
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-2001                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                      NIPPON PAPER INDUSTRIES CO., LTD., ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                              _________________________               Mark  S. Popofsky, Attorney,  Antitrust Division, U.S. Dep't               _________________          of  Justice,  with  whom  Anne K.  Bingaman,  Assistant  Attorney                                    _________________          General, Joel  I. Klein, Deputy Assistant  Attorney General, John                   ______________                                      ____          J.  Powers, III, Robert B.  Nicholson, David A.  Blotner, Lisa M.          _______________  ____________________  _________________  _______          Phelan, and Reginald K.  Tom, Attorneys, Antitrust Division, were          ______      ________________          on brief, for the United States.               Richard G.  Parker, with whom  Geoffrey D.  Oliver, Alan  M.               __________________             ___________________  ________          Cohen,  O'Melveny & Myers LLP, William H. Kettlewell, and Dwyer &          _____   _____________________  _____________________      _______          Collora were on brief, for Nippon Paper Industries Co., Ltd.          _______               John  G.  Roberts,  Jr.,  David G.  Leitch,  H.  Christopher               _______________________   ________________   _______________          Bartolomucci, and Hogan & Hartson L.L.P. on  brief for Government          ____________      ______________________          of Japan, amicus curiae.                              _________________________                                    March 17, 1997                              _________________________                    SELYA, Circuit  Judge.  This case  raises an important,                    SELYA, Circuit  Judge.                           ______________          hitherto unanswered question.  In  it, the United States attempts          to convict a foreign corporation under the Sherman Act, a federal          antitrust  statute, alleging  that price-fixing  activities which          took place entirely in Japan  are prosecutable because they  were          intended  to have, and did  in fact have,  substantial effects in          this  country.   The  district court,  declaring that  a criminal          antitrust   prosecution   could   not    be   based   on   wholly          extraterritorial conduct,  dismissed the indictment.   See United                                                                 ___ ______          States  v. Nippon  Paper Indus.  Co., 944  F. Supp. 55  (D. Mass.          ______     _________________________          1996).  We reverse.          I.  JUST THE FAX          I.  JUST THE FAX                    Since the district court granted the defendant's motion          to dismiss for failure  to state a prosecutable offense,  we draw          our account of the  pertinent events from the well-pleaded  facts          in  the indictment itself.   See United States  v. National Dairy                                       ___ _____________     ______________          Prods. Corp., 372 U.S. 29, 33 n.2 (1963).          ____________                    In 1995, a  federal grand jury handed  up an indictment          naming  as a defendant Nippon Paper Industries Co., Ltd. (NPI), a          Japanese  manufacturer  of  facsimile  paper.1    The  indictment          alleges that in 1990 NPI and certain unnamed  coconspirators held          a number of meetings in Japan which culminated in an agreement to                                        ____________________               1The  grand jury  also named another  Japanese manufacturer,          Jujo  Paper  Co.,  Ltd. (Jujo),  as  a  codefendant.   Two  years          earlier,  however,  NPI  had  been  formed  and,  the  government          alleges, had assumed Jujo's assets and  liabilities.  Because the          issue of successor liability is not before us, we treat NPI as if          it were the sole defendant  and as if it, rather than  Jujo, were          alleged to have committed the acts described in the indictment.                                          2          fix the price of thermal fax paper throughout North America.  NPI          and other manufacturers who were  privy to the scheme purportedly          accomplished their  objective by selling  the paper  in Japan  to          unaffiliated trading  houses on condition that  the latter charge          specified  (inflated) prices for the paper when they resold it in          North  America.   The trading  houses then  shipped and  sold the          paper to their subsidiaries in the United States who in turn sold          it to  American  consumers at  swollen  prices.   The  indictment          further relates that, in  1990 alone, NPI sold thermal  fax paper          worth  approximately  $6,100,000  for  eventual import  into  the          United States; and  that in order  to ensure  the success of  the          venture, NPI  monitored the paper  trail and  confirmed that  the          prices  charged to  end users  were those  that it  had arranged.          These  activities,  the  indictment  posits,  had  a  substantial          adverse effect  on commerce in the United States and unreasonably          restrained  trade in violation of Section One of the Sherman Act,          15 U.S.C.   1 (1994).                    NPI  moved  to  dismiss  because, inter  alia,  if  the                                                      _____  ____          conduct attributed to NPI occurred at all, it took place entirely          in Japan, and,  thus, the  indictment failed to  limn an  offense          under Section One  of the  Sherman Act.   The government  opposed          this initiative on two  grounds.  First, it claimed that  the law          deserved a less grudging reading and that, properly read, Section          One  of the  Sherman  Act applied  criminally  to wholly  foreign          conduct as long as that conduct produced substantial and intended          effects  within the United States.   Second, it  claimed that the                                          3          indictment,  too,  deserved a  less  grudging  reading and  that,          properly  read,  the  bill   alleged  a  vertical  conspiracy  in          restraint  of   trade  that   involved  overt  acts   by  certain          coconspirators within the United States.  Accepting a restrictive          reading of  both  the statute  and the  indictment, the  district          court dismissed the case.  See United States v. NPI, 944 F. Supp.                                     ___ _____________    ___          at 64-66.  This appeal followed.          II.  ANALYSIS          II.  ANALYSIS                    We  begin     and  end     with  the  overriding  legal          question.2     Because   this  question   is  one   of  statutory          construction, we review de  novo the holding that Section  One of          the Sherman Act does not cover wholly extraterritorial conduct in          the criminal context.  See United States v. Gifford, 17 F.3d 462,                                 ___ _____________    _______          471-72 (1st Cir. 1994).                    Our analysis  proceeds in  moieties.  We  first present          the historical  context in which this  important question arises.          We move next to the specifics of the case.                            A.  An Historical Perspective.                            A.  An Historical Perspective.                                _________________________                    Our  law   has  long  presumed   that  "legislation  of          Congress, unless  a contrary  intent appears,  is meant  to apply          only within  the territorial jurisdiction of  the United States."          EEOC  v. Arabian  American  Oil Co.,  499  U.S. 244,  248  (1991)          ____     __________________________                                        ____________________               2Inasmuch as we hold  that activities committed abroad which          have a substantial and  intended effect within the United  States          may form the basis  for a criminal prosecution under  Section One          of  the  Sherman  Act,  we  need  not  address  the  government's          alternative  argument that  the indictment  in this  case alleges          that  some  overt acts  in  furtherance  of  the conspiracy  were          perpetrated in the United States.                                          4          (citation  omitted).   In  this  context, the  Supreme  Court has          charged inquiring  courts with  determining whether  Congress has          clearly expressed an affirmative  desire to apply particular laws          to conduct that occurs  beyond the borders of the  United States.          