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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, July 31st, 2018

Second Circuit Narrowly Construes Appellate Waiver and Holds That Embezzlement Is Not a Continuing Offense

In a short and interesting opinion, available here, the Second Circuit held today that (1) a defendant did not waive her right to appeal a restitution order on the ground that it covered conduct outside the statute of limitations period, and (2) that violations of 18 U.S.C. § 641 (embezzlement of government property) are not continuing offenses, rendering the defendant liable for funds embezzled outside the limitations period. See United States v. Green, No. 16-3044 (2d Cir. 2018) (Cabranes, Carney, Goldberg (Ct. Intl. Trade )) (appeal from W.D.N.Y.). The second of these holdings, concerning the scope of  § 641, creates a circuit split.

The defendant in Green was charged under § 641 for drawing money out of a joint bank account between 2009 and 2011 in amounts similar to those of VA payments to her deceased mother that went into the account. She pled guilty, and …

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Categories: appeal waiver, forfeiture, property, statute of limitations, statutory construction, statutory interpretation

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Categories: appeal waiver, forfeiture, property, statute of limitations, statutory construction, statutory interpretation

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Wednesday, August 8th, 2012

An Affair To Remember

United States v. Sekhar, No. 11-4298 (2d Cir. June 26, 2012) (Jacobs, Parker, Hall, CJJ)

Defendant Skhar was convicted of Hobbs Act extortion and the interstate transmission of extortionate threats based on a particularly bizarre set of facts. He was a managing partner of a tech company into which the New York State Comptroller was considering investing state retirement funds. An earlier investment in the fund had been cleared, but never closed. That investment had been marketed by a placement agent, a process that was later banned. The current investment was not marketed by a placement agent but was “essentially the same” as the earlier one. While the Comprtroller’s General Counsel was considering the issue, he learned from the New York State Attorney General that the placement agent was under investigation; the General Counsel advised against moving forward with the deal, and that decision was then communicated to …

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Categories: extortion, property, Uncategorized

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Categories: extortion, property, Uncategorized

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Wednesday, November 21st, 2007

Control Freak

United States v. Carlo, No. 06-2420-cr (2d Cir. November 19, 2007) (Kearse, Katzmann, CJJ, Rakoff, DJ)

This short per curiam opinion discusses the sufficiency of the evidence in a wire fraud prosecution, where the prosecution proceeded on an unusual theory. The defendant Carlo and others defrauded real estate developers by making misrepresentations about Carlo’s efforts to obtain funding for the developers’ projects. In response to the developers’ requests, Carlo falsely assured them that loans were imminent, when in fact they were not. Here, the government did not allege that Carlo defrauded the developers out of any specific money or property, but rather out of their right to control their own assets, which the court held was a permissible theory of fraud. Carlo’s deception harmed the developers by depriving them of material information necessary to determine whether to proceed with their development projects, and this continued or increased the risk that …

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Categories: fraud, property, Uncategorized

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