Er Wardlaw v.  2163 -- 1 of 7 --  WELLS FARGO BANK NA

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ALFRED POWERS; HERBERT WONG;
ALFRED OVERLEY; CHRISTINE
OVERLEY; RITA PEDRO; JENNIFER
PEDRO; BETTY ROSS; JOHN ROSS;
TODD SHEW; JOY SHEW; DENISE J.
TREMBLAY; BRADFORD J. STASSEL;
MICHAEL MAGNES; BRENDA
MAGNES; DAVID GROSS; BEN KERR;
DELORES KERR; VERONICA HUDSON;
MICHAEL STULTZ; CAROL STULTZ;
HARRIET JANE BUTTS; MYRON
No. 04-56084 WEISS; BARRY SPECTOR; KAREN
SPECTOR; WILLIAM E. WARDLAW; D.C. No.
 DANIEL WARDLAW; TAMMY D. CV-04-00398-ER
WARDLAW; BRUNA WARDLAW; OPINIONDANIELLE ELLIOTT; HELEN
DIMITRIOU; FRANK SCOPELITTA;
CAROL SCOPELITTA; JOSHUA HIGBEE;
SARAH HIGBEE; MILAN LINJAK;
MILICA LINJAK; DONALD WARDLAW;
JANET WARDLAW; ANDREA BLUM;
SIGURD D. MEDHUS; EVE L.
BONNER; ANTHONY A. SBAROUNIS;
JONATHAN PALMER; NINA PALMER,
Plaintiffs-Appellants,
v. 
2163

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 WELLS FARGO BANK NA; WELLS
FARGO & COMPANY; MARY E.
OSAKI; MARTY A. MUNESATO;
DAVID DAGGET; KIRK BRAUN; ROSSI RUSSELL; JAMES OSAKI; LOREN
WONG; ALVIS VEACH; MATTHEW L.
FRAGNER,
Defendants-Appellees. 
Appeal from the United States District Court
for the Central District of California
Edward Rafeedie, District Judge, Presiding
Submitted February 7, 2006*
Pasadena, California
Filed March 3, 2006
Before: David R. Thompson and Thomas G. Nelson,
Senior Circuit Judges, and Ronald M. Gould, Circuit Judge.
Opinion by Judge Gould
*This panel unanimously finds this case suitable for decision without
oral argument. See FED. R. APP. P. 34(a)(2).
2164 POWERS v. WELLS FARGO BANK

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COUNSEL
John R. Schiro, Studio City, California, for plaintiffs-
appellants Alfred Powers, et al.
Randall J. Clement, Sheppard, Mullin, Richter & Hampton
LLP, Costa Mesa, California, for defendant-appellee Wells
Fargo Bank, N.A.
John W. Sheller, Hinshaw & Culbertson LLP, Los Angeles,
California, for defendant-appellee Rossi Russell.
Daniel J. Goodkin, Van Etten, Suzumoto & Beckett LLP,
Santa Monica, California, for defendant-appellee Matthew L.
Fragner.
2166 POWERS v. WELLS FARGO BANK

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OPINION
GOULD, Circuit Judge:
In Howard v. America Online Inc., 208 F.3d 741 (9th Cir.
2000), we held that a federal Racketeer Influenced and Cor-
rupt Organizations Act (RICO), 18 U.S.C. §§ 1961-63, claim
alleging securities fraud, presented in a class action, was
barred by 18 U.S.C. § 1964(c), which provides that “no per-
son may rely upon any conduct that would have been action-
able as fraud in the purchase or sale of securities to establish
a violation of [RICO].” Howard, 208 F.3d at 749. Here, we
consider whether § 1964(c) bars private securities fraud
claims that are presented by individual claims rather than in
a class action. We hold that the preclusive effect of § 1964(c)
applies to claims asserted individually as well as to claims
presented in a class action.
Plaintiffs-Appellants Alfred Powers et al. (Powers) filed
suit against Defendants-Appellees Wells Fargo Bank, N.A. et
al. (Defendants), alleging causes of action under RICO and
state law. Powers alleges that Defendants defrauded Plaintiffs
of millions of dollars through a Ponzi scheme, the details of
which we described in a prior opinion. See SEC v. J.T. Wal-
lenbrock & Assocs., 313 F.3d 532, 535-36 (9th Cir. 2002).
The district court held, based on § 1964(c) and Howard, that
it did not have jurisdiction to consider the RICO claim, and
declined to exercise jurisdiction over the supplemental state
law claims.1
[1] On appeal, Powers argues that the Ponzi scheme did not
involve the purchase or sale of securities. This argument is
squarely foreclosed by J.T. Wallenbrock & Associates, in
which we held that the notes issued as part of the same Ponzi
1We review dismissals for lack of subject matter jurisdiction de novo.
Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 (9th Cir. 2000).
2167 POWERS v. WELLS FARGO BANK