See id.          ___ ___                    The earliest  Supreme  Court  case  which  undertook  a          comparable  task in  respect to  Section One  of the  Sherman Act          determined  that the presumption  against extraterritoriality had          not been  overcome.  In American Banana  Co. v. United Fruit Co.,                                  ____________________    ________________          213  U.S. 347 (1909), the Court considered the application of the          Sherman Act in  a civil action concerning  conduct which occurred          entirely  in Central America and which  had no discernible effect          on  imports to  the United  States.   Starting with  what Justice          Holmes  termed "the  general and  almost universal  rule" holding          "that the  character of  an act  as  lawful or  unlawful must  be          determined wholly  by the  law of  the country  where the  act is          done," id. at 356,  and the ancillary proposition that,  in cases                 ___          of  doubt, a  statute should  be "confined  in its  operation and          effect to  the territorial  limits  over which  the lawmaker  has          general  and legitimate power," id.  at 357, the  Court held that                                          ___          the defendant's actions abroad were not proscribed by the Sherman          Act.                    Our  jurisprudence is  precedent-based, but  it is  not          static.  By 1945, a different court saw a very similar problem in          a  somewhat softer light.   In United  States v.  Aluminum Co. of                                         ______________     _______________          Am., 148 F.2d  416 (2d  Cir. 1945) (Alcoa),  the Second  Circuit,          ___                                 _____                                          5          sitting  as  a  court  of  last  resort,  see  15  U.S.C.      29                                                    ___          (authorizing designation of a court of appeals as a court of last          resort  for  certain  antitrust  cases), mulled  a  civil  action          brought under Section One against a Canadian corporation for acts          committed  entirely abroad  which,  the government  averred,  had          produced  substantial anticompetitive  effects within  the United          States.    The Alcoa  court read  American Banana  narrowly; that                         _____              _______________          case, Judge Learned Hand wrote, stood only for the principle that          "[w]e should not impute to Congress an intent to punish  all whom          its  courts  can catch,  for  conduct which  has  no consequences          within  the  United  States."   Id.  at  443.    But a  sovereign                                          ___          ordinarily can  impose liability for conduct  outside its borders          that  produces consequences within them, and while considerations          of  comity argue against  applying Section  One to  situations in          which no  effect within the  United States has  been shown    the          American  Banana scenario    the  statute, properly  interpreted,          ________________          does  proscribe  extraterritorial acts  which  were  "intended to          affect imports  [to the United States] and did affect them."  Id.                                                                        ___          at  444.   On  the facts  of  Alcoa, therefore,  the  presumption                                        _____          against  extraterritoriality had  been overcome, and  the Sherman          Act had been violated.  See id. at 444-45.                                  ___ ___                    Any perceived tension between American Banana and Alcoa                                                  _______________     _____          was eased by the  Supreme Court's most recent exploration  of the          Sherman Act's  extraterritorial reach.  In Hartford Fire Ins. Co.                                                     ______________________          v. California, 509 U.S. 764 (1993), the Justices endorsed Alcoa's             __________                                             _____          core holding, permitting civil antitrust claims under Section One                                          6          to go forward despite  the fact that the actions  which allegedly          violated Section  One occurred entirely  on British soil.   While          noting   American  Banana's   initial   disagreement  with   this                   ________________          proposition, the Hartford Fire  Court deemed it "well established                           _____________          by now that  the Sherman Act applies to foreign  conduct that was          meant  to produce and did in fact produce some substantial effect          in  the United  States."   Id. at  796.   The conduct  alleged, a                                     ___          London-based conspiracy  to alter the American  insurance market,          met that benchmark.3  See id.                                ___ ___                    To sum  up, the  case law now  conclusively establishes          that civil antitrust actions predicated on wholly foreign conduct          which has an intended and substantial effect in the United States          come  within Section One's jurisdictional  reach.  In arriving at          this conclusion, we take no view of the government's asseveration          that  the  Foreign  Trade  Antitrust  Improvements  Act  of  1982                                        ____________________               3As  NPI reminds  us,  four Justices  dissented in  Hartford                                                                   ________          Fire.    This  is  cold  comfort,  however,  for  the  dissenters          ____          expressed  complete  agreement  with   the  majority's  view   on          extraterritoriality.  See Hartford Fire, 509 U.S. at 814 (Scalia,                                ___ _____________          J., dissenting).  By the same token, NPI's attempt to distinguish          Hartford Fire on  the ground that  the defendants there  conceded          _____________          the United  States' jurisdiction over their conduct fails for two          reasons.                In the first place, the assertion is no more than a play on          words.  The  majority opinion  in Hartford Fire  stated that  the                                            _____________          district court  "undoubtedly"  had jurisdiction  over  the  civil          claims, "as the  London reinsurers apparently  concede."  Id.  at                                                                    ___          795.   It is obvious, therefore, that jurisdiction did not depend          on   the  concession;   to  the   contrary,  jurisdiction   would          "undoubtedly"  have existed in any  event.  In  the second place,          one  of the  London  defendants did  not  join in  this  apparent          concession,  but the  Court  nonetheless  held  that  defendant's          foreign conduct to be within the Sherman Act's proscriptive ambit          because it was part of a scheme which "was intended to and did in          fact  produce  a substantial  effect  on  the American  insurance          market."  Id. at 795 n.21.                    ___                                          7          (FTAIA), 15  U.S.C.   6a (1994), makes  manifest Congress' intent          to  apply  the Sherman  Act  extraterritorially.   The  FTAIA  is          inelegantly phrased  and the court  in Hartford Fire  declined to                                                 _____________          place any weight on it.  See Hartford Fire, 509 U.S. at 796 n.23.                                   ___ _____________          We emulate this example  and do not rest our  ultimate conclusion          about Section One's scope upon the FTAIA.                                   B.  The Merits.                                   B.  The Merits.                                       __________                    Were  this a civil case, our journey would be complete.          But  here the  United States  essays a  criminal prosecution  for          solely extraterritorial conduct rather than a civil action.  This          is  largely  uncharted terrain;  we  are  aware of  no  authority          directly on point, and the parties have cited none.                    Be that as  it may,  one datum sticks  out like a  sore          thumb:  in both criminal and civil cases,  the claim that Section          One applies extraterritorially is  based on the same language  in          the  same  section  of  the  same   statute:    "Every  contract,          combination  in the form of trust or otherwise, or conspiracy, in          restraint  of trade or commerce among the several States, or with          foreign nations,  is declared  to be  illegal."   