## Facts

- Alan Herbert Abrahams operated Lloyd, Carr & Company, which marketed commodity options tied to futures traded in London from July 1976 to January 1978.
- The government alleged a scheme to defraud investors by selling options that were not actually purchased for customers.
- Alleged tactics included selling “naked” options, falsely representing that options had been bought, issuing misleading recommendations, and using unskilled sales staff employing high-pressure sales methods.
- Count 1 charged conspiracy and listed 67 overt acts largely describing specific sales of options to customers on particular dates.
- Counts 2–50 charged mail and wire fraud based on mailings (e.g., confirmations) and wire communications used to execute or purportedly execute customer orders.
- Abrahams moved pretrial to dismiss the indictment on statutory, constitutional, and grand jury grounds.

## Issues

1. Whether the Commodity Exchange Act displaced or impliedly repealed application of the federal mail and wire fraud statutes to alleged fraud involving commodity options.
2. Whether the indictment should be dismissed for unconstitutional selective prosecution.
3. Whether pre-indictment publicity required dismissal of the indictment.
4. Whether alleged prosecutorial misconduct before the grand jury required dismissal.
5. Whether the Sixth Amendment or applicable statutory speedy-trial rules required dismissal.

## Decision

- The court denied the motion to dismiss in full.
- The mail and wire fraud statutes could be used to prosecute the alleged scheme despite potential overlap with the Commodity Exchange Act.
- Abrahams did not make the required prima facie showing of selective prosecution.
- Pre-indictment publicity did not justify dismissal; any jury-related concerns could be addressed through trial safeguards.
- Alleged grand jury irregularities did not warrant dismissal absent a showing of legally significant prejudice affecting the indictment decision.
- The record did not establish a constitutional or statutory speedy-trial violation requiring dismissal.

## Legal Principles

- Implied repeal is strongly disfavored; a specialized regulatory statute does not displace a general criminal statute absent clear congressional intent or an irreconcilable conflict.
- Overlapping criminal statutes may both apply to the same conduct; the existence of a more specific regulatory scheme does not, by itself, bar prosecution under general fraud statutes.
- Selective prosecution requires proof that similarly situated persons are generally not prosecuted and that the charging decision rests on an impermissible motive.
- Dismissal for grand jury misconduct is an exceptional remedy and generally requires a showing that the misconduct substantially influenced the decision to indict or creates grave doubt that the decision was free from such influence.
- Speedy-trial claims require analysis of the length and reasons for delay, the defendant’s assertion of the right, and prejudice; dismissal is not warranted without a sufficient showing under the governing constitutional and statutory standards.

## Conclusion

The court allowed the prosecution to proceed, holding that general mail and wire fraud statutes remained available for an alleged commodity-options fraud scheme and finding no basis to dismiss the indictment for selective prosecution, pre-indictment publicity, grand jury misconduct, or speedy-trial violations.


United States v. Abrahams, 493 F. Supp. 296 (S.D.N.Y. 1980)