Ciminelli v. United States

598 U.S. 306

Opinion

PRELIMINARY PRINT

Volume 598 U. S. Part 2 Pages 306–318

OFFICIAL REPORTS OF

THE SUPREME COURT May 11, 2023

REBECCA A. WOMELDORF reporter of decisions

NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. 306 OCTOBER TERM, 2022

Syllabus

CIMINELLI v. UNITED STATES et al.

certiorari to the united states court of appeals for the second circuit No. 21–1170. Argued November 28, 2022—Decided May 11, 2023 Petitioner Louis Ciminelli was convicted of federal wire fraud for his involvement in a scheme to rig the bid process for obtaining state- funded development projects associated with then-New York Governor Andrew Cuomo's Buffalo Billion initiative. The Buffalo Billion initia- tive was administered by the nonproft Fort Schuyler Management Cor- poration. Investigations uncovered that Fort Schuyler board member Alain Kaloyeros paid lobbyist Todd Howe $25,000 in state funds each month to ensure that the Cuomo administration gave Kaloyeros a promi- nent role in administering projects for Buffalo Billion. Ciminelli's con- struction company, LPCiminelli, paid Howe $100,000 to $180,000 each year to help it obtain state-funded jobs. In 2013, Howe and Kaloyeros devised a scheme whereby Kaloyeros would tailor Fort Schuyler's bid process to smooth the way for LPCiminelli to receive major Buffalo Billion contracts by designating LPCiminelli as a “preferred developer” with priority status to negotiate for specifc projects. Kaloyeros, Howe, and Ciminelli jointly developed a set of requests for proposal that effec- tively guaranteed LPCiminelli's selection as a preferred developer by treating unique aspects of LPCiminelli as qualifcations for preferred- developer status. With that status in hand, LPCiminelli secured the marquee $750 million “Riverbend project” in Buffalo. After the scheme was uncovered, Ciminelli, Kaloyeros, Howe, and others were indicted for, as relevant here, wire fraud in violation of 18 U. S. C. § 1343 and conspiracy to commit the same under § 1349. In the operative indictment and at trial, the Government relied solely on the Second Circuit's right-to-control theory of wire fraud, under which the Government can establish wire fraud by showing that the defendant schemed to deprive a victim of potentially valuable economic information necessary to make discretionary economic decisions. Con- sistent with that theory, the District Court instructed the jury that the term “property” in § 1343 “includes intangible interests such as the right to control the use of one's assets,” which could be harmed by de- priving Fort Schuyler of “potentially valuable economic information.” The jury convicted Ciminelli of wire fraud and conspiracy to commit wire fraud. On appeal, Ciminelli argued that the right to control one's assets is not “property” for purposes of § 1343. The Second Circuit af- Cite as: 598 U. S. 306 (2023) 307

frmed the convictions on the basis of its longstanding right-to-control precedents. Held: Because the right to valuable economic information needed to make discretionary economic decisions is not a traditional property interest, the Second Circuit's right-to-control theory cannot form the basis for a conviction under the federal fraud statutes. Pp. 312–317. (a) The federal wire fraud statute criminalizes the use of interstate wires for “any scheme or artifce to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U. S. C. § 1343. When the federal wire fraud statute was enacted, the “common understanding” of the words “to defraud” referred “to wronging one in his property rights.” Cleveland v. United States, 531 U. S. 12, 19. This Court has therefore consistently under- stood the statute's “money or property” requirement as limiting the “scheme or artifce to defraud” element. Ibid. Even so, lower federal courts for decades interpreted the mail and wire fraud statutes to pro- tect intangible interests unconnected to traditional property rights. See Skilling v. United States, 561 U. S. 358, 400. This Court halted that trend in McNally v. United States, 483 U. S. 350, which confned the statutes to the “protect[ion of] individual property rights.” Id., at 359, n. 8. The right-to-control theory cannot be squared with the text of the federal fraud statutes, which are “limited in scope to the protection of property rights.” Id., at 360. The so-called right to control is not an interest that had “long been recognized as property” when the wire fraud statute was enacted. Carpenter v. United States, 484 U. S. 19, 26. From the theory's inception, the Second Circuit has not grounded the right to control in traditional property notions. The theory is also inconsistent with the structure and history of the federal fraud statutes. Congress responded to this Court's decision in McNally by enacting § 1346, which revived only the intangible right of honest services, one of many intangible rights protected by courts under the fraud statutes pre-McNally. Congress' silence regarding other such intangible inter- ests forecloses the judicial expansion of the wire fraud statute to cover the intangible right to control. Finally, by treating mere information as the protected interest, the right-to-control theory vastly expands fed- eral jurisdiction to an almost limitless variety of deceptive actions tradi- tionally left to state law. Pp. 312–316. (b) Despite relying exclusively on the right-to-control theory before the grand jury, District Court, and Second Circuit, the Government now concedes that the theory as articulated below is erroneous. Yet, the Government insists that the Court can affrm Ciminelli's convictions by 308 CIMINELLI v. UNITED STATES

