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Monday, September 30th, 2024

After reversal by the Supreme Court, Circuit vacates fraud convictions based on invalid legal theories, but allows new trial of two defendants on traditional fraud theories

On May 11, 2023, the Supreme Court reversed the Second Circuit in Ciminelli v. United States, 598 U.S. 306 (2023), and Percoco v. United States, 598 U.S. 319 (2023) holding invalid both the Circuit’s “right to control” theory of fraud (Ciminelli) and its theory that a private citizen with a “special relationship” with the government, who “dominated and controlled” government business may be convicted of honest services fraud (Percoco). See Blog May 15, 2023. Given the Supreme Court’s holding, the Circuit had to vacate their convictions, which were based on the invalid theories.

The Circuit did vacate those convictions, just this week, in United States v. Aiello, No 18-2990 (2d Cir. September 23, 2024) (Chin, Raggi, Sullivan) but remanded for retrial of Ciminelli and Percoco on traditional fraud theories, even though traditional fraud theories were not pursued at the first trial. …

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Categories: double jeopardy, fraud, honest services fraud

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Monday, May 15th, 2023

Supreme Court Reverses Two Second Circuit Fraud Decisions

On May 11, 2023, the Supreme Court decided Ciminelli v. United States, 21-1158 and Percoco v. United States, No. 21-1158, reversing the Second Circuit in two fraud decisions  resulting from the multi-defendant trial of alleged corruption surrounding the Cuomo administration. The Supreme Court continues its curtailment of amorphous theories of federal fraud to prosecute government corruption cases.

In Ciminelli, the Supreme Court rejected the Second Circuit’s “right to control” theory of  federal fraud, in which “property” under the fraud statutes “includes intangible interests such as the right to control the use of one’s assets.” Under this theory, Ciminelli was convicted of wire fraud for a bid-rigging scheme on the theory that he deprived the victim of “potentially valuable economic information” “necessary to make discretionary economic decisions.” Op. at 1-4. The Court reversed his conviction.

The Supreme Court reiterated the rule of Cleveland v. United States, 531 U.S. …

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Categories: honest services fraud, property, wire fraud

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Categories: honest services fraud, property, wire fraud

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Tuesday, September 26th, 2017

Second Circuit Reverses Skelos Convictions

In a relatively lengthy summary order, the Second Circuit reversed Dean and Adam Skelos’s convictions in light of the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016). The order is available here.

Dean Skelos and his son were convicted under the Hobbs Act and the honest services and federal bribery statutes. Each of their charged offenses included the performance of an “official act” as an element. The district court’s jury instructions provided that an “official act” does “not need to be specifically described in any law, rule, or job description, but may also include acts customarily performed by a public official with a particular position.” Sum. Order at 3. Consistent with this definition, a government witness testified that the “official duties” of a state senator included “assist[ing] individuals or companies in getting meetings with state agencies.” Id. at 11. Subsequent to trial, the …

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Categories: bribery, harmless error, Hobbs Act, honest services fraud

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Friday, July 14th, 2017

Second Circuit Vacates Silver Conviction, Denies Second or Successive Habeas Petition

The Second Circuit vacated former New York Speaker of the House Sheldon Silver’s convictions for honest services fraud, Hobbs Act extortion, and money laundering based on an erroneous jury instruction.  You can access the opinion here.  At trial, the District Court instructed the jury that an “official act” within the meaning of the charges was “any action taken or to be taken under color of official authority.”  After Silver’s conviction, the Supreme Court decided McDonnell v. United States, 136 S.Ct. 2355 (2016).  In McDonnell, the Supreme Court defined “official act” within the meaning of honest services fraud and extortion charges as “a decision or action on a ‘question, matter, cause, suit, proceeding or controversy” involving “a formal exercise of governmental power.”  In light of the McDonnell decision, the Second Circuit vacated Silver’s conviction, finding that the error in instructing the jury was not harmless, even though the …

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Sunday, November 20th, 2011

Making a Skilling in Albany

United States v. Bruno, No. 10-1887-cr (2d Cir. November 16, 2011) (Parker, Chin, CJJ, Korman, DJ)

The story of Joe Bruno, former New York State Senate Majority Leader, is fairly well known. Having seemingly turned his position into a veritable cesspool of self-interested profiteering, he was ultimately convicted of two counts “honest services” fraud – the jury hung on a third, and acquitted him of several others. Consistent with the law at the time, however, the fraud was charged only as a failure to disclose various conflicts of interest.

While Bruno’s appeal was pending, the Supreme Court decided United States v. Skilling, 130 S.Ct. 2896 (2010), which held that the honest services statute criminalizes only fraudulent schemes that are effectuated through bribery or kickbacks. In light of Skilling, was inevitable that Bruno’s convictions would have to be tossed. The only real suspense was whether the Circuit would acquit him or …

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Categories: double jeopardy, honest services fraud, Uncategorized

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