15 U.S.C.    1.          Words may sometimes be chameleons, possessing different shades of          meaning in  different contexts, see,  e.g., Hanover  Ins. Co.  v.                                          ___   ____  _________________          United States, 880 F.2d 1503, 1504 (1st Cir. 1989), cert. denied,          _____________                                       _____ ______          493 U.S.  1023  (1990), but  common  sense suggests  that  courts          should interpret the  same language  in the same  section of  the          same  statute uniformly,  regardless of  whether the  impetus for          interpretation is criminal or civil.                                          8                    Common sense  is usually a good  barometer of statutory          meaning.  Here, however,  we need not rely on common sense alone;          accepted  canons  of statutory  construction  point  in the  same          direction.    It is  a  fundamental  interpretive principle  that          identical words or terms used in  different parts of the same act          are  intended  to have  the same  meaning.   See  Commissioner of                                                       ___  _______________          Internal  Revenue v. Lundy, 116 S. Ct. 647, 655 (1996); Gustafson          _________________    _____                              _________          v. Alloyd  Co., 115 S. Ct.  1061, 1067 (1995).   This principle               ___________          which the  Court recently  called "the  basic canon  of statutory          construction," Estate of Cowart v. Nicklos Drilling Co., 505 U.S.                         ________________    ____________________          469,  479 (1992)     operates not  only  when particular  phrases          appear in different sections of the same act, but also when  they          appear in different  paragraphs or sentences of a single section.          See Russo  v. Texaco, Inc., 808 F.2d 221, 227 (2d Cir. 1986) ("It          ___ _____     ____________          is a  settled principle of statutory construction that [w]hen the          same word  or phrase is used in  the same section of  an act more          than once, and the meaning is clear as used in one place, it will          be  construed to  have  the same  meaning  in the  next  place.")          (citations and  internal quotation marks  omitted); United States                                                              _____________          v.  Gertz,  249 F.2d  662,  665 (9th  Cir.  1957) (similar).   It              _____          follows,  therefore,   that  if  the  language   upon  which  the          indictment rests were the  same as the language upon  which civil          liability  rests  but  appeared  in a  different  section  of the          Sherman Act, or in a different part of the same section, we would          be under great pressure to  follow the lead of the Hartford  Fire                                                             ______________          Court   and  construe   the  two   iterations  of   the  language                                          9          identically.  Where,  as here, the tie binds  more tightly   that          is,  the  text under  consideration  is  not merely  a  duplicate          appearing  somewhere else  in  the statute,  but is  the original          phrase in the original  setting   the pressure escalates  and the          case for reading the language in  a manner consonant with a prior          Supreme Court interpretation is  irresistible.  See United States                                                          ___ _____________          v.  Thompson/Center  Arms  Co., 504  U.S.  505,  518 n.10  (1992)              __________________________          (plurality  op.) (flatly  rejecting  the  idea, while  construing          language   from  a   statute   with  both   civil  and   criminal          implications, that a court should "refrain in criminal cases from          applying statutory language that would have been held to apply if          challenged in civil litigation").                    The  Supreme Court confronted an analogous situation in          Ratzlaf v. United States, 510 U.S. 135 (1994).   There, the court          _______    _____________          dealt with  a single  criminal penalty  clause,  contained in  31          U.S.C.      5322(a)  (1994),  which  authorized   punishment  for          individuals "willfully violating" a number  of separate statutory          provisions.    The  defendant  was charged  under  one  of  these          provisions.    After noting  that  identical  terms appearing  at          multiple  places  within  a  single statute  customarily  have  a          consistent meaning, the Court said:  "We have even stronger cause          to  construe a single formulation,  here   5322(a),  the same way                         ______          each time it  is called into  play."   Id. at 143.   The  Ratzlaf                                                 ___                _______          Court proceeded to interpret  the phrase "willfully violating" to          incorporate the same mens rea requirement that had been read into          the  phrase when section  5322(a) was applied  in other contexts.                                          10          See id.  at 136-37,  141.   In  so doing  the  Court quoted  with          ___ ___          approval  our statement in United States v. Aversa, 984 F.2d 493,                                     _____________    ______          498 (1st Cir. 1993) (en banc):  "Ascribing  various meanings to a          single  iteration . . .    reading the  word differently for each          code section  to which it applies   would open Pandora's jar.  If          courts  can render  meaning  so malleable,  the  usefulness of  a          single penalty provision  for a  group of  related code  sections          will be eviscerated."                    Ratzlaf  is not  our  only teaching  aid.   This  court                    _______          recently  confronted  a  situation  that,  putting  together  its          successive stages, throws light upon the problem at hand.  Having          found  an  ambiguity  in  the  phrase  "cost  of producing  self-          employment income," 7  U.S.C.   2014(d)(9) (1994), we deferred to          a  reasonable  administrative  regulation interpreting  it.   See                                                                        ___          Strickland v.  Commissioner, Me. Dep't  of Human Servs.,  48 F.3d          __________     ________________________________________          12, 21 (1st  Cir.), cert. denied,  116 S. Ct.  145 (1995).  In  a                              _____ ______          subsequent  suit  involving the  same  parties,  we debunked  the          plaintiffs' contention, advanced in a somewhat  different context          and in connection with  a neoteric legal theory, that  the phrase          in  question  had a  plain meaning.    We explained:   "Statutory          ambiguity does not flash on and  off like a bank of strobe lights          at a discotheque, shining brightly at the time of one lawsuit and          then vanishing mysteriously in the interlude before the next suit          appears."  Strickland v. Commissioner, Me. Dep't of Human Servs.,                     __________    _______________________________________          96  F.3d 542,  547 (1st Cir.  1996).   Read in  the ensemble, the          Strickland  opinions  stand for  the  proposition  that the  same          __________                                          11          phrase, appearing in the same portion of the same statute, cannot          bear divergent interpretations in different litigation contexts.                    The  shared  rationale of  the  Ratzlaf  and Strickland                                                    _______      __________          cases reinforces  the basic  canon of  construction and gives  us          confidence that  we should follow the  canon here.  The  words of          Section  One have not changed since the Hartford Fire Court found                                                  _____________          that they clearly  evince Congress' intent  to apply the  Sherman          Act  extraterritorially  in  civil   actions,  and  it  would  be          disingenuous  for us  to pretend  that the  words had  lost their          clarity simply  because this  is  a criminal  proceeding.   Thus,          unless some special  circumstance obtains in this  case, there is          no principled way in which we can uphold the order of dismissal.                    NPI and its  amicus, the Government of Japan, urge that          special  reasons   exist  for   measuring  Section  One's   reach          differently  in  a  criminal context.    