13‐4702 United States v. Roy UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2014
(Argued: April 2, 2015 Decided: April 20, 2015)
Docket No. 13‐4702
UNITED STATES OF AMERICA,
Appellee,
—v.—
EMMANUEL ROY,
Defendant‐Appellant,
DANNY SIONY, AKA RAHIM SIUNY KALIMI, SHIRIN KALIMI, AKA SHIRIN SIOUNY, TARIFF DILL, CONSTANTINE GIANNAKOS,
Defendants. _______________
B e f o r e: KATZMANN, Chief Judge, POOLER and CARNEY, Circuit Judges.
_______________ Appeal from a judgment of conviction following a jury trial on one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349, three counts of wire fraud in violation of 18 U.S.C. § 1343, and one count of conspiracy to commit wire fraud and bank fraud in violation of 18 U.S.C. § 1349 (Griesa, J.). We hold that the district court did not err in instructing the jury on the two conspiracy counts because proof of an overt act is not required for a conspiracy conviction under 18 U.S.C. § 1349. _______________
B. ALAN SEIDLER, New York, NY, for Defendant‐Appellant.
ROBERT L. BOONE, Assistant United States Attorney (Brian A. Jacobs, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
PER CURIAM:
Defendant Emmanuel Roy appeals from a judgment of conviction, entered
on December 10, 2013, by the U.S. District Court for the Southern District of New
York (Griesa, J.), following a jury trial in which Roy was convicted of one count
of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349, three counts
of wire fraud in violation of 18 U.S.C. § 1343, and one count of conspiracy to
commit wire fraud and bank fraud in violation of 18 U.S.C. § 1349. On appeal,
Roy argues that the district court erred by failing to instruct the jury that proof of
an overt act is required for a conviction under the two § 1349 conspiracy
2 charges.1 The question of whether a conspiracy conviction under § 1349 requires
proof of an overt act is one of first impression in this Circuit. We hold that proof
of an overt act is not required for a conspiracy conviction under 18 U.S.C. § 1349
and that the district court therefore did not err in its instructions on those
charges.
BACKGROUND
Roy was charged in a five‐count superseding indictment that was filed on
November 13, 2012. Count One charged Roy with conspiracy to commit wire
fraud in violation of 18 U.S.C. § 1349. Counts Two, Three, and Four charged Roy
with wire fraud in violation of 18 U.S.C. § 1343. Count Five charged Roy with
conspiracy to commit wire fraud and bank fraud in violation of 18 U.S.C. § 1349.
At the end of trial, the district court instructed the jury on the elements of
each charged crime. Of particular relevance here, the district court did not
1 Roy also argues that the district court erred by: (1) dismissing a juror who knew a defense witness; (2) providing a jury instruction on the reasonable doubt standard that failed to compare that standard to other lower standards of proof and that included an allegedly improper “hesitate to act” formulation of reasonable doubt; (3) failing to instruct the jury on the “factual underpinnings” of Roy’s charged crimes; (4) failing to provide the jurors with a copy of the Indictment; and (5) excluding certain expert testimony. We address those issues in a separate order, in which we affirm the district court’s judgment for the reasons stated both in that order and in this opinion.
3 instruct the jury that it must find that Roy committed an overt act in furtherance
of the conspiracies charged in Counts One and Five of the Indictment.
After a seven‐day jury trial, Roy was convicted on February 1, 2013 of all
five counts. On December 5, 2013, the district court sentenced Roy to an
aggregate term of 87 months’ imprisonment, three years of supervised release,
and a $500 mandatory special assessment. This timely appeal followed.
DISCUSSION
On appeal, Roy argues that the district court erred by not instructing the
jury that, for it to convict on Count One or Count Five, it must find that Roy
committed an overt act in furtherance of the charged conspiracy.
We review de novo a district court’s jury instruction. See United States v.
Naiman, 211 F.3d 40, 50 (2d Cir. 2000). “A jury instruction is erroneous if it
misleads the jury as to the correct legal standard or does not adequately inform
the jury on the law.” Id. at 51 (internal quotation marks omitted). A defendant
challenging a jury instruction must demonstrate that he requested a charge that
“accurately represented the law in every respect” and that the charge delivered
was erroneous and prejudicial. United States v. Applins, 637 F.3d 59, 72 (2d Cir.
2011) (internal quotation marks omitted).