Opinion of the Court

applying facts presented to the jury below to the elements of a different wire fraud theory. The Court declines the Government's request, which would require the Court to assume not only the function of a court of frst view, but also of a jury. See McCormick v. United States, 500 U. S. 257, 270–271, n. 8. Pp. 316–317. 13 F. 4th 158, reversed and remanded.

Thomas, J., delivered the opinion for a unanimous Court. Alito, J., fled a concurring opinion, post, p. 317.

Michael R. Dreeben argued the cause for petitioner. With him on the briefs were Jenya Godina, Jason Zarrow, and L. Nicole Allan. Briefs in support of petitioner were fled for Alain Kaloyeros by Michael C. Miller, Reid H. Weingarten, Michael G. Scavelli, and Bruce C. Bishop, and for Steven Aiello et al. by Alexandra A. E. Shapiro, Ted Sampsell-Jones, and Daniel J. O'Neill, all respondents under this Court's Rule 12.6. Deputy Solicitor General Feigin argued the cause for the United States. With him on the brief were Solicitor Gen- eral Prelogar, Assistant Attorney General Polite, Austin L. Raynor, and William A. Glaser.* Justice Thomas delivered the opinion of the Court. In this case, we must decide whether the Second Circuit's longstanding “right to control” theory of fraud describes a valid basis for liability under the federal wire fraud statute, which criminalizes the use of interstate wires for “any scheme or artifce to defraud, or for obtaining money or prop- erty by means of false or fraudulent pretenses, representa-

*Briefs of amici curiae urging reversal were fled for the Associated General Contractors of America, Inc., by Adrian L. Bastianelli III, Thomas J. Curran, Robert H. Bell, and Doris D. Short; for Law Professors by Michael D. Lieberman; for the National Association of Criminal De- fense Lawyers by Joshua L. Dratel and Steven F. Molo; and for the New York Council of Defense Lawyers by Harry Sandick. Adam G. Unikowsky fled a brief for the Chamber of Commerce of the United States of America as amicus curiae. Cite as: 598 U. S. 306 (2023) 309

tions, or promises.” 18 U. S. C. § 1343. Under the right-to- control theory, a defendant is guilty of wire fraud if he schemes to deprive the victim of “potentially valuable eco- nomic information” “necessary to make discretionary eco- nomic decisions.” United States v. Percoco, 13 F. 4th 158, 170 (CA2 2021) (internal quotation marks omitted). Peti- tioner Louis Ciminelli was charged with, tried for, and con- victed of wire fraud under this theory. And the Second Circuit affrmed his convictions on that same basis. We have held, however, that the federal fraud statutes criminalize only schemes to deprive people of traditional property interests. Cleveland v. United States, 531 U. S. 12, 24 (2000). Because “potentially valuable economic in- formation” “necessary to make discretionary economic deci- sions” is not a traditional property interest, we now hold that the right-to-control theory is not a valid basis for liability under § 1343. Accordingly, we reverse the Second Circuit's judgment. I This case begins with then-New York Governor Andrew Cuomo's “Buffalo Billion” initiative. On its face, the initia- tive was administered through Fort Schuyler Management Corporation, a nonproft affliated with the State University of New York (SUNY) and the SUNY Research Foundation. It aimed to invest $1 billion in development projects in up- state New York. Later investigations, however, uncovered a wide-ranging scheme that involved several of former Gov- ernor Cuomo's associates, most notably Alain Kaloyeros and Todd Howe. Kaloyeros was a member of Fort Schuyler's board of directors and was in charge of developing project proposals for Buffalo Billion; Howe was a lobbyist who had deep ties to the Cuomo administration. Each month, Kaloy- eros paid Howe $25,000 in state funds to ensure that the Cuomo administration gave Kaloyeros a prominent position in Buffalo Billion. 310 CIMINELLI v. UNITED STATES

