Cite as: 521 U. S. 642 (1997)
Opinion of Thomas, J.
obtained." Brief for United States 24, n. 13; see ante, at 656 (quoting Government's explanation).
Accepting the Government's description of the scope of its own theory, it becomes plain that the majority's explanation of how the misappropriation theory supposedly satisfies the "in connection with" requirement is incomplete. The touch-stone required for an embezzlement to be "use[d] or employ[ed], in connection with" a securities transaction is not merely that it "coincide" with, or be consummated by, the transaction, but that it is necessarily and only consummated by the transaction. Where the property being embezzled has value "apart from [its] use in a securities transaction"— even though it is in fact being used in a securities transaction—the Government contends that there is no violation under the misappropriation theory.
My understanding of the Government's proffered theory of liability, and its construction of the "in connection with" requirement, is confirmed by the Government's explanation during oral argument:
"[Court]: What if I appropriate some of my client's money in order to buy stock?
. . . . . "[Court]: Have I violated the securities laws? "[Counsel]: I do not think that you have. "[Court]: Why not? Isn't that in connection with the purchase of securit[ies] just as much as this one is?
"[Counsel]: It's not just as much as this one is, because in this case it is the use of the information that enables the profits, pure and simple. There would be no opportunity to engage in profit—
"[Court]: Same here. I didn't have the money. The only way I could buy this stock was to get the money.
. . . . . "[Counsel]: The difference . . . is that once you have the money you can do anything you want with it. In a sense, the fraud is complete at that point, and then you
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