The district court cited several grounds for dismissal. First, the court reasoned that the transactions in question fell within a statutory exception to the CEA's ban on price manipulation and cornering. United States v. Radley, 659 F.Supp.2d 803, 809-10 (S.D.Tex. 2009). Second, the court held that even if the statutory exclusion did not apply, dismissal was appropriate because the CEA's price manipulation provision was unconstitutionally vague.

See R.86 at 127 (Tr. 394). Mr. Coscia additionally invites our attention to United States v. Radley, 659 F.Supp.2d 803 (S.D. Tex. 2009), and CP Stone Fort Holdings, LLC v. Doe(s), No. 16 C 4991, 2016 WL 5934096 (N.D. Ill. Oct. 11, 2016). Both are inapposite.

If it did, the exception would be so narrow that it would not bring the desired certainty to the market.United States v. Radley, 659 F.Supp.2d 803, 811 (S.D.Tex.2009). But Radley is readily distinguishable because the parties to the propane contracts at issue in that case individually negotiated the financial, credit, and legal terms of the contracts.

This factual distinction is unconvincing. What matters for legal sufficiency purposes is not whether a trader programmed a computer to stop any "trick" orders from being filled but whether the trader placed such "trick" orders in the first place expecting and intending that they not be filled and that they create a false impression in the market. Defendant relies on United States v. Radley, 659 F. Supp. 2d 803 (S.D. Tex. 2009), aff'd, 632 F.3d 177 (5th Cir. 2011), in which both the district court and the Fifth Circuit concluded in essence that it would not be fraudulent for a trader to place market-manipulating bids provided that the bids were in and of themselves lawful and that the trader was prepared to follow through on such bids if accepted. See 659 F. Supp. 2d at 815-16; 632 F.3d at 183-84.

The indictment did not "purport to identify any of the 'materially false and fraudulent pretenses, representations and promises' by which the scheme was alleged to have been carried out." Id. Likewise, the indictment in United States v. Radley, 659 F. Supp. 2d 803 (S.D. Tex. 2009), aff'd, 632 F.3d 177 (5th Cir. 2011), "fail[ed] to allege even a single misrepresentation of material fact." Radley, 659 F. Supp. 2d at 820.

Coscia cites three other cases in which defendants prevailed on an as-applied challenge to certain language in the CEA. See, United States v. La Mantia, 2 Comm. Fut. L. Rep. (CCH) ¶ 20, 667 (N.D.Ill. Aug. 9, 1978) (“fictitious sales”); Stoller v. CFTC, 834 F.2d 262 (2d Cir.1987) ( “wash sales”); United States v. Radley, 659 F.Supp.2d 803 (S.D.Tex.2009), aff'd on other grounds,632 F.3d 177 (5th Cir.2011) (“manipulate”).

The district court had previously ruled that "even if [the bids] were higher than any others, [they] were actually bids, and when they were accepted, defendants actually went through with the transactions." United States v. Radley, 659 F.Supp.2d 803, 815 (S.D. Tex. Sep. 17, 2009). "Since defendants were willing and able to follow through on all of the bids, they were not misleading." Id.

However, Defendants note, because they had no legal duty to disclose this information to others in the market, the omission cannot constitute wire fraud as a matter of law. For the first proposition, Defendants rely upon Sullivan & Long, Inc. v. Scattered Corp., 47 F.3d 857 (7th Cir. 1995); United States v. Radley, 649 F. Supp. 2d 803 (S.D. Tex. 2009), aff'd, 632 F.3d 177 (5th Cir. 2011); ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87 (2d Cir. 2007); GFL Advantage Fund, Ltd. v. Colkitt, 272 F.3d 189 (3d Cir. 2001), and CP Stone Fort Holdings, LLC, No. 16-C-4991, 2016 WL 5934096 (N.D. Ill. Oct. 11, 2016). But the problem with this argument is that it misapprehends the contours of the alleged fraudulent scheme, beginning with its intended targets.

The Court is not persuaded that DFA's cited cases support its proposed rule. In particular, DFA relies on United States v. Radley, in which the district court addressed the sufficiency of a criminal indictment that charged a defendant with, inter alia, manipulation under the CEA. 659 F. Supp. 2d 803, 806-09 (S.D. Tex. 2009). The district court dismissed all counts charging defendant with manipulation or attempted manipulation because the CEA statute was constitutionally vague and, "[a]lthough the government has alleged that defendants caused and intended to cause an increase in price, it has not adequately alleged that the increased price was artificial."