Ciminelli had a similar arrangement. His construction company, LPCiminelli, paid Howe $100,000 to $180,000 each year to help it obtain state-funded jobs. In 2013, Howe and Kaloyeros devised a scheme whereby Kaloyeros would tailor Fort Schuyler's bid process to smooth the way for LPCimi- nelli to receive major Buffalo Billion contracts. First, on Kaloyeros' suggestion, Fort Schuyler established a process for selecting “preferred developers” that would be given the frst opportunity to negotiate with Fort Schuyler for specifc projects. Then, Kaloyeros, Howe, and Ciminelli jointly de- veloped a set of requests for proposal (RFPs) that treated unique aspects of LPCiminelli as qualifcations for preferred- developer status. Those RFPs effectively guaranteed that LPCiminelli would be (and was) selected as a preferred de- veloper for the Buffalo projects. With that status in hand, LPCiminelli secured the marquee $750 million “Riverbend project” in Buffalo. After an investigation revealed their scheme, Ciminelli, Howe, Kaloyeros, and several others were indicted by a fed- eral grand jury on 18 counts including, as relevant here, wire fraud in violation of 18 U. S. C. § 1343 and conspiracy to com- mit wire fraud in violation of § 1349. Throughout the grand jury proceedings, trial, and appeal, the Government relied on the Second Circuit's “right to con- trol” theory, under which the Government can establish wire fraud by showing that the defendant schemed to deprive a victim of potentially valuable economic information neces- sary to make discretionary economic decisions. The Gov- ernment's indictment and trial strategy rested solely on that theory.1 And, it successfully defeated Ciminelli and his co-

1 An earlier indictment alleged that the Buffalo Billion contracts were the property at issue. But, to defend against the defendants' motion to dismiss, the Government relied solely on the theory that the scheme “de- fraud[ed] Fort Schuyler of its right to control its assets.” App. 31–32. The District Court then relied expressly on the right-to-control theory in Cite as: 598 U. S. 306 (2023) 311

defendants' motion to dismiss by relying on that theory. In addition, it successfully moved the District Court to exclude certain defense evidence as irrelevant to that theory. The Government also relied on that theory in its summation to the jury. Consistent with the right-to-control theory, the District Court instructed the jury that the term “property” in § 1343 “includes intangible interests such as the right to control the use of one's assets.” App. 41. The jury could thus fnd that the defendants harmed Fort Schuyler's right to control its assets if Fort Schuyler was “deprived of potentially valuable economic information that it would consider valuable in de- ciding how to use its assets.” Ibid. The District Court fur- ther defned “economically valuable information” as “infor- mation that affects the victim's assessment of the benefts or burdens of a transaction, or relates to the quality of goods or services received or the economic risks of the transac- tion.” Ibid. The jury found Ciminelli guilty of wire fraud and conspiracy to commit wire fraud and the District Court sentenced him to 28 months' imprisonment followed by 2 years' supervised release. On appeal, Ciminelli challenged the right-to-control the- ory, arguing that the right to control one's assets is not “property” for purposes of the wire fraud statute. Defend- ing the wire fraud convictions, the Government relied solely on the right-to-control theory. The Second Circuit affrmed the convictions based on its longstanding right-to-control precedents, holding that, by “rigging the RFPs to favor their companies, defendants deprived Fort Schuyler of potentially valuable economic information.” 13 F. 4th, at 171 (internal quotation marks omitted). We granted certiorari to determine whether the Second Circuit's right-to-control theory of wire fraud is a valid basis denying the motion to dismiss. United States v. Percoco, 2017 WL 6314146, *8 (SDNY, Dec. 11, 2017). 312 CIMINELLI v. UNITED STATES

