern District of Texas, petitioner was

convicted on one count of conspiring to commit honestservices wire fraud, in violation of 18 U.S.C. 1343, 1346,

and 1349; one count of engaging in prohibited commodities transactions, in violation of 7 U.S.C. 6c(a)(2) and

13(a)(2); and one count of insider trading, in violation of

(1)

2

7 U.S.C. 9(1) and 13(a)(5), and 17 C.F.R. 180.1. Judgment 1-2. The district court sentenced petitioner to 78

months of imprisonment, to be followed by three years

of supervised release. Judgment 3-4. The court of appeals affirmed. Pet. App. 1a-9a.

1. Petitioner perpetrated two unlawful schemes

against his employer, Company B, an energy company

that traded natural-gas futures contracts. Pet. App. 2a.

In the first scheme, which lasted from 2010 to 2019, petitioner steered Company B’s trading business to a brokerage firm called Classic Energy, LLC. Ibid. Classic

Energy did not offer the best deal for Company B, but

its owner, Matthew Webb, was willing to pay kickbacks

to petitioner in exchange for sending matters their way.

See ibid. Over the span of almost ten years, Webb paid

petitioner $5,543,662 in illicit kickbacks. Ibid.

In the second scheme, which lasted from 2013 to

2019, petitioner shared Company B’s confidential trading strategies and intentions with Webb, who passed

the information to coconspirators preselected by the

two men. Pet. App. 2a. The coconspirators would take

the opposite side of Company B’s trades, and make offsetting trades using Company B’s confidential information. Ibid.; Plea Agreement 18-20. The prearranged

counterparties then shared the profits from those

trades with petitioner and Webb. Ibid.

In addition to acknowledging his obligation to use

their information and resources only for Company B’s

interests when he joined the company, Plea Agreement

12, petitioner received annual employee trainings on

relevant statutes and industry regulations, Pet. App. 2a.

As a result, while engaged in his schemes, he was annually reminded of prohibitions on prearranging trades,

insider trading, and reporting prices that were not

3

“true and bona fide.” Pet. App. 2a-3a; Plea Agreement

14-16.

2. A grand jury in the Southern District of Texas returned an indictment charging petitioner with one count

of conspiring to commit honest-services wire fraud, in

violation of 18 U.S.C. 1343, 1346, and 1349; three counts

of honest-services wire fraud, in violation of 18 U.S.C.

1343 and 1346; one count of conspiring to engage in prohibited commodities transactions and insider trading, in

violation of 18 U.S.C. 371; two counts of engaging in prohibited commodities transactions, in violation of 7

U.S.C. 6c(a)(2) and 13(a)(2); and two counts of insider

trading, in violation of 7 U.S.C. 9(1) and 13(a)(5), and 17

C.F.R. 180.1. Indictment 1-14. Petitioner moved to dismiss all counts of the indictment on vagueness grounds.

Pet. App. 3a; D. Ct. Doc. 75 (Oct. 5, 2023). The district

court denied the motion. D. Ct. Doc. 92 (Mar. 7, 2024).

Petitioner then pleaded guilty to one count of conspiring to commit honest-services wire fraud, in violation of 18 U.S.C. 1343, 1346, and 1349; one count of engaging in prohibited commodities transactions, in violation of 7 U.S.C. 6c(a)(2) and 13(a)(2); and one count of

insider trading, in violation of 7 U.S.C. 9(1) and 13(a)(5),

and 17 C.F.R. 180.1. Judgment 1-2. He reserved the

right to appeal (1) whether the honest-services fraud

statute is “unconstitutionally void for vagueness”;

(2) whether 7 U.S.C. 6c, 9(1), and 13(a) and 17 C.F.R.

180.1 are “unconstitutionally void for vagueness”; and

(3) whether 7 U.S.C. 6c, 9(1), and 13(a), and 17 C.F.R.

180.1 “unconstitutionally delegate legislative power to

the Commodity Futures Trading Commission” (CFTC).

Plea Agreement 1-2.

4

The district court sentenced petitioner to 78 months

of imprisonment, to be followed by three years of supervised release. Plea Agreement 3-4.

3. The court of appeals affirmed in an unpublished

per curiam opinion. Pet. App. 1a-9a. The court observed that petitioner’s “lead argument”—that the honest-services fraud statute is unconstitutional—was foreclosed by Skilling v. United States, 561 U.S. 358 (2010).

Pet. App. 4a-5a. The court explained that in Skilling,

this Court interpreted the statute to be limited to bribes

and kickbacks and rejected a vagueness challenge. Id.

at 5a.

