Opinion of the Court
preferred-developer status. Those RFPs effectively guaranteed that LPCiminelli would be (and was) selected as a preferred developer 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 federal grand jury on 18 counts including, as relevant here, wire fraud in violation of 18 U. S. C. §1343 and conspiracy to commit wire fraud in violation of §1349.
Throughout the grand jury proceedings, trial, and appeal, the Government relied on the Second Circuit’s “right to control” theory, 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. The Government’s indictment and trial strategy rested solely on that theory.[1] And, it successfully defeated Ciminelli and his codefendants’ 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 find that the defendants harmed Fort Schuyler’s right to control
- ↑ 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 “defraud[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 denying the motion to dismiss. United States v. Percoco, 2017 WL 6314146, *8 (SDNY, Dec. 11, 2017).