for liability under 18 U. S. C. § 1343. 597 U. S. ––– (2022). And, we now hold that it is not.

II A The wire fraud statute criminalizes “scheme[s] or artifce[s] to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” § 1343. Although the statute is phrased in the disjunctive, we have consistently understood the “money or property” requirement to limit the “scheme or artifce to defraud” ele- ment because the “common understanding” of the words “to defraud” when the statute was enacted referred “to wrong- ing one in his property rights.” Cleveland, 531 U. S., at 19 (internal quotation marks omitted).2 This understanding refects not only the original meaning of the text, but also that the fraud statutes do not vest a general power in “the Federal Government . . . to enforce (its view of) integrity in broad swaths of state and local policymaking.” Kelly v. United States, 590 U. S. –––, ––– (2020). Instead, these stat- utes “protec[t] property rights only.” Cleveland, 531 U. S., at 19. Accordingly, the Government must prove not only that wire fraud defendants “engaged in deception,” but also that money or property was “an object of their fraud.” Kelly, 590 U. S., at ––– (alterations omitted). Despite these limitations, lower federal courts for decades interpreted the mail and wire fraud statutes to protect intan- gible interests unconnected to traditional property rights. See Skilling v. United States, 561 U. S. 358, 400 (2010) (re- counting how “the Courts of Appeals, one after the other,

2 Although Cleveland involved the mail fraud statute, 18 U. S. C. § 1341, “we have construed identical language in the wire and mail fraud statutes in pari materia.” Pasquantino v. United States, 544 U. S. 349, 355, n. 2 (2005). Cite as: 598 U. S. 306 (2023) 313

interpreted the term `scheme or artifce to defraud' to in- clude deprivations not only of money or property, but also of intangible rights”). For example, federal courts held the fraud statutes reached such intangible interests as the right to “honest services,” ibid. (internal quotation marks omit- ted); the right of the citizenry to an honest election, see United States v. Girdner, 754 F. 2d 877, 880 (CA10 1985); and the right to privacy, United States v. Louderman, 576 F. 2d 1383, 1387 (CA9 1978). In McNally v. United States, 483 U. S. 350 (1987), this Court halted that trend by confning the federal fraud statutes to their original station, the “protec- t[ion of] individual property rights.” Id., at 359, n. 8. Con- gress then amended the fraud statutes “specifcally to cover one of the `intangible rights' that lower courts had protected under [the statutes] prior to McNally: `the intangible right of honest services.' ” Cleveland, 531 U. S., at 19–20 (quoting 18 U. S. C. § 1346). The right-to-control theory applied below frst arose after McNally prevented the Government from basing federal fraud convictions on harms to intangible interests unconnec- ted to property. See United States v. Wallach, 935 F. 2d 445, 461–464 (CA2 1991). As developed by the Second Cir- cuit, the theory holds that, “[s]ince a defning feature of most property is the right to control the asset in question,” “the property interests protected by the wire fraud statute in- clude the interest of a victim in controlling his or her own assets.” United States v. Lebedev, 932 F. 3d 40, 48 (2019) (alterations omitted). Thus, a “cognizable harm occurs where the defendant's scheme denies the victim the right to control its assets by depriving it of information necessary to make discretionary economic decisions.” United States v. Binday, 804 F. 3d 558, 570 (CA2 2015) (alterations omitted).3 3 At least two Circuits have expressly repudiated the right-to-control theory of wire fraud. United States v. Sadler, 750 F. 3d 585, 590–592 (CA6 2014); United States v. Bruchhausen, 977 F. 2d 464, 467–469 (CA9 314 CIMINELLI v. UNITED STATES