The court of appeals also found no merit in petitioner’s vagueness challenge to 7 U.S.C. 6c and 13(a)(2),

which make it unlawful to “offer[] to enter into, enter[]

into, or confirm[] the execution of a * * * fictious sale;

or * * * to cause any price to be reported, registered,

or recorded that is not a true and bona fide price.” Pet.

App. 6a (quoting 7 U.S.C. 6c(a)(1), (2)(A)(ii) and (B) (citation and emphasis omitted)); see 7 U.S.C. 13(a)(2) (incorporating substantive prohibitions of Section 6c). The

court explained that the terms “fictious sale” and “not a

true and bona fide price” within 7 U.S.C. 6c “plainly contemplate deception” and were not vague. Pet. App. 6a.

The court of appeals also rejected petitioner’s vagueness challenge to the phrase “manipulative or deceptive

device or contrivance” in 7 U.S.C. 9(1) and 17 C.F.R.

180.1. Pet. App. 7a-8a. The court observed that the

challenged language is an “exact transplant” from Section 10(b) of the Securities Exchange Act of 1934, 15

U.S.C. 78j(b), which has a “well-settled interpretation.”

Pet. App. 7a-8a. And the court explained that under

that interpretation, the term “deceptive device or contrivance” includes the misappropriation of confidential

5

information for trading purposes, which was the sort of

insider-trading scheme that petitioner perpetrated

here. Id. at 8a (citing United States v. O’Hagan, 521

U.S. 642, 653 (1997), and Salman v. United States, 580

U.S. 39, 41 (2016)).

Finally, the court of appeals rejected petitioner’s argument that Congress violated the separation of powers

and nondelegation doctrine by adopting criminal penalties for violations of CFTC regulations. Pet. App. 8a9a. The court observed that this Court’s separation-ofpowers precedents permit Congress to delegate its authority in some measure to “define criminal punishments,” so long as “Congress make[s] the violations of

regulation a criminal offense and fix[es] the punishment, and the regulations confine themselves within the

field covered by the statute.” Id. at 9a (quoting Loving

v. United States, 517 U.S. 748, 768 (1996)). And the

court explained that Congress had followed that course

here, where the statutes at issue make it unlawful to use

or employ “any manipulative or deceptive device or contrivance” in violation of CFTC rules, 7 U.S.C. 9(1), and

criminalize any willful violation of “any other provision

of this chapter, or any rule or regulation” enacted by the

CFTC, 7 U.S.C. 13(a)(5). Pet. App. 8a-9a.

The court of appeals also explained that Section 9(1)

provides the CFTC with an intelligible principle to

guide its rulemaking. Pet. App. 9a. The court observed

that the same authoritative construction of “manipulative or deceptive device or contrivance” that controls for

the Securities Exchange Act controls here. Ibid. (citation omitted). And the court accordingly found that

“Congress directed the CFTC to prevent commodities

traders from using confidential information for their

personal advantage.” Ibid.

6

ARGUMENT

Petitioner contends (1) that the phrase “intangible

right of honest services” in 18 U.S.C. 1346 is unconstitutionally vague (Pet. 9-14); (2) that the terms “fictitious

sale” and “not a true and bona fide price” in 7 U.S.C.

6c(a) are unconstitutionally vague (Pet. 14-25); (3) that

he did not have adequate notice that 7 U.S.C. 9(1) and

17 C.F.R. 180.1 covered insider trading (Pet. 25-31); and

(4) that Congress’s delegation of regulatory authority

to the CFTC violated the separation of powers and the

nondelegation doctrine (Pet. 31-36). The court of appeals correctly rejected those arguments, and petitioner does not contend that the decision below conflicts

with any decision of another court of appeals. No further review is warranted.

1. a. Under 18 U.S.C. 1346, a “scheme or artifice to

defraud” for purposes of the federal wire-fraud statute,

18 U.S.C. 1343, includes “a scheme or artifice to deprive

another of the intangible right of honest services.” Petitioner contends (Pet. 9-14) that the phrase “intangible

right of honest services” is unconstitutionally vague.

This Court’s decision in Skilling v. United States, 561

U.S. 358 (2010), forecloses that argument.

