New opinion

U.S. v. Fishoff—criminal—affirmance—Roth

The pithy introduction:

Under Section 32 of the Securities Exchange Act, a defendant who violates a Security and Exchange Commission (SEC) rule or regulation but proves that he “had no knowledge of such rule or regulation” is not subject to imprisonment. The rule is intended to protect laypersons who commit technical violations. This case requires us to determine the precise burden on a defendant who wishes to use the so-called “non-imprisonment defense.” We hold that a defendant can establish lack of knowledge and avoid imprisonment if he demonstrates, by a preponderance of the evidence, that he did not know the substance of the rule or regulation that he violated. Because appellant Steven Fishoff did not establish a lack of knowledge of the rule that he pled guilty to violating and because his other procedural arguments fail, we will affirm the judgment of the District Court.

Joining Roth were McKee and Rendell. The case was decided without oral argument.