We  have  reviewed their          exhortations and found  them hollow.   We discuss  the five  most          promising theses below.  The rest do not require comment.                    1.  Lack of Precedent.  NPI and its amicus make much of                    1.  Lack of Precedent.                        _________________          the fact that this appears to be the first criminal case in which          the  United States  endeavors  to extend  Section  One to  wholly          foreign conduct.   We are not  impressed.  There is  a first time          for everything, and  the absence of  earlier criminal actions  is          probably more  a demonstration of the  increasingly global nature          of  our economy than proof  that Section One  cannot cover wholly          foreign conduct in the criminal milieu.                    Moreover,   this  argument   overstates  the   lack  of                                          12          precedent.  There is, for example, solid authority for applying a          state's criminal  statute to  conduct occurring  entirely outside          the state's borders.  See Strassheim v. Daily,  221 U.S. 280, 285                                ___ __________    _____          (1911)  (Holmes,  J.) ("Acts  done  outside  a jurisdiction,  but          intended to produce and  producing detrimental effects within it,          justify a State in punishing  the cause of the harm as if  he had          been  present at  the  effect, if  the  State should  succeed  in          getting him within its power.").  It is not  much of a stretch to          apply  this  same  principle  internationally,  especially  in  a          shrinking world.  See, e.g., Chua  Han Mow v. United States,  730                            ___  ____  _____________    _____________          F.2d 1308, 1311-12 (9th Cir. 1984) (applying Strassheim principle                                                       __________          to conduct in Malaysia  involving drugs intended for distribution          in the United States), cert. denied, 470 U.S. 1031 (1985); United                                 _____ ______                        ______          States  v. Hayes, 653  F.2d 8, 11 (1st  Cir. 1981) (similar); cf.          ______     _____                                              ___          John  Donne, Devotions  Upon  Emergent Occasions,  no. 17  (1624)                       ___________________________________          (warning that "no  man is an island, entire of  itself; every man          is a piece of the continent, a part of the main").                     2.  Difference  in Strength of Presumption.   The lower                    2.  Difference  in Strength of Presumption.                        ______________________________________          court and  NPI both  cite United  States v.  Bowman, 260  U.S. 94                                    ______________     ______          (1922),  for  the   proposition  that  the   presumption  against          extraterritoriality operates with greater  force in the  criminal          arena than in civil  litigation.  This misreads the opinion.   To          be sure, the Bowman  Court, dealing with a charged  conspiracy to                       ______          defraud, warned that if  the criminal law "is  to be extended  to          include  those   [crimes]   committed  outside   of  the   strict          territorial jurisdiction, it is natural for Congress to say so in                                          13          the statute, and failure  to do so  will negative the purpose  of          Congress in this  regard."   Id. at 98.   But this  pronouncement                                       ___          merely  restated  the  presumption   against  extraterritoriality          previously established  in civil cases like  American Banana, 213                                                       _______________          U.S.  at  357.    The  Bowman  Court  nowhere  suggested  that  a                                 ______          different, more resilient presumption arises in criminal cases.4                    Nor does United States v. United States Gypsum Co., 438                             _____________    ________________________          U.S. 422 (1978),  offer aid and succor to NPI.   Recognizing that          "the behavior proscribed by the  [Sherman] Act is often difficult          to distinguish  from the  gray  zone of  socially acceptable  and          economically  justifiable business conduct,"  id. at  440-41, the                                                        ___          Gypsum  Court held that criminal intent  generally is required to          ______          convict  under  the  Act.    See  id.  at  443.    Although  this                                       ___  ___          distinguishes some  civil antitrust  cases (in which  intent need          not be proven) from their criminal counterparts, the Gypsum Court                                                               ______          made  it plain  that  intent  need  not  be  shown  to  prosecute          criminally "conduct  regarded as  per se illegal  because of  its                                            ___ __          unquestionably  anticompetitive  effects."   Id.  at  440.   This                                                       ___          means,   of  course,   that  defendants   can  be   convicted  of          participation   in   price-fixing   conspiracies    without   any          demonstration  of  a  specific  criminal intent  to  violate  the          antitrust  laws.   See, e.g.,  United States  v. Brown,  936 F.2d                             ___  ____   _____________     _____                                        ____________________               4Indeed, the  Bowman Court stated that  it regarded American                             ______                                ________          Banana as  an appropriate  analogy because the  antitrust statute          ______          "is criminal  as well as civil."  260 U.S.  at 98.  This seems to          support  the  notion that  the presumption  is  the same  in both          instances and leaves little  room to argue that the  Bowman Court                                                               ______          was attempting  to  craft  a  special,  more  rigorous  rule  for          criminal proceedings.                                          14          1042,  1046 (9th Cir. 1991);  United States v.  Society of Indep.                                        _____________     _________________          Gas.  Marketers, 624 F.2d 461, 465 (4th Cir. 1980), cert. denied,          _______________                                     _____ ______          449 U.S. 1078 (1981); United States v. Gillen, 599 F.2d 541, 544-                                _____________    ______          45  (3d Cir.), cert. denied,  444 U.S. 1078  (1979).  Because the                         _____ ______          instant case falls within that rubric, Gypsum does not help NPI.                                                 ______                    We add  that even if Gypsum  had differentiated between                                         ______          civil and criminal price-fixing cases, NPI's reliance on it would          still be problematic.  Reduced to bare essence, Gypsum focuses on                                                          ______          mens rea, noting that centuries of Anglo-American legal tradition          instruct that criminal liability ordinarily should be premised on          malevolent intent, see id. at 436-37, whereas civil liability, to                             ___ ___          which less stigma and  milder consequences commonly attach, often          requires  a lesser  showing  of  intent.    There  is  simply  no          comparable tradition  or rationale  for drawing a  criminal/civil          distinction with  regard to extraterritoriality, and  neither NPI          nor its amicus have alluded to any case which does so.                    3.  The Restatement.   NPI and the district  court, 944                    3.  The Restatement.                        _______________          F. Supp.  at 65, both sing the praises of the Restatement (Third)          of Foreign  Relations Law  (1987),  claiming that  it supports  a          distinction  between civil  and criminal  cases on  the issue  of          extraterritoriality.   The passage to which  they pin their hopes          states:                    [I]n the case of regulatory statutes that may                    give   rise  to   both  civil   and  criminal                    liability,   such   as   the  United   States                    antitrust and securities  laws, the  presence                    of   substantial    foreign   elements   will                    ordinarily   weigh  against   application  of                    criminal law.    