4 The two conspiracy counts in Roy’s Indictment charged violations of 18
U.S.C. § 1349, which provides:
Any person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
18 U.S.C. § 1349. The provision does not expressly note that an overt act is
required for a conspiracy conviction.
In 2005, the Supreme Court considered whether an overt act was required
to convict a defendant of conspiracy to commit money laundering, in violation of
18 U.S.C. § 1956(h). See Whitfield v. United States, 543 U.S. 209 (2005). That
statutory provision reads:
Any person who conspires to commit any offense defined in this section or section 1957 shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.
18 U.S.C. § 1956(h). The Supreme Court found that § 1956(h) does not require
proof of an overt act, reasoning that where the text of a statute “does not
Free access — add to your briefcase to read the full text and ask questions with AI
13‐4702 United States v. Roy UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2014
(Argued: April 2, 2015 Decided: April 20, 2015)
Docket No. 13‐4702
UNITED STATES OF AMERICA,
Appellee,
—v.—
EMMANUEL ROY,
Defendant‐Appellant,
DANNY SIONY, AKA RAHIM SIUNY KALIMI, SHIRIN KALIMI, AKA SHIRIN SIOUNY, TARIFF DILL, CONSTANTINE GIANNAKOS,
Defendants. _______________
B e f o r e: KATZMANN, Chief Judge, POOLER and CARNEY, Circuit Judges.
_______________ Appeal from a judgment of conviction following a jury trial on one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349, three counts of wire fraud in violation of 18 U.S.C. § 1343, and one count of conspiracy to commit wire fraud and bank fraud in violation of 18 U.S.C. § 1349 (Griesa, J.). We hold that the district court did not err in instructing the jury on the two conspiracy counts because proof of an overt act is not required for a conspiracy conviction under 18 U.S.C. § 1349. _______________
B. ALAN SEIDLER, New York, NY, for Defendant‐Appellant.
ROBERT L. BOONE, Assistant United States Attorney (Brian A. Jacobs, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
PER CURIAM:
Defendant Emmanuel Roy appeals from a judgment of conviction, entered
on December 10, 2013, by the U.S. District Court for the Southern District of New
York (Griesa, J.), following a jury trial in which Roy was convicted of one count
of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349, three counts
of wire fraud in violation of 18 U.S.C. § 1343, and one count of conspiracy to
commit wire fraud and bank fraud in violation of 18 U.S.C. § 1349. On appeal,
Roy argues that the district court erred by failing to instruct the jury that proof of
an overt act is required for a conviction under the two § 1349 conspiracy
2 charges.1 The question of whether a conspiracy conviction under § 1349 requires
proof of an overt act is one of first impression in this Circuit. We hold that proof
of an overt act is not required for a conspiracy conviction under 18 U.S.C. § 1349
and that the district court therefore did not err in its instructions on those
charges.
BACKGROUND
Roy was charged in a five‐count superseding indictment that was filed on
November 13, 2012. Count One charged Roy with conspiracy to commit wire
fraud in violation of 18 U.S.C. § 1349. Counts Two, Three, and Four charged Roy
with wire fraud in violation of 18 U.S.C. § 1343. Count Five charged Roy with
conspiracy to commit wire fraud and bank fraud in violation of 18 U.S.C. § 1349.
At the end of trial, the district court instructed the jury on the elements of
each charged crime. Of particular relevance here, the district court did not
1 Roy also argues that the district court erred by: (1) dismissing a juror who knew a defense witness; (2) providing a jury instruction on the reasonable doubt standard that failed to compare that standard to other lower standards of proof and that included an allegedly improper “hesitate to act” formulation of reasonable doubt; (3) failing to instruct the jury on the “factual underpinnings” of Roy’s charged crimes; (4) failing to provide the jurors with a copy of the Indictment; and (5) excluding certain expert testimony. We address those issues in a separate order, in which we affirm the district court’s judgment for the reasons stated both in that order and in this opinion.
3 instruct the jury that it must find that Roy committed an overt act in furtherance
of the conspiracies charged in Counts One and Five of the Indictment.
After a seven‐day jury trial, Roy was convicted on February 1, 2013 of all
five counts. On December 5, 2013, the district court sentenced Roy to an
aggregate term of 87 months’ imprisonment, three years of supervised release,
and a $500 mandatory special assessment. This timely appeal followed.
DISCUSSION
On appeal, Roy argues that the district court erred by not instructing the
jury that, for it to convict on Count One or Count Five, it must find that Roy
committed an overt act in furtherance of the charged conspiracy.