The right-to-control theory cannot be squared with the text of the federal fraud statutes, which are “limited in scope to the protection of property rights.” McNally, 483 U. S., at 360. The so-called “right to control” is not an interest that had “long been recognized as property” when the wire fraud statute was enacted. Carpenter v. United States, 484 U. S. 19, 26 (1987). Signifcantly, when the Second Circuit frst recognized the right-to-control theory in 1991—decades after the wire fraud statute was enacted and over a century after the mail fraud statute was enacted—it could cite no authority that established “potentially valuable economic in- formation” as a traditionally recognized property interest. See Wallach, 935 F. 2d, at 462–463.4 And, the Second Cir- cuit has not since attempted to ground the right-to-control theory in traditional property notions. We have consist-

1992). Several other Circuits have embraced the theory to varying de- grees. See, e. g., United States v. Gray, 405 F. 3d 227, 234 (CA4 2005) (collecting cases). 4 The only judicial authority the Second Circuit cited for this key propo- sition was a 1989 Fifth Circuit opinion that conclusorily asserted that “[t]he economic value of . . . knowledge” was “suffcient `property' to impli- cate” the mail fraud statute, and that appears to have misunderstood 18 U. S. C. § 1346 as “eliminating the requirement of property loss” in all cases. United States v. Little, 889 F. 2d 1367, 1368–1369. The Second Circuit then proceeded to rely on the “bundle of sticks” metaphor of prop- erty rights. See United States v. Wallach, 935 F. 2d 445, 463 (1991) (“[G]iven the important role that information plays in the valuation of a corporation, the right to complete and accurate information is one of the most essential sticks in the bundle of rights that comprise a stockholder's property interest”). But that metaphor—whatever its merits in other contexts—cannot compensate for the absence of an interest that itself “has long been recognized as property,” Carpenter v. United States, 484 U. S. 19, 26 (1987), particularly in light of our rejection of attempts to construe the federal fraud statutes “in a manner that leaves [their] outer boundaries ambiguous.” McNally v. United States, 483 U. S. 350, 360 (1987). As noted above, the right to information necessary to make informed eco- nomic decisions, while perhaps useful for protecting and making use of one's property, has not itself traditionally been recognized as a property interest. Cite as: 598 U. S. 306 (2023) 315

ently rejected such federal fraud theories that “stray from traditional concepts of property.” Cleveland, 531 U. S., at 24. For its part, the Government—despite relying upon the right-to-control theory for decades, including in this very case—now concedes that if “the right to make informed deci- sions about the disposition of one's assets, without more, were treated as the sort of `property' giving rise to wire fraud, it would risk expanding the federal fraud statutes be- yond property fraud as defned at common law and as Con- gress would have understood it.” Brief for United States 25–26. Thus, even the Government now agrees that the Second Circuit's right-to-control theory is unmoored from the federal fraud statutes' text. The right-to-control theory is also inconsistent with the structure and history of the federal fraud statutes. As re- counted above, after McNally put an end to federal courts' use of mail and wire fraud to protect an ever-growing swath of intangible interests unconnected to property, Congress re- sponded by enacting § 1346, which—despite the wide array of intangible rights courts protected under the fraud statutes pre-McNally—revived “only the intangible right of honest services.” Cleveland, 531 U. S., at 19–20 (emphasis added). “Congress' reverberating silence about other [such] intangi- ble interests” forecloses the expansion of the wire fraud stat- ute to cover the intangible right to control. United States v. Sadler, 750 F. 3d 585, 591 (CA6 2014). Finally, the right-to-control theory vastly expands federal jurisdiction without statutory authorization. Because the theory treats mere information as the protected interest, al- most any deceptive act could be criminal. See, e. g., United States v. Viloski, 557 Fed. Appx. 28 (CA2 2014) (affrming right-to-control conviction based on an employee's undis- closed confict of interest). The theory thus makes a federal crime of an almost limitless variety of deceptive actions tra- ditionally left to state contract and tort law—in fat contra- diction with our caution that, “[a]bsent [a] clear statement by 316 CIMINELLI v. UNITED STATES