In such  cases,  legislative                    intent to subject conduct outside the state's                                          15                    territory to its criminal law should be found                    only  on the  basis  of express  statement or                    clear implication.          Id.  at    403 cmt.  f.   We believe  that this  statement merely          ___          reaffirms the classic  presumption against extraterritoriality             no  more,  no less.    After  all, nothing  in  the  text of  the          Restatement proper contradicts the government's interpretation of          Section One.   See, e.g.,  id. at    402(1)(c) (explaining  that,                         ___  ____   ___          subject  only to a general requirement of reasonableness, a state          has jurisdiction to proscribe "conduct outside its territory that          has  or  is  intended  to  have  substantial  effect  within  its          territory");5 id.  at    415(2) ("Any  agreement in  restraint of                        ___          United States trade that is made outside of the United States . .          . [is] subject  to the  jurisdiction to prescribe  of the  United          States, if a principal purpose of the conduct  or agreement is to          interfere  with the  commerce  of  the  United  States,  and  the          agreement or conduct has  some effect on that commerce.").   What          is more,  other comments  indicate that a  country's decision  to          prosecute wholly  foreign conduct  is discretionary.   See, e.g.,                                                                 ___  ____          id. at   403 rep. n.8.          ___                    4.  The Rule of Lenity.  The next arrow which NPI yanks                    4.  The Rule of Lenity.                        __________________          from  its quiver  is the  rule  of lenity.   The  rule itself  is          venerable;  it  provides  that,  in the  course  of  interpreting          statutes  in criminal  cases,  a reviewing  court should  resolve                                        ____________________               5We note in passing that, by their use of the disjunctive in          this section, the drafters  of the Restatement seem to  suggest a          more permissive standard then we, and other American courts, see,                                                                       ___          e.g., Alcoa, 148 F.2d at 444, would deem meet.          ____  _____                                          16          ambiguities affecting a statute's scope in the defendant's favor.          See, e.g., Hughey  v. United  States, 495 U.S.  411, 422  (1990);          ___  ____  ______     ______________          Crandon v. United States, 494 U.S. 152, 158 (1990); United States          _______    _____________                            _____________          v.  Gibbens, 25  F.3d 28,  35 (1st Cir.  1994); United  States v.              _______                                     ______________          Ferryman,  897 F.2d 584, 591  (1st Cir.), cert.  denied, 498 U.S.          ________                                  _____  ______          830  (1990).   But  the rule  of  lenity is  inapposite unless  a          statutory ambiguity looms,  and a  statute is  not ambiguous  for          this  purpose simply  because  some courts  or commentators  have          questioned its proper interpretation.6  See Reno v. Koray, 115 S.                                                  ___ ____    _____          Ct. 2021, 2029 (1995); Moskal v. United States, 498 U.S. 103, 108                                 ______    _____________          (1990).  Rather,  "[t]he rule  of lenity applies  only if,  after          seizing everything from which  aid can be derived, [a  court] can          make  no more than a guess as  to what Congress intended."  Reno,                                                                      ____          115 S.  Ct.  at 2029  (citations, internal  quotation marks,  and          certain  brackets omitted);  accord United  States v.  O'Neil, 11                                       ______ ______________     ______          F.3d 292, 301 n.10 (1st Cir. 1993) (describing the rule of lenity          as "a background principle that properly comes into play when, at          the end  of a thorough inquiry, the meaning of a criminal statute          remains obscure").   Put bluntly,  the rule of  lenity cannot  be          used to create ambiguity when  the meaning of a law, even  if not          readily apparent, is, upon inquiry, reasonably clear.                                        ____________________               6Leaving aside the lower court's  decision in this case,  no          reported opinion  has questioned  the  applicability of  Hartford                                                                   ________          Fire's  exercise  in  statutory  construction  to  the  precincts          ____          patrolled  by the  criminal law.   Nevertheless,  Hartford Fire's                                                            _____________          rendition of the  statute has drawn  criticism from the  academy.          See,  e.g., Kenneth  W.  Dam, Extraterritoriality  in  an Age  of          ___   ____                    ___________________________________          Globalization:  The Hartford  Fire Case, 1993 Sup. Ct.  Rev. 289,          _______________________________________          307-13 (1993).                                          17                    That ends the matter  of lenity.   In view of the  fact          that the Supreme  Court deems it "well  established" that Section          One  of  the  Sherman  Act  applies  to  wholly foreign  conduct,          Hartford Fire,  509 U.S.  at 796,  we effectively are  foreclosed          _____________          from trying to tease an ambiguity  out of Section One relative to          its extraterritorial  application.    Accordingly,  the  rule  of          lenity plays no part in the instant case.                    5.   Comity.   International comity is  a doctrine that                    5.   Comity.                         ______          counsels  voluntary  forbearance when  a  sovereign  which has  a          legitimate  claim  to   jurisdiction  concludes  that  a   second          sovereign  also  has a  legitimate  claim  to jurisdiction  under          principles  of   international  law.     See  Harold   G.  Maier,                                                   ___          Extraterritorial Jurisdiction at  a Crossroads:   An Intersection          _________________________________________________________________          Between Public and Private  International Law, 76 A. J.  Int'l L.          _____________________________________________          280, 281 n.1  (1982).  Comity is more an  aspiration than a fixed          rule, more a matter of grace than a matter of obligation.  In all          events,  its growth in the  antitrust sphere has  been stunted by          Hartford Fire, in which the  Court suggested that comity concerns          _____________          would operate  to defeat  the  exercise of  jurisdiction only  in          those  few  cases  in which  the  law  of  the foreign  sovereign          required a defendant  to act  in a manner  incompatible with  the          Sherman  Act  or in  which  full compliance  with  both statutory          schemes was impossible.   See Hartford Fire, 509 U.S.  at 798-99;                                    ___ _____________          see  also Kenneth  W.  Dam,  Extraterritoriality  in  an  Age  of          ___  ____                    ____________________________________          Globalization:  The Hartford  Fire Case, 1993 Sup. Ct.  Rev. 289,          _______________________________________          306-07 (1993).   Accordingly, the Hartford Fire Court  gave short                                            _____________                                          18          shrift to the  defendants' entreaty that  the conduct leading  to          antitrust liability  was perfectly  legal in the  United Kingdom.          See Hartford Fire, 509 U.S. at 798-99.          ___ _____________                    In  this case the  defendant's comity-based argument is          even more attenuated.   The conduct with which NPI  is charged is          illegal  under   both  Japanese   and   American  laws,   thereby          alleviating any founded concern about NPI being whipsawed between          separate sovereigns.  And, moreover, to the extent that comity is          informed by general principles of reasonableness, see Restatement                                                            ___          (Third)  of Foreign  Relations Law    403, the  indictment lodged          against  NPI  is well  within the  pale.   