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Scalia Waxes On About Agency-Deference Issue

WASHINGTON (CN) - A securities fraudster failed Monday to have the U.S. Supreme Court take up a challenge of his convictions.

Douglas Whitman was convicted in Manhattan of two counts of securities fraud and two related conspiracy counts. In addition to a $250,000 fine, Whitman received a two-year sentence for each count.

The 2nd Circuit affirmed in a summary order this past February, finding that none of the lower court's decisions prejudiced Whitman.

The Supreme Court refused to grant Whitman a write of certiorari Monday, but two justices wrote separately to assess the agency-deference issue that nearly made the case worth taking up.

In this case, the 2nd Circuit "deferred to the Securities and Exchange Commission's interpretation of §10(b)," a conspiracy statute, Justice Antonin Scalia wrote, joined by Justice Clarence Thomas.

"With deference to agency interpretations of statu­tory provisions to which criminal prohibitions are at­tached, federal administrators can in effect create (and uncreate) new crimes at will, so long as they do not roam beyond ambiguities that the laws contain," Scalia wrote, "Undoubtedly Congress may make it a crime to violate a regulation, but it is quite a different matter for Congress to give agencies - let alone for us to presume that Congress gave agencies - power to resolve ambiguities in criminal legislation." (Emphasis in original.)

Whitman's petition must be denied, however, because he did not seek review of the deference issue "and the procedural history of the case in any event makes it a poor setting in which to reach the question."

"But when a petition properly presenting the question comes before us, I will be receptive to granting it," Scalia wrote.

Agency deference has triggered a number of dissents for nearly two years .

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