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scheme at issue here are “securities regulated by the Securi-
ties Acts.” Id. at 535, 539-41.
[2] Powers also argues that Howard is inapplicable because
Howard was a class action, and that Congress intended
§ 1964(c) to apply only to bar class actions. We reject Pow-
ers’s argument.
Title 18 U.S.C. § 1964(c) provides, in relevant part:
[N]o person may rely upon any conduct that would
have been actionable as fraud in the purchase or sale
of securities to establish a violation of section 1962.
The exception contained in the preceding sentence
does not apply to an action against any person that
is criminally convicted in connection with the fraud
. . . .
Nothing in the text of § 1964(c) suggests that it prohibits only
class actions. To the contrary, § 1964(c) is written broadly to
state that “no person may rely upon any conduct . . . .” Id.
(emphasis added). To hold, as Powers contends, that
§ 1964(c) prohibits only class actions, we would have to
declare that the legislative history of the Private Securities
Litigation Reform Act of 1995 (PSLRA), Pub. L. No. 104-67,
§ 107, 109 Stat. 737, 758 (1995), which amended § 1964(c)
to add the language at issue here, trumps the plain text of the
statute. Powers’s argument fails because legislative history,
even when clear, may not overcome or displace the textual
mandate of a statute.
[3] Even were we to assume that the legislative history
demonstrates that Congress intended § 1964(c) to be limited
to class actions,2 we have held that “[l]egislative history can-
2We are skeptical that Congress intended § 1964(c) to prohibit only
class actions. The legislative history indicates that Congress was con-
cerned about RICO class action suits alleging securities fraud violations.
2168 POWERS v. WELLS FARGO BANK

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not trump the statute.” Bonneville Power Admin. v. FERC,
422 F.3d 908, 920 (9th Cir. 2005); Am. Rivers v. FERC, 201
F.3d 1186, 1204 (9th Cir. 2000) (“[T]his Court steadfastly
abides by the principle that ‘legislative history—no matter
how clear—can’t override statutory text.’ ”) (quoting Hearn
v. Western Conference of Teamsters Pension Trust Fund, 68
F.3d 301 (9th Cir. 1995)). Basing our decision on the unam-
biguous text of the statute, we hold that § 1964(c) bars RICO
actions alleging securities fraud, even when such actions are
not class actions.
[4] This ends our inquiry as to the claims against most of
the defendants. However, on August 8, 2005, Powers filed a
request for us to take judicial notice of the conviction of
defendants Marty A. Munesato and Larry Toshio Osaki in
connection with the Ponzi scheme at issue here. That request
is granted. Section 1964(c) states that the prohibition against
RICO claims alleging securities fraud “does not apply to an
action against any person that is criminally convicted in con-
nection with the fraud . . . .” We vacate and remand the dis-
trict court’s decision on the federal and state law claims
against defendant Marty A. Munesato3 for it to determine
whether, in light of his conviction, the federal RICO claims
against him can go forward, and whether the court will exer-
cise supplemental jurisdiction on state law claims against
Munesato. However, § 1964(c) by its terms only permits
RICO claims against a defendant convicted in connection
with the securities fraud. Section 1964(c) does not permit
But the history does not indicate that Congress was concerned solely with
RICO class actions, to the exclusion of other suits asserting RICO claims.
Congress did not say that § 1964(c) only applies to class actions; just that
preventing class action suits asserting RICO claims that should have been
presented as securities claims was a goal of the PSLRA. See S. Rep. No.
104-98, at 8-10 (1995), reprinted in 1995 U.S.C.C.A.N. 679, 687-89.
3Although Larry Toshio Osaki was named as a defendant in the com-
plaint, he is not a party to this appeal, and we express no opinion on the
effect that his conviction may have in this action.
2169 POWERS v. WELLS FARGO BANK

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RICO claims against all defendants involved in a fraud
merely because one or more of them is convicted. That pro-
ceedings may continue against convicted defendant Munesato
does not alter our holding that the dismissal of RICO claims
against other defendants not so convicted, and the district
court’s dismissal of state law claims against such other defen-
dants, should be affirmed.
AFFIRMED, with costs to Appellees, as to the claims
against Wells Fargo Bank, N.A., Wells Fargo & Co., Mary E.
Osaki, David Daggett, Kirk Braun, Rossi Russell, James
Osaki, Loren Wong, Alvis Veach, and Matthew L. Fragner,
and VACATED AND REMANDED, with costs to Appel-
lants, as to the claims against Marty A. Munesato.
2170 POWERS v. WELLS FARGO BANK

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