In it,  the government          charges  that the  defendant orchestrated  a conspiracy  with the          object of rigging prices in the United States.  If the government          can  prove these charges, we see no tenable reason why principles          of comity should shield NPI from  prosecution.  We live in an age          of international commerce, where  decisions reached in one corner          of  the world can reverberate around  the globe in less time than          it takes  to tell the tale.  Thus,  a ruling in NPI's favor would          create  perverse incentives  for  those who  would use  nefarious          means to influence  markets in the United  States, rewarding them          for erecting  as many  territorial firewalls as  possible between          cause and effect.                    We  need go  no  further.   Hartford Fire  definitively                                                _____________          establishes that Section One of the Sherman Act applies to wholly          foreign conduct which has  an intended and substantial  effect in          the United States.  We  are bound to accept that holding.   Under                                          19          settled principles  of statutory construction, we  also are bound          to  apply  it  by interpreting  Section  One  the same  way  in a          criminal case.  The combined force of these  commitments requires          that we  accept the  government's cardinal argument,  reverse the          order of the district court, reinstate the indictment, and remand          for further proceedings.          Reversed and remanded.          Reversed and remanded.          _____________________                   Concurring Opinion follows                     Concurring Opinion follows                                            20                      LYNCH,  Circuit  Judge  (concurring). The  question                      LYNCH,  Circuit  Judge  (concurring).                               ______________            presented  in this case is whether Section One of the Sherman            Act authorizes criminal prosecutions of defendants for  their            actions  committed  entirely   outside  the  United   States.            Judicial precedents,  culminating  with the  Supreme  Court's            decision  in Hartford Fire Insurance Co.   v. California, 509                         ___________________________      __________            U.S. 764  (1993), conclusively  establish that  Section One's            jurisdictional reach extends,  in civil  actions, to  foreign            conduct that is meant  to produce, and does in  fact produce,            substantial effects in the United States.   The next question            to  be asked  is whether  there is  any persuasive  reason to            believe that, with regard  to wholly foreign conduct, Section            One in the criminal context is not co-extensive with  Section            One in the civil context.                      In answering this  second question, courts must  be            careful to  determine  whether this  construction of  Section            One's   criminal   reach   conforms   with    principles   of            international  law.   "It  has  been  a  maxim  of  statutory            construction  since the  decision in  Murray v.  The Charming                                                  ______     ____________            Betsy, 2 Cranch 64, 118, 2 L. Ed. 208 (1804), that 'an act of            _____            congress  ought never to be  construed to violate  the law of            nations,   if  any  other  possible  construction  remains.'"            Weinberger v.  Rossi, 456 U.S.  25, 32 (1982).   In the Alcoa            __________     _____                                    _____            case,  Judge Learned  Hand found  this canon  of construction            relevant to determining the  substantive reach of the Sherman                                          21            Act,  observing that "we are not to read general words [i.e.,                                                                    ____            Section  One]  .  .  .  without  regard  to  the  limitations            customarily observed  by nations  upon the exercise  of their            powers."  United States v. Aluminum Co. of Am., 148 F.2d 416,                      _____________    ___________________            443 (2d Cir. 1945);  see also Hartford Fire, 509 U.S. at 814-                                 ________ _____________            15 (Scalia, J., dissenting).                       The task of construing  Section One in this context            is not the usual one  of determining congressional intent  by            parsing the  language or legislative history  of the statute.            The broad, general language of the federal antitrust laws and            their  unilluminating  legislative  history  place  a special            interpretive responsibility  upon the judiciary.  The Supreme            Court has called the  Sherman Act a "charter of  freedom" for            the courts, with "a generality and adaptability comparable to            that found . . . in constitutional provisions."   Appalachian                                                              ___________            Coals, Inc. v.  United States, 288  U.S. 344, 359-60  (1933).            ___________     _____________            As Professors Areeda and Turner have said, the federal courts            have been invested "with a jurisdiction to create and develop            an 'antitrust law' in  the manner of the common  law courts."            I Areeda & Turner, Antitrust  Law   106, at 15 (1978).7   The                               ______________            courts  are  aided  in  this  task  by  canons  of  statutory            construction,  such  as  the  presumption  against  violating                                            ____________________            7.  Professors  Areeda  and  Turner also  note  that  "judges            sometimes  talk  as  if  Congress  has  already  decided  the            question before them.  This is usually a misconception."  Id.                                                                      ___                                          22            international law, which serve  as both guides and  limits in            theabsence of more explicit indicia of congressional intent.                       Here,  we are  asked  to determine  the substantive            content  of Section  One's inexact  jurisdictional provision,            "commerce  . .  .  with foreign  nations."   15  U.S.C.    1.            Because of  the "compunctions against the  creation of crimes            by judges rather than by legislators," II Areeda & Hovenkamp,            Antitrust   Law     311b,   at  33   (1995  rev.   ed.),  the            _______________            constitution-like  aspects  of  the  antitrust  laws must  be            handled particularly carefully in criminal prosecutions.                      As  the antitrust laws give the federal enforcement            agencies  a   relatively  blank  check,  the  development  of            antitrust law has been  largely shaped by the cases  that the            executive branch chooses  - or  does not choose  - to  bring.            Accordingly it has been said that:                      novel  interpretations  or  great  departures  have                      seldom, if ever, occurred  in criminal cases, which                      prosecutors  have  usually reserved  for defendants                      whose   knowing   behavior   would   be   generally                      recognized as appropriate for criminal sanctions.            Id. at 34.  This case does present a new  interpretation.  We            ___            are  told this is the  first instance in  which the executive            branch has chosen to interpret the criminal provisions of the            Sherman Act  as reaching conduct wholly  committed outside of            this country's borders.                      Changing economic conditions,  as well as different            political  agendas, mean  that antitrust policies  may change                                          23            from   administration   to  administration.      The  present            administration  has  promulgated  new  Antitrust  Enforcement            Guidelines   for   International   Operations  which   "focus            primarily on  situations in which the Sherman  Act will grant            jurisdiction and  when the  United States will  exercise that            jurisdiction"   internationally.      Brockbank,   The   1995                                                               __________            International  Antitrust  Guidelines:   The  Reach  of   U.S.            _____________________________________________________________            Antitrust  Law Continues to Expand, 2 J. Int'l Legal Stud. 1,            __________________________________            *22  (1996).     The   new  Guidelines  reflect   a  stronger            enforcement stance  than earlier versions  of the Guidelines,            and  have been described as a "warning to foreign governments            and  enterprises that  the  [antitrust enforcement]  Agencies            intend  to  actively  pursue restraints  on  trade  occurring            abroad  that  adversely  affect American  markets  or  damage            American exporting opportunities."  Id. at *21.   The instant                                                ___            case is likely a result of this policy.                      It  is  with  this  context in  mind  that  we must            determine if  the exercise of jurisdiction  occasioned by the            decision  of  the executive  branch of  the United  States is            proper in this case.  While courts, including this one, speak            of   determining   congressional  intent   when  interpreting            statutes,  the  meaning of  the  antitrust  laws has  emerged            through   the  relationship  among   all  three  branches  of            government.  In this criminal case, it is  our responsibility            to ensure that the  executive's interpretation of the Sherman                                          24            Act does not conflict  with other legal principles, including            principles of international law.                      That  question  requires  examination   beyond  the            language  of  Section One  of  the Sherman  Act.   It  is, of            course,  generally true  that,  as a  principle of  statutory            interpretation, the same language should be read the same way            in all contexts  to which the language applies.   But this is            not  invariably true.   New content is  sometimes ascribed to            statutory  terms depending  upon  context.   Cf. Robinson  v.                                                         ___ ________            Shell  Oil  Co., 117  S. Ct.  843,  847 (1997)  (depending on            _______________            context,  statutory  term  may  have  different  meanings  in            different   sections  of   single  statute);   3  Sutherland,            Statutory Construction   60.04  (5th ed. 1995) (statutes with            ______________________            both remedial and penal provisions may be construed liberally            in remedial context and  strictly in penal context).   As NPI            and  the Government of Japan point out, the Supreme Court has            held  that Section One of the Sherman Act, which defines both            criminal and  civil  violations  with  one  general  phrase,8            "should  be construed as including intent as an element" of a            criminal violation.   United  States v. United  States Gypsum                                  ______________    _____________________            Co., 438 U.S. 422,  443 (1978).  Where Congress  intends that            ___            our   laws   conform  with   international  law,   and  where            international  law  suggests  that  criminal  enforcement and                                            ____________________            8.  "Every  contract, combination  in  the form  of trust  or            otherwise, or conspiracy, in restraint of trade or commerce .            . . is declared to be illegal . . . ."  15 U.S.C.   1.                                          25            civil  enforcement  be viewed  differently,  it  is at  least            conceivable that  different content could be  ascribed to the            same language  depending on whether  the context is  civil or            criminal.  It  is then worth  asking about the effect  of the            international  law which  Congress presumably  also  meant to            respect.                      The content of international  law is determined "by            reference 'to  the customs  and usages of  civilized nations,            and,  as evidence  of  these, to  the  works of  jurists  and            commentators.'"  Hilao v. Marcos, 103 F.3d 789, 794 (9th Cir.                             _____    ______            1996) (quoting The Paquete Habana, 175 U.S. 677, 700 (1900));                           __________________            see  also Kadic v. Karadzic, 70  F.3d 232 (2d Cir. 1995). The            ___  ____ _____    ________            Restatement  (Third)  of the  Foreign  Relations  Law of  the            United  States restates  international law,  as derived  from            customary international law and from international agreements            to  which the United States is a  party, as it applies to the            United  States.    See  Restatement (Third)  of  the  Foreign                               ___  _____________________________________            Relations  Law   of  the  United  States      1,  101  (1987)            ________________________________________            [hereinafter   Restatement].   The United States  courts have                           ___________            treated the Restatement as an illuminating outline of central            principles of international law.  See Hartford Fire, 509 U.S.                                              ___ _____________            at 799  (citing Restatement); Hartford Fire, 509  U.S. at 818                                          _____________            (Scalia, J.,  dissenting) ("I  shall rely on  the Restatement            (Third) of Foreign Relations  Law for the relevant principles            of international law.   Its standards appear fairly supported                                          26            in  the  decisions  of  this Court  construing  international            choice-of-law principles  . . . and in the decisions of other            federal courts . . . ."); In re Maxwell Communications Corp.,                                      __________________________________            93 F.3d 1036, 1047-48 (2d Cir. 1996).                      The  Restatement  articulates  principles,  derived            from  international  law,  for determining  when  the  United            States  may  properly exercise  regulatory  (or prescriptive)            jurisdiction  over  activities  or  persons   connected  with            another state.  It serves as a useful guide to evaluating the            international  interests  at stake.    Sections  402 and  403            articulate general principles.   See Restatement    402, 403.                                             ___ ___________            Section  415  applies  these principles  to  "Jurisdiction to            Regulate Anti-Competitive Activities."  Id.   415.                                                    ___                      Restatement Section 402(1)(c) states  that "Subject            to     403," a  state has  jurisdiction  to prescribe  law to            "conduct outside  its territory  that has  or is intended  to            have  substantial  effect  within  its  territory."    Id.                                                                      ___            402(1)(c).  Section 403(1) states that, even when Section 402            has been satisfied, jurisdiction  may not be exercised  if it            is  "unreasonable."  Id.     403(1).   Section  403(2)  lists                                 ___            factors  to be  evaluated in  determining if  jurisdiction is            reasonable:                      (a)  the link  of the activity to  the territory of                           the  regulating state,  i.e.,  the  extent  to                                                   _____                           which  the  activity  takes place  within  the                           territory,  or  has  substantial, direct,  and                           foreseeable effect upon or in the territory;                                           27                      (b)  the   connections,    such   as   nationality,                           residence, or economic  activity, between  the                           regulating  state  and the  person principally                           responsible  for the activity to be regulated,                           or  between  that  state  and  those  whom the                           regulation is designed to protect;                       (c)  the character of the activity to be regulated,                           the importance of regulation to the regulating                           state,   the  extent  to  which  other  states                           regulate  such activities,  and the  degree to                           which  the desirability of  such regulation is                           generally accepted;                       (d)  the existence of  justified expectations  that                           might be protected or hurt by the regulation;                       (e)  the  importance  of  the  regulation   to  the                           international  political,  legal, or  economic                           system;                      (f)  the   extent  to   which  the   regulation  is                           consistent   with   the   traditions  of   the                           international system;                       (g)  the extent to which  another state may have an                           interest in regulating the activity; and                      (h)  the likelihood of  conflict with regulation by                           another state.             