In Skilling, the Court held that “[Section] 1346 presents no vagueness problem,” because it is properly interpreted to apply only to “fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party.” 561 U.S. at 404; see

id. at 399-413. Skilling observed that such schemes reflect the “solid core” of the honest-services doctrine:

“offenders who, in violation of a fiduciary duty, participated in bribery or kickback schemes.” Id. at 407. And

Congress specifically intended to codify those “core

* * * applications” when it enacted Section 1346 in the

7

aftermath of McNally v. United States, 483 U.S. 350

(1987), which had rejected honest-services-fraud prosecutions under the previous version of the federal fraud

statutes. Skilling, 561 U.S. at 408.

Skilling explained that Section 1346’s “prohibition

on fraudulently depriving another of one’s honest services by accepting bribes or kickbacks” does not implicate either of the concerns animating the void-forvagueness doctrine. 561 U.S. at 412. First, the honestservices statute, as interpreted in Skilling, provides

“fair notice” because “it has always been ‘as plain as a

pikestaff that’ bribes and kickbacks constitute honestservices fraud” and “the statute’s mens rea requirement further blunts any notice concern.” Ibid. (citation

omitted). Second, the Court found “no significant risk”

that “arbitrary and discriminatory prosecutions” will

result, because Section 1346’s “prohibition on bribes

and kickbacks draws content not only from [historical

honest-services prosecutions], but also from federal

statutes proscribing—and defining—similar crimes.”

Ibid. “A criminal defendant who participated in a bribery or kickback scheme, in short, cannot tenably complain about prosecution under § 1346 on vagueness

grounds.” Id. at 413.

b. Petitioner does not dispute that his conduct falls

within the very “core” preserved by Skilling. Instead,

petitioner contends (Pet. 9-14) that Skilling was “effectively” overruled by this Court’s decision in United

States v. Davis, 588 U.S. 445 (2019). But unlike Skilling, the Court in Davis declined to apply a vaguenessavoiding construction because it deemed such a construction irreconcilable with the statute’s “text, context,

and history,” 588 U.S. at 448, and because the suggested

construction would have “expand[ed] the reach of [the]

8

criminal statute in order to save it,” id. at 463. That

approach casts no doubt on Skilling, which adopted a

narrow interpretation of the honest-services fraud statute in a way that is consistent with its text, context, and

history. 561 U.S. at 399-413.

Indeed, Davis explicitly distinguished Skilling, and

approvingly cited it as an example of this Court

“adopt[ing] the narrower construction of a criminal

statute to avoid having to hold it unconstitutional if it

were construed more broadly.” 588 U.S. at 463. Moreover, even after Davis, this Court has continued to interpret statutes narrowly to avoid fair-notice concerns.

See, e.g., Dubin v. United States, 599 U.S. 110, 129-131

(2023). And as petitioner himself recognizes, even after

Davis, this Court has continued to apply the honest-services statute. See Pet. 13 n.11.

2. Petitioner’s challenge to his conviction for engaging in prohibited commodities transactions, in violation

of 7 U.S.C. 6c(a)(2) and 13(a)(2), is likewise unsound.

Those statutes, which prohibit certain types of cheating

and deception in the commodity markets, include criminal bars on transactions that involve “fictitious sale[s]”

or transactions that cause a price that is “not a true and

bona fide price” to be reported, registered, or recorded.

7 U.S.C. 6c(a)(2). Although petitioner renews his contention (Pet. 14-17) that the terms “fictitious sale” and

“not a true and bona fide price” in 7 U.S.C. 6c(a) are

unconstitutionally vague, the court of appeals correctly

recognized that their ordinary meaning “plainly contemplate[s] deception” and covers transactions like petitioner’s: noncompetitive prearranged trades that are

made to appear legitimate and cause a dishonest price

to be recorded. Pet. App. 6a-7a.

9

Petitioner does not identify any circuit that has held

otherwise, or has remotely cast doubt on Section 6c’s

constitutionality. As support for his contention that the

identified terms in Section 6c are vague, petitioner cites

(Pet. 15-16) only an unpublished district court opinion

from nearly 50 years ago: United States v. LaMantia, 2

Comm. Fut. L. Rep. 20,667, 1978 U.S. Dist. LEXIS

20413 (N.D. Ill. 1978). In viewing the term “fictitious

sale” as vague in that case, the court discounted—

without explanation—common definitions of “fictitious”

as “lend[ing] no clarity,” and relied on the then-absence

of “judicial guidance to the meaning of the term.” Ibid.

Whatever the merit of that reasoning, the CFTC has

since consistently made clear that Section 6c(a)’s prohibition on “fictitious sale[s]” includes “the use of trading

techniques that give the appearance of submitting

trades to the open market while negating the risk of

price competition incident to such a market.” In re

Harold Collins, CFTC No. 77-15, 1986 WL 66165, at *7

(Apr. 4, 1986); see In re Daniel J. Collins, CFTC No.