Congress,” courts should “not read the mail [and wire] fraud statute[s] to place under federal superintendence a vast array of conduct traditionally policed by the States.” Cleve- land, 531 U. S., at 27. And, as it did below, the Second Cir- cuit has employed the theory to affrm federal convictions regulating the ethics (or lack thereof) of state employees and contractors—despite our admonition that “[f]ederal prosecu- tors may not use property fraud statutes to set standards of disclosure and good government for local and state offcials.” Kelly, 590 U. S., at ––– (alterations omitted). The right-to- control theory thus criminalizes traditionally civil matters and federalizes traditionally state matters. In sum, the wire fraud statute reaches only traditional property interests. The right to valuable economic informa- tion needed to make discretionary economic decisions is not a traditional property interest. Accordingly, the right-to- control theory cannot form the basis for a conviction under the federal fraud statutes. B Despite indicting, obtaining convictions, and prevailing on appeal based solely on the right-to-control theory, the Gov- ernment now concedes that the theory as articulated below is erroneous. Brief for United States 24–26. The Govern- ment frankly admits that, “to the extent that language in the [Second Circuit's] opinions might suggest that depriving a victim of economically valuable information, without more, necessarily qualifes as `obtaining money or property' within the meaning of the fraud statutes, that is incorrect.” Id., at 24. That should be the end of the case. Yet, the Government insists that its concession does not require reversal because we can affrm Ciminelli's convic- tions on the alternative ground that the evidence was suff- cient to establish wire fraud under a traditional property- fraud theory. Id., at 31–32. With profuse citations to the records below, the Government asks us to cherry-pick facts presented to a jury charged on the right-to-control theory Cite as: 598 U. S. 306 (2023) 317

Alito, J., concurring

and apply them to the elements of a different wire fraud theory in the frst instance. In other words, the Govern- ment asks us to assume not only the function of a court of frst view, but also of a jury. That is not our role. See, e. g., McCormick v. United States, 500 U. S. 257, 270–271, n. 8 (1991) (“Appellate courts are not permitted to affrm convic- tions on any theory they please simply because the facts nec- essary to support the theory were presented to the jury”); Chiarella v. United States, 445 U. S. 222, 236 (1980). Ac- cordingly, we decline the Government's request to affrm Ciminelli's convictions on alternative grounds.

III The right-to-control theory is invalid under the federal fraud statutes. We, therefore, reverse the judgment of the Court of Appeals and remand the case for further proceed- ings consistent with this opinion. It is so ordered.

Justice Alito, concurring. The opinion of the Court correctly answers the sole ques- tion posed to us: whether the right-to-control theory sup- ports liability under the federal wire fraud statute. The jury instructions embody that theory, and therefore this error, unless harmless, requires the reversal of the judgment below. I do not understand the Court's opinion to address fact-specifc issues on remedy outside the question pre- sented, including: (1) petitioner's ability to challenge the in- dictment at this stage of proceedings, see Fed. Rule Crim. Proc. 12(b)(3)(B); (2) the indictment's suffciency, see United States v. Miller, 471 U. S. 130, 134–135 (1985) (variance from indictment did not make indictment insuffcient); (3) the ap- plicability of harmless error to particular invocations of the right-to-control theory during trial, see Neder v. United States, 527 U. S. 1, 15 (1999) (omission of element in jury instructions subject to harmless error); and (4) the Govern- 318 CIMINELLI v. UNITED STATES

ment's ability to retry petitioner on the theory that he con- spired to obtain, and did in fact obtain, by fraud, a traditional form of property, viz., valuable contracts. On this under- standing, I join the Court's opinion.

Reporter’s Note

The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:

p. 306, line 16, “(RFPs)” is deleted p. 312, last line, “another” is changed to “the other” p. 316, line 9, “state and local offcials” is changed to “local and state offcials”