Id.   403(2).9            ___                      Comment f to Section 403 states that the principles            of Sections  402 and  403 "apply  to criminal  as well as  to            civil  regulation."   Id.    403 cmt.  f.   But, specifically                                  ___            naming  the United  States antitrust  laws, the  comment also            says  that for  statutes  that give  rise  to both  types  of            liability, "the presence of substantial foreign elements will                                            ____________________            9.  Section  403(3) is not applicable here.  See id.   403(3)                                                         ___ ___            cmt. e.                                          28            ordinarily weigh against  application of  criminal law."  Id.                                                                      ___            The  comment argues  that legislative  intent to  apply these            laws criminally should only be found on the basis of "express            statement or clear implication."  Id.                                                ___                      While  the majority opinion  accurately states that            this comment  is an expression  of the clear  statement rule,            the  comment also  implies  that there  are special  concerns            associated  with  the  imposition  of criminal  sanctions  on            foreign  conduct.  See  also id.   403  n.8 ("In applying the                               ___  ____ ___            principle  of reasonableness,  the  exercise of  criminal (as            distinguished  from civil)  jurisdiction in relation  to acts            committed in  another state may be  perceived as particularly            intrusive.").   Indeed, most  people recognize  a distinction            between civil and criminal liability; that the law of nations            should do so as well is not surprising.10  And while Hartford                                                                 ________            Fire  and  earlier judicial  decisions  have  found that  the            ____            antitrust  laws do apply,  in the  civil context,  to foreign            conduct,  this  antitrust  common  law  is  not  the  express            statement of legislative intent that the Restatement suggests            may be appropriate in the criminal context.                                            ____________________            10.  Enforcement of criminal  laws against foreign  nationals            for  conduct  on  foreign  soil  may  affect  this  country's            relationship with the foreign  country in somewhat  different            ways than would  a civil  action.  Congress  could choose  to            provide  more  explicit guidance  to  the  executive and  the            courts  in this area if it is concerned about such impacts on            foreign relations.                                          29                      Also relevant to the present inquiry is section 415            (2), which states that:                      Any  agreement  in  restraint  of  United                      States trade that is  made outside of the                      United   States,   and  any   conduct  or                      agreement in restraint of such trade that                      is carried out  predominantly outside  of                      the  United  States, are  subject  to the                      jurisdiction to prescribe  of the  United                      States, if  a  principal purpose  of  the                      conduct or agreement is to interfere with                      the commerce of the United States and the                      agreement  or conduct has  some effect on                      that commerce.            Restatement   415(2).   Comment a to Section 415  states that            ___________            the reasonableness principles articulated in Section 403 must            still be satisfied.  See id cmt. a.                                 ___ __                      Application  of these principles  to the indictment            at  issue here leads to  the conclusion that  the exercise of            jurisdiction  is  reasonable in  this  case.   Here,  raising            prices in the United States and Canada was not only a purpose                                                                _            of  the   alleged  conspiracy,   it  was   the purpose,  thus                                                       ___            satisfying  Section  415's  "principal purpose"  requirement.            Moreover,  Section  415's  requirement  of "some  effect"  on            United  States markets  is  amply met  here.   The indictment            alleges that NPI  sold $ 6.1  million of fax  paper into  the            United States during   1990, approximately the period covered            by the charged conspiracy.  In 1990, total sales of fax paper            in  North America  were  approximately $100  million.   NPI's            price increases  thus affected  a not insignificant  share of            the United States market.                                          30                      These same factors weigh heavily in the Section 403            reasonableness analysis.  Because only North American markets            were  targeted,   the United  States' interest  in combatting            this  activity  appears  to  be  greater  than  the  Japanese            interest, which may only  be the general interest of  a state            in having  its industries  comport with foreign  legal norms.            Japan  has no  interest in  protecting Japanese  consumers in            this case as they were unaffected by  the alleged conspiracy.            The United  States, in  contrast, has  a  strong interest  in            protecting United States consumers,  who were affected by the            increase in prices.   In this situation, it may  be that only            the  United States  has  sufficient incentive  to pursue  the            alleged wrongdoers, thereby providing the necessary deterrent            to similar anticompetitive behavior.   In another case, where            the  consumers of the situs nation were injured as well, that            state's  interest in regulating anticompetitive conduct might            be stronger than it is here.                      Other Section 403 factors  also counsel in favor of            the exercise of  jurisdiction here.   The  effects on  United            States markets  were foreseeable and direct.   The Government            of Japan  acknowledges that  antitrust regulation is  part of            the  international  legal system,  and  NPI  does not  really            assert that it  has justified expectations that  were hurt by                                          31            the regulation.11 The only factor  counseling against finding            that  the United States' antitrust laws apply to this conduct            is the fact that the situs  of the conduct was Japan and that            the    principals   were   Japanese   corporations.      This            consideration is inherent in the nature of jurisdiction based            on effects of conduct, where the situs  of the conduct is, by            definition, always a  foreign country.   This alone does  not            tip the balance against jurisdiction.                      For these  reasons, I agree with  the majority that            the district court erred in dismissing the indictment.                                            ____________________            11.   While  criminal prosecution may come as a surprise, NPI            should  have  known  that  civil  antitrust  liability  could            include  treble  damages.   A corporation  found guilty  of a            criminal  violation of Section One  is subject to  a fine not            exceeding $ 10 million.   See 15 U.S.C.   2.   Treble damages                                      ___            obviously do not include a similar cap.                                             32
