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No. 96-842


UNITED STATES, PETITIONER v. JAMES HERMAN O'HAGAN

on writ of certiorari to the united states court of appeals for the eighth circuit

[June 25, 1997]

Justice Scalia, concurring in part and dissenting in part.

I join Parts I, III, and IV of the Court's opinion. I do not agree, however, with Part II of the Court's opinion, containing its analysis of respondent's convictions under §10(b) and Rule 10b-5.

I do not entirely agree with Justice Thomas's analysis of those convictions either, principally because it seems to me irrelevant whether the Government's theory of why respondent's acts were covered is "coherent and consistent," post, at 13. It is true that with respect to matters over which an agency has been accorded adjudicative authority or policymaking discretion, the agency's action must be supported by the reasons that the agency sets forth, SEC v. Chenery Corp., 318 U.S. 80, 94 (1943); see also SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), but I do not think an agency's unadorned application of the law need be, at least where (as here) no Chevron deference is being given to the agency's interpretation. In point of fact, respondent's actions either violated §10(b) and Rule 10b-5, or they did not--regardless of the reasons the Government gave. And it is for us to decide.

While the Court's explanation of the scope of §10(b) and Rule 10b-5 would be entirely reasonable in some other context, it does not seem to accord with the principle of lenity we apply to criminal statutes (which cannot be mitigated here by the Rule, which is no less ambiguous than the statute). See Reno v. Koray, 515 U.S. 50, 64-65 (1995) (explaining circumstances in which rule of lenity applies); United States v. Bass, 404 U.S. 336, 347-348 (1971) (discussing policies underlying rule of lenity). In light of that principle, it seems to me that the unelaborated statutory language: "[t]o use or employ in connection with the purchase or sale of any security . . . any manipulative or deceptive device or contrivance," §10(b), must be construed to require the manipulation or deception of a party to a securities transaction.