93-13, 2004 WL 1575579, at *3 (July 15, 2004) (consent

order); In re Absa Bank, Ltd., CFTC No. 14-30, 2014

WL 1575579, at *3 (July 15, 2004) (consent order). And

the CFTC has identified “prearranged trade[s]” like

those executed by petitioner as a “textbook” example of

such an illicit sale. In re Absa Bank, 2014 WL 4793544,

at *2. Courts, in turn, have long endorsed that view of

6c. See Dzurka Bros., LLC v. Luckey Farmers, Inc.,

712 F. Supp. 3d 979, 998-999 (E.D. Mich. 2024); CFTC

v. TFS-ICAP, LLC, 432 F. Supp. 3d 320, 324-326

(S.D.N.Y. 2020); Reddy v. CFTC, 191 F.3d 109, 124-125

(2d Cir. 1999); see also Merrill Lynch Futures, Inc. v.

Kelly, 585 F. Supp. 1245, 1251 n.3 (S.D.N.Y. 1984)

10

(Section 6c(a) “was intended generally to prevent collusive trades conducted away from the trading pits”).

Petitioner’s “desuetude” argument—that the statute

should be declared void based on a lack of criminal prosecutions brought under it (Pet. 15-17)—was not clearly

included in petitioner’s preservation of his right to appeal the narrow question of whether 7 U.S.C. 6c is “unconstitutionally void for vagueness.” Plea Agreement

1-2. And although the government did not itself argue

preservation below, that may explain why the court of

appeals did not directly address the argument. In any

event, the argument lacks merit. Here as elsewhere,

the “touchstone” is “whether the statute, either standing alone or as construed, made it reasonably clear at

the relevant time that the defendant’s conduct was

criminal.” United States v. Lanier, 520 U.S. 259, 267

(1997). As explained above, it has long been clear that

Section 6c covers the sort of insider-trading scheme at

issue here, and the statutes are equally clear that criminal consequences might follow from such conduct. Petitioner cites no circuit holding otherwise.

For similar reasons, petitioner’s argument (Pet. 1724) that the court of appeals failed to address his as-applied vagueness challenge also lacks merit. Such an asapplied challenge amounts to an argument that his conduct did not fall within the ordinary meanings of a “fictious sale” or “not a true and bona fide price.” See Pet.

22-24 (citation omitted). But that is not an argument

that the statute is “void for vagueness,” for preservation purposes. See Plea Agreement 1-2. It is a factbound argument about the statute’s scope, and one that

lacks merit. Petitioner cites no case holding that the

sort of insider-trading scheme at issue would not fit

within the plain letter of Section 6c. Nor does he explain

11

why such a factbound claim would merit plenary review

by this Court. See Pet. 24 (arguing that the case should

be remanded to the court of appeals for a further explanation for rejecting petitioner’s claim).

Petitioner also errs in suggesting (Pet. 24-25) that

this Court should grant the petition for a writ of certiorari, vacate the decision of the court of appeals, and remand for further proceedings (GVR) in light of Thompson v. United States, 604 U.S. 408 (2025). In Thompson,

this Court held the category of “false statement[s]”

punishable under 18 U.S.C. 1014 is limited to statements that are “not true,” rather than those that are

simply “misleading” but “not false.” 604 U.S. at 410,

418 (brackets in original). Thompson has no effect on

petitioner’s case. The case did not address whether the

term “false” was vague, and it therefore lends no support to petitioner’s contention that the terms “fictitious” or “not a true and bona fide price” are void for

vagueness. See Pet. App. 6a-7a.

3. Petitioner further contends (Pet. 25-31) that his

prosecution under 7 U.S.C. 9(1) and 17 C.F.R. 180.1 violated due process because he did not have fair notice

that insider trading was covered by those provisions.

Petitioner appears not to have meaningfully renewed

the argument he pressed below, and that was rejected

by the court of appeals—i.e., that the phrase “manipulative or deceptive device or contrivance” in 7 U.S.C.

9(1) and 17 C.F.R. 180.1 is unconstitutionally vague.

See Pet. App. 7a. Instead, he principally argues that

the application of these provisions to insider trading is

novel. See Pet. 26. Like his argument on Section 6c,

that argument does not clearly fit within petitioner’s appeal waiver, which was limited only to a “void for

12

vagueness” challenge. Plea Agreement 1-2. And in any

event, the argument lacks merit.

