Thurgood Marshall

“ Yet, we concluded from the statute's broad language and legislative purpose that the key term "enterprise" must include not only legitimate businesses but also criminal associations. Ibid.; see also United States v. Naftalin, 441 U.S. 768, 775, 99 S.Ct. 2077, 2082, 60 L.Ed.2d 624 (1979) (Securities Act of 1933 covers fraud against brokers as well as investors, since "neither this Court nor Congress has ever suggested that investor protection was the sole purpose of [that] Act" (emphasis in original) ) . ”

“ Brief for Petitioner 19 (emphasis added) . Even if we were inclined to credit this concern as a reason for narrowing the statute, the argument-so far as we can discern-rests on a faulty premise. There is no evidence in the record to suggest that States will deem washed titles automatically invalid simply because federal law punishes those responsible for introducing such fraudulent securities into the streams of commerce.
Secondly, Moskal suggests that construing "falsely made" to apply to securities that contain false information will criminalize a broad range of "innocent" conduct. ”

“ We conclude, then, that it is far more likely that Congress adopted the common-law view of "falsely made" that encompasses "genuine" documents that are false in content.
Finally, Moskal offers two policy arguments for narrowly construing "falsely made." First, noting that thousands of automobile titles are "washed" every year, petitioner argues that "to invalidate all of these automobile titles because they contain an incorrect mileage figure may well result in havoc in the stream of automobile commerce." ”

“ We think that "title-washing" operations are a perfect example of the "further frauds" that Congress sought to halt in enacting § 2314. As Moskal concedes, his title-washing scheme is a clear instance of fraud involving securities. ”

“ But he insists that he did not violate the provision in subsequently receiving the washed titles from Virginia because, although he was participating in a fraud (and thus no doubt had the requisite intent under § 2314) , the washed titles themselves were not "falsely made." He asserts that when a title is issued by appropriate state authorities who do not know of its falsity, the title is "genuine" or valid as the state document it purports to be and therefore not "falsely made." ”

“ On the contrary, we find confirmation in the Daly court's analysis that Congress intended to reach precisely the sort of fraudulent behavior in which petitioner engaged.↑ Because of this conclusion, we have no trouble rejecting Moskal's suggestion that he did not have fair notice that his conduct could be prosecuted under § 2314. Moskal's contention that he was "entitled to rely" on one Court of Appeals decision holding that washed titles were not "falsely made" is wholly unpersuasive. ”

“ A person who transports such a security in interstate commerce violates § 2314 only if he does so with unlawful or fraudulent intent and if the false information is itself material. [8] A person whose conduct satisfies these tests will be acting no more "innocently" than was Moskal when he engaged in the concededly fraudulent title-washing scheme at issue in this case. ”

“ In our view, it is perfectly consistent with ordinary usage to speak of the security as being "falsely made" regardless of whether the party responsible for the physical production of the document knew that he was making a security in a manner that incorporates false information. ”

“ Indeed, we find support for this construction in the nexus between the actus reus and mens rea elements of § 2314. Because liability under the statute depends on transporting the "falsely made" security with unlawful or fraudulent intent, there is no reason to infer a scienter requirement for the act of falsely making itself. ”

“ See United States v. Rodgers, 466 U.S. 475, 484, 104 S.Ct. 1942, 1948, 80 L.Ed.2d 492 (1984) (existence of conflicting decisions among courts of appeals does not support application of the doctrine of lenity where "review of th [e] issue by this Court and decision against the position of the [defendant are] reasonably foreseeable") .↑ The Court of Appeals for the Tenth Circuit appeared to rely on this reasoning when it ruled that washed vehicle titles are not "falsely made" documents within the meaning of § 2314. United States v. Sparrow, 635 F.2d 794, 796 (1980) (en banc) , cert. ”