We review de novo a district court’s jury instruction. See United States v.
Naiman, 211 F.3d 40, 50 (2d Cir. 2000). “A jury instruction is erroneous if it
misleads the jury as to the correct legal standard or does not adequately inform
the jury on the law.” Id. at 51 (internal quotation marks omitted). A defendant
challenging a jury instruction must demonstrate that he requested a charge that
“accurately represented the law in every respect” and that the charge delivered
was erroneous and prejudicial. United States v. Applins, 637 F.3d 59, 72 (2d Cir.
2011) (internal quotation marks omitted).
4 The two conspiracy counts in Roy’s Indictment charged violations of 18
U.S.C. § 1349, which provides:
Any person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
18 U.S.C. § 1349. The provision does not expressly note that an overt act is
required for a conspiracy conviction.
In 2005, the Supreme Court considered whether an overt act was required
to convict a defendant of conspiracy to commit money laundering, in violation of
18 U.S.C. § 1956(h). See Whitfield v. United States, 543 U.S. 209 (2005). That
statutory provision reads:
Any person who conspires to commit any offense defined in this section or section 1957 shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.
18 U.S.C. § 1956(h). The Supreme Court found that § 1956(h) does not require
proof of an overt act, reasoning that where the text of a statute “does not
expressly make the commission of an overt act an element of the conspiracy
offense, the Government need not prove an overt act to obtain a conviction.”
Whitfield, 543 U.S. at 214, 219.
5 Section 1349 does not expressly require commission of an overt act. As a
result, many other Circuits, as well as several district courts in this Circuit, have
concluded that a conviction under the statute does not require proof of an overt
act. See, e.g., United States v. Rogers, 769 F.3d 372, 380–82 (6th Cir. 2014); United
States v. Eason, 579 F. App’x 807, 810 n.3 (11th Cir. 2014) (per curiam); United
States v. Pascacio‐Rodriguez, 749 F.3d 353, 363–64 & 364 n.49 (5th Cir. 2014); United
States v. Chinasa, 489 F. App’x 682, 685–86 (4th Cir. 2012) (unpublished per
curiam); United States v. Fishman, 645 F.3d 1175, 1186 (10th Cir. 2011); United
States v. Kazarian, No. 10 Cr. 895, 2012 WL 1810214, at *24 n.12 (S.D.N.Y. May 18,
2012); United States v. Albers, No. 08‐CR‐819, 2011 WL 1225548, at *1 (E.D.N.Y.
Mar. 31, 2011). We agree with these courts and conclude that a conspiracy
conviction under § 1349 does not require proof of an overt act.
Despite the strong authority supporting the government’s position, Roy
argues that in a recent nonprecedential decision, we decided that a conviction for
conspiracy under § 1349 requires proof of an overt act. See United States v.
Yakovlev, 508 F. App’x 34 (2d Cir. 2013) (summary order). The Yakovlev panel
explained that: “‘[t]o prove conspiracy [under § 1349], the government must
show that the defendant agreed with another to commit the offense; that he
6 knowingly engaged in the conspiracy with the specific intent to commit the
offenses that were the objects of the conspiracy; and that an overt act in
furtherance of the conspiracy was committed.’” Id. at 36–37 (quoting United
States v. Huezo, 546 F.3d 174, 180 (2d Cir. 2008)).
But there are two reasons that Yakovlev’s description of the § 1349 elements
should not control our decision. First, and most importantly, the discussion of
the overt act requirement was clearly dicta. It was completely unrelated to the
issue before the panel, which involved whether the defendant agreed with a co‐
conspirator to commit bank fraud. See id. Second, the Yakovlev decision simply
quoted from Huezo, which in turn considered the overt act requirement in the
context of a different statute, 18 U.S.C. § 1956(h). The problem is that Huezo’s
discussion of the elements of a violation of § 1956(h) was also incorrect because
the Supreme Court had specifically decided, three years earlier, in Whitfield, that
a conspiracy conviction under § 1956(h) does not require proof of an overt act.
See Whitfield, 543 U.S. at 219. As such, we do not give weight to Yakovlev’s
recitation of the elements of conspiracy under § 1349.
7 CONCLUSION
For the reasons stated herein, we hold that the district court did not err in
instructing the jury on the two conspiracy counts because proof of an overt act is
not a required element for a conspiracy conviction under 18 U.S.C. § 1349.