As noted above, the “touchstone” for this type of argument is whether it was “reasonably clear” the defendant’s conduct was criminal. Lanier, 520 U.S. at 267.

Although “due process bars courts from applying a

novel construction of a criminal statute to conduct that

neither the statute nor any prior judicial decision has

fairly disclosed to be within its scope,” courts may apply

a statute to novel conduct so long as the plain text permits. Id. at 266. And as the court of appeals recognized,

at the time of petitioner’s conduct, the relevant statutory and regulatory language had already been construed by this Court to cover insider trading. Pet. App.

7a-8a. Even in the absence of a specific judicial decision

applying it to insider trading in the commodities context, petitioner was on notice that such application

would be within the relevant language. Indeed, petitioner acknowledges that enforcement actions (Pet. 28)

had at least begun by 2015, during the pendency of his

criminal conduct here. And again, petitioner does not

identify any division of authority that might warrant

this Court’s review.

4. Finally, petitioner renews his arguments (Pet. 3136) that Congress violated the separation of powers and

nondelegation doctrine by delegating authority to the

CFTC to define regulations, violations of which are statutorily subject to criminal penalties.

Under 7 U.S.C. 9(1), it is unlawful to use or employ

“any manipulative or deceptive device or contrivance”

in violation of CFTC rules, and 7 U.S.C. 13(a)(5) criminalizes willful violations “of this chapter, or any rule or

regulation” enacted by the CFTC. In response to Section 9(1)’s directive that the CFTC “shall promulgate”

13

rules implementing the statutory prohibition, the

CFTC promulgated Rule 180.1 and modeled it after the

SEC’s rule implementing Section 10(b) of the Securities

Exchange Act. See 76 Fed. Reg. 41,398, 41,399 (July 14,

2011). That rule provides that it shall be unlawful for

“any person * * * in connection with any * * * contract

for future delivery on or subject to the rules of any registered entity, to intentionally * * * use or employ * * *

any manipulative device, scheme, or artifice to defraud.” 17 C.F.R. 180.1(a).

As the court of appeals recognized, this Court has

made clear that “[t]here is no absolute rule * * *

against Congress’ delegation of authority to define

criminal punishment.” Pet. App. 9a (citing Loving v.

United States, 517 U.S. 748, 768 (1996). Instead, such

delegations are appropriate, so long as the “agency defines by regulation what conduct will be criminal, [and]

Congress makes the violation of regulations a criminal

offense and fixes the punishment, and the regulations

‘confin[e] themselves within the field covered by the

statute.’ ” Loving, 517 U.S. at 768 (quoting United

States v. Grimaud, 220 U.S. 506, 518 (1911) (brackets in

original)). The provisions at issue here plainly satisfy

that standard, as the court below correctly recognized.

Pet. App. 9a. Petitioner does not address this Court’s

doctrine or identify any confusion in the court of appeals

about its application.

Petitioner’s contention (Pet. 32-35) that Section 9(1)

does not provide an ‘intelligible principle’ is likewise unsound. “[T]his Court has held that a delegation is constitutional so long as Congress has set out an ‘intelligible principle’ to guide the delegee’s exercise of authority.” Gundy v. United States, 588 U.S. 128, 145 (2019)

(plurality opinion) (quoting J.W. Hampton, Jr. & Co v.

14

United States, 276 U.S. 394, 409 (1924)); see id. at 135,

146 (discussing doctrine). And as the court of appeals

observed (Pet. App. 9a), the term “manipulative or deceptive device or contrivance” has already been authoritatively interpreted by this Court in United States v.

O’Hagan, 521 U.S. 642 (1997), in the context of the Securities Exchange Act. See id. at 650-660. That construction applies in equal force here, where Congress

used the exact same text. See Pet. App. 9a. And here

as there, the statute provides a clear direction from

Congress to the CFTC “to prevent commodities traders

from using confidential information for their personal

advantage.” Ibid. That is all that is required under this

Court’s precedents. See ibid. Petitioner contends (Pet.

35) that this Court should adopt a “stricter” standard

for the intelligible-principle test, but he does not explain

what standard he thinks should apply or identify confusion on the standard in the lower courts. Nor has petitioner identified any case that questions whether Congress appropriately delegated its authority in the specific circumstances here, involving a statutory term

with a well-understood meaning.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

MATTHEW R. GALEOTTI

Acting Assistant

Attorney General

ANN O’CONNELL ADAMS

Attorney

OCTOBER 2025