Mark A. Ellison, David D. Swenson, and Jeremy S. Swenson v. United States

Petitioners were convicted of selling securities in violation of Section 10(b) of the Securities Exchange Act, which forbids using “any manipulative or deceptive device” in such sales. The district court instructed the jury that Petitioners could be convicted of willfully violating the Act without knowledge that their actions violated it, and refused to instruct that the materiality of challenged statements or actions must be judged by their impact on the “total mix” of information available to investors, contra, e.g., Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27 (2011). The district court also required Petitioners to produce, in advance, the exhibits they planned to use in cross-examining witnesses during the government’s case-in-chief. The Ninth Circuit affirmed. The questions presented are:

1. Can a defendant properly be convicted of violating Section 10(b) of the Securities Exchange Act without proof that the relevant statement or conduct was material, based at least in part on its impact on the “total mix” of information made available to investors?

2. Can a defendant properly be convicted under a federal criminal statute requiring “willful” misstatements or fraud—such as Section 10(b) of the Securities Exchange Act—without proof of mens rea with respect to the unlawfulness of his conduct?

3. Can a criminal defendant properly be required to produce, in advance, the exhibits he plans to use in cross-examining witnesses during the government’s case-in-chief, on the theory that such cross-examination actually constitutes part of the defendant’s own “case-in-chief” under Fed. R. Crim. Proc 16(b)?